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2 III
Contents Federal Register Vol. 64, No. 244
Tuesday, December 21, 1999
Agency for Health Care Policy and Research Grants and cooperative agreements; availability, etc.: NOTICES Bilingual education and minority languages affairs— Agency information collection activities: Career Ladder Program, 71567–71589 Proposed collection; comment request, 71460–71461 Employment and Training Administration Agriculture Department PROPOSED RULES See Animal and Plant Health Inspection Service Birth and adoption unemployment compensation See Farm Service Agency Correction, 71346–71347 See Federal Crop Insurance Corporation NOTICES See Forest Service Adjustment assistance: See Rural Housing Service Camp-Hill Corp., 71501 See Rural Utilities Service Energizer Power Systems, 71501–71502 Fashions Apparel, Inc., 71502 Animal and Plant Health Inspection Service Jockey International, 71502 RULES Levingston Engineers, Inc., 71502 Plant-related quarantine, domestic: Levi Strauss & Co., 71505–71506 Mexican fruit fly, 71267–71270 Moltech Power Systems, 71502 PROPOSED RULES Philips Lighting Co., 71502–71503 Plant-related quarantine, domestic: Reef Gear Manufacturing, Inc., 71503 Pine shoot beetle, 71322–71323 Russell Corp., 71503 Census Bureau Williams Advanced Materials, Inc., 71503 Agency information collection activities: NOTICES Agency information collection activities: Proposed collection; comment request, 71503–71505 Proposed collection; comment request, 71409–71410 , NAFTA transitional adjustment assistance: 71410–71411 Georgia-Pacific Corp., 71505 Wabash Technologies, 71506 Commerce Department Westinghouse Electric Co., 71506–71507 See Census Bureau See International Trade Administration Energy Department See National Oceanic and Atmospheric Administration See Energy Information Administration See Patent and Trademark Office See Federal Energy Regulatory Commission NOTICES NOTICES Agency information collection activities: Meetings: Submission for OMB review; comment request, 71409 Environmental Management Site-Specific Advisory Board— Comptroller of the Currency Nevada Test Site, NV, 71443–71444 RULES Oak Ridge Reservation, TN, 71444 National Flood Insurance Reform Act of 1994; Rocky Flats, CO, 71444 implementation: Loans in special flood hazards areas, 71272–71275 Energy Information Administration NOTICES NOTICES Agency information collection activities: Agency information collection activities: Submission for OMB review; comment request, 71547– Proposed collection; comment request, 71445–71446 71549 Environmental Protection Agency Defense Department RULES RULES Air quality implementation plans; approval and Freedom of Information Act; implementation: promulgation; various States: National Reconnaissance Office, 71297–71299 Arizona, 71304–71317 National Security Agency/Central Security Service, PROPOSED RULES 71299–71304 Confidential business information; elimination of special treatment for certain category, 71366–71367 Education Department Pesticide programs: PROPOSED RULES Pesticide container and containment standards, 71368– Postsecondary eduction: 71369 Gaining Early Awareness and Readiness for Water supply: Undergraduate Programs (GEAR UP) Program, National primary drinking water regulations— 71551–71565 Radon-222; maximum contaminant level goal; public NOTICES health protection, 71367–71368 Agency information collection activities: NOTICES Submission for OMB review; comment request, 71442– Agency information collection activities: 71443 Proposed collection; comment request, 71451–71452
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Air pollution control: NOTICES Citizens suits; proposed settlements— Agency information collection activities: Natural Resources Defense Council et al., 71453–71454 Proposed collection; comment request, 71401–71406 Pesticide registration, cancellation, etc.: Cry9C BT corn plant; allergenicity assessment, 71452– Federal Deposit Insurance Corporation 71453 RULES Reports and guidance documents; availability, etc.: National Flood Insurance Reform Act of 1994; Air emissions; CERCLA federally permitted release implementation: definition, 71613–71620 Loans in special flood hazards areas, 71272–71275 Superfund; response and remedial actions, proposed NOTICES settlements, etc.: Agency information collection activities: Crews Plating Site, TX, 71454 Submission for OMB review; comment request, 71547– 71549 Executive Office of the President See Science and Technology Policy Office Federal Emergency Management Agency See Presidential Documents RULES Flood insurance; communities eligible for sale: Farm Credit Administration Various States, 71317–71320 RULES NOTICES National Flood Insurance Reform Act of 1994; Disaster and emergency areas: implementation: Massachusetts, 71457 Loans in special flood hazards areas, 71272–71275
Farm Service Agency Federal Energy Regulatory Commission NOTICES NOTICES Meetings: Electric rate and corporate regulation filings: National Drought Policy Commission, 71401 Virginia Power & Electric Co. et al., 71446–71448 Environmental statements; availability, etc.: Federal Aviation Administration Alabama Power Co., 71448–71449 RULES Cocheco Falls Associates, 71449 Airworthiness directives: Georgia Power Co., 71449 Airbus, 71278–71280, 71282–71283 Hydroelectric applications, 71449–71450 Pratt & Whitney, 71280–71282 Preliminary permits surrender: PROPOSED RULES Allison Lake Hydro, 71446 Airworthiness directives: Applications, hearings, determinations, etc.: Airbus, 71333–71336 Jones Black River Services, Inc., 71446 Boeing, 71336–71339 Pacific Gas & Electric Co., 71446 NOTICES Wisconsin Electric Power Co. et al., 71450 Advisory circulars; availability, etc.: Transport category rotorcraft— Federal Highway Administration Garlick Helicopters, Inc.; Model GH205A helicopters; RULES type certification basis, 71543–71546 Right-of-way and environment: Meetings: Right-of-way program administration, 71284–71297 Air Traffic Procedures Advisory Committee, 71542 PROPOSED RULES Passenger facility charges; applications, etc.: Engineering and traffic operations: Chicago Midway Airport, IL, 71542–71543 Uniform Traffic Control Devices Manual— Yakima Air Terminal-McAllister Field, WA, 71543 Regulatory signs, low volume rural roads, and traffic control for highway-rail grade crossings, 71358– Federal Communications Commission 71366 PROPOSED RULES Retroreflective sign and pavement marking materials; Radio services, special: color specifications, 71354–71358 Fixed microwave services— NOTICES Local multipoint distribution service, 71373–71377 Meetings: Maritime services— Intelligent Transportation Society of America, 71546– Los Angeles and Long Beach, CA; 156.250 MHz 71547 frequency availability for port operations, 71369– 71373 NOTICES Federal Housing Finance Board Radio services, special: RULES Maritime services— Federal home loan bank system: Los Angeles and Long Beach, CA; 156.250 MHz Corporate governance responsibilities devolution, 71275– frequency availability for port operations, 71456– 71278 71457 Federal Reserve System Federal Crop Insurance Corporation RULES RULES National Flood Insurance Reform Act of 1994; Crop insurance regulations: implementation: Potato crop; certified seed endorsement, 71270–71271 Loans in special flood hazards areas, 71272–71275
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NOTICES Inspector General Office, Health and Human Services Agency information collection activities: Department Submission for OMB review; comment request, 71547– RULES 71549 Health care programs; fraud and abuse: Banks and bank holding companies: Health Insurance Portability and Accountability Act— Formations, acquisitions, and mergers, 71457 Medicare and State health care programs; anti-kickback statute for shared risk arrangements; statutory Federal Trade Commission exception; correction, 71317 RULES Organization, functions, and authority delegations: Interior Department Regional Offices; miscellaneous rules, 71283–71284 See Land Management Bureau NOTICES See National Indian Gaming Commission Committees; establishment, renewal, termination, etc.: See National Park Service Online Access and Security Advisory Committee, 71457– See Reclamation Bureau 71459 See Special Trustee for American Indians Office International Trade Administration Food and Drug Administration NOTICES PROPOSED RULES Antidumping: Medical devices: Professional electric cutting tools from— Premarket notification; substantially equivalent premarket Japan, 71411–71423 notification; redacted version requirement, 71347– Welded ASTM A-312 stainless steel pipe from— 71354 Korea, 71423–71424 NOTICES Food additive petitions: International Trade Commission Food Safety and Inspection Service, Agriculture NOTICES Department, 71461 Import investigations: Reports and guidance documents; availability, etc.: Carbon steel products from— Drugs of abuse testing; over-the-counter sample collection Various countries, 71494–71495 systems labeling, 71461–71462 CD-ROM controllers and products containing same, 71495 Forest Service Circular seamless stainless steel hollow products from— NOTICES Japan, 71495–71496 Environmental statements; notice of intent: Stainless steel plate from— Medicine Bow-Routt National Forests, CO, 71406 Sweden, 71496–71497 Tahoe National Forest, CA, 71406–71407 Tin- and chromium-coated steel sheet from— Japan, 71497 General Services Administration Trade and investment in services database, 71497–71498 NOTICES Justice Department Grants and cooperative agreements; availability, etc.: See Immigration and Naturalization Service Small Business Competitiveness Demonstration Program, See National Institute of Corrections 71459–71460 NOTICES Pollution control; consent judgments: Health and Human Services Department Atkemix Thirty-Seven, Inc., et al., 71498 See Agency for Health Care Policy and Research Cumberland Farms, Inc., 71498–71499 See Food and Drug Administration Exxon Corp. et al., 71499 See Inspector General Office, Health and Human Services Privacy Act: Department Systems of records, 71499–71500 See National Institutes of Health RULES Labor Department Health resources development: See Employment and Training Administration Organ procurement and transportation network; operation See Labor-Management Standards Office and performance goals NOTICES Effective date stay Agency information collection activities: Submission for OMB review; comment request, 71500– Health Care Financing Administration 71501 See Inspector General Office, Health and Human Services Labor-Management Standards Office Department RULES Labor-management standards: Immigration and Naturalization Service Labor organization annual financial reports; technical PROPOSED RULES amendments, 71621–71624 Immigration: Illegal Immigration Reform and Immigrant Responsibility Land Management Bureau Act of 1996; nonimmigrant foreign students and NOTICES other exchange program participants— Public land orders: F, J, and M classifications; fee collection authorization, Montana, 71467 71323–71331 Utah, 71467–71468
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Merit Systems Protection Board Caribbean, Gulf, and South Atlantic fisheries— RULES Gulf of Mexico and South Atlantic coastal migratory Privacy Act; implementation pelagic resources, 71388–71390 Correction, 71267 NOTICES Agency information collection activities: National Aeronautics and Space Administration Proposed collection; comment request, 71424–71425 PROPOSED RULES Meetings: Meritorious claims resulting from conduct of NASA New England Fishery Management Council, 71425–71426 functions, 71339–71341 Pacific Fishery Management Council, 71426–71427
National Archives and Records Administration National Park Service NOTICES NOTICES Agency information collection activities: Environmental statements; availability, etc.: Proposed collection; comment request, 71507 Gettysburg National Military Park, PA, 71483–71492 Agency records schedules; availability, 71507–71509 Reports and guidance documents; availability, etc.: Simplified standard concession contracts, 71468–71483 National Credit Union Administration Nuclear Regulatory Commission RULES National Flood Insurance Reform Act of 1994; PROPOSED RULES implementation: Radioactive material packaging and transportation: Loans in special flood hazards areas, 71272–71275 Nuclear waste shipment; advance notification to Native American Tribes, 71331–71333 NOTICES National Highway Traffic Safety Administration Environmental statements; availability, etc.: PROPOSED RULES Carolina Power & Light Co., 71514–71516 Motor vehicle safety standards: Duke Power Co., 71516–71517 Hydraulic and electric brake systems— Meetings: Heavy vehicle antilock brake system (ABS); Reactor Safeguards Advisory Committee et al., 71517 performance requirement, 71377–71388 Regulatory guides; issuance, availability, and withdrawal, 71517–71518 National Indian Gaming Commission Applications, hearings, determinations, etc.: NOTICES DeLeo, Alfonso, Jr., 71509–71511 Indian Gaming Regulatory Act: Entergy Operations, Inc., 71511–71514 Fee rates, 71509 General Electric Co., 71517
National Institute of Corrections Patent and Trademark Office NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Patents: Newly appointed wardens; development of training Patent application examination— curriculum for delivery of executive training, 71500 Revised utility examination guidelines; comment request, 71440–71442 National Institutes of Health Written description requirement; guidelines; comment NOTICES request, 71427–71440 Committees; establishment, renewal, termination, etc.: PubMed Central National Advisory Committee, 71462 Presidential Documents Meetings: PROCLAMATIONS National Center for Research Resources, 71462–71463 Special observances: National Institute of Dental and Craniofacial Research, Battle of the Bulge, Fifty-fifth anniversary (Proc. 7261), 71464 71627–71630 National Institute of Diabetes and Digestive and Kidney Wright Brothers Day (Proc. 7262), 71631–71632 Diseases, 71463–71464 National Institute of General Medical Sciences, 71464 Public Health Service National Institute on Aging, 71463 See Agency for Health Care Policy and Research National Institute on Drug Abuse, 71463 See Food and Drug Administration National Library of Medicine, 71465 See National Institutes of Health Scientific Review Center, 71465–71467 Reclamation Bureau National Oceanic and Atmospheric Administration NOTICES RULES Agency information collection activities: Fishery conservation and management: Submission for OMB review; comment request, 71492– Northeastern United States fisheries— 71493 Summer flounder, 71320–71321 PROPOSED RULES Rural Housing Service Fishery conservation and management: NOTICES Alaska; fisheries of Exclusive Economic Zone— Grants and cooperative agreements; availability, etc.: Bering Sea and Aleutian Islands groundfish, 71390– Section 514 Farm Labor Housing Loans and Section 516 71395 Farm Labor Housing Grants for off-farm housing, Pollock, 71396–71400 71609–71611
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Section 515 Rural Rental Housing Program, 71604–71607 Transportation Department Section 533 Housing Preservation Program, 71607–71609 See Federal Aviation Administration Section 538 Guaranteed Rural Rental Housing Program, See Federal Highway Administration 71601–71604 See National Highway Traffic Safety Administration See Surface Transportation Board Rural Utilities Service NOTICES NOTICES Aviation proceedings: Agency information collection activities: Agreements filed; weekly receipts, 71541 Proposed collection; comment request, 71407–71408 Certificates of public convenience and necessity and Environmental statements; availability, etc.: foreign air carrier permits; weekly applications, Alabama Electric Cooperative, 71408–71409 71541–71542
Science and Technology Policy Office Treasury Department NOTICES See Comptroller of the Currency Reports and guidance documents; availability, etc.: See Thrift Supervision Office Government-university research partnership; statement of NOTICES principles; comment request, 71454–71456 Meetings: Securities and Exchange Commission International Financial Institution Advisory Commission, 71547 PROPOSED RULES Public utility holding companies: Acquisition of U.S. utilities by foreign companies; internationalization, 71341–71346 Separate Parts In This Issue NOTICES Self-regulatory organizations; proposed rule changes: Part II American Stock Exchange LLC, 71518–71523 Department of Education, 71551–71565 National Association of Securities Dealers, Inc., 71523– 71529 Part III New York Stock Exchange, Inc., 71529–71534 Department of Education, 71567–71589 Special Trustee for American Indians Office NOTICES Part IV Agency information collection activities: Department of Agriculture, Rural Housing Service, 71591– Proposed collection; comment request, 71493–71494 71611 State Department Part V NOTICES Environmental Protection Agency, 71613–71620 Art objects; importation for exhibition: Walker Evans, 71534–71535 Part VI Grants and cooperative agreements; availability, etc.: Department of Labor, Labor- Management Standards Office Newly Independent States— 71621–71624 Secondary School Partnership Program, 71535–71538 Ron Brown Fellowship Program, 71538–71541 Part VII Department of Health and Human Services, 71625–71626 Surface Transportation Board NOTICES Part VIII Railroad operation, acquisition, construction, etc.: The President, 71627–71632 Union Pacific Railroad Co., 71547 Thrift Supervision Office NOTICES Reader Aids Agency information collection activities: Consult the Reader Aids section at the end of this issue for Submission for OMB review; comment request, 71547– phone numbers, online resources, finding aids, reminders, 71549 and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR 40 CFR Proclamations: 52...... 71304 7261...... 71629 Proposed Rules: 7262...... 71631 2...... 71366 5 CFR 141...... 71367 1205...... 71267 142...... 71367 165...... 71368 7 CFR 301...... 71267 42 CFR 457...... 71270 1001...... 71317 121...... 71626 Proposed Rules: 301...... 71322 44 CFR 8 CFR 64...... 71317 Proposed Rules: 47 CFR 103...... 71323 Proposed Rules: 214...... 71323 0...... 71369 299...... 71323 80...... 71369 10 CFR 90...... 71369 101...... 71373 Proposed Rules: 71...... 71331 49 CFR 73...... 71331 Proposed Rules: 12 CFR 571...... 71377 22...... 71272 50 CFR 208...... 71272 648...... 71320 339...... 71272 614...... 71272 Proposed Rules: 760...... 71272 622...... 71388 932...... 71275 679 (2 documents) ...... 71390, 934...... 71275 71396 935...... 71275 14 CFR 39 (3 documents) ...... 71278, 71280, 71282 Proposed Rules: 39 (2 documents) ...... 71333, 71336 1261...... 71339 1267...... 71339 16 CFR 0...... 71283 17 CFR Proposed Rules: 250...... 71341 20 CFR Proposed Rules: 604...... 71346 21 CFR Proposed Rules: 807...... 71347 23 CFR 130...... 71284 480...... 71284 620...... 71284 630...... 71284 635...... 71284 645...... 71284 710...... 71284 712...... 71284 713...... 71284 Proposed Rules: 655 (2 documents) ...... 71354, 71358 29 CFR 403...... 71622 32 CFR 296...... 71297 299...... 71299 34 CFR Proposed Rules: 694...... 71552
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Rules and Regulations Federal Register Vol. 64, No. 244
Tuesday, December 21, 1999
This section of the FEDERAL REGISTER DEPARTMENT OF AGRICULTURE holidays. To be sure someone is there to contains regulatory documents having general help you, please call (202) 690–2817 applicability and legal effect, most of which Animal and Plant Health Inspection before coming. are keyed to and codified in the Code of Service APHIS documents published in the Federal Regulations, which is published under Federal Register, and related 50 titles pursuant to 44 U.S.C. 1510. 7 CFR Part 301 information, including the names of The Code of Federal Regulations is sold by [Docket No. 99±075±2] organizations and individuals who have the Superintendent of Documents. Prices of commented on APHIS rules, are new books are listed in the first FEDERAL Mexican Fruit Fly; Regulated Areas, available on the Internet at http:// REGISTER issue of each week. Regulated Articles, and Treatments www.aphis.gov/ppd/rad/ webrepor.html. AGENCY: Animal and Plant Health FOR FURTHER INFORMATION CONTACT: Mr. MERIT SYSTEMS PROTECTION Inspection Service, USDA. Michael B. Stefan, Operations Officer, BOARD ACTION: Interim rule and request for Invasive Species and Pest Management, comments. PPQ, APHIS, 4700 River Road Unit 134, 5 CFR Part 1205 Riverdale, MD 20737–1236; (301) 734– SUMMARY: We are amending the Mexican 8247. Privacy Act Regulations; Correction fruit fly regulations by adding a portion AGENCY: Merit Systems Protection of San Diego and Riverside Counties, SUPPLEMENTARY INFORMATION: Board. CA, to the list of areas regulated because Background ACTION: Correction of Final Rule. of the Mexican fruit fly. This action is necessary on an emergency basis to The Mexican fruit fly, Anastrepha On September 21, 1999, final rules prevent the spread of the Mexican fruit ludens (Loew), is a destructive pest of were published at 64 FR 51043, Privacy fly into noninfested areas of the United citrus and many other types of fruit. The Act. In that document, 5 CFR 1205.12 States. This action restricts the interstate short life cycle of the Mexican fruit fly contained two paragraphs (c). This movement of regulated articles from the allows rapid development of serious document correctly codifies the regulated area. We are also amending outbreaks that can cause severe paragraph designations in that section. the regulations to provide for the use of economic losses in commercial citrus- producing areas. DATES: Effective date December 21, a new alternative chemical treatment for The Mexican fruit fly regulations 1999. premises and for the use of a cold (contained in 7 CFR 301.64 through FOR FURTHER INFORMATION CONTACT: treatment for citrons, litchis, longans, persimmons, and white zapotes, which 301.64–10 and referred to below as the Robert E. Taylor, Clerk of the Board, regulations) were established to prevent (202) 653–7200. are all regulated articles. These new treatment options will minimize the the spread of the Mexican fruit fly to SUPPLEMENTARY INFORMATION: FR Doc. noninfested areas of the United States. 99–24552 published in the Federal effect of restrictions on the interstate movement of regulated articles from The regulations impose restrictions on Register of Tuesday, September 21, the interstate movement of regulated 1999, revised 5 CFR part 1204. This regulated areas. We are also removing kumquats from the list of regulated articles from regulated areas. document corrects § 1205.12 as follows: Section 301.64–3 provides that the articles. We have determined that Deputy Administrator for Plant PART 1205ÐPRIVACY ACT kumquats do not pose a risk of hosting Protection and Quarantine (PPQ), REGULATIONS the Mexican fruit fly. Animal and Plant Health Inspection 1. The authority citation for part 1205 DATES: This interim rule was effective Service (APHIS), shall list as a regulated continues as follows: December 14, 1999. We invite you to area each quarantined State, or each comment on this docket. We will Authority: 5 U.S.C. 552a and 1204. portion of a quarantined State, in which consider all comments that we receive the Mexican fruit fly has been found by 2. On page 51044, in § 1205.12, the by February 22, 2000. an inspector, in which the Deputy second paragraph (c) is correctly ADDRESSES: Please send your comment Administrator has reason to believe the designated as paragraph (d). Corrected and three copies to: Docket No. 99–075– Mexican fruit fly is present, or that the designated paragraph (d) reads as 2, Regulatory Analysis and Deputy Administrator considers follows: Development, PPD, APHIS, Suite 3C03, necessary to regulate because of its § 1205.12 Time limits and determinations. 4700 River Road, Unit 118, Riverdale, proximity to the Mexican fruit fly or its MD 20737–1238. * * * * * inseparability for quarantine (d) Determinating officials. The Clerk Please state that your comment refers enforcement purposes from localities in of the Board, a Regional Director, or a to Docket No. 99–075–2. which the Mexican fruit fly occurs. Chief Administrative Judge will make You may read any comments that we Less than an entire quarantined State determinations on requests. receive on this docket in our reading will be designated as a regulated area room. The reading room is located in only if the Deputy Administrator Dated: December 13, 1999. room 1141 of the USDA South Building, determines that the State has adopted Robert E. Taylor, 14th Street and Independence Avenue, and is enforcing a quarantine or Clerk of the Board. SW., Washington, DC. Normal reading regulations that impose restrictions on [FR Doc. 99–33080 Filed 12–20–99; 8:45 am] room hours are 8 a.m. to 4:30 p.m., the intrastate movement of regulated BILLING CODE 7400±01±M Monday through Friday, except articles that are substantially the same
VerDate 15-DEC-99 18:13 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm08 PsN: 21DER1 71268 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations as those that are imposed with respect core area, and that produce regulated days after publication. We will consider to the interstate movement of the articles, must receive regular treatments comments that are received within 60 articles and the designation of less than with malathion bait spray. We are days of publication of this rule in the the entire State as a regulated area will amending § 301.64–10(c) to include a Federal Register. After the comment otherwise be adequate to prevent the new alternative chemical treatment for period closes, we will publish another artificial interstate spread of the premises. The new chemical treatment document in the Federal Register. The Mexican fruit fly. is a spinosad bait spray. Without document will include a discussion of In an interim rule effective September spinosad bait spray, the only treatment any comments we receive and any 22, 1999, and published in the Federal made available by the regulations for amendments we are making to the rule Register on September 28, 1999 (64 FR premises has been malathion bait spray. as a result of the comments. 52211–52212, Docket No. 99–075–1), we Spinosad bait spray must be applied by Executive Order 12866 and Regulatory designated an area in San Bernardino aircraft or ground equipment at a rate of Flexibility Act and Riverside Counties, CA, as a 0.01 oz of a USDA-approved spinosad regulated area. formulation and 48 oz of protein This rule has been reviewed under Recent trapping surveys by inspectors hydrolysate per acre. For ground Executive Order 12866. For this action, of California State and county agencies applications, the mixture may be the Office of Management and Budget and by inspectors of PPQ reveal that a diluted with water to improve coverage. has waived its review process required portion of San Diego and Riverside We are also amending § 301.64–10 to by Executive Order 12866. Counties, CA, is infested with the add provisions for cold treatment of Under the Plant Quarantine Act and Mexican fruit fly. Specifically, since citrons, litchis, longans, persimmons, the Federal Plant Pest Act (7 U.S.C. October 12, 1999, inspectors have and white zapotes. In the PPQ 150bb, 150dd, 150ee, 150ff, 161, 162, detected Mexican fruit flies in the Treatment Manual, which is and 164–167), the Secretary of Fallbrook area of San Diego and incorporated by reference into the Code Agriculture is authorized to regulate the Riverside Counties, CA. of Federal Regulations (CFR), we list a interstate movement of articles to Accordingly, to prevent the spread of cold treatment that is effective for prevent the spread of injurious plant the Mexican fruit fly to noninfested Mexican fruit fly for several pests in the United States. areas of the United States, we are commodities. We also want to allow a In accordance with 5 U.S.C. 603, we amending the regulations in § 301.64– cold treatment that is not listed in the have performed an initial regulatory 3(c) by designating an area in San Diego PPQ Treatment Manual. Therefore, we flexibility analysis, which is set out and Riverside Counties, CA, as a are adding a new paragraph (f) to below, regarding the effects of this regulated area. The regulated area is § 301.64–10 to state that citrons, litchis, interim rule on small entities. We do not described in the rule portion of this longans, persimmons, and white zapotes currently have all the data necessary for document. may be cold treated in accordance with a comprehensive analysis of the effects There does not appear to be any the PPQ Treatment Manual and in of this interim rule on small entities. reason to designate any other portion of accordance with a treatment schedule Therefore, we are inviting comments the quarantined State of California as a described in paragraph (f). concerning potential effects. In regulated area. Officials of State particular, we are interested in agencies of California are conducting an Regulated Articles determining the number and kind of intensive Mexican fruit fly eradication Section 301.64–2 of the regulations small entities that may incur benefits or program in the regulated areas in lists articles that are regulated for the costs from the implementation of this California. Also, California has adopted Mexican fruit fly. Kumquats are on the interim rule. and is enforcing regulations imposing list of regulated articles because This action amends the Mexican fruit restrictions on the intrastate movement kumquats are known hosts to some fly regulations by adding a portion of of certain articles from the regulated species of Anastrepha. After reviewing San Diego and Riverside Counties, CA, areas that are substantially the same as scientific data, APHIS has determined to the list of areas regulated because of those imposed with respect to the that kumquats are not a host to the the Mexican fruit fly. This action is interstate movement of regulated Mexican fruit fly. Therefore, we are necessary on an emergency basis to articles. removing kumquats from the list of prevent the spread of the Mexican fruit The Mexican fruit fly is not known to regulated articles. This action will fly into noninfested areas of the United occur in the continental United States relieve unnecessary restrictions on the States. We are also amending the outside of the regulated areas in movement of kumquats from regulated regulations to provide for the use of a California and Texas. areas. new alternative chemical treatment for premises and for the use of a cold Treatments Emergency Action treatment for citrons, litchis, longans, Section 301.64–10 of the regulations The Administrator of the Animal and persimmons, and white zapotes, which lists treatments for regulated articles. Plant Health Inspection Service has are regulated articles. This new Regulated articles treated in accordance determined that an emergency exists treatment option will minimize the with this section may be moved that warrants publication of this interim effect of restrictions on the interstate interstate from a regulated area to any rule without prior opportunity for movement of regulated articles from destination. Section 301.64–10 contains public comment. Immediate action is regulated areas. We are also removing treatments for specified fruits, necessary to prevent the Mexican fruit kumquats from the list of regulated treatments for soil within the dripline of fly from spreading to noninfested areas articles. We have determined that plants producing specified fruits, and of the United States. kumquats do not pose a risk of hosting treatments for premises (fields, groves, Because prior notice and other public the Mexican fruit fly. or areas) that are within a quarantined procedures with respect to this action area but outside the infested core area. are impracticable and contrary to the Newly Regulated Area In accordance with § 301.64–10(c), public interest under these conditions, This rule restricts the interstate premises that are located within the we find good cause under 5 U.S.C. 553 movement of regulated articles from a regulated area but outside the infested to make this action effective less than 30 portion of San Diego and Riverside
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Counties, CA. Within the regulated area The alternative to this interim rule addition, copies may be obtained by there are approximately 2,000 growers was to make no changes in the writing to the individual listed under operating on 11,400 acres (72 square regulations. After consideration, we FOR FURTHER INFORMATION CONTACT. miles), 38 packing houses, 50 fruit rejected this alternative because if no Paperwork Reduction Act sellers, and 2 farmer’s markets that may action was taken, the Mexican fruit fly be affected by the regulations. Those would spread to noninfested areas of the This interim rule contains no entities that move regulated articles continental United States. information collection or recordkeeping interstate will have to comply with the This interim rule contains no requirements under the Paperwork regulations concerning certification and information collection or recordkeeping Reduction Act of 1995 (44 U.S.C. 3501 treatment. There are various relatively requirements. et seq.). low cost treatments available, which in Executive Order 12372 List of Subjects in 7 CFR Part 301 most cases will allow interstate movement of regulated articles. This program/activity is listed in the Agricultural commodities, Plant Catalog of Federal Domestic Assistance diseases and pests, Quarantine, Spinosad Bait Spray under No. 10.025 and is subject to Reporting and recordkeeping Currently, growers have an option to Executive Order 12372, which requires requirements, Transportation. treat the premises that are within the intergovernmental consultation with Accordingly, we are amending 7 CFR quarantined area but outside the State and local officials. (See 7 CFR part part 301 as follows: infested core area and that produce 3015, subpart V.) regulated articles with regular PART 301ÐDOMESTIC QUARANTINE treatments of malathion bait spray. This Executive Order 12988 NOTICES rule provides for the additional This interim rule has been reviewed 1. The authority citation for part 301 treatment alternative of spinosad bait under Executive Order 12988, Civil continues to read as follows: spray for these premises. Growers and Justice Reform. This rule: (1) Preempts nurseries in all regulated areas may be all State and local laws and regulations Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162, and 164–167; 7 CFR affected by this change. However, that are inconsistent with this rule: (2) 2.22, 2.80, and 371.2(c). because the cost for applying spinosad has no retroactive effect; and (3) does bait spray is comparable to the cost for not require administrative proceedings § 301.64±2 [Amended] applying the currently available before parties may file suit in court 2. In § 301.64–2, paragraph (a), the malathion bait spray, entities will be challenging this rule. regulated article ‘‘Kumquat (Fortunella little affected. National Environmental Policy Act japonica)’’ is removed. 3. In § 301.64–3, paragraph (c), the Cold Treatment An environmental assessment and entry for California is amended by This rule also adds provisions for cold finding of no significant impact have adding an entry for San Diego and treatment of persimmons, longans, been prepared for this interim rule. The Riverside Counties, in alphabetical litchis, citrons, and white zapotes to assessment provides a basis for the order, to read as follows: qualify them for interstate movement conclusion that the methods employed from the regulated areas. Previously, no to eradicate the Mexican fruit fly will § 301.64±3 Regulated areas. treatment was listed in the regulations not have a significant impact on the * * * * * for these fruits. In the regulated area in quality of the human environment. (c)*** 1998, approximately $860,000 worth of Based on the finding of no significant California persimmons were grown on 286 acres. impact, the Administrator of the Animal We do not have information on the and Plant Health Inspection Service has * * * * * number of growers or value of longans, determined that an environmental San Diego and Riverside Counties. That litchi, citron, or white zapotes grown in impact statement need not be prepared. portion of San Diego and Riverside Counties in the Fallbrook area bounded by a line the regulated area, but the numbers are The environmental assessment and drawn as follows: Beginning at the likely to be very small. finding of no significant impact were intersection of Rainbow Glen Road and Cold treatment may take place in a prepared in accordance with: (1) The Interstate Highway 15; then southwest along refrigerated container which can be National Environmental Policy Act of Interstate Highway 15 to Old Highway 395; leased for approximately $65 per day. 1969, as amended (NEPA) (42 U.S.C. then west and south along Old Highway 395 Using the container for 26 days (20 days 4321 et seq.), (2) regulations of the to Canonita Drive; then west along Canonita of treatment and 6 days of preparation) Council on Environmental Quality for Drive to Tecalote Drive; then south along would cost $1,690. Assuming that there implementing the procedural provisions Tecalote Drive to Puerta Del Mundo; then are 800 flats of persimmons in one of of NEPA (40 CFR parts 1500–1508), (3) northwest along Puerta Del Mundo to Peony these refrigerated containers, the cold Drive; then west along Peony Drive to Citrus USDA regulations implementing NEPA Lane; then south along Citrus Lane to Citrus treatment would add $2.11 to the cost (7 CFR part 1b), and (4) APHIS’ NEPA Drive; then south along Citrus Drive to Wilt of each flat of persimmons. Cold Implementing Procedures (7 CFR part Road; then west along Wilt Road to Laketree treatment may also take place at an 372). Drive; then southwest along Laketree Drive to approved facility, which would likely Copies of the environmental Gird Road; then south along Gird Road to be less costly. Additionally, cold storage assessment and finding of no significant Knottwood Way; then west along Knottwood for the preparation of persimmons for impact are available for public Way to Genista Place; then south along market is a common practice; therefore, inspection at USDA, room 1141, South Genista Place to Brushwood Lane; then west the treatment may add little additional Building, 14th Street and Independence and south along Brushwood Lane to Staghorn cost (measures such as closer Avenue, SW., Washington, DC, between Court; then southwest along an imaginary line to the intersection of Linda Vista Drive monitoring of temperature or better 8 a.m. and 4:30 p.m., Monday through and Via Monserate; then west along Via sealing of the facility may be required). Friday, except holidays. Persons Monserate to Ramona Drive; then south along Cold treatment allows the fruit to be wishing to inspect copies are requested Ramona Drive to Hillrise Road; then west shipped interstate to markets outside to call ahead on (202) 690–2817 to along Hillrise Road to La Canada Road; then the regulated area. facilitate entry into the reading room. In west along La Canada Road to South Mission
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Road; then southwest along an imaginary line (f) Citrons, litchis, longans, U.S.C. chapter 35), the collections of to the east end of Shady Hill Lane; then west persimmons, and white zapotes. Cold information for this rule have been along Shady Hill Lane to Gateview Drive; treatment in accordance with the PPQ previously approved by the OMB under then southwest along Gateview Drive to Treatment Manual (for full control number 0563–0053 through Olive Hill Road; then north along Olive Hill Road to Morro Hills Road; then west along identification of this standard, see April 30, 2001. The amendments set Morro Hills Road to Sleeping Indian Road; § 300.1 of this chapter, ‘‘Materials forth in this rule do not revise the then west along Sleeping Indian Road to incorporated by reference’’) and in content or alter the frequency of Conejo Road; then northwest along an accordance with the following schedule: reporting for any of the forms or imaginary line to the intersection of information collections cleared under Fallbrook Road and Vandergrift Boulevard; Treatment Exposure the above-referenced docket. then west along Vandergrift Boulevard to period Camp De Luz Road; then north along Camp Unfunded Mandates Reform Act of De Luz Road to the intersection of the 33 °F or below ...... 18 days. 1995 boundary line for the Camp Pendleton 34 °F or below ...... 20 days. Marine Corps Base and De Luz Road; then 35 °F or below ...... 22 days. Title II of the Unfunded Mandates northeast along De Luz Road to Daily Road; Reform Act of 1995 (UMRA), establishes then northeast along Daily Road to Lynda Done in Washington, DC, this 14th day of requirements for Federal agencies to Road; then northeast along Lynda Road to December 1999. assess the effects of their regulatory Sandia Creek Drive; then east and south Craig A. Reed, actions on State, local, and tribal along Sandia Creek Drive to Rock Mountain Administrator, Animal and Plant Health governments and the private sector. Drive; then east along Rock Mountain Drive Inspection Service. This rule contains no Federal mandates to the Riverside/San Diego County line; then [FR Doc. 99–33059 Filed 12–20–99; 8:45 am] (under the regulatory provisions of title southeast along an imaginary line to the II of the UMRA) for State, local, and intersection of Stage Coach Lane and the BILLING CODE 3410±34±U Riverside/San Diego County line; then east tribal governments or the private sector. along the Riverside/San Diego County line to Therefore, this rule is not subject to the the second unnamed road (near gate); then DEPARTMENT OF AGRICULTURE requirements of sections 202 and 205 of south along the second unnamed road (near the UMRA. gate) to Rainbow Glen Road; then southeast Federal Crop Insurance Corporation along Rainbow Glen Road to the point of Executive Order 13132 beginning. 7 CFR Part 457 The policies contained in this rule do * * * * * Common Crop Insurance Regulations; not have any substantial direct effect on 4. Section 301.64–10 is amended as Potato Crop Insurance Certified Seed states, on the relationship between the follows: Endorsement national government and the states, or a. Paragraph (c) is revised to read as on the distribution of power and set forth below. AGENCY: Federal Crop Insurance responsibilities among the various b. A new paragraph (f) is added to Corporation, USDA. levels of government. Nor does this rule read as set forth below. ACTION: Final rule. impose substantial direct compliance costs on state and local governments. § 301.64±10 Treatments. SUMMARY: The Federal Crop Insurance Therefore, consultation with the states * * * * * Corporation (FCIC) finalizes specific is not required. (c) Premises. A field, grove, or area provisions that amend the Potato Crop that is located within the quarantined Insurance Certified Seed Endorsement. Regulatory Flexibility Act area but outside the infested core area, The intended effect of this action is to This regulation will not have a and that produces regulated articles, improve the insurance coverage to better significant impact on a substantial must receive regular treatments with meet the needs of the insured. The number of small entities. New either malathion or spinosad bait spray. changes will be effective for the 2001 provisions included in this rule will not These treatments must take place at 6- and subsequent crop years. impact small entities to a greater extent to 10-day intervals, starting a sufficient EFFECTIVE DATE: This rule is effective than large entities. The amount of work time before harvest (but not less than 30 January 20, 2000. required of the insurance companies days before harvest) to allow for FOR FURTHER INFORMATION CONTACT: Rob delivering and servicing these policies completion of egg and larvae Coultis, Insurance Management will not increase significantly from the development of the Mexican fruit fly. Specialist, Research and Development, amount of work currently required. Determination of the time period must Product Development Division, Federal Therefore, this action is determined to be based on the day degrees model for Crop Insurance Corporation, United be exempt from the provisions of the Mexican fruit fly. Once treatment has States Department of Agriculture, 9435 Regulatory Flexibility Act (5 U.S.C. 605) begun, it must continue through the Holmes Road, Kansas City, MO, 64131, and no Regulatory Flexibility Analysis harvest period. The malathion bait spray telephone (816) 926–7730. was prepared. treatment must be applied by aircraft or SUPPLEMENTARY INFORMATION: ground equipment at a rate of 2.4 oz of Federal Assistance Program technical grade malathion and 9.6 oz of Executive Order 12866 This program is listed in the Catalog protein hydrolysate per acre. The This rule has been determined to be of Federal Domestic Assistance under spinosad bait spray treatment must be exempt for the purposes of Executive No. 10.450. applied by aircraft or ground equipment Order No. 12866 and, therefore, has not Executive Order 12372 at a rate of 0.01 oz of a USDA-approved been reviewed by the Office of spinosad formulation and 48 oz of Management and Budget (OMB). This program is not subject to the protein hydrolysate per acre. For ground provisions of Executive Order 12372 applications, the mixture may be Paperwork Reduction Act of 1995 which requires intergovernmental diluted with water to improve coverage. Under the provisions of the consultation with State and local * * * * * Paperwork Reduction Act of 1995 (44 officials. See the Notice related to 7 CFR
VerDate 15-DEC-99 18:13 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm08 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71271 part 3015, subpart V, published at 48 FR List of Subjects in 7 CFR Part 457 by the dollar amount per 29115, June 24, 1983. Crop insurance, certified seed hundredweight contained in the Special Provisions for production covered under Executive Order 12988 potatoes. this endorsement; This rule has been reviewed in Final Rule (e) Subtracting the result of section accordance with Executive Order 12988 For the reasons stated in the 8(d) from the result of section 8(c); and on civil justice reform. The provisions preamble, the Federal Crop Insurance (f) Multiplying the result of section of this rule will not have a retroactive Corporation amends 7 CFR part 457, 8(e) by your share. effect. The provisions of this rule will effective for the 2001 and succeeding 9. You must notify us of any loss preempt State and local laws to the crop years, as follows: under this endorsement not later than extent such State and local laws are 14 days after you receive notice from the inconsistent herewith. The PART 457ÐCOMMON CROP state certification agency that any administrative appeal provisions INSURANCE REGULATIONS acreage or production has failed published at 7 CFR part 11 must be certification. Nothing herein extends the 1. The authority citation for 7 CFR insurance period beyond the time exhausted before any action against part 457 continues to read as follows: FCIC for judicial review may be brought. period specified in section 8 of the Authority: 7 U.S.C. 1506(l) and 1506(p) Northern Potato Crop Provisions and Environmental Evaluation 2. Amend § 457.145 as follows: section 11 of the Basic Provisions. a. Revise the introductory text; This action is not expected to have a 10. Acreage covered under the terms b. Revise sections 5, 8 and 9 of the of this endorsement will have the same significant impact on the quality of the endorsement; and human environment, health, and safety. unit structure as provided under the c. Add new sections 10 and 11 to the Basic Provisions and the Northern Therefore, neither an Environmental endorsement to read as follows: Assessment nor an Environmental Potato Crop Provisions. For example, if Impact Statement is needed. § 457.145 Potato crop insuranceÐcertified you have two optional units (00101 and seed endorsement. 00102) under your Northern Potato Crop National Performance Review The potato Certified Seed Insurance Policy and you elect this endorsement, you will also have two This regulatory action is being taken Endorsement provisions for the 2001 optional units (00201 and 00202) for as part of the National Performance and succeeding crop years are as certified seed coverage, provided that Review Initiative to eliminate follows: certified seed is grown in both units unnecessary or duplicate regulations * * * * * 00101 and 00102. Or, if you have two and improve those that remain in force. 5. Your certified seed production basic units (00100 and 00200) under guarantee per-acre will be the per-acre Background your Northern Potato Crop Insurance production guarantee used to cover the Policy and you elect this endorsement, same acreage under the terms of the On Friday, July 30, 1999, FCIC you will also have two basic units Northern Potato Crop Provisions. published a notice of proposed (00300 and 00400) for certified seed However, unless a written agreement rulemaking in the Federal Register at 64 coverage, provided that certified seed is provides otherwise, if the total amount FR 41336–41338 to amend the Common grown in both units 00100 and 00200. of insurable certified seed acreage you Crop Insurance Regulations (7 CFR part In the event certified seed acreage is not have for the current crop year is greater 457) by revising 7 CFR 457.145, Potato grown in the same optional or basic than 125 percent of your average Crop Insurance Certified Seed units as acreage covered under the Basic number of acres entered into and Endorsement, effective for the 2000 and Provisions and the Northern Potato Crop passing certification in the potato succeeding crop years. Provisions, certified seed units will be certified seed program in the three Following publication of the proposed established in accordance with the unit previous calendar years, your certified rule on July 30, 1999, the public was division provisions contained in the seed production guarantee for each unit afforded 60 days to submit written Basic Provisions and the Northern will be reduced as follows: comments and opinions. No comments Potato Crop Provisions. For example, if were submitted. * * * * * a basic unit is divided into two optional FCIC has made the following changes 8. If, due to insurable causes units for potato acreage covered under to the provisions contained in the occurring within the insurance period, the Basic Provisions and the Northern proposed rule: the amount of certified seed you Potato Crop Provisions, but certified 1. Section 8—Corrected section produce is less than your certified seed seed is grown in only one of those reference numbers in loss calculation production guarantee, we will settle optional units, the certified seed acreage steps. References should have been to your claim by: will be insured as one basic unit. (a) Multiplying the insured acreage by section 8 rather than section 9. 11. Any production that does not its respective certified seed production 2. Section 9—Clarified that provisions qualify as certified seed because of guarantee; varietal mixing or your failure to follow did not extend the period for which (b) Multiplying each result in section insurance was available. the standard practices and procedures 8(a) by the dollar amount per required for certification will be The notice of proposed rulemaking hundredweight contained in the Special considered as lost due to uninsured indicated the amendments would be Provisions for production covered under causes. effective for the 2000 crop year. this endorsement; However, after publication of the (c) Totaling the results of section 8(b); Signed in Washington, D.C., on December proposed rule, FCIC determined there (d) Multiplying the number of 15, 1999. was an insufficient amount of time to hundredweight of production that Robert J. Prchal implement the changes for the 2000 qualify as certified seed and any amount Deputy Administrator, Insurance Services, crop year. Therefore, the amendments of production lost due to uninsured Federal Crop Insurance Corporation. will be effective for the 2001 and causes, or that does not qualify as [FR Doc. 99–32955 Filed 12–20–99; 8:45 am] subsequent crop years. certified seed due to uninsured causes, BILLING CODE 3410±08±P
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DEPARTMENT OF THE TREASURY Comptroller of the Currency, 250 E while continuing to provide full notice Street, SW, Washington, DC 20219. of the availability of the Form to the Office of the Comptroller of the Board: Kathleen C. Ryan, Attorney, public and to affected parties. Id. Currency Division of Consumer & Community Because FEMA removed 44 CFR part Affairs (202) 452–3667; Michael 65 (Appendix A), it is necessary for the 12 CFR Part 22 O’Rourke, Counsel, Legal Division, (202) Agencies to make conforming changes [Docket No. 99±19] 452–3288, Board of Governors of the to their regulations.1 This joint final rule Federal Reserve System, 20th Street and removes the cross-reference in the RIN 1557±AB74 Constitution Avenue, NW, Washington, Agencies’ respective flood insurance DC 20551. regulations to 44 CFR part 65 (Appendix FEDERAL RESERVE SYSTEM FDIC: Ken Baebel, Senior Review A) and replaces it with a statement that Examiner, Division of Compliance and the Form is available from FEMA. The 12 CFR Part 208 Consumer Affairs, (202) 942–3086; Mark Agencies are making substantively [Regulation H; Docket No. 10±52] Mellon, Counsel, Regulation and similar technical clarifying changes to Legislation Section, Legal Division, their regulations. FEDERAL DEPOSIT INSURANCE (202) 942–3090; or Nancy Schucker Regulated lenders still must use the CORPORATION Recchia, Counsel, Regulation and Form for determining whether a Legislation Section, Legal Division, building or mobile home offered as 12 CFR Part 339 (202) 898–8885, Federal Deposit collateral security for a loan is or will Insurance Corporation, 550 17th Street, RIN 3064±AC24 be located in a special flood hazard area, NW, Washington, DC 20429. whether flood insurance is required, FCA: Tong-Ching Chang, Policy FARM CREDIT ADMINISTRATION and whether federal flood insurance is Analyst, Office of Policy and Analysis, available. Regulated lenders may obtain (703) 883–4498; or Wendy R. Laguarda, 12 CFR Part 614 the Form from FEMA through the mail Senior Counsel, Office of General by writing to FEMA Distribution RIN 3052±AB89 Counsel, (703) 883–4020, Farm Credit Facility, P.O. Box 2012, Jessup, MD Administration, 1501 Farm Credit Drive, 20794–2012; by telephone at (800) 480– NATIONAL CREDIT UNION McLean, VA 22102–5090. TDD (703) 2520; or from FEMA’s Internet website ADMINISTRATION 883–4444. at
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71273 their policies or practices in order to Agencies will submit the appropriate X. Assessment of Impact of Federal comply with this joint final rule. reports to Congress and the GAO as Regulation on Families The Agencies also find good cause to required by SBREFA. The Agencies have determined that dispense with the 30-day delayed The Office of Management and Budget this joint final rule will not affect family effective date requirement under section has found that this joint final rule does well-being within the meaning of 553(d) of the APA (5 U.S.C. 553(d)). not constitute a ‘‘major rule’’ as defined section 654 of the Treasury Department Section 553(d) of the APA provides, by SBREFA. Appropriations Act, 1999, enacted as subject to certain exceptions, that part of the Omnibus Consolidated and publication of a final rule must be made VII. Executive Order 12866 Emergency Supplemental not less than 30 days before its effective Appropriations Act, 1999, Pub. L. 105– date (5 U.S.C. 553(d)). A rulemaking is OCC: The OCC has determined that its 277, 112 Stat. 2681. excepted from this requirement where portion of this joint final rule is not a an agency finds good cause for an earlier significant regulatory action as defined List of Subjects effective date and publishes such in Executive Order 12866. 12 CFR Part 22 finding with rule (5 U.S.C. 553(d)(3)). VIII. Unfunded Mandates Act of 1995 As noted previously this joint final rule Flood insurance, Mortgages, National makes only technical amendments to OCC: The Unfunded Mandates banks, Reporting and recordkeeping remove an outdated cross-reference to Reform Act of 1995, Pub. L. 104–4, 109 requirements. another agency’s regulations and, in Stat. 48 (UMA), applies only when an 12 CFR Part 208 some instances, adds information on the agency is required to issue a general Form’s availability. It makes no Accounting, Agriculture, Banks, notice of proposed rulemaking or a final banking, Confidential business substantive changes to the Agencies’ rule for which the agency published a regulations. Accordingly, the Agencies information, Crime, Currency, Federal general notice of proposed rulemaking Reserve System, Flood insurance, find good cause to dispense with the (2 U.S.C. 1532). As noted previously, delayed effective date requirements and Mortgages, Reporting and recordkeeping the Agencies have determined, for good requirements. to make this joint final rule effective cause, that notice and comment is upon publication in the Federal unnecessary. Accordingly, the UMA 12 CFR Part 339 Register. does not require a budgetary impact Flood insurance, Reporting and IV. Paperwork Reduction Act analysis. recordkeeping requirements. The Agencies have determined that Nevertheless, the OCC has determined 12 CFR Part 614 this joint final rulemaking does not that its portion of this joint final rule Agriculture, Banks, banking, Flood contain or modify a collection of will not result in expenditures by state, insurance, Foreign trade, Reporting and information pursuant to the Paperwork local, and tribal governments, or by the recordkeeping requirements, Rural Reduction Act of 1995 (44 U.S.C. 3501 private sector, of $100 million or more areas. et seq.). in any one year. Accordingly the OCC has not prepared a budgetary impact 12 CFR Part 760 V. Regulatory Flexibility Act statement or specifically addressed the Credit unions, Mortgages, Flood The Regulatory Flexibility Act (RFA) regulatory alternatives considered. (5 U.S.C. 601–612) does not apply to a insurance, Reporting and recordkeeping rulemaking where a general notice of IX. Executive Order 13132 Statement requirements. proposed rulemaking is not required. 5 OCC: The OCC has determined that its Office of the Comptroller of the U.S.C. 603 and 604. As noted portion of this joint final rule does not Currency previously, the Agencies have constitute a policy that has federalism 12 CFR CHAPTER I determined that it is not necessary to implications for purposes of Executive publish a notice of proposed rulemaking Authority and Issuance Order 13132. for this joint final rule. Accordingly, the For the reasons set forth in the joint NCUA: Executive Order 13132 RFA’s requirements relating to an initial preamble, the OCC amends part 22 of encourages independent regulatory and final regulatory flexibility analysis chapter I of title 12 of the Code of agencies to consider the impact of their are not applicable. Moreover, since this Federal Regulations as set forth below: joint final rule imposes no new regulatory actions on state and local requirements and makes only technical interests. In adherence to fundamental PART 22ÐLOANS IN AREAS HAVING amendments, this joint final rule will federalism principles, NCUA, an SPECIAL FLOOD HAZARDS not have a significant economic impact independent regulatory agency as on a substantial number of small defined in 44 U.S.C. 3502(5), voluntarily 1. The authority citation for part 22 entities. complies with the executive order. continues to read as follows: NCUA’s portion of this joint final rule Authority: 12 U.S.C. 93a; 42 U.S.C. 4012a, VI. Small Business Regulatory will apply to all federally insured credit 4104a, 4104b, 4106, and 4128. Enforcement Fairness Act unions, but it will not have substantial 2. In § 22.6, paragraph (a) is revised to The Congressional review provisions direct effects on the states, on the read as follows: of the Small Business Regulatory relationship between the national Enforcement Fairness Act of 1996 government and the states, or on the § 22.6 Required use of standard flood (SBREFA) (5 U.S.C. 801–808) provide distribution of power and hazard determination form. generally for agencies to report final responsibilities among the various (a) Use of form. A bank shall use the rules to Congress and the General levels of government. NCUA has standard flood hazard determination Accounting Office (GAO) for review determined that its portion of this joint form developed by the Director of before the rules may take effect. The final rule does not constitute a policy FEMA when determining whether the reporting requirement is triggered when that has federalism implications for building or mobile home offered as a federal agency issues a final rule. The purposes of the executive order. collateral security for a loan is or will
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71274 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations be located in a special flood hazard area By order of the Board of Governors of the 4.14C, 4.14D, 4.14E, 4.18, 4.18A, 4.19, 4.36, in which flood insurance is available Federal Reserve System, December 10, 1999. 4.37, 5.9, 5.10, 5.17, 7.0, 7.2, 7.6, 7.7, 7.8, under the Act. The standard flood Jennifer J. Johnson, 7.12, 7.13, 8.0, 8.5, 8.9 of the Farm Credit Act Secretary of the Board. (12 U.S.C. 2011, 2013, 2014, 2015, 2017, hazard determination form may be used 2018, 2019, 2071, 2073, 2074, 2075, 2091, in a printed, computerized, or electronic Federal Deposit Insurance Corporation 2093, 2094, 2096, 2121, 2122, 2124, 2128, manner. A bank may obtain the 2129, 2131, 2141, 2149, 2154a, 2183, 2184, 12 CFR CHAPTER III standard flood hazard determination 2199, 2201, 2202, 2202a, 2202c, 2202d, form from FEMA, P.O. Box 2012, Jessup, Authority and Issuance 2202e, 2206, 2206a, 2207, 2219a, 2219b, MD 20794–2012. 2243, 2244, 2252, 2279a, 2279a–2, 2279b, For the reasons set forth in the joint 2279b–1, 2279b–2, 2279f, 2279f–1, 2279aa, * * * * * preamble, the Board of Directors of the 2279aa–5, 2279aa–9); sec. 413 of Pub. L. 100– Dated: December 9, 1999. FDIC amends part 339 of chapter III of 233, 101 Stat. 1568, 1639. John D. Hawke, Jr., title 12 of the Code of Federal 2. In § 614.4940, paragraph (a) is Comptroller of the Currency. Regulations as set forth below: revised to read as follows: Federal Reserve System PART 339ÐLOANS IN AREAS HAVING § 614.4940 Required use of standard flood SPECIAL FLOOD HAZARDS hazard determination form. 12 CFR CHAPTER II 1. The authority citation for part 339 (a) Use of form. System institutions Authority and Issuance continues to read as follows: must use the standard flood hazard determination form developed by the For the reasons set forth in the joint Authority: 42 U.S.C. 4012a, 4104a, 4104b, Director of FEMA when determining 4106, and 4128. preamble, the Board amends part 208 of whether the building or mobile home chapter II of title 12 of the Code of 2. In § 339.6, paragraph (a) is revised offered as collateral security for a loan Federal Regulations as set forth below: to read as follows: is or will be located in a special flood § 339.6 Required use of standard flood hazard area in which flood insurance is PART 208ÐMEMBERSHIP OF STATE available under the 1968 Act. The BANKING INSTITUTIONS IN THE hazard determination form. (a) Use of form. A bank shall use the standard flood hazard determination FEDERAL RESERVE SYSTEM form may be used in a printed, (REGULATION H) standard flood hazard determination form developed by the Director of computerized, or electronic manner. A FEMA when determining whether the System institution may obtain the 1. The authority citation for part 208 standard flood hazard determination continues to read as follows: building or mobile home offered as collateral security for a loan is or will form by written request to FEMA, P.O. Authority: (12 U.S.C. 24, 36, 92(a), 93(a), be located in a special flood hazard area Box 2012, Jessup, MD 20794–2012. 248(a), 248(c) 321–338a,371d, 461, 481–486, in which flood insurance is available * * * * * 601, 611, 1814, 1816, 1818, 1820(d)(9), under the Act. The standard flood Dated: December 8, 1999. 1823(j), 1828(o), 1831, 1831o, 1831p–1, hazard determination form may be used Vivian L. Portis, 1831r–1, 1835a, 1882, 2901–2907, 3105, in a printed, computerized, or electronic Secretary, Farm Credit Administration Board. 3310, 3331–3351, and 3906–3909, 15 U.S.C. manner. A non-member bank may National Credit Union Administration 78b, 781(b), 781(g), 781(i), 78o–4(c)(5), 78q, obtain the standard flood hazard 78q–1, and 78w; 31 U.S.C. 5318; 42 U.S.C. determination form by written request 12 CFR CHAPTER VII 4012a, 4104a, 4104b, 4106, and 4128. to FEMA, P.O. Box 2012, Jessup, MD Authority and Issuance 20794–2012. 2. In § 208.25, paragraph (f)(1) is For the reasons set forth in the joint revised to read as follows: * * * * * By order of the Board of Directors. preamble, the NCUA amends part 760 of chapter VII of title 12 of the Code of § 208.25 Loans in areas having special Dated at Washington, DC, this 6th day of flood hazards. December 1999. Federal Regulations as set forth below. * * * * * Federal Deposit Insurance Corporation PART 760ÐLOANS IN AREAS HAVING (f) Required use of standard flood Robert E. Feldman, SPECIAL FLOOD HAZARDS Executive Secretary. hazard determination form. (1) use of 1. The authority citation for part 760 form. A member bank shall use the Farm Credit Administration continues to read as follows: standard flood hazard determination 12 CFR Chapter VI form developed by the Director of Authority: 12 U.S.C. 1757, 1789; 42 U.S.C. 4012a, 4104a, 4104b, 4106, and 4128. FEMA when determining whether the Authority and Issuance 2. In § 760.6, paragraph (a) is revised building or mobile home offered as For the reasons stated in the joint to read as follows: collateral security for a loan is or will preamble, the Board amends part 614 of be located in a special flood hazard area chapter VI of title 12 of the Code of § 760.6 Required use of standard flood in which flood insurance is available Federal Regulations as set forth below. hazard determination form. under the Act. The standard flood (a) Use of form. A credit union shall hazard determination form may be used PART 614ÐLOAN POLICIES AND use the standard flood hazard in a printed, computerized, or electronic OPERATIONS determination form developed by the manner. A member bank may obtain the 1. The authority citation for part 614 Director when determining whether the standard flood hazard determination continues to read as follows: building or mobile home offered as form by written request to FEMA, P.O. collateral security for a loan is or will Authority: 42 U.S.C. 4012a, 4104a, 4104b, Box 2012, Jessup, MD 20794–2012. 4106, and 4128; secs. 1.3, 1.5, 1.6, 1.7, 1.9, be located in a special flood hazard area * * * * * 1.10, 1.11, 2.0, 2.2, 2.3, 2.4, 2.10, 2.12, 2.13, in which flood insurance is available 2.15, 3.0, 3.1, 3.3, 3.7, 3.8, 3.10, 3.20, 3.28, under the Act. The standard flood 4.3A, 4.12, 4.12A, 4.13, 413B, 4.14, 4.14A, hazard determination form may be used
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71275 in a printed, computerized, or electronic primary duty is to ensure that the Banks of directors. See Modernization Act, manner. A credit union may obtain the operate in a financially safe and sound 606(b). These statutory limits on annual standard flood hazard determination manner. Consistent with that primary directors’ compensation are form from FEMA, P.O. Box 2012, Jessup, duty, the Finance Board also is implemented by revised § 932.17(c)(1) MD 20794–2012. responsible for ensuring that the Banks of this interim final rule. Payments * * * * * carry out their housing finance and made in compliance with the limits and By the National Credit Union community lending mission, and that standards are deemed to be approved by Administration Board on November 30, 1999. they remain adequately capitalized and the Finance Board for purposes of Becky Baker, able to raise funds in the capital section 7(i). Secretary of the Board. markets. See id. 1422a(a)(3). Historically, the Bank Act has The Finance Board understands that [FR Doc. 99–32687 Filed 12–20–99; 8:45 am] required the Finance Board to be the new statutory limits generally would BILLING CODE 4810±33±M; 6210±01±M; 6714±01±M; result in most directors receiving less 6705±01±M; 7535±01±M involved in varying degrees in the corporate governance of the Banks, compensation than that currently typically by requiring Finance Board allowed pursuant to existing § 932.17. FEDERAL HOUSING FINANCE BOARD approval for a host of Bank practices. Nevertheless, that appears to be However, the recently enacted Federal precisely what Congress intended. 12 CFR Parts 932, 934, 935 Home Loan Bank System Modernization Moreover, based on the Finance Board’s 1 consultations with Congress, it is clear [No. 99±62] Act of 1999 (Modernization Act) repealed most of those requirements, that Congress intended that no RIN 3069±AA89 thereby removing most of the last diminution in workload would result as a consequence of the reduced directors’ Devolution of Corporate Governance vestiges of governance responsibilities compensation. Accordingly, for safety Responsibilities from the Finance Board. See Pub. L. No. 106–102, 604(a)(6); 606(d), (f), (g) and soundness reasons, § 932.16 is AGENCY: Federal Housing Finance (1999). Accordingly, the Finance Board revised to require that each Bank’s Board. is amending its regulations to remove board of directors continue to maintain ACTION: Interim final rule. the corresponding Finance Board its level of oversight of the management approval requirements for such of the Bank. Consistent with this SUMMARY: The Federal Housing Finance corporate governance functions, maintenance of effort standard, § 932.16 Board (Finance Board) is amending its consistent with the Modernization Act. requires each Bank’s board of directors regulations to devolve certain corporate to hold no fewer in-person meetings in II. Analysis of Interim Final Rule governance responsibilities from the any year than it has held on average Finance Board to the Federal Home A. Part 932–Directors, Officers and over the immediately preceding three Loan Banks (Banks), pursuant to the Employees of the Banks years, but a Bank may apply to the requirements of the Federal Home Loan 1. Amendment of Bank Directors’ Finance Board for approval, upon a Bank System Modernization Act of showing of good cause, to hold in any 1999. Meeting and Compensation and Expenses Regulations—§§ 932.16, year fewer than the required number of DATES: This interim final rule shall be in-person board meetings. effective on December 21, 1999. The 932.17 Finance Board will accept written Section 7(i) of the Bank Act formerly In addition, and consistent with comments on the interim final rule on permitted each Bank, with the approval Congressional intent, the Finance Board or before January 20, 2000. of the Finance Board, to pay its directors believes that directors should be compensated only for the performance ADDRESSES: Mail comments to: Elaine L. reasonable compensation for the time of official Bank business and not simply Baker, Secretary to the Board, Federal required of them, and their necessary for holding office. Accordingly, § 932.17 Housing Finance Board, 1777 F Street, expenses, in the performance of their is revised to provide that, starting in NW, Washington, DC 20006. Comments duties, in accordance with the will be available for inspection at this resolutions adopted by such directors. 2000, a Bank may not pay fees to a address. See 12 U.S.C. 1427(i) (1994). Section director, such as retainer fees, that do 932.17 of the Finance Board’s not necessarily reflect actual FOR FURTHER INFORMATION CONTACT: performance by the director of official James L. Bothwell, Director, (202) 408– regulations permits each Bank, within Bank business. Thus, a director who 2821, or Scott L Smith, Deputy Director, certain standards of reasonableness set regularly fails to attend board or (202) 408–2991, Office of Policy, forth in the regulation, to implement its Research and Analysis; or Sharon B. own policy on director compensation committee meetings may not be paid at Like, Senior Attorney-Advisor, (202) and allows each Bank to pay its all, and the Finance Board would 408–2930, or Eric M. Raudenbush, directors for such expenses as are consider such failure a dereliction of the Senior Attorney-Advisor, (202) 408– payable by the Bank to its senior director’s fiduciary duties that would 2932, Office of General Counsel, Federal officers. See 12 CFR 932.17 (1999). constitute cause for removal of the Housing Finance Board, 1777 F Street, Payments made in compliance with the director, pursuant to section 2B(a)(2) of NW, Washington, DC 20006. regulation are deemed to be approved the Bank Act. See 12 U.S.C. 1422b(a)(2) by the Finance Board, as required by (1994). SUPPLEMENTARY INFORMATION: section 7(i). I. Bank System and Finance Board The Modernization Act amended 2. Removal of Selection and Roles and Responsibilities section 7(i) of the Bank Act by imposing Compensation of Bank Officers and specific limits on annual compensation Employees Regulations—§§ 932.18 and Under the Federal Home Loan Bank for the Chairperson, Vice Chairperson 932.19 Act (Bank Act), the Finance Board is and other members of the Bank’s board responsible for the supervision and Section 12(a) of the Bank Act formerly regulation of the 12 Banks. See 12 made the selection and compensation of 1 The Modernization Act is Title VI of the Gramm- U.S.C. 1422a(a)(3), 1422b(a)(1) (1994). Leach-Bliley Act, Pub. L. No. 106–102, 113 Stat. Bank officers and employees subject to Specifically, the Finance Board’s 1338, enacted into law on November 12, 1999. Finance Board approval. See 12 U.S.C.
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1432(a) (1994). Sections 932.18 and 2. Amendment of Bank Bylaws Dividend Policy, see Finance Board Res. 932.19 of the Finance Board’s Regulation—§ 934.16 No. 90–38 (Mar. 15, 1990), as well as regulations set forth requirements for Section 12(a) of the Bank Act formerly Board of Directors Resolutions the selection of Bank Presidents and provided that the Banks had the power, approving specific Bank dividend other Bank officers and employees, and by their boards of directors, to prescribe, payments, that established specific for the payment of compensation to amend, and repeal bylaws governing the conditions for approval of such Bank officers and employees. See 12 manner in which their affairs may be dividend payments, including that the CFR 932.18, 932.19 (1999). administered, subject to the approval of dividend payment would not result in a The Modernization Act amended the Finance Board. See 12 U.S.C. projected impairment of the par value of section 12(a) of the Bank Act by 1432(a) (1994). Section 934.16 of the the capital stock of the Bank. removing the requirement for Finance Finance Board’s regulations allows the The Modernization Act amended Board approval in connection with the Banks to adopt, amend or repeal their section 16(a) of the Bank Act by selection and compensation of Bank bylaws without Finance Board approval, removing the requirement for Finance officers and employees. See as long as the bylaws or amendments Board approval of Bank dividend Modernization Act, § 606(d)(1)(B). are consistent with applicable statutes, payments. See Modernization Act, Accordingly, 932.18 and 932.19 of the regulations and Finance Board policies. section 606(g)(1)(B). In addition, under Finance Board’s regulations are See 12 CFR 934.16 (1999). the Modernization Act, section 6(g) removed. The Modernization Act amended remains in effect during a transition period until the Finance Board has B. Part 934—Operations of the Banks section 12(a) of the Bank Act by removing the requirement for Finance adopted capital regulations and 1. Amendment of Bank Budgets Board approval of Bank bylaws, approved the capital structure plans of Regulation—§ 934.7 provided that the bylaws are consistent the Banks, after which period section The Bank Act does not provide with applicable laws and regulations, as 6(g) is repealed. See id. section 608. explicitly for Finance Board approval of administered by the Finance Board. See Because the payment of dividends no Bank budgets. However, pursuant to the Modernization Act, § 606(d)(1)(C). The longer requires the approval of the Finance Board’s supervisory Finance Board believes that, as a matter Finance Board, the Finance Board responsibilities under the Bank Act, see of sound corporate governance practice, believes the determination of the 12 U.S.C. 1422a(a)(3), 1422b(a)(1) the Banks should have bylaws applicable dividend period for such (1994), § 934.7 of the Finance Board’s governing the manner in which the payments also should be a discretionary regulations establishes specific Banks’ affairs are conducted. decision of the Banks. Therefore, requirements for the Banks’ preparation Accordingly, § 934.16 is revised to § 934.17 of the Finance Board’s and reporting of budget and other provide that a Bank’s board of directors regulations is revised to eliminate financial information to the Finance shall have in effect at all times bylaws references to the dividend period during Board. In addition, section 12(a) of the governing the manner in which the which capital stock is held. However, Bank Act formerly required prior Bank administers its affairs, and that the Finance Board believes that, for Finance Board approval for a Bank to such bylaws shall be consistent with safety and soundness reasons, the buy or erect a bank building to house applicable laws and regulations as capital stock impairment restriction the Bank, or to lease a bank building administered by the Finance Board. currently imposed pursuant to the under a lease with a term of more than Dividend Policy should continue to ten years. See 12 U.S.C. 1432(a) (1994). 3. Amendment of Bank Dividends apply. Accordingly, § 934.17 of the Section 934.7(a)(2) of the Finance Regulation—§ 934.17 Finance Board’s regulations is revised to Board’s budget regulation implements Section 16(a) of the Bank Act formerly provide that a Bank’s board of directors this provision by providing that, provided generally that dividends may may declare and pay a dividend only pursuant to the requirement of section be paid by the Banks out of previously from previously retained earnings or 12(a) of the Bank Act, a Bank must retained earnings or current net earnings current net earnings, and only if such obtain prior approval of the Finance only with the approval of the Finance payment will not result in a projected Board before purchasing or erecting, or Board. See 12 U.S.C. 1436(a) (1994). impairment of the par value of the leasing for a term of more than 10 years, Section 6(g) of the Bank Act provides capital stock of the Bank. Section 934.17 a building to house the Bank. See 12 that all stock of any Bank shall share in also provides that dividends on such CFR 934.7(a)(2) (1999). dividend distributions without capital stock shall be computed without The Modernization Act amended preference. See 12 U.S.C. 1426(g) (1994). preference. section 12(a) of the Bank Act by Section 934.17 of the Finance Board’s Consistent with these regulatory removing the requirement for Finance regulations implements these statutory amendments, the Finance Board intends Board approval of such Bank building provisions by providing generally that to rescind by separate resolution its transactions. See Modernization Act, the board of directors of each Bank, with Dividend Policy as no longer necessary. 606(d)(1)(A). Accordingly, the the approval of the Finance Board, may C. Part 950—Bank Advances requirement in paragraph (a)(2) for declare and pay a dividend from net Finance Board approval of such earnings, including previously retained 1. Removal of Requirement for Finance transactions is removed from § 934.7. In earnings, on the paid-in value of capital Board Approval of Bank Forms for addition, consistent with the devolution stock held during the dividend period. Advances Applications, Advances philosophy reflected in this interim See 12 CFR 934.17 (1999). Section Agreements and Security Agreements— final rule, the Finance Board has 934.17 also provides that dividends on § 935.4(d)(2) determined that the Banks should no such stock shall be computed without Section 9 of the Bank Act formerly longer be required to submit to the preference and only for the period such required that applications from Finance Board the budget and other stock was outstanding during the members for Bank advances must be ‘‘in financial reports required by §§ 934.7(b) dividend period. See id. In addition, such form as shall be required by the through (e). Accordingly, §§ 934.7(b) dividend payments by the Banks have [Bank] with the approval of the through (e) are removed. been subject to a Finance Board [Finance] Board.’’ See 12 U.S.C. 1429
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(1994). In addition, section 10(d) of the 3. Removal of Requirement for Finance pursuant to the Paperwork Reduction Bank Act formerly required that Board Approval of Bank Transfers of Act of 1995. See 44 U.S.C. 3501 et seq. members enter into an obligation to Advances and Advance Participations— Therefore, the Finance Board has not repay the advance, ‘‘in such form as § 935.16 submitted any information to the Office shall meet the requirements of the Section 10(d) of the Bank Act of Management and Budget for review. [B]ank and the approval of the [Finance] formerly required that: ‘‘[s]ubject to the V. Notice and Public Participation Board.’’ See id. section 1430(d). Section approval of the [Finance] Board, any 935.4(d)(2) of the Finance Board’s [Bank] shall have power to sell to any The Finance Board for good cause regulations provides that each Bank’s other [Bank], with or without recourse, finds that the notice and public forms for all advances applications, any advance made under the provisions comment procedure required by the advances agreements and security of this chapter, or to allow to such Administrative Procedure Act is agreements are deemed approved by the [Bank] a participation therein, and any impracticable, unnecessary or contrary Finance Board if such forms are other [Bank] shall have power to to the public interest in this instance, consistent with the requirements of part purchase such advance or to accept a because the changes made by this 935. See 12 CFR 935.4(d)(2) (1999). participation therein, together with an interim final rule implement recently Section 935.4(d)(2) also requires each appropriate assignment of security enacted statutory amendments that Bank to provide copies of its current therefor.’’ See 12 U.S.C. 1430(d) (1994). rendered obsolete certain provisions of forms for all advances agreements and Section 935.16 of the Finance Board’s the Finance Board’s regulations. See 5 security agreements, and any regulations allows the Banks to U.S.C. 553(b)(3)(B). substantive revisions thereto, to the purchase and sell advance List of Subjects in 12 CFR Parts 932, Finance Board. See id. participations without the approval of 934, and 935 The Modernization Act amended the Finance Board, subject to the Community development, Credit, section 9 of the Bank Act by removing approval of the boards of directors of the Federal home loan banks, Housing, the requirement for Finance Board relevant Banks. See 12 CFR 935.16 Reporting and recordkeeping approval of Bank advances application (1999). The Finance Board currently requirements. forms. See Modernization Act, section approves proposed Bank transfers of 606(f)(1)(A). In addition, the whole advances pursuant to Chairman’s Accordingly, the Finance Board Modernization Act amended section Orders that set forth certain conditions hereby amends title 12, chapter IX, parts 10(d) of the Bank Act by removing the for the approval. The Finance Board 932, 934, and 935, Code of Federal requirement for Finance Board approval recently proposed amending § 935.16 to Regulations, as follows: of Bank forms for the repayment of allow the Banks to approve the transfer advances. See id. section 606(f)(2)(B)(i). of whole advances, in addition to PART 932±DIRECTORS, OFFICERS, Accordingly, a regulatory provision advance participations, without Finance AND EMPLOYEES OF THE BANKS governing Finance Board approval of Board approval, subject to the transfers Bank forms for advances applications, 1. The authority citation for part 932 meeting certain conditions derived in is revised to read as follows: advances agreements and security part from the Chairman’s Orders. See 64 agreements is no longer necessary, and FR 44444 (Aug. 16, 1999). Authority: 12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1427, and 1432. § 935.4(d)(2) is removed. The Modernization Act amended 2. Removal of Requirement for Finance section 10(d) of the Bank Act by 2. Revise § 932.16 to read as follows: removing the requirement for Finance Board Approval of Bank Approvals of § 932.16 Site and frequency of board of Conditional Advances—§ 935.5(a)(2) Board approval in connection with directors and committee meetings. transfers of Bank advances and advance Section 9 of the Bank Act formerly participations. See Modernization Act, (a) Site. Meetings of a Bank’s board of required that a Bank may, subject to the section 606(f)(2)(B)(ii). Accordingly, a directors and committees thereof approval of the Finance Board, grant an regulatory provision governing transfers usually should be held within the application for advances on such of Bank advances and advance district served by the Bank. No meetings conditions as the Bank may prescribe. participations is no longer necessary, of a Bank’s board of directors and See 12 U.S.C. 1429 (1994). Section and § 935.16 is removed. The Finance committees thereof may be held in any 935.5(a)(2) of the Finance Board’s Board by separate action has withdrawn location that is not within the United regulations implements this provision its proposed transfer of advances States, including its possessions and by providing that a Bank, in its regulation, see Docket # 99–63 (Dec. 14, territories. discretion, may approve a member’s 1999). (b) Maintenance of effort. (1) application for an advance subject to Notwithstanding the limits on annual such additional terms as the Bank may III. Regulatory Flexibility Act directors’ compensation established by prescribe, pursuant to the provisions of Because no notice of proposed section 7(i) of the Act, as amended, the the Bank Act, part 935, and any policy rulemaking is required for this interim board of directors of each Bank shall guidelines of the Finance Board. See 12 final rule, the provisions of the continue to maintain its level of CFR 935.5(a)(2) (1999). Regulatory Flexibility Act, 5 U.S.C. oversight of the management of the The Modernization Act amended section 601 et seq., do not apply. Bank, and, except as provided in section 9 of the Bank Act by removing Moreover, the interim final rule applies paragraph (b)(2), the board of directors the requirement for Finance Board only to the Banks, which do not come shall hold no fewer in-person meetings approval in connection with Bank within the meaning of ‘‘small entities,’’ in any year than it has held on average conditional advances. See as defined in the Regulatory Flexibility over the immediately preceding three Modernization Act, section 606(f)(1)(B). Act. See id. section 601(6). years. Accordingly, a regulatory provision (2) A Bank may apply to the Finance governing Finance Board approval of IV. Paperwork Reduction Act Board for approval, upon a showing of Bank conditional advances is no longer This interim final rule does not good cause, to hold in any year fewer necessary, and § 935.5(a)(2) is removed. contain any collections of information than the number of in-person board of
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71278 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations directors meetings required under The total compensation received by § 935.4 [Amended] paragraph (b)(1). each director in a year shall reflect the 10. Amend § 935.4 by: 3. Amend § 932.17 by: amount of time spent on official Bank a. Removing paragraph designation a. Revising paragraphs (a) through (c); business, such that greater or lesser (d)(1); and and attendance at board and committee b. Removing paragraph (d)(2). b. Adding paragraph (f), to read as meetings during a given year will be follows: reflected in the compensation received § 935.5 [Amended] § 932.17 Compensation and expenses of by the director for that year. A Bank 11. Amend § 935.5 by: Bank directors. shall not pay fees to a director, such as a. Removing paragraph (a)(2); and (a) Definition. As used in this section, retainer fees, that do not reflect the b. Redesignating paragraph (a)(3) as compensation means any payment of director’s performance of official Bank paragraph (a)(2). business. money or provision of any other thing § 935.16 [Removed] of value (or the accrual of a right to * * * * * receive money or a thing of value in a (f) Approval. Payments made to 12. Remove § 935.16. subsequent year) in consideration of a directors in compliance with the limits Dated: December 14, 1999. director’s performance of official duties on annual directors’ compensation and By the Board of Directors of the Federal for the Bank, including, without the standards set forth in this section are Housing Finance Board. limitation, daily meeting fees, incentive deemed to be approved by the Finance Bruce A. Morrison, payments and fringe benefits. Board for purposes of section 7(i) of the Chairman. (b) Annual compensation policy. Act, as amended. [FR Doc. 99–33069 Filed 12–20–99; 8:45 am] Beginning in 2000 and annually 4. Remove §§ 932.18 and 932.19, and BILLING CODE 6725±01±P thereafter, each Bank’s board of reserve subpart C. directors shall adopt by resolution a PART 934±OPERATIONS OF THE written policy to provide for the DEPARTMENT OF TRANSPORTATION payment to Bank directors of reasonable BANKS compensation for the performance of 5. The authority citation for part 934 Federal Aviation Administration their duties as members of the Bank’s continues to read as follows: board of directors, subject to the 14 CFR Part 39 requirements set forth in paragraph (c) Authority: 12 U.S.C. 1422a, 1422b, 1431(g), of this section. At a minimum, such 1432(a), and 1442. [Docket No. 96±NM±194±AD; Amendment 39±11467; AD 99±26±08] policy shall address the activities or 6. Amend § 934.7 by: functions for which attendance is a. Removing the words ‘‘and reporting RIN 2120±AA64 necessary and appropriate and may be requirements’’ from the heading; Airworthiness Directives; Airbus Model compensated, and shall explain and b. Removing paragraphs (a)(2), (b), (c), A310 and A300±600 Series Airplanes justify the methodology for determining (d) and (e); and the amount of compensation to be paid c. Redesignating paragraphs (a)(1), (3), AGENCY: Federal Aviation to directors. (4) and (5) as paragraphs (a), (b), (c) and Administration, DOT. (c) Policy requirements. Payment to (d), respectively. directors under each Bank’s policy on ACTION: Final rule. 7. Revise § 934.16 to read as follows: director compensation may be based SUMMARY: This amendment adopts a upon factors that the Bank determines to § 934.16 Bank bylaws. new airworthiness directive (AD), be appropriate, but each Bank’s policy A Bank’s board of directors shall have applicable to certain Airbus Model shall conform to the following in effect at all times bylaws governing A310 and A300–600 series airplanes, requirements: the manner in which the Bank that requires replacement of the rudder (1) Statutory limits on annual administers its affairs, and such bylaws trim switch in the flight compartment compensation. Pursuant to section 7(i) shall be consistent with applicable laws with a new switch having a longer shaft; of the Act, as amended, for 2000, the and regulations as administered by the modification of wiring in panel 408VU; following limits on compensation shall Finance Board. and replacement of the rudder trim apply: for a Chairperson—$25,000; for a 8. Revise § 934.17 to read as follows: control knob with an improved new Vice Chairperson—$20,000; for any knob. This amendment is prompted by other member of the Bank’s board of § 934.17 Bank dividends. issuance of mandatory continuing directors—$15,000. Beginning in 2001 A Bank’s board of directors may airworthiness information by a foreign and for subsequent years, these limits declare and pay a dividend only from civil airworthiness authority. The on annual compensation shall be previously retained earnings or current actions specified by this AD are adjusted annually by the Finance Board net earnings, and only if such payment intended to prevent inadvertent and to reflect any percentage increase in the will not result in a projected uncommanded rudder trim activation, preceding year’s Consumer Price Index impairment of the par value of the which could result in yaw and roll (CPI) for all urban consumers, as capital stock of the Bank. Dividends on excursions and consequent reduced published by the Department of Labor. such capital stock shall be computed controllability of the airplane. Each year, as soon as practicable after without preference. the publication of the previous year’s DATES: Effective January 25, 2000. CPI, the Finance Board shall publish PART 935ÐADVANCES The incorporation by reference of notice by Federal Register, distribution certain publications listed in the of a memorandum, or otherwise, of the 9. The authority citation for part 935 regulations is approved by the Director CPI-adjusted limits on annual continues to read as follows: of the Federal Register as of January 25, compensation. Authority: 12 U.S.C. 1422a(a)(3), 2000. (2) Compensation permitted only for 1422b(a)(1), 1426, 1429, 1430, 1430b and ADDRESSES: The service information performance of official Bank business. 1431. referenced in this AD may be obtained
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71279 from Airbus Industrie, 1 Rond Point by the manufacturer at no cost to the § 39.13 [Amended] Maurice Bellonte, 31707 Blagnac Cedex, operators. Based on these figures, the 2. Section 39.13 is amended by France. This information may be cost impact of this action on U.S. adding the following new airworthiness examined at the Federal Aviation operators is estimated to be $5,400, or directive: Administration (FAA), Transport $60 per airplane. 99–26–08 AIRBUS INDUSTRIE: Amendment Airplane Directorate, Rules Docket, The cost impact figures discussed 39–11467. Docket 96–NM–194–AD. 1601 Lind Avenue, SW., Renton, Applicability: Model A310 and A300–600 Washington; or at the Office of the above are based on assumptions that no operator has yet accomplished any of series airplanes, certificated in any category; Federal Register, 800 North Capitol except those on which Airbus Modification Street, NW., suite 700, Washington, DC. the requirements of this AD action, and 11874 [reference Airbus Service Bulletin FOR FURTHER INFORMATION CONTACT: that no operator would accomplish A310–27–2087 (for Model A300 series Norman B. Martenson, Manager, those actions in the future if this AD airplanes) or A300–27–6042 (for Model International Branch, ANM–116, were not adopted. A300–600 series airplanes), both dated October 2, 1998] has been accomplished. Transport Airplane Directorate, 1601 Regulatory Impact Lind Avenue, SW., Renton, Washington Note 1: This AD applies to each airplane identified in the preceding applicability 98055–4056; telephone (425) 227–2110; The regulations adopted herein will provision, regardless of whether it has been fax (425) 227–1149. not have substantial direct effects on the otherwise modified, altered, or repaired in SUPPLEMENTARY INFORMATION: A States, on the relationship between the the area subject to the requirements of this proposal to amend part 39 of the Federal national government and the States, or AD. For airplanes that have been modified, Aviation Regulations (14 CFR part 39) to on the distribution of power and altered, or repaired so that the performance include an airworthiness directive (AD) responsibilities among the various of the requirements of this AD is affected, the owner/operator must request approval for an that is applicable to certain Airbus levels of government. Model A310 and A300–600 series alternative method of compliance in Therefore, in accordance with accordance with paragraph (d) of this AD. airplanes was published as a The request should include an assessment of supplemental notice of proposed Executive Order 12612, it is determined that this final rule does not have the effect of the modification, alteration, or rulemaking (NPRM) in the Federal repair on the unsafe condition addressed by Register on February 12, 1998 (63 FR sufficient federalism implications to this AD; and, if the unsafe condition has not 7076). That action proposed to require warrant the preparation of a Federalism been eliminated, the request should include replacement of the rudder trim switch Assessment. specific proposed actions to address it. in the flight compartment with a new For the reasons discussed above, I Compliance: Required as indicated, unless switch having a longer shaft; certify that this action (1) is not a accomplished previously. modification of wiring in panel 408VU; ‘‘significant regulatory action’’ under To prevent inadvertent and uncommanded rudder trim activation, which could result in and replacement of the rudder trim Executive Order 12866; (2) is not a control knob with an improved new yaw and roll excursions and consequent ‘‘significant rule’’ under DOT reduced controllability of the airplane, knob. Regulatory Policies and Procedures (44 accomplish the following: Comments FR 11034, February 26, 1979); and (3) Corrective Actions will not have a significant economic Interested persons have been afforded (a) Within 90 days after the effective date an opportunity to participate in the impact, positive or negative, on a of this AD, replace the rudder trim switch, making of this amendment. No substantial number of small entities part number (P/N) 097–023–00, in the flight comments were submitted in response under the criteria of the Regulatory compartment, with a new switch, P/N 097– to the supplemental NPRM or the FAA’s Flexibility Act. A final evaluation has 023–01; and modify the wiring in panel determination of the cost to the public. been prepared for this action and it is 408VU; in accordance with Airbus Service contained in the Rules Docket. A copy Bulletin A310–27–2084, Revision 01 (for Conclusion of it may be obtained from the Rules Model A310 series airplanes); or A300–27– The FAA has determined that air 6037, Revision 01 (for Model A300–600 Docket at the location provided under series airplanes), both dated September 29, safety and the public interest require the the caption ADDRESSES. 1998; as applicable. adoption of the rule as proposed. List of Subjects in 14 CFR Part 39 Note 2: Accomplishment of the actions Cost Impact required by paragraph (a) of this AD in accordance with Airbus Service Bulletin The FAA estimates that 90 airplanes Air transportation, Aircraft, Aviation safety, Incorporation by reference, A310–27–2084 (for Model A310 series of U.S. registry will be affected by this airplanes); or A300–27–6037 (for Model AD. Safety. A300–600 series airplanes), both dated Replacement of the rudder trim Adoption of the Amendment February 12, 1997; as applicable, is switch and modification of the wiring acceptable for compliance with that will take approximately 7 work hours Accordingly, pursuant to the paragraph. per airplane to accomplish, at an authority delegated to me by the (b) Within 10 months after the effective average labor rate of $60 per work hour. Administrator, the Federal Aviation date of this AD, replace the rudder trim Required parts will be provided by the Administration amends part 39 of the control knob on the rudder trim switch with an improved new knob in accordance with manufacturer at no cost to the operators. Federal Aviation Regulations (14 CFR Based on these figures, the cost impact Airbus Service Bulletin A310–27–2087, part 39) as follows: Revision 01 (for Model A310 series of this action on U.S. operators is airplanes); or A300–27–6042, Revision 01 estimated to be $37,800, or $420 per PART 39ÐAIRWORTHINESS (for Model A300–600 series airplanes), both airplane. DIRECTIVES dated February 17, 1999; as applicable. Replacement of the rudder trim Note 3: Accomplishment of the actions control knob will take approximately 1 1. The authority citation for part 39 required by paragraph (b) of this AD in work hour per airplane to accomplish, continues to read as follows: accordance with Airbus Service Bulletin at an average labor rate of $60 per work A310–27–2087 (for Model A310 series hour. Required parts will be provided Authority: 49 U.S.C. 106(g), 40113, 44701. airplanes); or A300–27–6042 (for Model
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A300–600 series airplanes), both dated DEPARTMENT OF TRANSPORTATION 12 New England Executive Park, October 2, 1998; as applicable, is acceptable Burlington, MA 01803–5299; telephone for compliance with that paragraph. Federal Aviation Administration (781) 238–7175, fax (781) 238–7199. Spares SUPPLEMENTARY INFORMATION: A 14 CFR Part 39 proposal to amend part 39 of the Federal (c) As of the effective date of this AD, no [Docket No. 99±NE±32±AD; Amendment 39± Aviation Regulations (14 CFR part 39) to person shall install in the flight compartment 11465; AD 99±26±06] include an airworthiness directive (AD) of any airplane a rudder trim switch having that is applicable to Pratt & Whitney P/N 097–023–00. RIN 2120±AA64 (PW) JT8D–209, –217, –217A, –217C, Alternative Methods of Compliance Airworthiness Directives; Pratt & and –219 series turbofan engines was (d) An alternative method of compliance or Whitney JT8D±200 Series Turbofan published in the Federal Register on adjustment of the compliance time that Engines September 23, 1999 (64 FR 51483). That provides an acceptable level of safety may be action proposed to require initial and used if approved by the Manager, AGENCY: Federal Aviation repetitive fluorescent magnetic particle International Branch, ANM–116, FAA, Administration, DOT. inspections or fluorescent penetrant Transport Airplane Directorate. Operators ACTION: Final rule. inspections of the combustion chamber shall submit their requests through an outer case (CCOC) for cracks, and, if appropriate FAA Principal Maintenance SUMMARY: This amendment adopts a necessary, replacement with serviceable Inspector, who may add comments and then new airworthiness directive (AD), parts. Also, that AD proposed to require send it to the Manager, International Branch, applicable to Pratt & Whitney JT8D–200 a one-time boss material verification, ANM–116. series turbofan engines, that requires and, if necessary, replacement with Note 4: Information concerning the initial and repetitive fluorescent serviceable parts. Finally, that AD existence of approved alternative methods of magnetic particle inspections or proposed to require replacement of compliance with this AD, if any, may be fluorescent penetrant inspections of the CCOCs with welded-on bosses with obtained from the International Branch, combustion chamber outer case (CCOC) improved, one-piece CCOCs. ANM–116. for cracks, and, if necessary, Installation of the one-piece CCOC replacement with serviceable parts. (e) Special flight permits may be issued in would constitute terminating action to accordance with sections 21.197 and 21.199 Also, this AD requires a one-time boss the inspection requirements of the AD. of the Federal Aviation Regulations (14 CFR material verification, and, if necessary, That action was prompted by a report of 21.197 and 21.199) to operate the airplane to replacement with serviceable parts. an uncontained engine failure caused by a location where the requirements of this AD Finally, this AD requires replacement of fatigue cracks originating at the weld can be accomplished. CCOCs with welded-on bosses with joining the drain boss to the CCOC. That improved, one-piece CCOCs. condition, if not corrected, could result Incorporation by Reference Installation of the one-piece CCOC in CCOC cracks, which could result in (f) The actions shall be done in accordance constitutes terminating action to the an uncontained engine failure and with Airbus Service Bulletin A310–27–2084, inspection requirements of this AD. damage to the airplane. Revision 01, dated September 29, 1998; This amendment is prompted by a Comments Received Airbus Service Bulletin A300–27–6037, report of an uncontained engine failure Revision 01, dated September 29, 1998; caused by fatigue cracks originating at Interested persons have been afforded Airbus Service Bulletin A310–27–2087, the weld joining the drain boss to the an opportunity to participate in the Revision 01, dated February 17, 1999; or CCOC. The actions specified by this AD making of this amendment. Due Airbus Service Bulletin A300–27–6042, are intended to prevent CCOC cracks, consideration has been given to the Revision 01, dated February 17, 1999; as which could result in an uncontained comments received. applicable. This incorporation by reference engine failure and damage to the Understated Financial Impact was approved by the Director of the Federal airplane. Register in accordance with 5 U.S.C. 552(a) One commenter states that the Federal DATES: Effective February 22, 2000. and 1 CFR part 51. Copies may be obtained Aviation Administration (FAA) has The incorporation by reference of from Airbus Industrie, 1 Rond Point Maurice understated the financial impact of the certain publications listed in the Bellonte, 31707 Blagnac Cedex, France. AD by not including the ancillary costs regulations is approved by the Director Copies may be inspected at the FAA, of removing a cracked CCOC. The FAA of the Federal Register as of February Transport Airplane Directorate, 1601 Lind does not concur. The indirect costs Avenue, SW., Renton, Washington; or at the 22, 2000. associated with this AD are not directly Office of the Federal Register, 800 North ADDRESSES: The service information related to this rule, and, therefore, are Capitol Street, NW., suite 700, Washington, referenced in this AD may be obtained not addressed in the economic analysis DC. from Pratt & Whitney, 400 Main St., East for this rule. A full cost analysis for each Note 5: The subject of this AD is addressed Hartford, CT 06108; telephone (860) AD, including such indirect costs, is not in French airworthiness directives 97–111– 565–8770, fax (860) 565-4503. This necessary since the FAA has already 219(B), dated May 7, 1997, and 1999–012– information may be examined at the performed a cost benefit analysis when 275(B), dated January 13, 1999. Federal Aviation Administration (FAA), adopting the airworthiness requirements (g) This amendment becomes effective on New England Region, Office of the to which these engines were originally January 25, 2000. Regional Counsel, 12 New England certificated. A finding that an AD is Executive Park, Burlington, MA; or at warranted means that the original Issued in Renton, Washington, on the Office of the Federal Register, 800 design no longer achieves the level of December 9, 1999. North Capitol Street, NW, suite 700, safety specified by those airworthiness D.L. Riggin, Washington, DC. requirements, and that other required Acting Manager, Transport Airplane FOR FURTHER INFORMATION CONTACT: actions are necessary, such as Directorate, Aircraft Certification Service. Christopher Spinney, Aerospace inspections of existing CCOCs and [FR Doc. 99–32508 Filed 12–20–99; 8:45 am] Engineer, Engine Certification Office, replacement with a one-piece CCOC. BILLING CODE 4910±13±U FAA, Engine and Propeller Directorate, Because the original level of safety was
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71281 already determined to be cost beneficial, Economic Analysis § 39.13 [Amended] these additional requirements needed to 2. Section 39.13 is amended by return the engine to that level of safety There are approximately 2,624 adding the following new airworthiness do not add any additional regulatory engines of the affected design in the directive: worldwide fleet. The FAA estimates that burden, and, therefore, a full cost 99–26–06 Pratt & Whitney: Amendment 39– analysis would be redundant and 1,280 engines installed on aircraft of 11465. Docket 99–NE-32–AD. unnecessary. U.S. registry will be affected by this proposed AD, that it will take Applicability: Pratt & Whitney (PW) JT8D– SB Publication Date vs. Effective Date of 209, –217, –217A, –217C, and –219 series approximately 2.5 work hours per This AD turbofan engines with combustion chamber engine to accomplish the proposed outer case (CCOC), part numbers (P/Ns) The same commenter expresses inspections and that the average labor 5000238–01, 797707, 807684, and 815830 confusion as to how to compute the rate is $60 per work hour. Required installed. These engines are installed on but compliance intervals of this AD; parts will cost approximately $42,320 not limited to McDonnell Douglas MD–80 specifically, if the effective date of the per engine. Based on these figures, the series airplanes. AD should be used vs. the publication total cost impact of the AD on U.S. Note 1: This airworthiness directive (AD) applies to each engine identified in the date of the SB for a compliance baseline. operators is estimated to be $54,361,600. The FAA concurs. For the purpose of preceding applicability provision, regardless Regulatory Impact of whether it has been modified, altered, or this AD, all baseline compliance times repaired in the area subject to the should be calculated based upon the The regulations adopted herein will requirements of this AD. For engines that effective date of this AD. The FAA has not have a substantial direct effect on have been modified, altered, or repaired so added an explanatory paragraph (c) to that the performance of the requirements of this final rule to explicitly address this the States, on the relationship between this AD is affected, the owner/operator must issue. the national Government and the States, request approval for an alternative method of or on the distribution of power and compliance in accordance with paragraph (f) On-Wing Rejection of CCOC and responsibilities among the various of this AD. The request should include an Replacement of CCOC levels of government. Therefore, it is assessment of the effect of the modification, determined that this final rule does not alteration, or repair on the unsafe condition The same commenter states that there addressed by this AD; and, if the unsafe is no clear direction as to the time have federalism implications under condition has not been eliminated, the interval between an on-wing rejection Executive Order (E.O.) 13132. request should include specific proposed and the subsequent removal of the For the reasons discussed above, I actions to address it. CCOC. The FAA concurs. After an on- certify that this action (1) is not a Compliance: Required as indicated, unless wing rejection, the CCOC must be ‘‘significant regulatory action’’ under accomplished previously. To prevent CCOC cracks, which could removed prior to further flight. The FAA E.O. 12866; (2) is not a ‘‘significant has added explicit phrasing to each result in an uncontained engine failure and rule’’ under DOT Regulatory Policies damage to the airplane, accomplish the inspection paragraph of this final rule to and Procedures (44 FR 11034, February following: indicate that there is no operating 26, 1979); and (3) will not have a Inspections interval between an on-wing rejection significant economic impact, positive or and the subsequent removal of the (a) Perform initial and repetitive negative, on a substantial number of CCOC. fluorescent magnetic particle inspections small entities under the criteria of the (FMPI) or fluorescent penetrant inspections Concurrence Regulatory Flexibility Act. A final (FPI) of drain bosses and Ps4 bosses of the evaluation has been prepared for this CCOC for cracks, and, if necessary, replace One commenter supports the rule as with serviceable parts prior to further flight, proposed. action and it is contained in the Rules Docket. A copy of it may be obtained in accordance with the procedures and New Revision to Service Bulletin (SB) intervals specified in paragraph 1.A. of the from the Rules Docket at the location Accomplishment Instructions of PW Alert Since publication of the NPRM, PW provided under the caption ADDRESSES. Service Bulletin (ASB) No. A6359, Revision has issued Revision 2 to SB No. 6291, List of Subjects in 14 CFR Part 39 1, dated July 30, 1999. dated August 27, 1999. The original (b) For CCOCs listed by serial number (S/ version of PW SB No. 6291, dated May Air transportation, Aircraft, Aviation N) in Table 3 of PW ASB No. A6359, Revision 1, dated July 30, 1999, inspect for 20, 1997, Revision 1, dated July 9, 1997, safety, Incorporation by reference, proper Ps4 and drain boss material, and, if or Revision 2, dated August 27,1999, are Safety. necessary, replace with serviceable parts all acceptable for performing the prior to further flight, in accordance with the terminating action of installing a one- Adoption of the Amendment procedures and intervals specified in piece machined CCOC assembly, part Accordingly, pursuant to the paragraph 1.B. of the Accomplishment number (P/N) 815556, as stated in Instructions of PW ASB No. A6359, Revision authority delegated to me by the 1, dated July 30, 1999. paragraph (d) of this final rule. Administrator, the Federal Aviation Conclusion Administration amends part 39 of the Effective Date for Computing Compliance Intervals Federal Aviation Regulations (14 CFR After careful review of the available part 39) as follows: (c) For the purpose of this AD, use the data, including the comments noted effective date of this AD for computing above, the FAA has determined that air PART 39ÐAIRWORTHINESS compliance intervals whenever PW ASB No. A6359, Revision 1, dated July 30, 1999, refers safety and the public interest require the DIRECTIVES adoption of the rule as with the changes to the publication date of the ASB. described previously. The FAA has 1. The authority citation for part 39 Terminating Action determined that these changes will continues to read as follows: (d) At the next part accessibility after the neither increase the economic burden effective date of this AD when the CCOC has on any operator nor increase the scope Authority: 49 U.S.C. 106(g), 40113, 44701. accumulated cycles-in-service greater than of the AD. the initial inspection threshold specified in
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May 20, 1997, or Revision 1 dated July 9, [Docket No. 98±NM±248±AD; Amendment Comments 1997, or Revision 2, dated August 27,1999. 39±11475; AD 99±26±15] Installation of an improved, one-piece CCOC, RIN 2120±AA64 Interested persons have been afforded P/N 815556, constitutes terminating action to an opportunity to participate in the the inspections required by this AD. Airworthiness Directives; Airbus Model making of this amendment. No Definition A300 B2 and B4 Series Airplanes comments were submitted in response (e) For the purpose of this AD, part to the proposal or the FAA’s AGENCY: Federal Aviation determination of the cost to the public. accessibility is defined as an engine Administration, DOT. disassembly in which the CCOC is removed ACTION: Final rule. Conclusion from the engine. The FAA has determined that air Alternative Methods of Compliance SUMMARY: This amendment adopts a new airworthiness directive (AD), safety and the public interest require the (f) An alternative method of compliance or applicable to certain Airbus Model adoption of the rule as proposed. adjustment of the compliance time that A300 B2 and B4 series airplanes, that provides an acceptable level of safety may be Cost Impact requires repetitive inspections to detect used if approved by the Manager, Engine cracking of the inner skin panel of the The FAA estimates that 3 airplanes of Certification Office. Operators shall submit longitudinal lap joint; and repair, or U.S. registry will be affected by this AD, their request through an appropriate FAA that it will take approximately 4 work Principal Maintenance Inspector, who may modification and new repetitive inspections, if necessary. This hours per airplane to accomplish the add comments and then send it to the required eddy current inspection (either Manager, Engine Certification Office. amendment is prompted by issuance of internal or external), and that the (g) Special flight permits may be issued in mandatory continuing airworthiness average labor rate is $60 per work hour. accordance with sections 21.197 and 21.199 information by a foreign civil Based on these figures, the cost impact of the Federal Aviation Regulations (14 CFR airworthiness authority. The actions of this AD on U.S. operators is estimated 21.197 and 21.199) to operate the aircraft to specified by this AD are intended to a location where the requirements of this AD detect and correct stress corrosion to be $720, or $240 per airplane, per can be accomplished. cracking of the inner skin panel of the inspection cycle. longitudinal lap joint, which could The cost impact figure discussed Incorporation by Reference result in rapid depressurization of the above is based on assumptions that no (h) The actions required by this AD shall airplane. operator has yet accomplished any of be done in accordance with PW ASB No. DATES: Effective January 25, 2000. the requirements of this AD action, and A6359, Revision 1, dated July 30, 1999, and The incorporation by reference of that no operator would accomplish PW SB No. 6291, dated May 20, 1997, certain publications listed in the those actions in the future if this AD Revision 1, dated July 9, 1997, and Revision regulations is approved by the Director were not adopted. 2, dated August 27,1999. This incorporation of the Federal Register as of January 25, Regulatory Impact by reference was approved by the Director of 2000. the Federal Register in accordance with 5 ADDRESSES: The service information The regulations adopted herein will U.S.C. 552(a) and 1 CFR part 51. Copies may referenced in this AD may be obtained not have a substantial direct effect on be obtained from Pratt & Whitney, 400 Main from Airbus Industrie, 1 Rond Point the States, on the relationship between St., East Hartford, CT 06108; telephone (860) Maurice Bellonte, 31707 Blagnac Cedex, the national Government and the States, 565–8770, fax (860) 565–4503. Copies may be France. This information may be or on the distribution of power and inspected at the FAA, New England Region, examined at the Federal Aviation responsibilities among the various Office of the Regional Counsel, 12 New Administration (FAA), Transport levels of government. Therefore, it is England Executive Park, Burlington, MA; or Airplane Directorate, Rules Docket, at the Office of the Federal Register, 800 determined that this final rule does not 1601 Lind Avenue, SW., Renton, North Capitol Street, NW, suite 700, have federalism implications under Washington, DC. Washington; or at the Office of the Executive Order 13132. (i) This amendment becomes effective on Federal Register, 800 North Capitol For the reasons discussed above, I February 22, 2000. Street, NW., suite 700, Washington, DC. certify that this action (1) is not a FOR FURTHER INFORMATION CONTACT: ‘‘significant regulatory action’’ under Issued in Burlington, Massachusetts, on Norman B. Martenson, Manager, Executive Order 12866; (2) is not a December 8, 1999. International Branch, ANM–116, FAA, ‘‘significant rule’’ under DOT David A. Downey, Transport Airplane Directorate, 1601 Regulatory Policies and Procedures (44 Assistant Manager, Engine and Propeller Lind Avenue, SW., Renton, Washington FR 11034, February 26, 1979); and (3) Directorate, Aircraft Certification Service. 98055–4056; telephone (425) 227–2110; will not have a significant economic [FR Doc. 99–32506 Filed 12–20–99; 8:45 am] fax (425) 227–1149. impact, positive or negative, on a BILLING CODE 4910±13±U SUPPLEMENTARY INFORMATION: A substantial number of small entities proposal to amend part 39 of the Federal under the criteria of the Regulatory Aviation Regulations (14 CFR part 39) to Flexibility Act. A final evaluation has include an airworthiness directive (AD) been prepared for this action and it is that is applicable to certain Airbus contained in the Rules Docket. A copy Model A300 B2 and B4 series airplanes of it may be obtained from the Rules was published in the Federal Register Docket at the location provided under on October 21, 1999 (64 FR 56712). That the caption ADDRESSES.
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List of Subjects in 14 CFR Part 39 7 months, whichever occurs first; in provides an acceptable level of safety may be accordance with Airbus Service Bulletin used if approved by the Manager, Air transportation, Aircraft, Aviation A300–53–305, Revision 1, dated January 29, International Branch, ANM–116. Operators safety, Incorporation by reference, 1999; until the requirements of paragraph (e) shall submit their requests through an Safety. of this AD have been accomplished. appropriate FAA Principal Maintenance Adoption of the Amendment (1) If the most recent inspection was an Inspector, who may add comments and then internal eddy current inspection, perform an send it to the Manager, International Branch, Accordingly, pursuant to the external eddy current inspection of the inner ANM–116. authority delegated to me by the skin panel of the longitudinal lap joint. Note 3: Information concerning the Administrator, the Federal Aviation (2) If the most recent inspection was an existence of approved alternative methods of Administration amends part 39 of the external eddy current inspection, perform an compliance with this AD, if any, may be Federal Aviation Regulations (14 CFR internal eddy current inspection of the inner obtained from the International Branch, skin panel of the longitudinal lap joint. part 39) as follows: ANM–116. Corrective Actions Special Flight Permits PART 39ÐAIRWORTHINESS (c) If any cracking is detected during any DIRECTIVES (g) Special flight permits may be issued in inspection performed in accordance with accordance with sections 21.197 and 21.199 paragraph (a) or (b) of this AD, prior to of the Federal Aviation Regulations (14 CFR 1. The authority citation for part 39 further flight, accomplish the actions continues to read as follows: 21.197 and 21.199) to operate the airplane to required by either paragraph (c)(1) or a location where the requirements of this AD Authority: 49 U.S.C. 106(g), 40113, 44701. paragraph (c)(2) of this AD. can be accomplished. (1) Repair the inner skin panel of the § 39.13 [Amended] longitudinal lap joint in accordance with Incorporation by Reference 2. Section 39.13 is amended by Airbus Service Bulletin A300–53–305, (h) The actions shall be done in accordance adding the following new airworthiness Revision 1, dated January 29, 1999. with Airbus Service Bulletin A300–53–306, directive: Thereafter, repeat the inspection of areas in dated September 5, 1995; Airbus Service which no cracking is detected at the interval Bulletin A300–53–211, Revision 5, dated 99–26–15 AIRBUS: Amendment 39–11475. specified in, and in accordance with, April 29, 1999; and Airbus Service Bulletin Docket 98–NM–248–AD. paragraph (b) of this AD; and repeat the A300–53–305, Revision 1, dated January 29, Applicability: Model A300 B2 and B4 inspection of the repaired area at the 1999, which contains the following list of series airplanes, manufacturer serial numbers intervals specified in the service bulletin, in effective pages: 003 through 156 inclusive, certificated in any accordance with the service bulletin. If any cracking is found in the repaired area during category. Revision Note 1: This AD applies to each airplane any repetitive inspection, prior to further Date shown on Page No. level shown page identified in the preceding applicability flight, repair in accordance with the service on page provision, regardless of whether it has been bulletin. modified, altered, or repaired in the area Note 2: Airbus Service Bulletin A300–53– 1±6, 8±12 .. 1 ...... Jan. 29, 1999. subject to the requirements of this AD. For 305, Revision 1, dated January 29, 1999, 7 ...... Original ...... Sept. 5, 1995. airplanes that have been modified, altered, or references Airbus Structural Repair Manual repaired so that the performance of the Chapter 53–17–00, as an additional source of This incorporation by reference was requirements of this AD is affected, the service information to accomplish the repair approved by the Director of the Federal owner/operator must request approval for an specified in paragraph (c)(1) of this AD. Register in accordance with 5 U.S.C. 552(a) alternative method of compliance in (2) Modify the inner skin panel of the and 1 CFR part 51. Copies may be obtained accordance with paragraph (f) of this AD. The longitudinal lap joint in accordance with from Airbus Industrie, 1 Rond Point Maurice request should include an assessment of the Airbus Service Bulletin A300–53–306, dated Bellonte, 31707 Blagnac Cedex, France. effect of the modification, alteration, or repair September 5, 1995, and accomplish the Copies may be inspected at the FAA, on the unsafe condition addressed by this requirements of paragraph (d) of this AD. Transport Airplane Directorate, 1601 Lind AD; and, if the unsafe condition has not been (d) For airplanes modified in accordance Avenue, SW., Renton, Washington; or at the eliminated, the request should include with Airbus Service Bulletin A300–53–306, Office of the Federal Register, 800 North specific proposed actions to address it. dated September 5, 1995: Inspect the Capitol Street, NW., suite 700, Washington, Compliance: Required as indicated, unless modified inner skin panel of the longitudinal DC. accomplished previously. lap joint to detect cracking at the applicable Note 4: The subject of this AD is addressed To detect and correct stress corrosion threshold and repetitive intervals specified in in French airworthiness directive 98–150– cracking of the inner skin panel of the Table 1A, 1B, or 2 of Airbus Service Bulletin 246(B), dated April 8, 1998. longitudinal lap joint, which could result in A300–53–211, Revision 5, dated April 29, (i) This amendment becomes effective on rapid depressurization of the airplane, 1999, in accordance with Airbus Service January 25, 2000. accomplish the following: Bulletin A300–53–211, Revision 5. If any Issued in Renton, Washington, on cracking is found during any repetitive December 13, 1999. Initial Inspection inspection, prior to further flight, repair in (a) Within 400 flight cycles after the accordance with Airbus Service Bulletin D.L. Riggin, effective date of this AD, perform an external A300–53–211, Revision 5. Acting Manager, Transport Airplane eddy current inspection for cracking of the Directorate, Aircraft Certification Service. Optional Modification inner skin panel of the longitudinal lap joint [FR Doc. 99–32736 Filed 12–20–99; 8:45 am] between frames 65 and 72 at stringer 57, in (e) Modification of the inner skin panel of accordance with Airbus Service Bulletin the longitudinal lap joint in accordance with BILLING CODE 4910±13±U A300–53–305, Revision 1, dated January 29, Airbus Service Bulletin A300–53–306, dated 1999. September 5, 1995, constitutes terminating action for the repetitive inspections required FEDERAL TRADE COMMISSION Repetitive Inspections by paragraph (b) of this AD. Such (b) If no cracking is detected during the modification does not terminate the 16 CFR Part 0 inspection performed in accordance with repetitive inspections required by paragraph paragraph (a) of this AD: Thereafter, perform (d) of this AD. Miscellaneous Rules an internal or external eddy current inspection, as specified in paragraphs (b)(1) Alternative Methods of Compliance AGENCY: Federal Trade Commission. and (b)(2) of this AD, as applicable; at (f) An alternative method of compliance or ACTION: Final rule. intervals not to exceed 1,250 flight cycles or adjustment of the compliance time that
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SUMMARY: The Federal Trade Carolina, South Carolina, and assisted transportation programs Commission Rules of Practice are being Tennessee. Federal Trade Commission, administered under title 23, United amended to reflect a reconfiguration of Suite 5M35, Midrise Building, 60 States Code. The FHWA clarifies and the Commission’s Regional Office Forsyth Street, SW., Atlanta, Georgia reduces Federal regulatory requirements structure and operations. 30303. and places primary responsibility for a EFFECTIVE DATE: December 21, 1999. (3) East Central Region (located in number of approval actions at the State Cleveland, Ohio), covering Delaware, ADDRESSES: Requests for copies of the level. Conforming revisions are made to Federal Register notice should be sent District of Columbia, Maryland, several regulatory parts to remove to the Consumer Response Center, Room Michigan, Ohio, Pennsylvania, Virginia, outdated, redundant, and unnecessary and West Virginia. Federal Trade 130, Federal Trade Commission, 600 content. Also, the regulations are Commission, Eaton Center, Suite 200, Pennsylvania Avenue, NW, Washington, arranged to follow the same sequence as 1111 Superior Avenue, Cleveland, Ohio DC 20580. The notice announcing the the development and implementation of 44114. changes is available on the Internet at a Federal-aid project to assist the public (4) Midwest Region (located in and State transportation departments the Commission’s website, ‘‘http:// Chicago, Illinois), covering Illinois, www.ftc.gov’’. (STDs) in locating regulations Indiana, Iowa, Kansas, Kentucky, applicable to a specific point of interest. FOR FURTHER INFORMATION CONTACT: Minnesota, Missouri, Nebraska, North DATES: This final rule is effective Donald S. Clark, Secretary, Federal Dakota, South Dakota, and Wisconsin. January 20, 2000. Trade Commission, 600 Pennsylvania Federal Trade Commission, 55 East Avenue, NW, Washington, DC 20580, Monroe Street, Suite 1860, Chicago, FOR FURTHER INFORMATION CONTACT: Mr. telephone number (202) 326–2514, E- Illinois 60603–5701. James E. Ware, (202) 366–2019, Office of mail ‘‘[email protected]’’. (5) Southwest Region (located in Real Estate Services, HEPR–20, or Mr. SUPPLEMENTARY INFORMATION: In July Dallas, Texas), covering Arkansas, Reid Alsop, Office of the Chief Counsel, 1999 the Commission implemented a Louisiana, New Mexico, Oklahoma, and HCC–31, (202) 366–1371. Office hours plan to reconfigure its Regional Office Texas. Federal Trade Commission, 1999 are from 7:45 a.m. to 4:15 p.m., e.t., structure and operations. In particular, Bryan Street, Suite 2150, Dallas, Texas Monday through Friday, except Federal the Commission reduced the number of 75201. holidays. regions from ten to seven; closed the (6) Northwest Region (located in SUPPLEMENTARY INFORMATION: Seattle, Washington), covering Alaska, Boston and Denver Regional Offices, Electronic Access effective July 10, 1999; and changed the Idaho, Montana, Oregon, Washington, names and geographic areas of and Wyoming. Federal Trade Internet users may access all responsibility of the remaining Regional Commission, 915 Second Avenue, Suite comments received by the U.S. DOT Offices. 2896, Seattle, Washington 98174. Dockets, Room PL–401, by using the (7) Western Region (located in San universal resource locator (URL): http:/ List of Subjects in 16 CFR Part 0 Francisco and Los Angeles, California), /dms.dot.gov. It is available 24 hours Organization and functions covering Arizona, California, Colorado, each day, 365 days each year. Please (Government agencies). Hawaii, Nevada, and Utah. follow the instructions online for more For the reasons set forth in the (i) San Francisco Office: Federal information and help. preamble, the Federal Trade Trade Commission, 901 Market Street, An electronic copy of this document Commission amends Title 16, Chapter I, Suite 570, San Francisco, California may be downloaded by using a of the Code of Federal Regulations as 94103. computer modem, and suitable (ii) Los Angeles Office: Federal Trade follows: communications software from the Commission, 10877 Wilshire Boulevard, Government Printing Office’s Electronic PART 0ÐORGANIZATION Suite 700, Los Angeles, California Bulletin Board Service at (202) 512– 90024. 1661. Internet users may reach the 1. The authority for Part 0 continues * * * * * Office of the Federal Register’s home to read as follows: Donald S. Clark, page at: http://www.nara.gov/fedreg and Authority: Sec. 6(g), 38 Stat. 721 (15 U.S.C. Secretary. the Government Printing Office’s 46); 80 Stat. 383 as amended (5 U.S.C. 552). [FR Doc. 99–33014 Filed 12–20–99; 8:45 am] webpage at: http://www.access.gpo.gov/ 2. Section 0.19(b) is revised to read as BILLING CODE 6750±01±P nara. follows: Background § 0.19 The Regional Offices. The FHWA began the process of DEPARTMENT OF TRANSPORTATION * * * * * revising its regulations with an advance (b) The names, geographic areas of Federal Highway Administration notice of proposed rulemaking responsibility, and addresses of the (ANPRM) published on November 6, respective regional offices are as 23 CFR Parts 130, 480, 620, 630, 635, 1995 (60 FR 56004). As a first step in the follows: 645, 710, 712, and 713 comprehensive revision of the (1) Northeast Region (located in New regulations, the FHWA removed [FHWA Docket No. FHWA±98±4315] York City, New York), covering obsolete and redundant parts by Connecticut, Maine, Massachusetts, RIN 2125±AE44 publishing an interim final rule on April New Hampshire, New Jersey, New York, 25, 1996, at 61 FR 18246. This action Rhode Island, Vermont, and Puerto Right-of-Way Program Administration removed from title 23, CFR, all of parts Rico. Federal Trade Commission, One AGENCY: Federal Highway 720 and 740, and portions of parts 710 Bowling Green, Suite 318, New York, Administration (FHWA), DOT. and 712. Comments received in New York 10004. ACTION: Final rule. response to the ANPRM also identified (2) Southeast Region (located in the need for a comprehensive rewrite of Atlanta, Georgia), covering Alabama, SUMMARY: This document amends the the existing real estate program Florida, Georgia, Mississippi, North right-of-way regulations for federally regulations.
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An NPRM, published at 63 FR 71238, State matters and that since State laws experience is gained in the application on December 24, 1998, proposed to varied widely, it made sense to of the TEA–21 principles, the FHWA revise the regulations and arrange them reimburse based on actual State will update the web page for ‘‘Questions to follow the same sequence as the expenditures. Some commenters and Answers’’ which will be developed development and implementation of a believed that allowing Federal continually to facilitate implementation Federal-aid project and thereby assist reimbursement of costs not previously of early acquisition concepts. the public and State transportation permitted would encourage State A limited number of comments were departments in locating regulations legislatures and courts to expand both received questioning the FHWA’s applicable to a specific point of interest. property damage payments and costs of determination under the Unfunded The NPRM also proposed to clarify the acquisition, such as, payments of Mandates Reform Act that the proposed State-Federal partnership. property owners legal fees, court costs, regulation would result in estimated The FHWA provides funds to the and perhaps loss of business costs. In annual costs of less than $100 million. States and other organizations to developing the final rule, the FHWA The regulation as developed should reimburse them for the costs they have concluded that neither the FHWA nor result in a reduction of costs to State, incurred in constructing highways and STDs may have sufficient resources to local, or tribal governments since they other transportation related projects. monitor a wide variety of State laws and will not have to maintain staff to Regulations dealing with reimbursement court decisions and that an across-the- conduct surveillance to identify claims and management of right-of-way (ROW) board reimbursement of State for elements of property damage that are are contained in 23 CFR parts 710 expenditures required by State law is not eligible for Federal reimbursement through 713. the most practical and equitable under the old regulation. The reduction solution. in Federal approval actions should also Discussion of Comments As the comment of the Vermont STD result in cost savings by eliminating the ANPRM of November 6, 1995 correctly noted, business loss can time requirements for such approval. partially overlap ‘‘damages’’ and there is The final rule also permits Twenty comments were received: 2 great difficulty trying to isolate and reimbursement to States for property from individuals, 2 from private groups separate items in which the FHWA acquisition costs and administrative or organizations, and 16 from STDs. could not previously participate versus costs which are not now reimbursed, so Based on the responses received, the items where participation was it is a benefit to those States. FHWA concluded that the (ROW) permitted. Court awards most often do A comment was received questioning regulations needed a comprehensive not clearly separate the various the need for a reversionary clause when revision. During an initial review, the elements of damages making it difficult property is transferred at no cost by an FHWA identified several parts of the to isolate historically STD to be used for public purposes regulations that were no longer needed. ‘‘noncompensable’’ damages. under title 23, U.S.C. The FHWA NPRM of December 24, 1998 Several comments were received concluded that where property to be suggesting that specific wording should used for public purposes is transferred Twenty-eight comments were be revised to more closely mirror at no cost, good stewardship and received in response to the December language used by individual States. In recognition of the public trust dictates 24, 1998, NPRM. Comments were completing the final rule, the FHWA that the property be placed in the use received from 25 States, one non-profit selected language which it believes is for which the disposal was approved. organization, a law firm representing best understood and utilized by the The reversionary clause is the most five States, one individual, and a majority of the States. Nuances in effective method to assure that use. subcommittee of a right-of-way language can be accommodated in the One comment was received organization. The FHWA gratefully State procedural manual. concerning the need to insure that acknowledges the effort required to Several comments were received that FHWA approval is required for the provide comprehensive comments, questioned the procedures for receiving disposal of property at nominal or no endorsements, and recommendations either credit or reimbursement for early costs in exceptional circumstances. relating to the regulation. acquisitions. These comments typically Several comments were received Most commenters strongly supported reflected that the reader believed that suggesting that no FHWA approval for the need to reorganize the regulations. A the FHWA was too restrictive, and that any disposal should be mandated. The couple of comments noted that the there should be no impediment to States requirement for FHWA approval is regulations should not be reorganized moving forward to acquire right-of-way based on the requirements of 23 U.S.C. and that reorganization could mean and receive reimbursement or credit at 156(b) and remains in the final rule. The additional work for some States which a subsequent date. There were also rule’s intent is that disposals for less had provided cross references by section comments that FHWA should advance than fair market value are to be the number to the FHWA regulations. It was Federal funds for use in corridor exception, rather than the rule. concluded that the advantages of preservation. Language has been added encouraging completing a comprehensive rewrite of At the present time the FHWA that the criteria for disposals at less than regulations which are nearly 25 years believes that TEA–21 offers a great deal fair market value be clearly stated in the old outweighed the time and expense of of flexibility in considering early STD manuals. changing cross references. Since the acquisition in selected situations. The It is our intent to maintain current new regulations provide significant FHWA was aware of the statutory program guidance and information in an revisions, the text of State right-of-way requirements which must be met in electronic format with ‘‘Questions and manuals would require some revision in order to obtain either credit or Answers’’ and policy interpretations. any event. reimbursement at a later date, as well as, Technical air space guidance will also The NPRM proposed that Federal lawsuits which have challenged early be maintained in this manner. The URL funds be allowed to participate in all acquisition approaches and has adopted for up-to-date guidance is: http:// costs necessitated by State law. Most an approach which it considers prudent, www.fhwa.dot.gov/realestate/index.htm. commenters stated that they welcomed and cautious, while fully implementing This final rule seeks to further clarify the reduction in Federal involvement in the intent of TEA–21. As additional and reduce Federal regulatory
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71286 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations requirements and to place primary acquired by States for withdrawn along with definitions is included in responsibility for a number of approval Interstate segments; 23 CFR part 620, part 710, subpart A of this final rule. actions at the State level. The adoption Subpart B, Relinquishment of highway This consolidates material now found in of these regulatory changes impacts facilities; 23 CFR part 630; 23 CFR part several locations of the existing other parts of 23 CFR, and in developing 635; and 23 CFR part 645. regulations. the final rule, attention has been given This final rule substantially revises The following table highlights the to conforming revisions as necessary. the order of regulatory materials and Such other parts include: 23 CFR part completes the process of removing reordering of the content and intended 130, Subpart D, Advance right-of-way redundant, outdated, and unnecessary revisions and redesignations for each revolving funds; 23 CFR part 480, Use content from the existing rule. A unified subpart of the existing regulation: and disposition of property previously purpose and applicability statement
Old part, subpart or section New part, subpart or section
Part 130, subpart D ...... Removed. Part 480 ...... Removed. 620.202 ...... 620.202 [Revised]. 620.203(j) ...... 620.203(j) [Revised]. 630.106(c)(3) ...... 630.106(c)(3) [Revised]. 635.307(b)(3) ...... 635.307(b)(3) [Revised]. 645.103(c), 645.111(c) and (d), and 645.113(i) ...... 645.103(c), 645,111(c) and (d), and 645.113(i) [Revised]. 710, subpart A [Reserved] ...... 710, subpart A [Added]. 710, subpart B (§§ 710.201±710.205) ...... 710.201. 710, subpart C (710.301±710.306) ...... 710.203. 712, subpart A [Reserved] ...... Removed. 712, subpart B (712.201±712.204) ...... 710, subpart C. 712, subpart C [Reserved] ...... Removed. 712, subpart D (712.401±712.408) ...... 710.105, 710.203. 712, subpart F (712.601±712.606) ...... 710.509. 712, subpart G (712.701±712.703) ...... Removed. 713, subpart A (713.101±713.103) ...... 710.101±710.103. 713, subpart B (713.201±713.205) ...... 710.405. 713, subpart C (713.301±713.308) ...... 710.407±710.409.
Part and Section Analysis Section 635.307(b)(3) will allow States to include their acquisition process in a State manual to Part 130, Subpart D—Advance Right-of- In § 635.307(b)(3), the reference to ‘‘23 CFR 713, subpart A’’ is revised to read be approved by the FHWA. Way Revolving Funds This final rule seeks to further clarify ‘‘23 CFR 710.403’’ to provide a current and reduce Federal regulatory Part 130, subpart D is removed from citation. title 23, CFR, because section 1211 (e) requirements and to place primary of the TEA–21 eliminated the right-of- Part 645—Utilities responsibility for a number of approval way revolving fund. Sections 645.103(c) and 645.111 (c) actions at the State level. It substantially revises the order of regulatory materials Part 480—Use and Disposition of and (d) are amended to revise the reference ‘‘23 CFR chapter I, subchapter and completes the process of removing Property Previously Acquired by States redundant, outdated, and unnecessary H, Right-of-Way and Environment’’ to for Withdrawn Interstate Segments content from the existing rule. read ‘‘23 CFR 710.203.’’ Section Part 480 is removed from title 23, 645.113(i) is amended to revise the Part 710, Subpart A—General CFR, since section 1303 of the TEA–21 reference ‘‘23 CFR part 712, the A unified purpose and applicability now allows States to retain the proceeds Acquisition Functions’’ to read ‘‘23 CFR statement along with definitions is for the lease or sale of real estate on 710.503.’’ included in subpart A of this final rule. Federal projects as long as the proceeds This consolidates material now found in are used for title 23, U.S.C., type Parts 710—Right-of-Way—General; several locations of the existing projects. Other provisions of part 480 712—The Acquisition Function; and regulations. are obsolete. 713—Right-of-Way—The Property Management Function Part 710, Subpart B—Program Part 620, Subpart B—Relinquishment of Administration Highway Facilities Parts 710, 712, and 713 are removed in their entirety, and replaced by six Section 710.201 clarifies that the STD Part 620 is amended to clarify that it new subparts under a new part 710. The has the overall responsibility to assure is applicable only to transfers of reorganization includes: subpart A— compliance with State and Federal laws highway facilities for continued General; subpart B—Program and regulations. The methods and highway use. Approvals for other Administration; subpart C—Project practices of the STDs are to be specified disposals and modifications of access Development; subpart D—Real Property in ROW operations manuals submitted are governed by 23 CFR part 710. Management; subpart E—Property for approval by the FHWA no later than Acquisition Alternatives; and subpart Section 630.106(c)(3) January 1, 2001, and certified as current F—Federal Assistance Programs. These every five years thereafter. In § 630.106(c)(3), the reference to ‘‘23 new sections clarify the purpose of the State ROW manuals are considered to CFR part 712’’ is revised to read ‘‘23 regulation and include a new definition be a sound basis for implementing CFR part 710’’ to provide a current section. Detailed requirements and rules appropriate procedures at the State and reference. have been replaced by a provision that local level. It is a State responsibility to
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71287 maintain the manual and complete the areas in which Clean Air Act conformity The final rule in § 710.405 continues various right-of-way phases in determination has lapsed, special to specify procedures the States will be accordance with Federal law and coordination is necessary prior to required to follow in use of airspace on regulations. The manual provides a initiating new projects or continuing the Interstate facilities which have documented reference for use by State activity on existing projects. Section received funding under title 23, U.S.C., ROW personnel, local public agencies, 710.311 includes a new TEA–21 in any way. However, these airspace affected individuals, and the FHWA. provision which provides that an requirements will no longer be Alternative methods to achieve program oversight agreement between the STD mandated for non-Interstate highways. objectives have been explored in and the FHWA must specify The final rule in § 710.405 relocates a developing this final rule, specifically, responsibility for the review of projects significant amount of detail relating to efforts were made to reduce the level of at the plan, specification, and estimate the management of airspace. The Federal oversight, required (PS&E) stage. detailed provisions for airspace, recordkeeping, and mandated reporting. particularly the detailed geometric Part 710, Subpart D—Real Property The FHWA believes that the need for requirements for the use of property Management project level surveillance has over or under a highway, will be diminished since the era of the The sections in this subpart were developed and updated through an Interstate program when Federal taken from part 712, subpart B and airspace technical guidance document. funding was allocated on the basis of revised to provide that the STD will An advantage of an airspace technical the cost to complete the system. Now charge fair market value for the use or guidance document is that it is easier to States receive a fixed allocation of disposal of real estate acquired with title update. Federal funds based largely on formula. 23, U.S.C., funding. Exceptions to the requirement to collect fair market value Part 710, Subpart E—Property Hence, it is clearly in the States’ best Acquisition Alternatives interest to use their Federal-aid funds or rent may be approved by the FHWA. prudently in all areas, including the The air rights guidelines are to be The sections in this subpart were acquisition, management, and maintained on the Internet. The STD taken from part 712, subparts E and F. disposition of real property. may retain the Federal share of rental Subpart G relating to the right-of-way Section 710.203(b)(1) expands Federal and disposal proceeds if used for revolving fund is removed since TEA– reimbursement for right-of-way projects eligible under title 23, U.S.C. 21 eliminated the revolving fund. acquisition costs beyond the current Section 710.401 provides that The final rule in § 710.501 also limit of ‘‘generally compensable’’ costs. property disposals or any other use of includes a TEA–21 provision (section Under former regulations, the States and right-of-way along the Interstate requires 1301) that the value of property the Federal government were required the STD to obtain FHWA concurrence, acquired by State or local governments to ascertain which types of acquisition but this would no longer be required for before project agreement could be costs were generally compensable across non-Interstate highways. Instead, the credited toward the State share of the nation and limit Federal STD ROW manual would specify project cost, as long as certain reimbursement to those activities. This procedures for the leasing, maintenance conditions, including those relating to limits State flexibility, imposes a ‘‘one and disposal of property rights, the environmental process, have been size fits all’’ philosophy, and creates including access control. met. Prior to TEA–21, private property administrative burdens for both the Section 710.403(e) of the final rule donated to a Federal project could be States and the FHWA. State and Federal includes a TEA–21 provision that the credited to the non-Federal share, but staff time devoted to isolating and Federal share of proceeds from the sale no such credit was permitted for extracting these costs does not add or lease of real estate originally acquired publicly-owned property. The value to the overall transportation as part of a Federal-aid project (not regulation fulfills TEA–21 statutory program accomplishments. Moreover, limited to airspace) could be retained by provisions by allowing a State credit States should have greater discretion in the STD, if used for projects that would toward the non-Federal share of the cost determining the best use of formula- be eligible for funding under title 23, of a project, and mandating the credit in allocated Federal funds for acquisition U.S.C. Section 710.403(d) of the final the case of locally-owned property. The purposes, as they now have in virtually rule requires that, with certain conditions which must be met to allow every other aspect of projects funded exceptions, the STD charge fair market the credit would include careful with Federal-aid. value for the sale or lease of real observance of the environmental Since 1991, the kinds of activities that property if the property was acquired process. are eligible for Federal-aid funds have with Federal assistance made available As a basis for protective buying, greatly increased, and States have from the highway trust fund. This significant increased cost may be used received greatly expanded discretion in reflects the provision of 23 U.S.C. 156, as a justification under § 710.503(b). the use of Federal-aid funds. This final as amended by section 1303 of TEA–21. The final rule in §§ 710.505 and rule echoes statutory and policy changes This revision reduces administrative 710.507 contains separate sections for that have occurred throughout the rest burdens on States and the FHWA and property donations by private parties of the Federal-aid program for the gives States and local governments and contributions by State or local surface transportation program. greater flexibility in use of funds, while governments to clearly distinguish also protecting Federal interests by between these distinct actions, both of Part 710, Subpart C—Project ensuring funds are used on purposes which can generate credits for the State Development permitted under title 23, U.S.C. This or local matching share of a project. The sections in this subpart were procedure applies to all disposals, The final rule in § 710.513(b) clarifies taken from part 712, subpart B and including surplus property from that where property is to be used for revised to provide a brief chronology of withdrawn Interstate projects, processed environmental mitigation or the sequence and actions which are subsequent to June 9, 1998, the effective environmental banking, the provisions necessary to qualify for Federal-aid date of TEA–21. Under the rule, income of the Uniform Relocation Assistance funding. Section 710.305 provides new from all property uses and dispositions and Real Property Acquisition Policies agency requirements mandating that in is treated in a uniform manner. Act (Public Law 91–645, 84 Stat. 1894,
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Current subpart A concerning reimbursement for certain right-of-way property and use of air space were purpose, applicability, policies and expenditures when those expenditures revised in the final rule to more closely procedures of property management are are made under provisions of State law. parallel the assumptions of relocated to new part 710, subpart A Neither the individual nor cumulative responsibilities principles, as outlined (§§ 710.101 and 710.103) and included impact of this action is significant in section 1305 of TEA–21 to stress in the general statement for real because this rule does not alter the FHWA approval actions on the property. funding levels available to the States for Interstate system. Current part 713, subpart B regarding Federal or federally-assisted programs covered by the TEA–21. Part 710, Subpart F—Federal Assistance management of airspace on Federal-aid Programs highway systems for non-highway Regulatory Flexibility Act purposes is relocated to new part 710 at In compliance with the Regulatory Sections 710.601 and 710.603 were § 710.405 (air rights on the Interstate). Flexibility Act (5 U.S.C. 601–612), the taken from part 712, subpart F and The FHWA approval for the use of agency has evaluated the effects of this revised to provide updated references to airspace is limited to Interstate projects. rule on small entities, such as local new legislation and to conform the Disposal of rights-of-way provisions agencies and businesses. This action regulatory references to this final rule. found in current part 713, subpart C are would merely update and clarify relocated to new part 710, subpart D Part 712—The Acquisition Function existing procedures. Also, this rule (real property management) at reduces Federal regulatory requirements Part 712 is removed from title 23, §§ 710.407 (leasing) and 710.409 and allows State procedures to be CFR. The provisions of current part 712, (disposals). This section clarifies that utilized. Local entities could also adopt subpart B, concerning general income received by the STDs may be State procedures for advancing Federal- provisions and project procedures are retained when used for projects eligible aid projects under the State relocated and revised as new part 710, under title 23, U.S.C. transportation plan. Accordingly, the subpart C, project development. Provisions relating to the real estate FHWA certifies that this action would issues contained in sections 1301 and We are removing current part 712, not have a significant economic impact 1303 of the TEA–21 have been subparts A and C (empty reserved slots) on a substantial number of small incorporated into these regulations, and G, right-of-way revolving fund. entities. notably: (1) Allowing credit to the non- Subpart G was eliminated by section Federal share when a State or local Environmental Impact 1211(e) of the TEA–21. The revolving government contributes land to a fund was a pool of money that could be The FHWA has also analyzed this project; (2) allowing States to retain used by States to acquire right-of-way in action for the purpose of the National income from sale or lease of real advance of the time that State funding Environmental Policy Act (42 U.S.C. property, as long as the income is used was available. 4321 et seq.), and concludes that this for projects eligible under title 23, action will not have any effect on the The information in current part 712, U.S.C.; and (3) eliminating the right-of- quality of the human and natural subpart D regarding administrative and way revolving fund and clarifying credit environment. legal settlements and court awards is for private property donations. relocated to new §§ 710.105 Executive Order 13132 (Federalism) Rulemaking Analyses and Notices (Definitions) and 710.203 (Funding and This action has been analyzed in reimbursement). All comments received before the accordance with the principles and Federal land transfers and direct close of business on March 24, 1999, criteria contained in Executive Order Federal acquisition policies and were considered in developing the final 13132, dated August 4, 1999, and it has procedures found in current part 712, rule and late comments were considered been determined this action does not subpart E are relocated to new part 710, to the extent practicable. The comments have a substantial direct effect or subpart F (Federal assistance programs), are available for examination using sufficient federalism implications on §§ 710.601 and 710.603. docket number FHWA 98–4315 in the States that would limit the Current part 712, subpart F, docket room at the above address or via policymaking discretion of the States. concerning functional replacement of the electronic addresses provided above. Nothing in this document directly real property in public ownership is Executive Order 12866 (Regulatory preempts any State law or regulation. relocated to new part 710, subpart E, Planning and Review) and DOT Executive Order 12372 specifically § 710.509. Regulatory Policies and Procedures (Intergovernmental Review) A major objective of the final rule is The FHWA has determined that this Catalog of Federal Domestic to reorder the regulation so that it action is not a significant regulatory Assistance Program Number 20.205, follows the same sequence as the action within the meaning of Executive Highway Planning and Construction. development and implementation of a Order 12866, nor is it a significant The regulations implementing Executive Federal-aid project. This rearrangement regulatory action within the Department Order 12372 regarding in chronological order should aid the of Transportation’s regulatory policies intergovernmental consultation on public and State transportation and procedures. The economic impact Federal programs and activities apply to departments (STD) in effectively using of this rulemaking will be minimal; this program. the regulation. therefore, a full regulatory evaluation is The final rule also clarifies the State- not required. The FHWA does not Unfunded Mandates Reform Act of Federal partnership, which is not consider this action to be significant 1995 considered a major or significant because these regulations simplify, This rule does not impose a Federal change. clarify, reorganize, and/or eliminate mandate resulting in the expenditure by
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State, local, and tribal governments, in List of Subjects facilities for continued highway the aggregate, or by the private sector, of purposes. Other real property disposals 23 CFR Part 130 $100 million or more in any one year. and modifications or disposal of access (2 U.S.C. 1531 et seq.). Grant programs—transportation, rights are governed by the requirements Highways and roads, Real property of 23 CFR part 710. Paperwork Reduction Act acquisition, Rights-of-way, Reporting 5. Revise § 620.203(j) to read as Under the Paperwork Reduction Act and recordkeeping requirements. follows: of 1995 (PRA), 49 U.S.C. 3501–3520, 23 CFR Part 480 Federal agencies must determine § 620.203 Procedures. whether requirements contained in Grant programs—transportation, * * * * * rulemaking are subject to the Highways and roads, Intergovernmental (j) If a relinquishment is to a Federal, information collection provisions of the relations, Mass transportation, Rights-of- State, or local government agency for PRA. way, Reporting and recordkeeping highway purposes, there need not be a The FHWA has determined that this requirements. charge to the said agency, nor in such final rule places a requirement on the 23 CFR Part 620 event any credit to Federal funds. If for STDs, for Right-of-Way Manuals, that Grant programs—transportation, any reason there is a charge, the STD requires Office of Management and Highways and roads, Rights-of-way. may retain the Federal share of the Budget (OMB) approval. proceeds if used for projects eligible The FHWA is allowing STDs to 23 CFR Part 630 under title 23 of the United States Code. develop and submit the manuals by Government contracts, Grant PART 630Ð[AMENDED] January 1, 2001. The FHWA estimates programs—transportation, Highways the annual burden of this requirement is and roads, Project authorization, 6. Revise the authority citation for approximately 4,000 hours on a national Reporting and recordkeeping part 630 to read as follows: basis. requirements. A request for OMB approval of the Authority: 23 U.S.C. 105, 106, 109, 115, manual requirement will be submitted 23 CFR Part 635 315, 320, and 402(a); 23 CFR 1.32; 49 CFR 1.48(b). in the near future. Grant programs—transportation, Highways and roads, Real property § 630.106 [Amended] Executive Order 12988 (Civil Justice acquisition, Reporting and 7. Amend § 630.106(c)(3) by revising Reform) recordkeeping requirements. the citation ‘‘23 CFR part 712’’ to read This action meets applicable 23 CFR Part 645 ‘‘23 CFR part 710’’. standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Grant programs—transportation, PART 635Ð[AMENDED] Reform, to minimize litigation, Highways and roads, Rights-of-way, eliminate ambiguity, and reduce Utilities. 8. Revise the authority citation for burden. 23 CFR Parts 710, 712, and 713 part 635 to read as follows: Executive Order 13045 (Protection of Grant programs—transportation, Authority: 23 U.S.C. 101(note), 109, 112, Children) Highways and roads, Real property 113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; sec. We have analyzed this action under acquisition, Rights-of-way, Reporting 1041(a), Pub. L. 102–240, 105 Stat. 1914; 23 Executive Order 13045, Protection of and recordkeeping requirements. CFR 1.32; 49 CFR 1.48(b). Children from Environmental Health For the reasons stated in the Risks and Safety Risks. This rule is not preamble, and under the authority of 23 § 635.307 [Amended] U.S.C. 107, 108, 111, and 315, the an economically significant rule and 9. Amend § 635.307(b)(3) by revising FHWA amends 23 CFR chapter I as set does not concern an environmental risk the citation ‘‘23 CFR part 713, subpart forth below: to health or safety that may A’’ to read ‘‘23 CFR 710.403’’. disproportionately affect children. PART 130Ð[REMOVED] PART 645Ð[AMENDED] Executive Order 12630 (Taking of 1. Remove part 130. Private Property) 10. The authority citation for part 645 This rule will not effect a taking of PART 480Ð[REMOVED] continues to read as follows: private property or otherwise have 2. Remove part 480. Authority: 23 U.S.C. 101, 109, 111, 116, taking implications under Executive 123, and 315; 23 CFR 1.23 and 1.27; 49 CFR Order 12630, Governmental Actions and PART 620Ð[AMENDED] 1.48(b); and E.O. 11990, 42 FR 26961 (May Interference with Constitutionally 24, 1977). Protected Property Rights. 3. The authority citation for part 620 continues to read as follows: 11. Amend §§ 645.103(c) and Regulation Identification Number 645.111(c) and (d) by revising the words Authority: 23 U.S.C. 315 and 318; 49 CFR ‘‘23 CFR chapter I, subchapter H, Right- A regulation identification number 1.48; and 23 CFR 1.32. of-Way and Environment’’ to read ‘‘23 (RIN) is assigned to each regulatory 4. Revise § 620.202 to read as follows: CFR 710.203’’. action listed in the Unified Agenda of 11–A. Amend § 645.113 (i) by revising Federal Regulations. The Regulatory § 620.202 Applicability. the words ‘‘23 CFR part 712, the Information Service Center publishes The provisions of this subpart apply Acquisition Functions’’ to read ‘‘23 CFR the Unified Agenda in April and to highway facilities where Federal-aid 710.503’’. October of each year. The RIN contained funds have participated in either right- in the heading of this document can be of-way or physical construction costs of PART 712Ð[REMOVED] used to cross reference this action with a project. The provisions of this subpart the Unified Agenda. apply only to relinquishment of 12. Remove part 712.
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PART 713Ð[REMOVED] agencies’ procedures may be utilized. Real property means land and any Additional guidance is available improvements thereto, including but not 13. Remove part 713. electronically at the FHWA Real Estate limited to, fee interests, easements, air 14. Revise part 710 to read as follows: services website: http:// or access rights, and the rights to control PART 710ÐRIGHT-OF-WAY AND REAL www.fhwa.dot.gov/realestate/index.htm use, leasehold, and leased fee interests. ESTATE Relinquishment means the § 710.105 Definitions. conveyance of a portion of a highway Subpart AÐGeneral (a) Terms defined in 49 CFR part 24, right-of-way or facility by a State Sec. and 23 CFR part 1 have the same highway department to another 710.101 Purpose. meaning where used in this part, except government agency for continued 710.103 Applicability. as modified in this section. transportation use. (See 23 CFR part 710.105 Definitions. (b) The following terms where used in 620, subpart B.) Subpart BÐProgram Administration this part have the following meaning: Right-of-way means real property and Access rights means the right of rights therein used for the construction, 710.201 State responsibilities. ingress to and egress from a property 710.203 Funding and reimbursement. operation, or maintenance of a that abuts a street or highway. transportation or related facility funded Subpart CÐProject Development Acquiring agency means a State under title 23 of the United States Code. 710.301 General. agency, other entity, or person acquiring Settlement means the result of 710.303 Planning. real property for title 23 of the United negotiations based on fair market value 710.305 Environmental analysis. States Code purposes. in which the amount of just 710.307 Project agreement. Acquisition means activities to obtain compensation is agreed upon for the 710.309 Acquisition. an interest in, and possession of, real 710.311 Construction advertising. purchase of real property or an interest property. therein. This term includes the Subpart DÐReal Property Management Air rights means real property following: 710.401 General. interests defined by agreement, and (1) An administrative settlement is a 710.403 Management. conveyed by deed, lease, or permit for settlement reached prior to filing a 710.405 Air rights on the Interstate the use of airspace. condemnation proceeding based on 710.407 Leasing. Airspace means that space located value related evidence, administrative 710.409 Disposals. above and/or below a highway or other consideration, or other factors approved Subpart EÐProperty Acquisition transportation facility’s established by an authorized agency official. Alternatives grade line, lying within the horizontal (2) A legal settlement is a settlement 710.501 Early acquisition. limits of the approved right-of-way or reached by a responsible State legal 710.503 Protective buying and hardship project boundaries. representative after filing a acquisition. Damages means the loss in value condemnation proceeding, including 710.505 Real property donations. attributable to remainder property due stipulated settlements approved by the 710.507 State and local contributions. to severance or consequential damages, court in which the condemnation action 710.509 Functional replacement of real as limited by State law, that arise when had been filed. property in public ownership. only part of an owner’s property is (3) A court settlement or court award 710.511 Transportation enhancements. acquired. 710.513 Environmental mitigation. is any decision by a court that follows Disposal means the sale of real a contested trial or hearing before a jury, Subpart FÐFederal Assistance Programs property or rights therein, including commission, judge, or other legal entity 710.601 Federal land transfer. access or air rights, when no longer having the authority to establish the 710.603 Direct Federal acquisition. needed for highway right-of-way or amount of compensation for a taking Authority: 23 U.S.C. 101(a), 107, 108, 111, other uses eligible for funding under under the laws of eminent domain. 114, 133, 142(f), 145, 156, 204, 210, 308, 315, title 23 of the United States Code. State agency means a department, 317, and 323; 42 U.S.C. 2000d et seq., 4633, Donation means the voluntary agency, or instrumentality of a State or 4651–4655; 49 CFR 1.48(b) and (cc), 18.31, transfer of privately owned real property of a political subdivision of a State; any and parts 21 and 24; 23 CFR 1.32. for the benefit of a public transportation department, agency, or instrumentality Subpart AÐGeneral project without compensation or with of two or more States or of two or more compensation at less than fair market political subdivisions of a State or § 710.101 Purpose. value. States; or any person who has the The primary purpose of the Early acquisition means acquisition of authority to acquire property by requirements in this part is to ensure the real property by State or local eminent domain, for public purposes, prudent use of Federal funds under title governments in advance of Federal under State law. 23 of the United States Code in the authorization or agreement. State transportation department acquisition, management, and disposal Easement means an interest in real (STD) means the State highway of real property. In addition to the property that conveys a right to use a department, transportation department, requirements of this part, other real portion of an owner’s property or a or other State transportation agency or property related provisions apply and portion of an owner’s rights in the commission to which title 23 of the are found at 49 CFR part 24. property. United States Code funds are NHS means the National Highway apportioned. § 710.103 Applicability. System as defined in 23 U.S.C. 103(b). Uneconomic remnant means a This part applies whenever Federal Oversight agreement means the remainder property which the acquiring assistance under title 23 of the United project approval and agreement agency has determined has little or no States Code is used. The part applies to concluded between the State and the utility or value to the owner. programs administered by the Federal FHWA to outline which projects will be Uniform Act means the Uniform Highway Administration. Where monitored at the plans, specifications, Relocation Assistance and Real Property Federal funds are transferred to other and estimate stage by FHWA as required Acquisition Policies Act of 1970, as Federal agencies to administer, those by 23 U.S.C. 106(c)(3). amended (Public Law 91–646, 84 Stat.
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1894), and the implementing regulations of both the facility and the traveling compensation shall be approved by a at 49 CFR part 24. public. responsible official of the acquiring (f) Recordkeeping. The acquiring agency. Subpart BÐProgram Administration agency shall maintain adequate records (k) Description of acquisition process. of its acquisition and property The STD shall provide persons affected § 710.201 State responsibilities. management activities. by projects or acquisitions advanced (a) Organization. Each STD shall be (1) Acquisition records, including under title 23 of the United States Code adequately staffed, equipped, and records related to owner or tenant with a written description of its real organized to discharge its real property- displacements, and property inventories property acquisition process under State related responsibilities. of improvements acquired shall be in law and of the owner’s rights, privileges, (b) Program oversight. The STD shall sufficient detail to demonstrate and obligations. The description shall have overall responsibility for the compliance with this part and 49 CFR be written in clear, non-technical acquisition, management, and disposal part 24. These records shall be retained language and, where appropriate, be of real property on Federal-aid projects. at least 3 years from either: available in a language other than This responsibility shall include (i) The date the State receives Federal English. assuring that acquisitions and disposals reimbursement of the final payment by a State agency are made in made to each owner of a property and § 710.203 Funding and reimbursement. compliance with legal requirements of to each person displaced from a (a) General conditions. The following State and Federal laws and regulations. property, or conditions are a prerequisite to Federal (c) Right-of-way (ROW) operations (ii) The date a credit toward the participation in the costs of acquiring manual. Each STD which receives Federal share of a project is approved real property except as provided in funding from the highway trust fund based on early acquisition activities of § 710.501 for early acquisition: shall maintain a manual describing its the State. (1) The project for which the real right-of-way organization, policies, and (2) Property management records property is acquired is included in an procedures. The manual shall describe shall include inventories of real approved Statewide Transportation functions and procedures for all phases property considered excess to project Improvement Program (STIP); of the real estate program, including needs, all authorized uses of airspace, (2) The State has executed a project appraisal and appraisal review, and other leases or agreements for use agreement; negotiation and eminent domain, of real property managed by the STD. (3) Preliminary acquisition activities, property management, and relocation (g) Procurement. Contracting for all including a title search and preliminary assistance. The manual shall also activities required in support of State property map preparation necessary for specify procedures to prevent conflict of right-of-way programs through use of the completion of the environmental interest and avoid fraud, waste, and private consultants and other services process, can be advanced under abuse. The manual shall be in sufficient shall conform to 49 CFR 18.36. preliminary engineering prior to (h) Use of other public land detail and depth to guide State National Environmental Policy Act acquisition organizations or private employees and others involved in (NEPA) (42 U.S.C. 4321 et seq.) consultants. The STD may enter into acquiring and managing real property. clearance, while other work involving written agreements with other State, The State manuals should be developed contact with affected property owners county, municipal, or local public land and updated, as a minimum, to meet the must normally be deferred until after acquisition organizations or with private following schedule: NEPA approval, except as provided in consultants to carry out its authorities 23 CFR 710.503 for protective buying (1) The STD shall prepare and submit under paragraph (b) of this section. for approval by FHWA an up-to-date and hardship acquisition; and in 23 CFR Such organizations, firms, or 710.501, early acquisition. Appraisal Right-of-Way Operations Manual by no individuals must comply with the later than January 1, 2001. completion may be authorized as policies and practices of the STD. The preliminary right-of-way activity prior (2) Every five years thereafter, the STD shall monitor any such real to completion of the environmental chief administrative officer of the STD property acquisition activities to assure document; and shall certify to the FHWA that the compliance with State and Federal law (4) Costs have been incurred in current ROW operations manual and requirements and is responsible for conformance with State and Federal law conforms to existing practices and informing such organizations of all such requirements. contains necessary procedures to ensure requirements and for imposing (b) Direct eligible costs. Federal compliance with Federal and State real sanctions in cases of material non- participation in real property costs is estate law and regulation. compliance. limited to the costs of property (3) The STD shall update the manual (i) Approval actions. Except for the incorporated into the final project and periodically to reflect changes in Interstate system, the STD and the the associated direct costs of operations and submit the updated FHWA will agree on the scope of acquisition, unless provided otherwise. materials for approval by the FHWA. property related oversight and approval Participation is provided for: (d) Compliance responsibility. The actions that the FHWA will be (1) Real property acquisition. Usual STD is responsible for complying with responsible for under this part. The costs and disbursements associated with current FHWA requirements whether or content of the most recent oversight real property acquisition required under not its manual reflects those agreement shall be reflected in the State the laws of the State, including the requirements. right-of-way operations manual. The following: (e) Adequacy of real property interest. oversight agreement, and thus the (i) The cost of contracting for private The real property interest acquired for manual, will indicate for which non- acquisition services or the cost all Federal-aid projects funded pursuant Interstate Federal-aid project associated with the use of local public to title 23 of the United States Code submission of materials for review and agencies. shall be adequate for the construction, approval are required. (ii) The cost of acquisition activities, operation, and maintenance of the (j) Approval of just compensation. such as, appraisal, appraisal review, resulting facility and for the protection The amount determined to be just cost estimates, relocation planning,
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In 24.102(i), legal settlements, court The cost to replace operating real areas in which the Clean Air Act awards, and costs incidental to the property owned by a displaced utility or conformity determination has lapsed, condemnation process. railroad and conveyed to an STD for a acquiring agencies must coordinate with (v) The cost of minimum payments highway project, as provided in 23 CFR Federal Highway Administration for and appraisal waiver amounts included part 140, subpart I, Reimbursement for special instructions prior to initiating in the State approved manual. Railroad Work, and 23 CFR part 645, new projects or continuing activity on (2) Relocation assistance and Subpart A, Utility Relocations, existing projects. At the time of payments. Payments made incidental to Adjustments and Reimbursement, and processing an environmental document, and associated with the displacement 23 CFR part 646, Subpart B, Railroad- a State may request reimbursement of from acquired property under 49 CFR Highway Projects. costs incurred for early acquisition, part 24. (ii) Participation in the cost of provided conditions prescribed in 23 (3) Damages. The cost of severance acquiring non-operating utility or U.S.C. 108(c) and 23 CFR 710.501, are and/or consequential damages to railroad real property shall be in the satisfied. remaining real property resulting from a same manner as that used in the partial acquisition, actual or acquisition of other privately owned § 710.307 Project agreement. constructive, of real property for a property. As a condition of Federal-aid, the STD project based on elements compensable (c) Withholding payment. The FHWA shall obtain FHWA authorization in under applicable State law. may withhold payment under the writing or electronically before (4) Property management. The net conditions in 23 CFR 1.36 where the proceeding with any real property cost of managing real property prior to State fails to comply with Federal law acquisitions, including hardship and during construction to provide for or regulation, State law, or under acquisition and protective buying (see maintenance, protection, and the circumstances of waste, fraud, and 23 CFR 710.503). The STD must prepare clearance and disposal of improvements abuse. a project agreement in accordance with until final project acceptance. (d) Indirect costs. Indirect costs may 23 CFR part 630, subpart C. The (5) Payroll-related expenses and be claimed under the provisions of OMB agreement shall be based on an technical guidance. Salary and related Circular A–87. Indirect costs may be acceptable estimate for the cost of expenses of employees of an acquiring included on Federal-aid billings after acquisition. On projects where the agency are eligible costs in accordance the indirect cost rate has been approved initial project agreement was executed with OMB Circular A–87 (available at by FHWA. after June 9, 1998, a State may request http://www.whitehouse.gov/omb/ credit toward the non-Federal share, for circulars). This includes State costs Subpart CÐProject Development early acquisitions, donations, or other incurred for managing or providing contributions applied to the project technical guidance, consultation or § 710.301 General. provided conditions in 23 U.S.C. 323 oversight on projects where right-of-way The project development process and 23 CFR 710.501, are satisfied. services are performed by a political typically follows a sequence of actions subdivision or others. and approvals in order to qualify for § 710.309 Acquisition. (6) Property not incorporated into a funding. The key steps in this process The process of acquiring real property project funded under title 23 of the are provided in this subpart. includes appraisal, appraisal review, United States Code. The cost of property establishing just compensation, not incorporated into a project may be § 710.303 Planning. negotiations, administrative and legal eligible for reimbursement in the State and local governments conduct settlements, and condemnation. The following circumstances: metropolitan and statewide planning to State shall conduct acquisition and (i) General. Costs for construction develop coordinated, financially related relocation activities in material sites, property acquisitions to a constrained system plans to meet accordance with 49 CFR part 24. logical boundary, or for eligible transportation needs for local and transportation enhancement, sites for statewide systems, under FHWA’s § 710.311 Construction advertising. disposal of hazardous materials, planning regulations contained in 23 The State must manage real property environmental mitigation, CFR part 450. In addition, air quality acquired for a project until it is required environmental banking activities, or last non-attainment areas must meet the for construction. Clearance of resort housing. requirements of the U.S. EPA improvements can be scheduled during (ii) Easements not incorporated into Transportation conformity regulations the acquisition phase of the project the right-of-way. The cost of acquiring (40 CFR parts 51 and 93). Projects must using sale/removal agreements, separate easements outside the right-of-way for be included in an approved State demolition contracts, or be included as permanent or temporary use. Transportation Improvement Program a work item in the construction (7) Uneconomic remnants. The cost of (STIP) in order to be eligible for Federal- contract. On Interstate projects, prior to uneconomic remnants purchased in aid funding. advertising for construction, the State connection with the acquisition of a shall develop ROW availability partial taking for the project as required § 710.305 Environmental analysis. statements and certifications related to by the Uniform Act. The National Environmental Policy project acquisitions as required by 23 (8) Access rights. Payment for full or Act (NEPA) process, as described in CFR 635.309. For non-Interstate partial control of access on an existing FHWA’s NEPA regulations in 23 CFR projects, the oversight agreement must highway (i.e., one not on a new part 771, normally must be conducted specify responsibility for the review and
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(ii) Railroads and public utilities § 710.401 General. general requirement for charging fair market value may be approved in the which cross or otherwise occupy This subpart describes the acquiring following situations: Federal-aid highway right-of-way. agency’s responsibilities to control the (1) With FHWA approval, when the (iii) Relocations of railroads or use of real property required for a STD clearly shows that an exception is utilities for which reimbursement is project in which Federal funds in the overall public interest for social, claimed under 23 CFR part 140, participated in any phase of the project. environmental, or economic purposes; subparts E and H. Prior to allowing any change in access nonproprietary governmental use; or (iv) Bikeways and pedestrian control or other use or occupancy of uses under 23 U.S.C. 142(f), Public walkways as covered in 23 CFR part acquired property along the Interstate, Transportation. The STD manual may 652. the STD shall secure an approval from include criteria for evaluating disposals (b) A STD may grant rights for the FHWA for such change or use. The at less than fair market value. Disposal temporary or permanent occupancy or STD shall specify in the State’s ROW for public purposes may also be at fair use of Interstate system airspace if the operations manual, procedures for the market value. The STD shall submit STD has acquired sufficient legal right, rental, leasing, maintenance, and requests for such exceptions to the title, and interest in the right-of-way of disposal of real property acquired with FHWA in writing. a federally assisted highway to permit title 23 of the United States Code funds. (2) Use by public utilities in the use of certain airspace for non- The State shall assure that local accordance with 23 CFR part 645. highway purposes; and where such agencies follow the State’s approved (3) Use by Railroads in accordance airspace is not required presently or in procedures, or the local agencies own with 23 CFR part 646. the foreseeable future for the safe and procedures if approved for use by the (4) Use for Bikeways and pedestrian proper operation and maintenance of STD. walkways in accordance with 23 CFR the highway facility. The STD must obtain prior FHWA approval, except for § 710.403 Management. part 652. (5) Use for transportation projects paragraph (c) of this section. (a) The STD must assure that all real eligible for assistance under title 23 of (c) An STD may make lands and property within the boundaries of a the United States Code. rights-of-way available without charge federally-aided facility is devoted (e) The Federal share of net income to a publicly owned mass transit exclusively to the purposes of that from the sale or lease of excess real authority for public transit purposes facility and is preserved free of all other property shall be used by the STD for whenever the public interest will be public or private alternative uses, unless activities eligible for funding under title served, and where this can be such alternative uses are permitted by 23 of the United States Code. Where accomplished without impairing Federal regulation or the FHWA. An project income derived from the sale or automotive safety or future highway alternative use must be consistent with lease of excess property is used for improvements the continued operation, maintenance, subsequent title 23 projects, use of the (d) An individual, company, and safety of the facility, and such use income does not create a Federal-aid organization, or public agency desiring shall not result in the exposure of the project. to use airspace shall submit a written facility’s users or others to hazards. (f) No FHWA approval is required for request to the STD. If the STD (b) The STD shall specify procedures disposal of property which is located recommends approval, it shall forward in the State manual for determining outside of the limits of the right-of-way an application together with its when a real property interest is no if Federal funds did not participate in recommendation and any necessary longer needed. These procedures must the acquisition cost of the property. supplemental information including the provide for coordination among relevant (g) Highway facilities in which proposed airspace agreement to the STD organizational units, including Federal funds participated in either the FHWA. The submission shall maintenance, safety, design, planning, right-of-way or construction may be affirmatively provide for adherence to right-of-way, environment, access relinquished to another governmental all policy requirements contained in management, and traffic operations. agency for continued highway use this subpart and conform to the (c) The STD shall evaluate the under the provisions of 23 CFR 620, provisions in the FHWA’s Airspace environmental effects of disposal and subpart B. Guidelines at: http://www.fhwa.dot.gov/ leasing actions requiring FHWA realestate/index.htm. approval as provided in 23 CFR part § 710.405 Air rights on the Interstate. 771. (a) The FHWA policies relating to § 710.407 Leasing. (d) Acquiring agencies shall charge management of airspace on the (a) Leasing of real property acquired current fair market value or rent for the Interstate for non-highway purposes are with title 23 of the United States Code, use or disposal of real property included in this section. Although this funds shall be covered by an agreement interests, including access control, if section deals specifically with approval between the STD and lessee which those real property interests were actions on the Interstate, any use of contains provisions to insure the safety obtained with title 23 of the United airspace contemplated by a STD must and integrity of the federally funded States Code funding, except as provided assure that such occupancy, use, or facility. It shall also include provisions in paragraphs (d) (1) through (5) of this reservation is in the public interest and governing lease revocation, removal of section. Since property no longer does not impair the highway or interfere improvements at no cost to the FHWA, needed for a project was acquired with with the free and safe flow of traffic as adequate insurance to hold the State public funding, the principle guiding provided in 23 CFR 1.23. and the FHWA harmless,
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71294 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations nondiscrimination, access by the STD preservation, access management, or (1) The project is included in the and the FHWA for inspection, other purposes. currently approved STIP; maintenance, and reconstruction of the (b) Eligible costs. Acquisition costs (2) The STD has complied with facility. incurred by a State agency prior to applicable public involvement (b) Where a proposed use requires executing a project agreement with the requirements in 23 CFR parts 450 and changes in the existing transportation FHWA are not eligible for Federal-aid 771; facility, such changes shall be provided reimbursement. However, such costs (3) A determination has been without cost to Federal funds unless may become eligible for use as a credit completed for any property subject to otherwise specifically agreed to by the towards the State’s share of a Federal- the provisions of 23 U.S.C. 138; and STD and the FHWA. aid project if the following conditions (4) Procedures of the Advisory (c) Proposed uses of real property are met: Council on Historic Preservation are shall conform to the current design (1) The property was lawfully completed for properties subject to 16 standards and safety criteria of the obtained by the State; U.S.C. 470(f) (historic properties). (b) Protective buying. The STD must Federal Highway Administration for the (2) The property was not land clearly demonstrate that development of functional classification of the highway described in 23 U.S.C. 138; the property is imminent and such facility in which the property is located. (3) The property was acquired in accordance with the provisions of 49 development would limit future § 710.409 Disposals. CFR part 24; transportation choices. A significant (a) Real property interests determined (4) The State complied with the increase in cost may be considered as an to be excess to transportation needs may requirements of title VI of the Civil element justifying a protective purchase. (c) Hardship acquisitions. The STD be sold or conveyed to a public entity Rights Act of 1964 (42 U.S.C. 2000d– must accept and concur in a request for or to a private party in accordance with 2000d–4); a hardship acquisition based on a § 710.403(c). (5) The State determined and the FHWA concurs that the action taken did property owner’s written submission (b) Federal, State, and local agencies not influence the environmental that: shall be afforded the opportunity to assessment for the project, including: (1) Supports the hardship acquisition acquire real property interests (i) The decision on need to construct by providing justification, on the basis considered for disposal when such real the project; of health, safety or financial reasons, property interests have potential use for (ii) The consideration of alternatives; that remaining in the property poses an parks, conservation, recreation, or and undue hardship compared to others; related purposes, and when such a (iii) The selection of the design or and transfer is allowed by State law. When location; and (2) Documents an inability to sell the this potential exists, the STD shall (6) The property will be incorporated property because of the impending notify the appropriate resource agencies into a Federal-aid project. project, at fair market value, within a of its intentions to dispose of the real (7) The original project agreement time period that is typical for properties property interests. The notifications can covering the project was executed on or not impacted by the impending project. be accomplished by placing the after June 9, 1998. (d) Environmental decisions. appropriate agencies on the States’ (c) Reimbursement. In addition to Acquisition of property under this disposal notification listing. meeting all provisions in paragraph (b) section shall not influence the (c) Real property interests may be of this section, the FHWA approval for environmental assessment of a project, retained by the STD to restore, preserve, reimbursement for early acquisition including the decision relative to the or improve the scenic beauty and costs, including costs associated with need to construct the project or the environmental quality adjacent to the displacement of owners or tenants, selection of a specific location. transportation facility. requires the STD to demonstrate that: § 710.505 Real property donations. (d) Where the transfer of properties to (1) Prior to acquisition, the STD made other agencies at less than fair market the certifications and determinations (a) Donations of property being value for continued public use is clearly required by 23 U.S.C. 108(c)(2)(C) and acquired. A non-governmental owner justified as in the public interest and (D); and whose real property is required for a approved by the FHWA, the deed shall (2) The STD obtained concurrence Federal-aid project may donate the provide for reversion of the property for from the Environmental Protection property to the STD. Prior to accepting failure to continue public ownership Agency in the findings made under the property, the owner must be and use. Where property is sold at fair paragraph (b)(5) of this section regarding informed by the agency of his/her right market value no reversion clause is the NEPA process. to receive just compensation for the required. Disposal actions described in property. The owner shall also be 23 CFR 710.403(d)(1) for less than fair § 710.503 Protective buying and hardship informed of his/her right to an appraisal acquisition. market value require a public interest of the property by a qualified appraiser, determination and FHWA approval, (a) General conditions. Prior to the unless the STD determines that an consistent with that section. STD obtaining final environmental appraisal is unnecessary because the approval, the STD may request FHWA valuation problem is uncomplicated and Subpart EÐProperty Acquisition agreement to provide reimbursement for the fair market value is estimated at no Alternatives advance acquisition of a particular more than $2500, or the State appraisal parcel or a limited number of parcels, to waiver limit approved by the FHWA, § 710.501 Early acquisition. prevent imminent development and whichever is greater. All donations of (a) Real property acquisition. The increased costs on the preferred location property received prior to the approval State may initiate acquisition of real (Protective Buying), or to alleviate of the NEPA document must meet property at any time it has the legal hardship to a property owner or owners environmental requirements as authority to do so based on program or on the preferred location (Hardship specified in 23 U.S.C. 323(d). project considerations. The State may Acquisition), provided the following (b) Credit for donations. Donations of undertake early acquisition for corridor conditions are met: real property may be credited to the
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State’s matching share of the project. of local government of real property meet reasonable prevailing standards; Credit to the State’s matching share for which is offered for credit, in and donated property shall be based on fair connection with a project eligible for (2) Costs for land to provide a site for market value established on the earlier assistance under this title, shall be the replacement facility. of the following: either the date on credited against the State share of the (e) Procedures. When a State which the donation becomes effective, project at fair market value of the real determines that payments providing for or the date on which equitable title to property. Property may also be functional replacement of public the property vests in the State. The fair presented for project use with the facilities are allowable under State law, market value shall not include increases understanding that no credit for its use the State will incorporate within the or decreases in value caused by the is sought. The STD shall assure that the State’s ROW operating manual full project. Donations may be made at acquisition satisfied the conditions in procedures covering review and anytime during the development of a 23 CFR 710.501(b), and that oversight that will be applied to such project. The STD shall develop documentation justifies the amount of cases. sufficient documentation to indicate the credit. § 710.511 Transportation enhancements. compliance with paragraph (a) of this section and to support the amount of § 710.509 Functional replacement of real (a) General. Section 133(b) (8) of title property in public ownership. credit applied. The total credit cannot 23 of the United States Code authorizes exceed the State’s pro-rata share under (a) General. When publicly owned the expenditure of surface the project agreement to which it is real property, including land and/or transportation funds for transportation applied. facilities, is to be acquired for a Federal- enhancement activities (TEA). (c) Donations and conveyances in aid highway project, in lieu of paying Transportation enhancement activities exchange for construction features or the fair market value for the real which involve the acquisition, services. A property owner may donate property, the State may provide management, and disposition of real property in exchange for construction compensation by functionally replacing property, and the relocation of families, features or services. The value of the the publicly owned real property with individuals, and businesses, are donation is limited to the fair market another facility which will provide governed by the general requirements of value of property donated less the cost equivalent utility. the Federal-aid program found in titles of the construction features or services. (b) Federal participation. Federal-aid 23 and 49 of the Code of Federal If the value of the donated property funds may participate in functional Regulations (CFR), except as specified exceeds the cost of the construction replacement costs only if: in paragraph (b)(3) of this section. features or services, the difference may (1) Functional replacement is (b) Requirements. (1) Displacements be eligible for a credit to the State’s permitted under State law and the STD for TEA are subject to the Uniform Act. share of project costs. elects to provide it. (2) Acquisitions for TEA are subject to (2) The property in question is in the Uniform Act except as provided in § 710.507 State and local contributions. public ownership and use. paragraphs (b)(3), (b)(4), and (b)(5) of this section. (a) General. Real property owned by (3) The replacement facility will be in (3) Entities acquiring real property for State and local governments public ownership and will continue the TEA who lack the power of eminent incorporated within a federally funded public use function of the acquired domain may comply with the Uniform project can be used as a credit toward facility. Act by meeting the limited requirements the State matching share of total project (4) The State has informed the agency cost. A credit cannot exceed the State’s under 49 CFR 24.101(a)(2). owning the property of its right to an (4) The requirements of the Uniform matching share required by the project estimate of just compensation based on agreement. Act do not apply when real property an appraisal of fair market value and of acquired for a TEA was purchased from (b) Effective date. Credits can be the option to choose either just applied to projects where the initial a third party by a qualified conservation compensation or functional organization, and— project agreement is executed after June replacement. 9, 1998. (i) The conservation organization is (c) Exemptions. Credits are not (5) The FHWA concurs in the STD not acting on behalf of the agency available for lands acquired with any determination that functional receiving TEA or other Federal-aid form of Federal financial assistance, or replacement is in the public interest. funds, and for lands already incorporated and used (6) The real property is not owned by (ii) There was no Federal approval of for transportation purposes. a utility or railroad. property acquisition prior to the (d) State contributions. Real property (c) Federal land transfers. Use of this involvement of the conservation acquired with State funds and required section for functional replacement of organization. [‘‘Federal approval of for federally-assisted projects may real property in Federal ownership shall property acquisition’’ means the date of support a credit toward the non-Federal be in accordance with Federal land the approval of the environmental share of project costs. The STD must transfer provisions in subpart F of this document or project authorization/ prepare documentation supporting all part. agreement, whichever is earlier. credits including: (d) Limits upon participation. Federal- ‘‘Involvement of the conservation (1) A certification that the acquisition aid participation in the costs of organization’’ means the date the satisfied the conditions in 23 CFR functional replacement are limited to organization makes a legally binding 710.501(b); and costs which are actually incurred in the offer to acquire a real property interest, (2) Justification of the value of credit replacement of the acquired land and/or including an option to purchase, in the applied. Acquisition costs incurred by facility and are: property.] the State to acquire title can be used as (1) Costs for facilities which do not (5) When a qualified conservation justification for the value of the real represent increases in capacity or organization acquires real property for a property. betterments, except for those necessary project receiving Federal-aid highway (e) Credit for local government to replace utilities, to meet legal, funds on behalf of an agency with contributions. A contribution by a unit regulatory, or similar requirements, or to eminent domain authority, the
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Federal agency from which it was receiving Federal-aid highway funds, (c) The STD may file an application appropriated or to its assigns. and there will be no use or recourse to with the FHWA, or can make Alternative arrangements may be made the power of eminent domain, the application directly to the land-owning for the sale or reversion or restoration of limited requirements of 49 CFR agency if the land-owning agency has its the lands no longer required as part of 24.101(a)(2) apply. own authority for granting interests in a memorandum of understanding or (c) Property management. Real land. separate agreement. property acquired with TEA funds shall (d) Applications under this section be managed in accordance with the shall include the following information: § 710.603 Direct Federal acquisition. property management requirements (1) The purpose for which the lands (a) The provisions of this section provided in subpart D of this part. Any are to be used; apply to any land and or improvements use of the property for purposes other (2) The estate or interest in the land needed in connection with any project than that for which the TEA funds were required for the project; on the Interstate System, defense access provided must be consistent with the (3) The Federal-aid project number or roads, public lands highways, park continuation of the original use. When other appropriate references; roads, parkways, Indian reservation the original use of the real property is (4) The name of the Federal agency roads, and projects performed by the converted by sale or lease to another use exercising jurisdiction over the land and FHWA in cooperation with Federal and inconsistent with the original use, the identity of the installation or activity in State agencies. For projects on the STD shall assure that the fair market possession of the land; Interstate System and defense access value or rent is charged and the (5) A map showing the survey of the roads, the provisions of this part are proceeds reapplied to projects eligible lands to be acquired; applicable only where the State is (6) A legal description of the lands under title 23 of the United States Code. unable to acquire the required right-of- desired; and way or is unable to obtain possession § 710.513 Environmental mitigation. (7) A statement of compliance with with sufficient promptness. the National Environmental Policy Act (a) The acquisition and maintenance (b) To enable the FHWA to make the of 1969 (42 U.S.C. 4332, et seq.) and any of land for wetlands mitigation, necessary finding to proceed with the other applicable Federal environmental wetlands banking, natural habitat, or acquisition of the rights-of-way, the laws, including the National Historic other appropriate environmental STDs written application for Federal Preservation Act (16 U.S.C. 470(f)), and mitigation is an eligible cost under the acquisition shall include: 23 U.S.C. 138. Federal-aid program. FHWA (1) Justification for the Federal participation in wetland mitigation sites (e) If the FHWA concurs in the need for the transfer, the land-owning agency acquisition of the lands or interests in and other mitigation banks is governed lands; by 23 CFR part 777. will be notified and a right-of-entry requested. The land-owning agency (2) The date the FHWA authorized the (b) Environmental acquisitions or STD to commence right-of-way displacements by both public agencies shall have a period of four months in which to designate conditions necessary acquisition, the date of the project and private parties are covered by the agreement and a statement that the Uniform Act when they are the result of for the adequate protection and utilization of the reserve or to certify agreement contains the provisions a program or project undertaken by a required by 25 U.S.C. 111; Federal agency or one that receives that the proposed appropriation is contrary to the public interest or (3) The necessity for acquisition of the Federal financial assistance. This particular lands under request; includes real property acquired for a inconsistent with the purposes for which such land or materials have been (4) A statement of the specific wetland bank, or other environmentally interests in lands to be acquired, related purpose, if it is to be used to reserved. The FHWA may extend the four-month reply period at the timely including the proposed treatment of mitigate impacts created by a Federal- control of access; aid highway project. request of the land-owning agency for good cause. (5) The STDs intentions with respect Subpart FÐFederal Assistance (f) Deeds for conveyance of lands or to the acquisition, subordination, or Programs interests in lands owned by the United exclusion of outstanding interests, such States shall be prepared by the STD and as minerals and utility easements, in § 710.601 Federal land transfer. certified by an attorney licensed within connection with the proposed (a) The provisions of this subpart the State as being legally sufficient. acquisition; apply to any project undertaken with Such deeds shall contain the clauses (6) A statement on compliance with funds for the National Highway System. required by the FHWA and 49 CFR the provisions of part 771 of this When the FHWA determines that a 21.7(a)(2). After the STD prepares the chapter; strong Federal transportation interest deed, it will submit the proposed deed (7) Adequate legal descriptions, plats, exists, these provisions may also be with the certification to the FHWA for appraisals, and title data; applied to highway projects that are review and execution. (8) An outline of the negotiations eligible for Federal-aid under Chapters 1 (g) Following execution, the STD shall which have been conducted by the STD and 2 of title 23, of the United States record the deed in the appropriate land with landowners; Code, and to highway-related transfers record office and so advise the FHWA (9) An agreement that the STD will that are requested by a State in and the concerned agency. pay its pro rata share of costs incurred conjunction with a military base closure (h) When the need for the interest in the acquisition of, or the attempt to under the Defense Base Closure and acquired under this subpart no longer acquire rights-of-way; and
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(10) A statement that assures (8) Instructions that the authority Issued on: December 13, 1999. compliance with the applicable granted to the STD is not intended to Kenneth R. Wykle, provisions of the Uniform Act. (42 preclude the U.S. Attorney from taking Federal Highway Administrator. U.S.C. 4601, et seq.) action, before the STD has made [FR Doc. 99–32908 Filed 12–20–99; 8:45 am] (c) If the landowner tenders a right-of- arrangements for removal, to reach a BILLING CODE 4910±22±P entry or other right of possession settlement with the former owner which document required by State law any would include provision for removal. time before the FHWA makes a (f) If the Federal Government initiates determination that the STD is unable to condemnation proceedings against the DEPARTMENT OF DEFENSE acquire the rights-of-way with sufficient owner of real property in a Federal court promptness, the STD is legally obligated and the final judgment is that the Office of the Secretary to accept such tender and the FHWA Federal agency cannot acquire the real 32 CFR Part 296 may not proceed with Federal property by condemnation, or the acquisition. proceeding is abandoned, the court is National Reconnaissance Office (d) If the STD obtains title to a parcel required by law to award such a sum to Freedom of Information Act Program prior to the filing of the Declaration of the owner of the real property that in Regulation Taking, it shall notify the FHWA and the opinion of the court provides immediately furnish the appropriate reimbursement for the owner’s AGENCY: National Reconnaissance U.S. Attorney with a disclaimer together reasonable costs, disbursements, and Office, DoD. with a request that the action against the expenses, including reasonable attorney, ACTION: Final rule. landowner be dismissed (ex parte) from appraisal, and engineering fees, actually the proceeding and the estimated just incurred because of the condemnation SUMMARY: This final rule establishes the compensation deposited into the proceedings. National Reconnaissance Office (NRO) registry of the court for the affected (g) As soon as practicable after the regulation governing the disclosure of parcel be withdrawn after the date of payment of the purchase price or information under the Freedom of appropriate motions are approved by the date of deposit in court of funds to Information Act. This part is reissued the court. satisfy the award of the compensation in pursuant to the Department of Defense (e) When the United States obtains a a Federal condemnation, the FHWA rule, which implements the Freedom of court order granting possession of the shall reimburse the owner to the extent Information Act and it conforms to the real property, the FHWA shall authorize deemed fair and reasonable, the Department’s rule and schedule. As a the STD to take over supervision of the following costs: component of the Department of property. The authorization shall (1) Recording fees, transfer taxes, and Defense, the Department rules and include, but need not be limited to, the similar expenses incidental to schedules with respect to the Freedom following: conveying such real property to the of Information Act, as amended, will (1) The right to take possession of United States; also be the policy of the NRO. unoccupied properties; (2) Penalty costs for prepayment of EFFECTIVE DATE: October 20, 1999. (2) The right to give 90 days notice to any preexisting recorded mortgage FOR FURTHER INFORMATION CONTACT: owners to vacate occupied properties entered into in good faith encumbering Barbara Friemann, Chief, Information and the right to take possession of such such real property; and Access and Release Center, (703) 808– (3) The pro rata portion of real properties when vacated; 5029, Reading Room Appointments property taxes paid which are allocable (3) The right to permit continued (703) 808–2474 or (703) 808–5500. to a period subsequent to the date of occupancy of a property until it is vesting title in the United States or the SUPPLEMENTARY INFORMATION: The NRO required for construction and, in those effective date of possession, whichever published a final rule of this part on instances where such occupancy is to be is the earlier. November 16, 1993 (58 FR 60382). This for a substantial period of time, the right (h) The lands or interests in lands, rule does not constitute a significant to enter into rental agreements, as acquired under this section, will be regulatory action within the meaning of appropriate, to protect the public conveyed to the State or the appropriate Executive Order 12866. Neither the interest; political subdivision thereof, upon requirements of the Regulatory (4) The right to request assistance agreement by the STD, or said Flexibility Act (5 U.S.C. 601–612), nor from the U.S. Attorney in obtaining subdivision to: the reporting or record-keeping physical possession where an owner (1) Maintain control of access where requirements under the Paperwork declines to comply with the court order applicable; Reduction Act of 1995 (Pub. L. of possession; (2) Accept title thereto; 104–13) apply. It is hereby certified that this (5) The right to clear improvements (3) Maintain the project constructed final rule does not exert a significant and other obstructions; thereon; economic impact nor impose new (6) Instructions that the U.S. Attorney (4) Abide by any conditions which requirements on a number of small entities. be notified prior to actual clearing, so as This determination is made based upon the may set forth in the deed; and fact that the rule merely codifies the to afford him an opportunity to view the (5) Notify the FHWA at the procedural aspects of the NRO Freedom of lands and improvements, to obtain appropriate time that all the conditions Information Act Program, as amended by the appropriate photographs, and to secure have been performed by the State. ‘‘Electronic Freedom of Information Act appraisals in connection with the (i) The deed from the United States to Amendment of 1996’’. It includes guidance preparation of the case for trial; the State, or to the appropriate political on how and from whom to request (7) The requirement for appropriate subdivision thereof, shall include the information pertaining to the NRO. credits to the United States for any net conditions required by 49 CFR part 21. List of Subjects 32 CFR Part 296 salvage or net rentals obtained by the The deed shall be recorded by the State, as in the case of right-of-way grantee in the appropriate land record Freedom of information. acquired by the State for Federal-aid office, and the FHWA shall be advised Accordingly, 32 CFR part 296 is projects; and of the recording date. revised to read as follows:
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PART 296ÐNATIONAL contain a willingness to pay assessable published Department rules and RECONNAISSANCE OFFICE FOIA fees. schedules with respect to the schedule FREEDOM OF INFORMATION ACT (b) Date of acceptance. The requestor of fees chargeable and waiver of fees PROGRAM REGULATION shall be promptly informed by letter of will also be the policy of NRO. See 32 the date of acceptance of the request. CFR 286.33. Sec. The search conducted pursuant to that (2) Advance payments. (i) Where a 296.1 Purpose. request shall be for records in existence total fee to be assessed is estimated to 296.2 Definitions. as of and through the acceptance date. exceed $250, advance payment of the 296.3 Indexes. 296.4 Procedures for request of records. (c) Determination and notification. estimated fee will be required before 296.5 Appeals. When the requested record has been processing of the request, except where 296.6 Reading room. located and identified, the Initial Denial assurances of full payment are received Authority shall determine whether the from a requestor with a history of Authority: 5 U.S.C. 552, as amended. record is one which, consistent with prompt payment. Where a requestor has § 296.1 Purpose. statutory requirements, executive orders previously failed to pay a fee within 30 The purpose of this part is to provide and appropriate directives, may be calendar days of the date of the billing, policies and procedures for the National released or may contain information the requestor will be required to pay the Reconnaissance Office (NRO) that is exempt under the provisions of full amount owed, plus any applicable implementation of the Freedom of 5 U.S.C. 552. Normally, the Initial interest, or demonstrate that he or she Information Act (5 U.S.C. 552 as Denial Authority shall notify the has paid the fee, as well as make an amended) (FOIA), and to promote requestor of the determination within 20 advance payment of the full amount of uniformity in the NRO FOIA program. working days of the receipt of the any estimated fee before processing of a request. new or pending request continues. § 296.2 Definitions. (d) Multi-track processing. The NRO (ii) For all other requests, advance The terms used in this part, with the has 3 queues in which requests may be payment, i.e., a payment made before exception of the following, are defined processed when a significant number of work is commenced, will not be in 32 CFR part 286: pending requests prevents a response required. Payment for work already (a) Freedom of Information Act within 20 working days, all based on the completed is not an advance payment. appellate authority. The Chief of Staff, date of receipt, first-in first-out, and the Responses will not be held pending NRO. amount of work, time, and volume receipt of fees from requestors with a (b) Initial denial authority. The Chief, involved in processing the requests. history of prompt payment. Fees should Information Access & Release Center (See subparagraph C1.5.4.2. of DoD be paid by certified check or postal NRO. 5400.7–R 1, Sept 1998). The queues are: money order forwarded to the Chief, (1) Simple. Those requests which are Information Access and Release Center § 296.3 Indexes. easily handled and processed. (IARC) and made payable to the (a) The NRO does not originate final (2) Complex. Those requests which Treasurer of the United States. orders, opinions, statements of policy, are complicated by multiple searches, interpretations, staff manuals or co-ordinations, consultations, volume § 296.5 Appeals. instructions that affect a member of the etc. Any person denied access to records, public of the type covered by the (3) Expedited. Expedited processing denied a fee waiver, involved in a indexing requirement of 5 U.S.C. shall be granted to a requestor after the dispute regarding fee estimates, or who 552(a)(2). The Director, NRO, has requestor asks for and demonstrates a considers a no record determination, or therefore determined, pursuant to compelling need for the information any determination to be adverse in pertinent statutory and executive order (paragraph C1.5.4.3. of DoD 5400.7–R) nature, may, within 60 days after requirements, that it is unnecessary and (e) Extension of response time. In notification of such denial, file an impracticable to publish an index of the unusual circumstances when additional appeal to the Freedom of Information type required by 5 U.S.C. 552(a)(2), time is needed to respond, the Initial Act Appellate Authority, National except the index noted in paragraph (b) Denial Authority shall notify the Reconnaissance Office. Such an appeal of this section. requestor in writing of the reasons shall be in writing addressed to the (b) A general index of FOIA-processed therefore, and an anticipated date, not to Chief, Information Access and Release (a)(2) records shall be made available to exceed 10 additional working days, on Center, National Reconnaissance Office, the public, both in hard copy and which a determination is expected to be 14675 Lee Road, Chantilly, VA 20151– electronically by December 31, 1999. dispatched. The Initial Denial Authority 1715, should reference the initial denial, will normally send this notification and shall contain the basis for § 296.4 Procedures for request of records. within 20 working days from receipt of disagreement with the initial denial. (a) Requests. Requests for access to the request. Should it be determined The Freedom of Information Act records of the National Reconnaissance that this 10 additional working days Appellate Authority shall normally Office may be filed by mail or FAX cannot be met, the requestor shall be make a final determination on an appeal addressed to the Chief, Information notified and offered the opportunity to within 20 working days after receipt of Access and Release Center, National limit or narrow the scope of the request the appeal. Reconnaissance Office, 14675 Lee Road, in order to facilitate faster processing, or § 296.6 Reading room. Chantilly, VA 20151–1715, FAX to arrange an alternative time for Number (703) 808–5082. Requests need processing the request (paragraph (a) The NRO shall provide a reading not be made on any special form but C1.5.2.6. of DoD 5400.7–R) room equipped with hard copy and must be by letter or FAX or other (f) Fees. electronic records as required in the written statement identifying the (1) General. As a component of the ‘‘Electronic Freedom of Information Act request as a Freedom of Information Act Department of Defense, the applicable Amendments of 1996’’. The NRO request and setting forth sufficient Reading Room is located at 14675 Lee information reasonably describing the 1 Copies may be obtained via internet at http:// Road, Chantilly VA, 20151–1715 and is requested record. All requests should web7.whs.osd.mil/corrres/htm. open weekdays only from 8:00 am until
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4:00 p.m. Requestors must call for an L. 104–13) apply. It is hereby certified implicitly invokes 5 U.S.C. 552, as appointment twenty-four (24) hours in that this proposed rule does not exert a amended, DoD 5400.7–R, or NSA/CSS advance so that optimum customer significant economic impact on a Freedom of Information Act Program, service can be provided. (703) 808– significant number of small entities. within the National Security Agency/ 5029. Fees will be charged for This determination is made based upon Central Security Service. Requesters duplication of hard copy records at $.15 the fact that the rule merely updates the should also indicate a willingness to per page after the first 100 pages. procedural aspects of the NSA/CSS pay fees associated with the processing Softcopy media provided to visitors is Freedom of Information Act Program, of their request or, in the alternative, assessed as follows: which include guidance on how and why a waiver of fee may be appropriate. (1) 5.25′′ Floppy diskette $0.50 from whom to request information (2) An FOIA request may be (2) 3.5′′ Floppy diskette $0.50 pertaining to the NSA/CSS; imposes no submitted by U.S. mail or its equivalent, (3) CD–R Media $3.75 new requirements, rights, or benefits on by facsimile or electronically through (4) Video Tape $4.00. small entities; will have neither a the NSA FOIA Home Page on the World (b) The NRO FOIA Electronic Reading beneficial nor an adverse affect on small Wide Web (WWW) once the Room is located on the NRO Home Page: entities, and is not a major rule under development of a Web-based procedure www.nro.odci.gov. the Regulatory Flexibility Act. for submitting FOIA requests is completed. The Web-based system will Dated: December 9, 1999. List of Subjects in 32 CFR Part 299 L.M. Bynum, consist of a form to be completed by the Freedom of information. Alternate OSD Federal Register Liaison requester, requiring name and postal Officer, Department of Defense. Accordingly, 32 CFR part 299 is mailing address. The WWW address is [FR Doc. 99–32306 Filed 12–20–99; 8:45 am] revised to read as follows: http://www.nsa.gov.8080/docs/efoia/. (3) When a request meeting the BILLING CODE 5001±10±P PART 299ÐNATIONAL SECURITY requirements stated in this section is AGENCY/CENTRAL SECURITY received by the FOIA office and there is SERVICE (NSA/CSS) FREEDOM OF no remaining question about fees, that DEPARTMENT OF DEFENSE INFORMATION ACT PROGRAM request is considered perfected. Office of the Secretary Sec. (b) Privacy Act (PA) request. A request 299.1 Purpose. submitted by a U.S. citizen or an alien 32 CFR Part 299 299.2 Definitions. admitted for permanent residence for 299.3 Policy. access to records on himself/herself RIN 0790±AG59 299.4 Responsibilities. which are contained in a PA system of 299.5 Procedures. National Security Agency/Central records and/or seeking an amendment 299.6 Fees. to his/her records. For purposes of this Security Service (NSA/CSS) Freedom 299.7 Exempt records. of Information Act Program part, PA request refers to a request for Authority: 5 U.S.C. 552. copies of records. Regardless of whether AGENCY: National Security Agency/ § 299.1 Purpose. the requester cites the FOIA, PA or Central Security Service, Defense. (a) This part implements 5 U.S.C. 552, neither law, the request will be ACTION: Final rule. as amended, and DoD 5400.7–R,1 processed under both this part and assigns responsibility for responding to NSA/CSS Regulation 10–35, SUMMARY: This rule revises the National written requests made pursuant to 5 Implementation of the Privacy Act of Security Agency/Central Security 3 U.S.C. 552; and provides for the review 1974. Services (NSA/CSS) regulation required to determine the (c) Agency records. (1) Products of governing disclosure of information appropriateness of classification data compilation, such as all books, under the Freedom of Information pursuant to DoD 5200.1–R.2 papers, maps, and photographs, Reform Act of 1986. As a component of (b) This part applies to all NSA/CSS machine readable materials, including the Department of Defense, the elements, field activities and personnel, those in electronic form or format Departmental rules and schedules with and governs the release or denial of any (including e-mails), or other respect to the Freedom of Information information under the terms of the documentary materials, regardless of Reform Act will also be the policy of the Freedom of Information Act (FOIA). physical form or characteristics, made NSA/CSS. The effect of the revised rule or received by an agency of the United is to conform to the requirements of the § 299.2 Definitions. States Government under Federal law in Electronic Freedom of Information Act Terms used in this part, with the connection with the transaction of Amendments of 1996. It also exception of the terms in § 299.4, are public business and in NSA/CSS’s incorporates guidance provided by the defined in DoD 5400.7–R. For ease of possession and control at the time the Department of Defense on reference, however, some terms are FOIA request is made. The term implementation of this amended law. defined in this section. ‘‘records’’ does not include: EFFECTIVE DATE: August 31, 1999. (a) FOIA request. (1) A written request (i) objects or articles such as FOR FURTHER INFORMATION CONTACT: for NSA/CSS records, that reasonably structures, furniture, vehicles and Barbara Paisley, FOIA Office, National describes the records sought, made by equipment, whatever their historical Security Agency. (301) 688–6527. any person, including a member of the value or value as evidence; public (U.S. or foreign citizen/entity), an (ii) Intangible records such as an SUPPLEMENTARY INFORMATION: This rule organization or a business, but not individual’s memory or oral does not constitute a major rule within including a Federal Agency or a fugitive communication; and the meaning of Executive Order 12866. from the law that either explicitly or (iii) Personal records of an individual Neither the requirements of the not subject to agency creation or Regulatory Flexibility Act, 5 U.S.C. 1 Copies may be obtained, at cost, from the 605(b), nor the reporting or National Technical Information Service, 5285 Port 3 Copies may be obtained through a FOIA request recordkeeping requirements under the Royal Road, Springfield, VA 22161. to the National Security Agency, Ft. George G. Paperwork Reduction Act of 1995 (Pub. 2 See footnote 1 to this section. Meade, MD 20755–6000.
VerDate 15-DEC-99 18:00 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm08 PsN: 21DER1 71300 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations retention requirements, created and serves as the NSA/CSS FOIA reading Finance and Accounting Office. Such maintained primarily for the room, and made available through the payment may be identified by the payee convenience of an agency employee, Internet. Copies of records which have as payment for a Freedom of and not distributed to other agency been released under the FOIA and Information Act request, by the letters employees for their official use. which NSA/CSS has determined are ‘‘FOIA,’’ or as payment for J9XXX/ (2) A record must exist and be in the likely to become the subject of J10XXXX. (FOIA requests are serialized possession and control of the NSA/CSS subsequent requests will be placed in by a one-up number beginning on at the time of the request to be subject the library of the Cryptologic History October 1 of each year, e.g., J9001, to this part. There is no obligation to Museum. In addition, these records will J9002); create or compile a record or obtain a be made available to the public through (2) Receiving and handling all checks record not in the possession of the NSA/ the Internet. An index of this material or money orders remitted in payment CSS to satisfy an FOIA request. The will be available in hard copy in the for FOIA requests, crediting them to the NSA/CSS may compile or create a new museum library and on the Internet. proper account and notifying the FOIA record when doing so would be less office promptly of all payments burdensome to the Agency than § 299.4 Responsibilities. received; providing existing records and the (a) The Deputy Director for Corporate (3) Notifying the FOIA office requester does not object. Management (DDCM) is responsible for promptly of any payments received (3) Hard copy or electronic records responding to FOIA requests and for directly from requesters even if no bill that are subject to FOIA requests under collecting fees from FOIA requesters. was initiated by the Finance and 5 U.S.C. 552(a)(3) and are available (b) The Director of Policy (N5) is the Accounting Office; and through an established distribution NSA/CSS focal point for responding to (4) Issuing a prompt reimbursement of system or the Internet, normally need FOIA requests. The Deputy Director of overpaid fees to the requester upon not be processed under the FOIA. The Policy (N5P) is the initial denial being notified of such overpayment by Agency will provide guidance to the authority (IDA) and is responsible for: the FOIA office. requester on how to obtain the material (1) Receiving and staffing all initial, (d) The Deputy Director, NSA/CSS, is outside of the FOIA process. If the written requests for the release of the FOIA Appeal Authority required by requester insists that the request be information; 5 U.S.C. 552 for considering appeals of (2) Conducting the necessary reviews processed under the FOIA, then it shall adverse determinations by the Deputy to determine the releasability of be so processed. Director of Policy. In the absence of the information pursuant to DoD 5200.1–R; Deputy Director, the Executive Director, § 299.3 Policy. (3) Providing the requester with NSA/CSS, serves as the Appeal (a) Pursuant to written requests releasable material; submitted in accordance with the FOIA, (4) Notifying the requester of any Authority. the NSA/CSS will make records adverse determination, including (e) The General Counsel (GC) or his available to the public consistent with informing the requester of his/her right designee is responsible for: the Act and the need to protect to appeal an adverse determination to (1) Reviewing responses to FOIA government interests pursuant to the appeal authority (see § 299.5(m)); requests to determine the legal subsection (b) of the Act. Oral requests (5) Assuring the timeliness of sufficiency of actions taken by the for information will not be accepted. responses; Deputy Director of Policy, as required Before the Agency responds to a request, (6) Negotiating with the requester on a case-by-case basis; the request must comply with the regarding satisfying his request (e.g., (2) Reviewing the appeals of adverse provisions of this part. time extensions, modifications to the determinations made by the Deputy (b) Requests for electronic records request); Director of Policy. The GC will prepare shall be processed, and the records (7) Authorizing extensions of time an appropriate reply to such appeals retrieved whenever retrieval can be within Agency components (e.g., time and submit that reply to the NSA/CSS achieved through reasonable efforts (in needed to locate and/or review FOIA Appeal Authority for final terms of both time and manpower) and material); decision; and these efforts would not significantly (8) Assisting the Office of General (3) Representing the Agency in all interfere with the operation of an Counsel (OGC) in judicial actions filed judicial actions relating to 5 U.S.C. 552 automated information system. under 5 U.S.C. 552; and providing support to the Reasonable efforts shall be undertaken (9) Maintaining the FOIA reading Department of Justice. to maintain records in forms of formats room and the Internet home page; and (f) The Deputy Director for Support that render electronic records readily (10) Compiling the annual FOIA Services will establish procedures to reproducible. report. ensure that: (c) The NSA/CSS does not originate (c) The Chief, Finance and (1) All inquiries for information final orders, opinions, statements of Accounting Office (N12) is responsible pursuant to 5 U.S.C. 552 are delivered policy, interpretations, staff manuals, or for: promptly to the Deputy Director of instructions that affect members of the (1) Sending initial and follow-up bills Policy; and public of the type generally covered by to FOIA requesters as instructed by the (2) Any appeal of an adverse the indexing requirement of 5 U.S.C. FOIA office, with a copy of all bills determination is delivered promptly 552. Therefore, it has been determined, going to the FOIA office. In cases where and directly to the NSA/CSS Appeal pursuant to the pertinent statutory and an estimate of fees is provided to the Authority staff. executive order requirements, that it is requester prior to the processing of his/ (g) The Key Components and Field unnecessary and impracticable to her request, no bill will be sent. Chiefs will: publish an index of the type required by Although the FOIA office asks FOIA (1) Establish procedures to ensure that 5 U.S.C. 552. However, should such requesters to send payment to the FOIA any inquiries for information pursuant material be identified, it will be indexed office, for subsequent forwarding to the to 5 U.S.C. 552 are referred immediately and placed in the library at the Finance and Accounting Office, and directly to the Deputy Director of Cryptologic History Museum, which payment may be received directly in the Policy. Field Elements should forward,
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NSA/CSS may have information of the determining estimated and actual cost (e) Expedited processing shall be type requested, the office shall contact data, in conducting searches reasonably granted to a requester if he/she requests each Key Component reasonably calculated to retrieve responsive records such treatment and demonstrates a expected to hold responsive records. and assessing whether information can compelling need for the information. A (h) The FOIA office will assign the be released or should be withheld. demonstration of compelling need by a requester to the appropriate fee category (h) Military and civilian personnel requester shall be made by a statement under 5 U.S.C. 552, as amended, DoD assigned or attached to or employed by certified by the requester to be true and 5400.7–R, and NSA/CSS Freedom of the NSA/CSS who receive a Freedom of correct to the best of his/her knowledge. Information Act Program, and, if a Information Act request shall deliver it A compelling need is defined as requester seeks a waiver of fees, the immediately to the Deputy Director of follows: FOIA office will, after determining the Policy. Individuals who are contacted (1) The failure to obtain the records applicable fee category, determine by personnel at other government on an expedited basis could reasonably whether to waive fees pursuant to DoD agencies and asked to assist in be expected to pose an imminent threat 5400.7–R. (See also § 299.6.) If fees are reviewing material for release under the to the life or physical safety of an to be assessed in accordance with the FOIA must direct the other agency individual. provisions of 5 U.S.C. 552 and DoD employee to the NSA/CSS FOIA office (2) The information is urgently 5400.7–R, the Key Component will promptly. needed by an individual primarily prepare an estimate of the cost required engaged in disseminating information to to locate, retrieve and, in the case of § 299.5 Procedures. inform the public about actual or commercial requesters, review the (a) Requests for copies of records of alleged Federal Government activity. records. Cost estimates will include the NSA/CSS shall be delivered to the Urgently needed means that the only direct search, duplication costs and Deputy Director of Policy immediately information has a particular value that review time (for commercial requesters) upon receipt once the request is will be lost if not disseminated quickly. as defined in DoD 5400.7–R. identified as a Freedom of Information (3) A request may also be expedited, (1) If the cost estimate does not Act or Privacy Act request or appears to upon receipt of a statement certified by exceed $25.00, the component shall be intended as such a request. the requester to be true and correct to search for and forward to the FOIA (b) The Deputy Director of Policy will the best of his/her knowledge, for the office the documents responsive to the endeavor to respond to a direct request following reasons: request. Fees $15.00 and under will be to NSA/CSS within 20 working days of (i) There would be an imminent loss waived. receipt. If the request fails to meet the of substantial due process rights. (2) If the costs are estimated to exceed minimum requirements of a perfected (ii) There is a humanitarian need for $25.00, the component shall provide an FOIA request, the FOIA office will the material. Humanitarian need means estimate to the FOIA office without advise the requester of how to perfect that disclosing the information will conducting the search. The chief of the the request. The 20 working day time promote the welfare and interests of FOIA office will advise the requester of limit applies upon receipt of the mankind. the costs to determine a willingness to perfected request. In the event the (4) Requests which meet the criteria pay the fees. A requester’s willingness Deputy Director of Policy cannot for expedited treatment as defined in to pay fees will be satisfactory when the respond within 20 working days due to paragraph (e)(3) of this section will be estimated fee does not exceed $250.00 unusual circumstances, the chief of the placed in the expedite queue behind and the requester has a history of FOIA office will advise the requester of requests which are expedited because of prompt payment. A history of prompt the reason for the delay and negotiate a a compelling need (see § 299.5(e)). payment means payment within 30 completion date with the requester. (5) A decision on whether to grant calendar days of the date of billing. If (c) Direct requests to NSA/CSS will be expedited treatment will be made fees are expected to exceed $250.00, the processed in the order in which they are within 10 calendar days of receipt. The requester will be required to submit received. Requests referred to NSA/CSS requester will be notified whether his/ payment before processing is continued by other government agencies will be her request meets the criteria for if the requester does not have a history placed in the processing queue expedited processing within that time of prompt payment. All payments will according to the date the requester’s frame. If a request for expedited be made by certified check or money letter was received by the referring processing has been granted, a order made payable to the Treasurer of agency if that date is known. If it is not substantive response will be provided the United States. known when the referring agency within 20 working days of the date of (3) When a requester has previously received the request, it will be placed in the decision to expedite. If a substantive failed to pay a fee charged within a the queue according to the date of the response cannot be provided within 20 timely fashion (i.e., within 30 calendar requester’s letter. working days, a response will be days from the date of billing) payment (d) The FOIA office will maintain provided as soon as practicable and the is required before a search is initiated or three queues (‘‘simple,’’ ‘‘complex’’ and chief of the FOIA office will negotiate a before review is begun. When a ‘‘expedite’’) for the processing of records completion date with the requester, requester has no payment history, an in chronological order. Cases placed in taking into account the number of cases advance payment may be required of the the ‘‘simple’’ queue require little time to preceding it in the expedite queue and requester after the case has been process. ‘‘Complex’’ cases require a the complexity of the responsive completed, but prior to providing the substantial amount of review and material. final response. research prior to making a final release (f) If the Deputy Director of Policy, in (4) If a requester has failed to pay fees determination. This procedure is consultation with the GC, determines after three bills have been sent, followed so that a requester will not be that the fact of the existence or non- additional requests from that requester
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(i) Upon receipt of a statement of submitter will be provided with a copy (m) Any person advised of an adverse willingness to pay assessable fees or the of the records as NSA/CSS proposes to determination will be notified of the payment from the requester, the FOIA release them, and the submitter will be right to submit an appeal which must be office shall notify the NSA/CSS given an opportunity to inform the postmarked within 60 days of the date component to search for the appropriate FOIA office about its objections to of the response letter and that the documents. disclosure in writing. appeal must be addressed to the NSA/ (1) The component conducting the (2) The Deputy Director of Policy or CSS Appeal Authority, National search will advise the FOIA office of the his/her designee shall review the Security Agency, Ft. George G. Meade, types of files searched (e.g., electronic submitter’s objections to disclosure and, MD 20755–6000. The following actions records/e-mail, video/audio tapes, if N5P decides to release records or are considered adverse determinations: paper), the means by which the search portions thereof to the requester, (1) Denial of records or portions of was conducted (e.g., subject or provide the submitter with an records; chronological files, files retrievable by opportunity to enjoin the release of such (2) Inability of NSA/CSS to locate name or personal identifier) and any key information. records; words used in an electronic search. (l) Records may be located responsive (3) Denial of a request for the waiver (2) If the search does not locate the to an FOIA request which contain or reduction of fees; requested records, the Deputy Director portions not responsive to the subject of (4) Placement of requester in a of Policy shall so advise the requester the request. The non-responsive specific fee category; and offer appeal rights. portions will be processed as follows: (5) Amount of estimates of processing (3) If the search locates the requested (1) If the information is easily costs; records, the holding organization will identified as releasable, the non- (6) Denial of a requester for furnish copies of these records responsive portions will be provided to expeditious treatment; and immediately to the FOIA office. The the requester. (7) Non-agreement regarding Deputy Director of Policy will make a (2) If additional review or completion date of request. determination as to the releasability of coordination with other NSA/CSS (n) The GC or his designee will the records in consultation with the GC, elements or other government agencies process appeals and make a the Legislative Affairs Office (if any or entities is required to determine the recommendation to the Appeal information relates to members of releasability of the information, and the Authority. Congress or their staffs) and other processing of the material would be (1) Upon receipt of an appeal Agency components, as appropriate. facilitated by excluding those portions regarding the denial of information or This determination shall also state, with from review, the requester should be the inability of the Agency to locate particularity, that a search reasonably consulted regarding the need to process records, the GC or his designee shall calculated to locate responsive records those portions. If the requester states review the record and determine was conducted and that all reasonably that he is interested in the document in whether the denial was proper and/or segregable, non-exempt information was its entirety, including those portions not whether an adequate search was released. The located records will be responsive to the subject of his request, conducted for responsive material, and handled as follows: the entire document will be considered make other determinations and (i) All exempt records or portions responsive and reviewed accordingly. recommendations as appropriate. thereof will be withheld and the (3) If the conditions as stated in (2) If the GC or his/her designee requester so advised along with the paragraph (l)(2) of this section pertain, determines that additional information statutory basis for the denial; the but it is not a simple matter to contact may be released, the information shall volume of material being denied, unless and/or reach an agreement with the be made available to the requester advising of the volume would harm an requester, the non-responsive portions within 20 working days from receipt of interest protected by exemption (see 5 will be whited-out or otherwise marked the appeal. The conditions for U.S.C. 552); and the procedure for filing to differentiate the removal of non- responding to an appeal for which an appeal of the denial. responsive material from the removal of expedited treatment is sought by the (ii) All segregable, non-exempt exempt portions. The requester shall be requester are the same as those for records or portions thereof will be advised that portions were removed as expedited treatment on the initial forwarded promptly to the requester. non-responsive. In addition, he/she processing of a request. (See paragraph (j) Records or portions thereof shall be given an indication of the (e) of this section.) originated by other agencies or manner in which those portions would (3) If the GC or his/her designee information of primary interest to other be treated if responsive (e.g., the determines that the denial was proper, agencies found in NSA/CSS records will information would be protected by the requester must be advised within 20 be handled as follows: exemptions, would require extensive days after receipt of the appeal that the (1) The originating agency’s FOIA review/consultation). Such a response is appeal is denied. The requester likewise Authority will be provided with a copy not considered an adverse shall be advised of the basis for the of the request and the stated records. determination. If the requester informs denial and the provisions for judicial (2) The requester will be advised of the FOIA office of his interest in review of the Agency’s appellate the referral, except when notification receiving the ‘‘whited-out’’ portions, the determination. would reveal exempt information. request will be placed in the same (4) If a new search for records is (k) Records of portions thereof location within the processing queue as conducted and produces additional originated by a commercial or business the original request and those portions material, the additional records will be submitter and containing information of the documents will be processed. forwarded to the Deputy Director of that is arguably confidential commercial (4) If the requester states in his initial Policy, as the IDA, for review. Following or financial information as defined in request that he/she wants all non- his/her review, the Deputy Director of Executive Order 12600 (52 FR 23781, 3 responsive portions contained within Policy will return the material to the GC
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Upon denial or release of reduction will be granted or denied in additional information, the Appeal accordance with DoD 5400.7–R and Cost Authority will advise the requester that based on information provided by the Type per page more material was located and that the requester. If the requester does not IDA and the Appeal Authority each respond to N5P’s initial notification of (1) Office Copy ...... $.15 conducted an independent review of the the discrepancy in fee assessment (2) Microfiche ...... 25 documents. In the case of denial, the within the 30 days, N5P’s determination (3) Printed Material ...... 02 requester will be advised of the basis of about that requester’s fee status shall be the denial and the right to seek judicial final. § 299.7 Exempt records. review of the Agency’s action. (b) Fees will reflect only direct search, (5) When a requester appeals the review (in the case of commercial (a) Records meeting the exemption absence of a response to a request requesters) and duplication costs, criteria of 5 U.S.C. 552 need not be within the statutory time limits, the GC recovery of which are permitted by 5 published in the Federal Register, made shall process the absence of a response U.S.C. 552. Fees shall not be used to available in a reading room, or provided as it would denial of access to records. discourage requesters. in response to requests made under 5 The Appeal Authority will advise the (c) No minimum fee may be charged. U.S.C. 552. requester of the right to seek judicial (d) Fees will be based on estimates (b) The following nine FOIA review. provided by appropriate organizational exemptions may be used by the NSA/ (6) Appeals will be processed using focal points. Upon completion of the CSS to withhold information in whole the same multi-track system as initial processing of the request and or in part from public disclosure when requests. If an appeal cannot be computation of all assessable fees, the disclosure would cause foreseeable responded to within 20 working days, request will be handled as follows: harm to an interest protected by the the requirement to obtain an extension (1) If the actual costs exceed the exemption. Discretionary releases will from the requester is the same as with estimated costs, the requester will be be made whenever possible. initial requests. The time to respond to notified of the remaining fees due. Upon (1) Records specifically authorized an appeal, however, may be extended by the requester’s agreement to pay the under criteria established by an the number of working days (not to amount in excess, non-exempt Executive Order to be kept secret in the exceed 10) that were not used as information will be provided to the interest of national defense or foreign additional time for responding to the requester and additional fees will be policy and which are in fact properly initial request. That is, if the initial collected. If the requester refuses to pay classified pursuant to such Executive request is processed within 20 working the amount in excess, processing of the Order. days so that the extra 10 days of request will be terminated with notice (2) Records relating solely to the processing which an agency can to the requester. internal personnel rules and practices of negotiate with the requester are not (2) If the actual costs are less than an agency. used, the response to the appeal may be estimated fees which have been (3) Records which concern matters delayed for that 10 days (or any unused collected from the requester, the non- that a statute specifically exempts from portion of the 10 days). exempt information will be released and disclosure, so long as the statutory the FOIA office will advise Finance and exemptions permit no discretion on § 299.6 Fees. Accounting Office of the need to refund what matters are exempt; or matters (a) Upon receipt of a request, N5P funds to the requester. which meet criteria established for shall evaluate the request to determine (e) Fees for manual searches, review withholding by the statute, or which are the fee category or status of the time and personnel costs associated particularly referred to by the statute as requester, as well as the appropriateness with computer searches will be being matters to be withheld. Examples of a waiver or reduction of fees if computed according to the following of such statutes are: requested. There are no fees associated schedule: (i) The National Security Agency Act with a Privacy Act request, except as of 1959 (Public Law 86–36 Section 6); stated in NSA/CSS Regulation 10–35, Type Grade Hourly (ii) 18 U.S.C. 798; Implementation of the Privacy Act of rate (iii) 50 U.S.C. 403–3(c)(6); 1974. If fees are assessable, a search cost (iv) 10 U.S.C. 130; and (1) Clerical ... E9/GS8 and below $12 estimate will be sent to the Key (2) Profes- O1±O6/GS9±GS15 25 (v) 10 U.S.C. 2305(g). Component(s) expected to maintain sional. (4) Records containing trade secrets responsive records. If N5P assigns a fee (3) Executive O7/SCE/SLE/SLP ... 45 and commercial or financial information category to a requester which differs obtained from a person and privileged from that claimed by the requester or (f) Fees for machine time involved in or confidential. determines that a waiver or reduction of computer searches shall be based on the (5) Interagency or intra-agency fees is not appropriate, N5P shall notify direct cost of retrieving information memoranda or letters that would not be the requester of this discrepancy and of from the computer, including associated available by law to a party other than an the estimated cost of processing the input/output costs. agency in litigation with the agency. request. The requester will be given 30 (g) Search costs for audiovisual (6) Personnel and medical files and days to provide additional documentary material will be computed similar files, the disclosure of which, substantiation for the fee status claimed as for any other record. Duplication would constitute a clearly unwarranted or for a fee waiver or reduction. The costs will be the actual, direct cost of invasion of personal privacy. requester will be advised that his/her reproducing the material, including the (7) Investigatory records compiled for request will not be processed until the wage of the person doing the work. law enforcement purposes, but only to
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71304 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations the extent that the production of such ENVIRONMENTAL PROTECTION V. Text Corrections to the Final Rule records: AGENCY VI. Administrative Requirements A. Executive Order 12866 (i) Could reasonably be expected to 40 CFR Part 52 B. Executive Order 13045 interfere with enforcement proceedings; C. Executive Order 13084 [AZ 012±FIP; FRL±6511±3] (ii) Would deprive a person of the D. Executive Order 13132 right to a fair trial or to an impartial RIN 2060±AI54 E. Regulatory Flexibility Analysis adjudication; F. Unfunded Mandates Reform Act Revision to Promulgation of Federal (iii) Could reasonably be expected to (UMRA) Implementation Plan for ArizonaÐ G. Paperwork Reduction Act constitute an unwarranted invasion of Maricopa Nonattainment Area; PM±10 H. National Technology Transfer and personal privacy of a living person, Advancement Act (NTTAA) AGENCY: including surviving family members of Environmental Protection I. Submission to Congress and the General an individual identified in such a Agency (EPA). Accounting Office record; ACTION: Final rule. J. Petitions for Judicial Review (iv) Could reasonably be expected to SUMMARY: Under the authority of section I. Background disclose the identity of a confidential 110(c)(1) of the Clean Air Act (CAA or source, including a source within NSA/ ‘‘the Act’’), EPA is finalizing proposed On August 3, 1998 (63 FR 41326), CSS, state, local, or foreign agency or amendments to the moderate area EPA finalized a FIP for the Phoenix PM– authority, or any private institution federal implementation plan (FIP) for 10 nonattainment area (the ‘‘final FIP’’). which furnishes the information on a the Phoenix PM–10 nonattainment area. Readers should refer to 63 FR 41326 for confidential basis, or could disclose These amendments modify the fugitive details of the history and contents of the information furnished from a dust rule to add or replace certain test final FIP. confidential source and obtained by a methods and allow alternative control The final FIP includes a fugitive dust criminal law enforcement authority in a measures (ACMs) to be implemented rule to control PM–10 emissions from criminal investigation or by an agency without prior EPA approval. For the vacant lots, unpaved parking lots and conducting a lawful national security convenience of readers, the entire FIP unpaved roads codified at 40 CFR intelligence investigation; rule is reprinted in this publication. 52.128 (63 FR 41326, 41350), hereafter 1 (v) Would disclose techniques and DATES: This action is effective on referred to as ‘‘the final FIP rule’’. EPA procedures for law enforcement January 20, 2000. subsequently proposed specific investigations or prosecutions, or would ADDRESSES: A copy of docket No. A–98– revisions related to the test methods, ACMs, and unpaved road requirements disclose guidelines for law enforcement 42 containing material relevant to this of the final FIP rule (64 FR 3263, investigations or prosecutions if such final action, including EPA’s responses to comments received on the proposed January 21, 1999). EPA accepted disclosure could reasonably be expected comments on the proposed amendments to risk circumvention of the law; and amendments, is available for review at: EPA Region 9, Air Division, 75 through March 8, 1999. EPA is now (vi) Could reasonably be expected to Hawthorne Street, San Francisco, CA finalizing action on all but one of the endanger the life or physical safety of 94105. Interested persons may make an proposed amendments and re- any individual. appointment with Eleanor Kaplan (415) publishing the final FIP fugitive dust (8) Records contained in or related to 744–1159 to inspect the docket at EPA’s rule in its entirety. examination, operating, or condition San Francisco office on weekdays A detailed discussion of the FIP rule reports prepared by, on behalf of, or for between 9 a.m. and 4 p.m. revisions proposed by EPA can be found the use of an agency responsible for the A copy of the docket No. A–98–42 is in 64 FR 3263, January 1999. EPA regulation or supervision of financial also available to review at the Arizona proposed to add a silt content test institutions. Department of Environmental Quality, method for unpaved roads and unpaved Library, 3033 N. Central Avenue, parking lots, add a new visible crust test (9) Geological and geophysical Phoenix, Arizona 85012. (602) 207– method or replace the visible crust test information and data, including maps, 2217. method for vacant lots, add a procedure concerning wells. Electronic Availability: This for measuring the density of standing (c) Information which has not been document is also available as an vegetation to the standing vegetation given a security classification pursuant electronic file on EPA’s Region 9 Air test method, include coverage of to the criteria of an Executive Order, but Web Page at http://www.epa.gov/ privately owned unpaved roads that are which may be withheld from the public region09/air. privately maintained or not for one or more of reasons cited in this FOR FURTHER INFORMATION CONTACT: maintained,2 and allow ACMs to be section, shall be considered as being Karen Irwin (415) 744–1903. implemented without prior EPA ‘‘For Official Use Only (FOUO). No SUPPLEMENTARY INFORMATION: approval. other material shall be considered or Table of Contents marked FOUO. 1 EPA promulgated the final FIP rule as part of its I. Background court-ordered obligation to provide for the Dated: December 9, 1999. II. Summary of Final Action on Proposed implementation of Reasonably Available Control L.M. Bynum, Revisions Measures (RACM) (required by section 189(a)(1)(C) A. Test Methods of the Clean Air Act) in the Phoenix PM–10 Alternate OSD Federal Register, Liaison 1. Silt Content Test Method nonattainment area. 2 Officer Department of Defense. 2. Visible Crust Test Method Note: the FIP rule as finalized in August 1998 [FR Doc. 99–32418 Filed 12–20–99; 8:45 am] 3. Standing Vegetation Test Method includes coverage of privately owned unpaved roads that are publicly maintained; EPA’s proposal BILLING CODE 5000±1±M Density Procedure in January 1999 to include privately owned roads B. Alternative Control Measures that are privately maintained or not maintained has III. Unpaved Roads no bearing on existing FIP rule coverage of privately IV. Agency Responses to Comments owned, publicly maintained unpaved roads.
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II. Summary of Final Action on method’s equation to calculate percent meet the rule’s stabilization standards Proposed Revisions silt content. for each source category.12 EPA proposed to amend the final FIP rule A. Test Methods 2. Visible Crust Test Method such that ACMs would not require prior 1. Silt Content Test Method The final FIP rule’s test method for EPA approval.13 In today’s action, EPA measuring visible crust thickness on has accordingly eliminated the final FIP The final FIP rule contains an opacity vacant lots involved breaking off a piece standard of twenty (20) percent, or rule requirement that ACMs receive of crust, checking whether the crust prior EPA approval. Ringlemann 1, for unpaved roads and crumbles easily and measuring its unpaved parking lots. Compliance with thickness with a ruler.6 EPA proposed III. Unpaved Roads this standard is to be tested using visible an alternative method to determine the The final FIP rule contains emissions test methods included in the sufficiency of a visible crust.7 The 3 requirements to control fugitive dust final Phoenix FIP rule. EPA proposed alternative test method involves from unpaved roads that are publicly an additional, new test method for dropping a small steel ball from a height 4 owned and/or operated (i.e., measuring silt content. of one foot in select one square foot maintained). This includes privately EPA solicited comments on this areas and checking to see whether the owned roads that are publicly additional test method and whether or ball penetrates the surface or causes maintained. EPA proposed to include in not to retain the existing opacity test loose grains to appear. Public comments the FIP rule unpaved privately owned method in the final FIP rule. EPA received support the alternative method. roads that are privately maintained or received no comments suggesting that In this final action, EPA has replaced not maintained. EPA is not taking final the existing opacity test method be the earlier visible crust thickness test action at this time on the proposed eliminated from the FIP rule. In this method with the alternative visible crust amendments to the unpaved road final action, EPA has added the silt test method. This required renumbering requirements of the final FIP rule. The content test method into the FIP rule of the proposed text 8 for consistency Maricopa Association of Governments and retained the opacity test method. with the numbering of other vacant lot (MAG) recently announced its intent to Therefore, sources subject to the FIP test methods. Also, EPA has modified pave or otherwise control all unpaved rule will need to comply with both a silt the text to allow the weight of the ball roads located in the PM–10 content standard and an opacity used in the test method to range from nonattainment area with traffic levels standard. 16 to 17 grams, as opposed to an exact that meet or exceed 130 average daily Also, EPA received public comments weight of 16.33 grams. trips.14 EPA believes that the County’s suggesting that silt loading be taken into 3. Standing Vegetation Test Method action may supersede the need for EPA account. In this final action, EPA has Density Procedure to control additional unpaved roads as included a silt loading value in the silt specified in the proposed FIP revision, The final FIP rule contains a test content test method, below which a and thus is not taking action on the method for standing vegetation.9 EPA source may be deemed in compliance proposed revision at this time. with the FIP rule. Text changes to proposed to add a vegetation density accommodate this addition occur in procedure involving the use of a grid IV. Agency Responses to Comments paragraph (b)(16) and in Appendix A, with one inch or half-inch squares to A 45-day public comment period was I.B of the final amendments. help ensure that various vegetative provided in 64 FR 3263. EPA received Furthermore, EPA has clarified the structures can be assessed accurately 10 several comments on the proposed FIP following items from the proposed test and consistently. Public comments rule revisions and responds to the most method text: received support the inclusion of the significant below. EPA has responded to vegetation density procedure in the • Samples should be collected to a all comments associated with this final standing vegetation test method. In this depth of approximately 1 centimeter or action in the Technical Support final action, EPA has added the density until a hard subsurface is reached, Document, which can be found in procedure into the final FIP rule. EPA whichever occurs first. Docket No. A–98–42. • If sieving is simplified by also made two minor text corrections to Comment: Maricopa County the proposed test method which are combining three samples, each sample Environmental Services Division enumerated in the Technical Support should weigh within one ounce of the (MCESD) comments that by itself, the Document associated with this action, other two samples. (EPA’s contractor silt content of the surface material on an which can be found in Docket No. A– clarified that samples must be of unpaved road is a unidimensional 98–42. approximately the same weight in order parameter and does not indicate to ensure technical accuracy if they are B. Alternative Control Measures whether or not the road is stabilized. It 5 combined.) In the final FIP rule (August 1998), is the silt loading value which provides EPA has corrected the following two ACMs are allowed provided that they an indicator of stabilization as it items from the proposed test method are submitted to EPA and receive EPA estimates the amount of fine particulate text: approval.11 ACMs are any RACM not per surface area which may become • An incorrect reference to collector specifically listed in the rule that can airborne. The proposed test method pan material as silt fraction has been should be modified to derive silt eliminated. 6 63 FR 41324, 41355. loading in place of silt content. • A printing error in the AP–42 silt 7 64 FR 3263, 3268–3269. content test method with respect to the 8 63 FR 3263, 3268. 12 The ACM provisions of the rule do not 9 63 FR 41326, 41356. otherwise authorize any modification of the FIP 10 64 FR 3263, 3269–3271. The procedure was rule’s requirements. 3 Reference Method 9 (40 CFR part 60, appendix provided to EPA by Larry Hagen, Agricultural 13 64 FR 3263, 3267. A) and Methods 203A and 203C. Appendix A.I. to Engineer, United States Department of Agriculture, 14 Memorandum from Lindy Bauer, MAG, to § 52.128 (63 FR 41326, 41353–41355). Wind Erosion Research Unit, 2004 Throckmortion Members of the MAG Air Quality Planning Team, 4 64 FR 3263, 3267–3268. Hall, Kansas State University, Manhatten, Kansas November 30, 1999, summarizing the MAG 5 Chatten Cowherd, MRI Research Institute in 66506. Transportation Review Committee’s funding Kansas City, Missouri, January 1999. 11 63 FR 41326, 41352. recommendations presented on November 23, 1999.
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Response: EPA has modified the test determine source compliance where must determine whether the regulatory method to include a silt loading some visible crusting is present.) action is ‘‘significant’’ and therefore parameter, such that surfaces with less Comment: ADEQ comments that subject to Office of Management and than 0.33 oz/ft.3 silt loading will be adding the vegetative density procedure Budget (OMB) review and the considered stable under the FIP rule. to the current test method would clarify requirements of the Executive Order. However, EPA has retained the silt the method and produce more accurate The Order defines ‘‘significant content standards of 6 percent for results when performed by different regulatory action’’ as one that is likely unpaved roads and 8 percent for individuals. to result in a rule that may: Response: EPA has added the unpaved parking lots when silt loading (1) have an annual effect on the economy 2 is greater than or equal to 0.33 oz/ft vegetative density procedure to the of $100 million or more or adversely affect Comment: MCESD, Maricopa County standing vegetation test method. in a material way the economy, a sector of Department of Transportation (MCDOT) Comment: ADEQ comments that they the economy, productivity, competition, jobs, and Arizona Department of support eliminating the requirement to the environment, public health or safety, or Environmental Quality (ADEQ) submit ACMs to EPA because State, local or tribal governments or comment on the benefits associated implementation costs will decrease communities; with retaining the opacity test method since parties will not need to commit (2) create a serious inconsistency or in the FIP rule while adding a silt time and resources to submit ACMs to otherwise interfere with an action taken or EPA and wait for approval before planned by another agency; content test method. With respect to (3) materially alter the budgetary impact of visible crust test methods, however, utilizing them. ACLIPI, however, entitlements, grants, user fees, or loan MCESD and ADEQ comment that EPA comments that they strongly object to programs or the rights and obligations of should replace (i.e., not retain) the the implementation of ACMs without recipients thereof; or visible crust test currently found in the EPA approval because without such (4) raise novel legal or policy issues arising FIP rule with the proposed ‘‘drop ball’’ approval, ACMs will inevitably become out of legal mandates, the President’s visible crust test. Arizona Center for ‘‘least effective control measures’’. priorities, or the principles set forth in the Law in the Public Interest (ACLPI) Response: EPA has eliminated the Executive Order. comments that they support the use of requirement to submit ACMs to EPA for Due to potential novel policy issues the most accurate test methods approval. Since the FIP rule contains this action is considered a significant available, however, test methods should standards and test methods which regulatory action and therefore must be not be replaced where the superiority of indicate whether a surface is stabilized, reviewed by OMB. Changes made in the replacement tests has not been owners/operators can be allowed response to OMB suggestions or established; requiring both existing and flexibility as to the type of control recommendations will be documented proposed tests, at least for a certain time measure applied as long as the control in the public record. period, would not be unduly measure results in a stabilized surface. B. Executive Order 13045 cumbersome or expensive to the The elimination of the requirement to regulated community, and this would submit ACMs for prior EPA approval Protection of Children from also allow EPA to compare the relative does not lessen the owners’/operators’ Environmental Health Risks and Safety value and accuracy of the two sets of responsibility to implement control Risks (62 FR 19885, April 23, 1997), tests. measures effectively on the sources applies to any rule that: (1) Is Response: EPA has retained the subject to the rule. In fact, by determined to be ‘‘economically opacity standard in the FIP rule, while emphasizing the intended result, as significant’’ as defined under Executive adding a new test method for measuring opposed to the type of control, EPA Order 12866, and (2) concerns an silt content. Retaining both the opacity hopes to increase owners’/operators’ environmental health or safety risk that and silt content standards and test understanding that their responsibility EPA has reason to believe may have a methods in the final FIP rule will under the FIP rule will remain until a disproportionate effect on children. If provide greater flexibility for qualified source is controlled, even if the owner/ the regulatory action meets both criteria, persons to conduct compliance testing operator inadequately implements a the Agency must evaluate the of fugitive dust sources and will allow control measure or implements an environmental health or safety effects of opportunities to compare the relative ineffective control measure. If applied, the planned rule on children, and value and accuracy of the two tests. ACMs must meet the minimum explain why the planned regulation is With respect to visible crust test standards established by the FIP rule, preferable to other potentially effective methods, EPA has replaced the former therefore, requiring that ACMs be and reasonably feasible alternatives visible crust test with the proposed submitted to EPA for approval would considered by the Agency. ‘‘drop ball’’ visible crust test. EPA result in unnecessary administrative This rule is not subject to Executive conducted field testing of both the burden. Order 13045 because it does not involve visible crust test method in the final FIP V. Text Corrections to the Final Rule decisions intended to mitigate rule and the proposed ‘‘drop ball’’ environmental health or safety risks. visible crust test method. Field testing In addition to finalizing the proposed showed that the proposed ‘‘drop ball’’ rule amendments, EPA is incorporating C. Executive Order 13084 test method is easier to conduct, more a few minor corrections to final FIP rule Under Executive Order 13084, EPA accurately repeatable by various parties, text at 40 CFR 52.128. These are may not issue a regulation that is not and more indicative of whether a enumerated in the Technical Support required by statute, that significantly sufficiently stabilizing crust exists. To Document associated with this action, affects or uniquely affects the ensure the use of a superior method, which can be found in Docket No. A– communities of Indian tribal EPA is replacing the test method in the 98–42. governments, and that imposes final FIP rule with the ‘‘drop ball’’ test VI. Administrative Requirements substantial direct compliance costs on method. (Interested parties should note those communities, unless the Federal that the test method for threshold A. Executive Order 12866 government provides the funds friction velocity promulgated in the Under Executive Order 12866, 58 FR necessary to pay the direct compliance final FIP rule can also be used to 51735 (October 4, 1993), the Agency costs incurred by the tribal
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Finalized Amendments to Federal requires EPA to provide to the Office of prior consultation with State and local Rule for Unpaved Roads, Unpaved Management and Budget, in a separately officials, a summary of the nature of Parking Lots and Vacant Lots identified section of the preamble to the their concerns and the agency’s position rule, a description of the extent of EPA’s supporting the need to issue the EPA believes that the finalized test prior consultation with representatives regulation, and a statement of the extent method amendments will provide either of affected tribal governments, a to which the concerns of State and local more flexibility or an improved summary of the nature of their concerns, officials have been met. Also, when EPA procedure for determining compliance and a statement supporting the need to transmits a draft final rule with with the FIP fugitive dust rule. The silt issue the regulation. In addition, federalism implications to OMB for content test method will allow persons Executive Order 13084 requires EPA to review pursuant to Executive Order who are not certified in visible develop an effective process permitting 12866, EPA must include a certification emissions training to test the stability of elected and other representatives of from the agency’s Federalism Official an unpaved road or unpaved parking lot Indian tribal governments ‘‘to provide stating that EPA has met the by using an alternative method to the meaningful and timely input in the requirements of Executive Order 13132 opacity test method. EPA plans to development of regulatory policies on in a meaningful and timely manner. ensure that the necessary sieve units are matters that significantly or uniquely available for loan by local entities to affect their communities.’’ This final rule will not have substantial direct effects on the States, regulated sources. Also, the newly Today’s rule does not significantly or added visible crust test method uniquely affect the communities of on the relationship between the national government and the States, or on the accomplishes the same objective as the Indian tribal governments. This action previous visible crust test method yet is distribution of power and does not involve or impose any more practical and can be accurately responsibilities among the various requirements that affect Indian Tribes. repeated by various parties. The levels of government, as specified in Accordingly, the requirements of additional procedure to assist parties in Executive Order 13132. The revisions section 3(b) of Executive Order 13084 measuring frontal silhouette area of finalized in this rulemaking concern test do not apply to this rule. various vegetative structures is merely methods and flexibility for alternative intended to address circumstances that D. Executive Order 13132 compliance. Thus, the requirements of may arise in the field which are not Executive Order 13132, entitled section 6 of the Executive Order do not addressed in the final FIP rule. Finally, ‘‘Federalism’’ (64 FR 43255, August 10, apply to this rule. 1999), requires EPA to develop an eliminating the requirement for EPA accountable process to ensure E. Regulatory Flexibility Analysis approval of ACMs increases the rule’s ‘‘meaningful and timely input by State flexibility for source owners/operators 1. Regulatory Flexibility Act and reduces the paperwork burden of and local officials in the development of Requirements regulatory policies that have federalism the rule. implications.’’ ‘‘Policies that have Under the Regulatory Flexibility Act b. Certification federalism implications’’ is defined in (RFA), 5 U.S.C. 600 et seq., EPA must the Executive Order to include prepare a regulatory flexibility analysis For reasons discussed above, EPA has regulations that have ‘‘substantial direct assessing the impact of any proposed or determined that it is not necessary to effects on the States, on the relationship final rule on small entities. prepare a regulatory flexibility analysis between the national government and Alternatively, EPA may certify that the in connection with the final rule the States, or on the distribution of rule will not have a significant impact amendments. After consideration of the power and responsibilities among the on a substantial number of small economic impacts of today’s final rule various levels of government.’’ Under entities. Small entities include small amendments on small entities, I hereby Executive Order 13132, EPA may not businesses, small not-for-profit certify that the final rule will not have issue a regulation that has federalism enterprises, and government entities a significant economic impact on a implications, that imposes substantial with jurisdiction over populations of substantial number of small entities. direct compliance costs, and that is not less than 50,000. F. Unfunded Mandates Reform Act required by statute, unless the Federal (UMRA) government provides the funds For the purposes of this inquiry, as it necessary to pay the direct compliance applies to the proposed amendments to Under Section 202 of the Unfunded costs incurred by State and local the federal fugitive dust rule (40 CFR Mandates Reform Act of 1995 governments, or EPA consults with § 52.128), EPA is assuming that the (‘‘Unfunded Mandates Act’’), signed State and local officials early in the affected or potentially affected sources into law on March 22, 1995, EPA must process of developing the proposed constitute ‘‘small entities’’ as defined by prepare a budgetary impact statement to regulation. EPA also may not issue a the RFA. accompany any proposed or final rule regulation that has federalism A detailed discussion of the RFA that includes a Federal mandate that implications and that preempts State analysis for the final FIP is found in may result in estimated costs to State, law unless the Agency consults with section V.B. at 63 FR 41326. In general, local, or tribal governments in the State and local officials early in the the finalized amendments to the final aggregate; or to private sector, of $100 process of developing the proposed FIP fugitive dust rule are intended to million or more. Under Section 205, regulation. provide more flexibility in complying EPA must select the most cost-effective If EPA complies by consulting, with the FIP rule and to improve the test and least burdensome alternative that Executive Order 13132 requires EPA to methods as they currently exist in the achieves the objectives of the rule and provide to the Office of Management rule. Thus, EPA believes that the is consistent with statutory and Budget (OMB), in a separately amendments will not change the final requirements. Section 203 requires EPA identified section of the preamble to the FIP RFA analysis, except possibly to to establish a plan for informing and rule, a federalism summary impact have a lesser impact on small entities. advising any small governments that
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As explained above, today’s States prior to publication of the rule in Environmental Services Division under finalized amendments to the final FIP the Federal Register. This rule is not a Rule 200, Section 305, Rule 210 or Rule fugitive dust rule are intended to ‘‘major’’ rule as defined by 5 U.S.C. 220 containing a Dust Control Plan provide more flexibility in complying 804(2). approved under Rule 310 covering all with the FIP rule and to improve the test unpaved parking lots, unpaved roads J. Petitions for Judicial Review methods currently in the rule. Thus, and vacant lots. This section does not EPA believes that the amendments will Under section 307(b)(1) of the Clean apply to the two Indian Reservations not change the final FIP UMRA analysis, Air Act, petitions for judicial review of (the Salt River Pima-Maricopa Indian except possibly to have a lesser impact this action must be filed in the United Community and the Fort McDowell on most regulated entities. States Court of Appeals for the Mojave-Apache Indian Community) and appropriate circuit by February 22, G. Paperwork Reduction Act a portion of a third reservation (the Gila 2000. Filing a petition for River Indian Community) in the The finalized test method and ACM reconsideration by the Administrator of Phoenix PM–10 nonattainment area. amendments do not impact the this final rule does not affect the finality Nothing in this definition shall preclude information collection request analysis of this rule for the purposes of judicial applicability of this section to vacant for the final FIP (EPA ICR 1855.02). The review nor does it extend the time lots with disturbed surface areas due to final FIP (63 FR 41326) provides more within which a petition for judicial construction, earth-moving, weed information on the information review may be filed, and shall not abatement or other dust generating collection request requirements. postpone the effectiveness of such rule operations which have been terminated H. National Technology Transfer and or action. This action may not be for over eight months. Advancement Act (NTTAA) challenged later in proceedings to (3) The test methods described in enforce its requirements. (See section Appendix A of this section shall be used Section 12(d) of the National 307(b)(2).) Technology Transfer and Advancement when testing is necessary to determine Act of 1995 (‘‘NTTAA’’), Public Law No. List of Subjects in 40 CFR Part 52 whether a surface has been stabilized as defined in paragraph (b)(16) of this 104–113, Sec. 12(d) (15 U.S.C. 272 note) Environmental protection, Air directs EPA to use voluntary consensus section. pollution control, Intergovernmental (b) Definitions. (1) Average daily trips standards in its regulatory activities relations, Particulate matter. unless to do so would be inconsistent (ADT)—The average number of vehicles with applicable law or otherwise Dated: December 13, 1999. that cross a given surface during a impractical. Voluntary consensus Carol M. Browner, specified 24-hour time period as standards are technical standards (e.g., Administrator. determined by the Institute of materials specifications, test methods, For the reasons set forth in the Transportation Engineers Trip sampling procedures, and business preamble, part 52, chapter I, title 40 of Generation Report (6th edition, 1997) or practices) that are developed or adopted the Code of Federal Regulations is tube counts. by voluntary consensus standards amended as follows: (2) Chemical/organic stabilizer—Any bodies. The NTTAA directs EPA to non-toxic chemical or organic dust provide Congress, through OMB, PART 52ÐAPPROVAL AND suppressant other than water which explanations when the Agency decides PROMULGATION OF meets any specifications, criteria, or not to use available and applicable IMPLEMENTATION PLANS tests required by any federal, state, or voluntary consensus standards. local water agency and is not prohibited 1. The authority citation for part 52 for use by any applicable law, rule or In this action, EPA has incorporated continues to read as follows: voluntary consensus standards where regulation. feasible [See language for Appendix A Authority: 42 U.S.C. 7401 et seq. (3) Disturbed surface area—Any to § 52.128, I.B(iv)]. However, in most portion of the earth’s surface, or Subpart DÐArizona cases there are no applicable technical materials placed thereon, which has standards or field procedures 2. Section 52.128 is revised as been physically moved, uncovered, specifically designed for the source follows: destabilized, or otherwise modified categories at hand. OMB has reviewed from its undisturbed natural condition, and concurred on the applicable § 52.128 Rule for unpaved parking lots, thereby increasing the potential for technical standards finalized in this unpaved roads and vacant lots. emission of fugitive dust. revision. (a) General. (1) Purpose. The purpose (4) Dust suppressants—Water, of this section is to limit the emissions hygroscopic materials, solution of water I. Submission to Congress and the of particulate matter into the ambient air and chemical surfactant, foam, or non- General Accounting Office from human activity on unpaved toxic chemical/organic stabilizers not The Congressional Review Act, 5 parking lots, unpaved roads and vacant prohibited for use by any applicable U.S.C. 801 et seq., as added by the Small lots. law, rule or regulation, as a treatment Business Regulatory Enforcement (2) Applicability. The provisions of material to reduce fugitive dust Fairness Act of 1996, generally provides this section shall apply to owners/ emissions. that before a rule may take effect, the operators of unpaved roads, unpaved (5) EPA—United States agency promulgating the rule must parking lots and vacant lots and Environmental Protection Agency, submit a rule report, which includes a responsible parties for weed abatement Region IX, 75 Hawthorne Street, San copy of the rule, to each House of the on vacant lots in the Phoenix PM–10 Francisco, California 94105.
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(6) Fugitive dust—The particulate determined in section I.A of Appendix parking lot or vacant lot 5,000 square matter entrained in the ambient air A of this section; and feet or less. which is caused from man-made and (B) Silt loading (weight of silt per unit (2) In paragraphs (d)(1) and (d)(2) of natural activities such as, but not area) is less than 0.33 ounces per square this section: Any unpaved parking lot limited to, movement of soil, vehicles, foot as determined by the test method in on any day in which ten (10) or fewer equipment, blasting, and wind. This section I.B of Appendix A of this section vehicles enter. excludes particulate matter emitted OR where silt loading is greater than or (3) In paragraphs (d)(4)(i) and (d)(4)(ii) directly from the exhaust of motor equal to 0.33 ounces per square foot and of this section: Any vacant lot with less vehicles and other internal combustion silt content does not exceed six (6) than 0.50 acre (21,780 square feet) of engines, from portable brazing, percent for unpaved road surfaces or disturbed surface area(s). soldering, or welding equipment, and eight (8) percent for unpaved parking lot (4) In paragraph (d) of this section: from piledrivers. surfaces as determined by the test Non-routine or emergency maintenance (7) Lot—A parcel of land identified on method in section I.B of Appendix A of of flood control channels and water a final or parcel map recorded in the this section. retention basins. office of the Maricopa County recorder (ii) Any vacant lot surface with: (5) In paragraph (d) of this section: with a separate and distinct number or (A) A visible crust which is sufficient Vehicle test and development facilities letter. as determined in section II.1 of and operations when dust is required to (8) Low use unpaved parking lot—A Appendix A of this section; test and validate design integrity, lot on which vehicles are parked no (B) A threshold friction velocity product quality and/or commercial more than thirty-five (35) days a year, (TFV), corrected for non-erodible acceptance. Such facilities and excluding days where the exemption in elements, of 100 cm/second or higher as operations shall be exempted from the paragraph (c)(2) of this section applies. determined in section II.2 of Appendix provisions of this section only if such (9) Motor vehicle—A self-propelled A of this section; testing is not feasible within enclosed vehicle for use on the public roads and (C) Flat vegetation cover equal to at facilities. (6) In paragraph (d)(4)(i) of this highways of the State of Arizona and least 50 percent as determined in section: Weed abatement operations required to be registered under the section II.3 of Appendix A of this performed on any vacant lot or property Arizona State Uniform Motor Vehicle section; under the order of a governing agency Act, including any non-motorized (D) Standing vegetation cover equal to for the control of a potential fire hazard attachments, such as, but not limited to, or greater than 30 percent as determined or otherwise unhealthy condition trailers or other conveyances which are in section II.4 of Appendix A of this provided that mowing, cutting, or connected to or propelled by the actual section; or another similar process is used to motorized portion of the vehicle. (E) Standing vegetation cover equal to maintain weed stubble at least three (3) (10) Off-road motor vehicle—any or greater than 10 percent as determined inches above the soil surface. This wheeled vehicle which is used off in section II.4 of Appendix A of this includes the application of herbicides paved roadways and includes but is not section where threshold friction provided that the clean-up of any debris limited to the following: velocity, corrected for non-erodible (i) Any motor cycle or motor-driven does not disturb the soil surface. elements, as determined in section II.2 cycle; (7) In paragraph (d)(4)(i) of this of Appendix A of this section is equal (ii) Any motor vehicle commonly section: Weed abatement operations that to or greater than 43 cm/second. referred to as a sand buggy, dune buggy, receive an approved Earth Moving (17) Unpaved parking lot—A or all terrain vehicle. permit under Maricopa County Rule (11) Owner/operator—any person privately or publicly owned or operated 200, Section 305 (adopted 11/15/93). who owns, leases, operates, controls, area utilized for parking vehicles that is (d) Requirements. (1) Unpaved maintains or supervises a fugitive dust not paved and is not a Low use unpaved parking lots. Any owners/operators of source subject to the requirements of parking lot. an unpaved parking lot shall implement this section. (18) Unpaved road—Any road, one of the following RACM on any (12) Paving—Applying asphalt, equipment path or driveway used by surface area(s) of the lot on which recycled asphalt, concrete, or asphaltic motor vehicles or off-road motor vehicles enter and park. concrete to a roadway surface. vehicles that is not paved which is open (i) Pave; or (13) Phoenix PM–10 nonattainment to public access and owned/operated by (ii) Apply chemical/organic stabilizers area—such area as defined in 40 CFR any federal, state, county, municipal or in sufficient concentration and 81.303, excluding Apache Junction. other governmental or quasi- frequency to maintain a stabilized (14) PM–10—Particulate matter with governmental agencies. surface; or an aerodynamic diameter less than or (19) Urban or suburban open area— (iii) Apply and maintain surface equal to a nominal 10 micrometers as An unsubdivided or undeveloped tract gravel uniformly such that the surface is measured by reference or equivalent of land adjoining a residential, stabilized; or methods that meet the requirements industrial or commercial area, located (iv) Apply and maintain an alternative specified for PM–10 in 40 CFR part 50, on public or private property. control measure such that the surface is Appendix J. (20) Vacant lot—A subdivided stabilized, provided that the alternative (15) Reasonably available control residential, industrial, institutional, measure is not prohibited under measures (RACM)—Techniques used to governmental or commercial lot which paragraph (b)(2) or (b)(4) of this section. prevent the emission and/or airborne contains no approved or permitted (2) Any owners/operators of a low use transport of fugitive dust and dirt. buildings or structures of a temporary or unpaved parking lot as defined in (16) Stabilized surface—(i) Any permanent nature. paragraph (b)(8) of this section shall unpaved road or unpaved parking lot (c) Exemptions. The following implement one of the RACM under surface where: requirements in paragraph (d) of this paragraph (d)(1) of this section on any (A) Any fugitive dust plume section do not apply: day(s) in which over 100 vehicles enter emanating from vehicular movement (1) In paragraphs (d)(1), (d)(2) and the lot, such that the surface area(s) on does not exceed 20 percent opacity as (d)(4)(iii) of this section: Any unpaved which vehicles enter and park is/are
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Any owners/ surface areas are stabilized; or (A) An estimate of the percentage of operators of existing unpaved roads (E) Apply and maintain an alternative unpaved roads, unpaved parking lots, with ADT volumes of 250 vehicles or control measure such that the surface is and vacant lots subject to this section to greater shall implement one of the stabilized, provided that the alternative which RACM as required in this section following RACM along the entire measure is not prohibited under have been applied; and surface of the road or road segment that paragraph (b)(2) or (b)(4) of this section. (B) A description of the most is located within the Phoenix non- (iii) Motor vehicle disturbances. Any frequently applied RACM and estimates attainment area by June 10, 2000: owners/operators of an urban or of their control effectiveness. suburban open area or vacant lot of (i) Pave; or Appendix A to § 52.128—Test Methods To which any portion has a disturbed (ii) Apply chemical/organic stabilizers Determine Whether A Surface Is Stabilized surface area due to motor vehicle or off- in sufficient concentration and road motor vehicle use or parking, I. Unpaved Roads and Unpaved Parking Lots frequency to maintain a stabilized notwithstanding weed abatement A. Opacity Observations surface; or operations or use or parking by the Conduct opacity observations in (iii) Apply and maintain surface owner(s), shall implement one of the accordance with Reference Method 9 (40 CFR gravel uniformly such that the surface is following RACM within 60 calendar Part 60, appendix A) and Methods 203A and stabilized; or days following the initial determination 203C of this appendix, with opacity readings (iv) Apply and maintain an alternative of disturbance. taken at five second observation intervals and control measure such that the surface is (A) Prevent motor vehicle and off- two consecutive readings per plume beginning with the first reading at zero stabilized, provided that the alternative road motor vehicle trespass/ parking by measure is not prohibited under seconds, in accordance with Method 203C, applying fencing, shrubs, trees, barriers sections 2.3.2. and 2.4.2 of this appendix. paragraph (b)(2) or (b)(4) of this section. or other effective measures; or Conduct visible opacity tests only on dry (4) Vacant lots. The following (B) Apply and maintain surface gravel unpaved surfaces (i.e. when the surface is not provisions shall be implemented as or chemical/organic stabilizer uniformly damp to the touch) and on days when applicable. such that all disturbed surface areas are average wind speeds do not exceed 15 miles (i) Weed abatement. No person shall stabilized. per hour (mph). remove vegetation from any vacant lot (5) Implementation date of RACM. All (i) Method 203A—Visual Determination of by blading, disking, plowing under or of the requirements in paragraph (d) of Opacity of Emissions From Stationary any other means without implementing this section shall be effective eight (8) Sources for Time-Arranged Regulations all of the following RACM to prevent or months from September 2, 1998. For Method 203A is virtually identical to minimize fugitive dust. requirements in paragraph (d)(4)(ii) and EPA’s Method 9 (40 CFR Part 60 Appendix A) except for the data-reduction procedures, (A) Apply a dust suppressant(s) to the (d)(4)(iii) of this section, RACM shall be implemented within eight (8) months which provide for averaging times other than total surface area subject to disturbance 6 minutes. That is, using Method 203A with immediately prior to or during the weed from September 2, 1998, or within 60 a 6-minute averaging time would be the same abatement. calendar days following the disturbance, as following EPA Method 9 (40 CFR Part 60, (B) Prevent or eliminate material whichever is later. Appendix A). Additionally, Method 203A track-out onto paved surfaces and access (e) Monitoring and records. (1) Any provides procedures for fugitive dust points adjoining paved surfaces. owners/operators that are subject to the applications. The certification procedures provided in section 3 are virtually identical (C) Apply a dust suppressant(s), provisions of this section shall compile and retain records that provide evidence to Method 9 (40 CFR Part 60, Appendix A) gravel, compaction or alternative control and are provided here, in full, for clarity and measure immediately following weed of control measure application, indicating the type of treatment or convenience. abatement to the entire disturbed 1. Applicability and Principle surface area such that the surface is measure, extent of coverage and date 1.1 Applicability. This method is stabilized. applied. For control measures involving chemical/organic stabilization, records applicable for the determination of the (ii) Disturbed surfaces. Any owners/ shall also indicate the type of product opacity of emissions from sources of visible operators of an urban or suburban open applied, vendor name, label instructions emissions for time-averaged regulations. A area or vacant lot of which any portion time-averaged regulation is any regulation for approved usage, and the method, has a disturbed surface area(s) that that requires averaging visible emission data frequency, concentration and quantity remain(s) unoccupied, unused, vacant to determine the opacity of visible emissions of application. or undeveloped for more than fifteen over a specific time period. (2) Copies of control measure records 1.2 Principle. The opacity of emissions (15) calendar days shall implement one and dust control plans along with from sources of visible emissions is of the following RACM within sixty (60) supporting documentation shall be determined visually by an observer qualified calendar days following the disturbance. retained for at least three years. according to the procedures of section 3. (A) Establish ground cover vegetation (3) Agency surveys. (i) EPA or other 2. Procedures on all disturbed surface areas in appropriate entity shall conduct a An observer qualified in accordance with sufficient quantity to maintain a survey of the number and size (or section 3 of this method shall use the stabilized surface; or length) of unpaved roads, unpaved following procedures for visually (B) Apply a dust suppressant(s) to all parking lots, and vacant lots subject to determining the opacity of emissions. disturbed surface areas in sufficient the provisions of this section located 2.1 Procedures for Emissions from quantity and frequency to maintain a within the Phoenix PM–10 Stationary Sources. These procedures are not stabilized surface; or nonattainment area beginning no later applicable to this section. (C) Restore to a natural state, i.e. as 2.2 Procedures for Fugitive Process Dust than 365 days from September 2, 1998. Emissions. These procedures are applicable existing in or produced by nature (ii) EPA or other appropriate entity for the determination of the opacity of without cultivation or artificial shall conduct a survey at least every fugitive emissions by a qualified observer. influence, such that all disturbed three years within the Phoenix PM–10 The qualified field observer should do the surface areas are stabilized; or nonattainment area beginning no later following:
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2.2.1 Position. Stand at a position at least an error not to exceed 15 percent opacity on 3.3.2 Smoke Meter Evaluation. The smoke 5 meters from the fugitive dust source in any one reading and an average error not to meter design and performance are to be order to provide a clear view of the emissions exceed 7.5 percent opacity in each category. evaluated as follows: with the sun oriented in the 140-degree Candidates shall be tested according to the 3.3.2.1 Light Source. Verify from sector to the back. Consistent as much as procedures described in paragraph 3.2. Any manufacturer’s data and from voltage possible with maintaining the above smoke generator used pursuant to paragraph measurements made at the lamp, as installed, requirements, make opacity observations 3.2 shall be equipped with a smoke meter that the lamp is operated within ±5 percent from a position such that the line of vision which meets the requirements of paragraph of the nominal rated voltage. is approximately perpendicular to the plume 3.3. Certification tests that do not meet the 3.3.2.2 Spectral Response of Photocell. and wind direction. As much as possible, if requirements of paragraphs 3.2 and 3.3 are Verify from manufacturer’s data that the multiple plumes are involved, do not include not valid. photocell has a photopic response; i.e., the more than one plume in the line of sight at The certification shall be valid for a period spectral sensitivity of the cell shall closely one time. of 6 months, and after each 6-month period, approximate the standard spectral-luminosity 2.2.2 Field Records. Record the name of the the qualification procedures must be curve for photopic vision which is referenced plant or site, fugitive source location, source repeated by an observer in order to retain in (b) of Table A. type [pile, stack industrial process unit, certification. 3.3.2.3 Angle of View. Check construction incinerator, open burning operation activity, 3.2 Certification Procedure. The geometry to ensure that the total angle of material handling (transfer, loading, sorting, certification test consists of showing the view of the smoke plume, as seen by the etc.)], method of control used, if any, candidate a complete run of 50 plumes, 25 photocell, does not exceed 15 degrees. observer’s name, certification data and black plumes and 25 white plumes, Calculate the total angle of view as follows: affiliation, and a sketch of the observer’s generated by a smoke generator. Plumes shall - = 2 tan¥1 d/2L position relative to the fugitive source. Also, be presented in random order within each set v record the time, estimated distance to the of 25 black and 25 white plumes. The Where: fugitive source location, approximate wind candidate assigns an opacity value to each -v = total angle of view; direction, estimated wind speed, description plume and records the observation on a d = the photocell diameter + the diameter of of the sky condition (presence and color of suitable form. At the completion of each run the limiting aperture; and clouds), observer’s position relative to the of 50 readings, the score of the candidate is L = distance from the photocell to the fugitive source, and color of the plume and determined. If a candidate fails to qualify, the limiting aperture. complete run of 50 readings must be repeated type of background on the visible emission The limiting aperture is the point in the in any retest. The smoke test may be observation form when opacity readings are path between the photocell and the smoke initiated and completed. administered as part of a smoke school or training program, and may be preceded by plume where the angle of view is most 2.2.3 Observations. Make opacity restricted. In smoke generator smoke meters, observations, to the extent possible, using a training or familiarization runs of the smoke generator during which candidates are shown this is normally an orifice plate. contrasting background that is perpendicular 3.3.2.4 Angle of Projection. Check to the line of vision. For roads, storage piles, black and white plumes of known opacity. 3.3 Smoke Generator Specifications. Any construction geometry to ensure that the total and parking lots, make opacity observations angle of projection of the lamp on the smoke approximately 1 meter above the surface smoke generator used for the purpose of paragraph 3.2 shall be equipped with a plume does not exceed 15 degrees. Calculate from which the plume is generated. For other the total angle of projection as follows: fugitive sources, make opacity observations smoke meter installed to measure opacity - ¥1 at the point of greatest opacity in that portion across the diameter of the smoke generator p = 2 tan d/2L of the plume where condensed water vapor stack. The smoke meter output shall display Where: in-stack opacity, based upon a path length is not present. For intermittent sources, the -p = total angle of projection; initial observation should begin immediately equal to the stack exit diameter on a full 0 d = the sum of the length of the lamp after a plume has been created above the to 100 percent chart recorder scale. The filament + the diameter of the limiting surface involved. Do not look continuously at smoke meter optical design and performance aperture; and the plume but, instead, observe the plume shall meet the specifications shown in Table L = the distance from the lamp to the limiting A. The smoke meter shall be calibrated as momentarily at 15-second intervals. aperture. 2.3 Recording Observations. Record the prescribed in paragraph 3.3.1 prior to conducting each smoke reading test. At the 3.3.2.5 Calibration Error. Using neutral- opacity observations to the nearest 5 percent density filters of known opacity, check the every 15 seconds on an observational record completion of each test, the zero and span drift, shall be checked, and if the drift error between the actual response and the sheet. Each momentary observation recorded ± theoretical linear response of the smoke represents the average opacity of emissions exceeds 1 percent opacity, the condition shall be corrected prior to conducting any meter. This check is accomplished by first for a 15-second period. calibrating the smoke meter according to 2.4 Data Reduction for Time-Averaged subsequent test runs. The smoke meter shall be demonstrated at the time of installation to 3.3.1 and then inserting a series of three Regulations. A set of observations is neutral-density filters of nominal opacity of composed of an appropriate number of meet the specifications listed in Table A. 20, 50, and 75 percent in the smoke meter consecutive observations determined by the This demonstration shall be repeated path length. Use filters calibrated within ±2 averaging time specified. Divide the recorded following any subsequent repair or percent. Care should be taken when inserting observations into sets of appropriate time replacement of the photocell or associated the filters to prevent stray light from affecting lengths for the specified averaging time. Sets electronic circuitry including the chart the meter. Make a total of five must consist of consecutive observations; recorder or output meter, or every 6 months, nonconsecutive readings for each filter. The however, observations immediately whichever occurs first. maximum opacity error on any one reading preceding and following interrupted 3.3.1 Calibration. The smoke meter is shall be ±3 percent. observations shall be deemed consecutive. calibrated after allowing a minimum of 30 3.3.2.6 Zero and Span Drift. Determine the Sets need not be consecutive in time and in minutes warm-up by alternately producing no case shall two sets overlap, resulting in simulated opacity of 0 percent and 100 zero and span drift by calibrating and multiple violations. For each set of percent. When stable response at 0 percent or operating the smoke generator in a normal observations, calculate the appropriate 100 percent is noted, the smoke meter is manner over a 1-hour period. The drift is average opacity. adjusted to produce an output of 0 percent measured by checking the zero and span at or 100 percent, as appropriate. This the end of this period. 3. Qualification and Testing calibration shall be repeated until stable 0 3.3.2.7 Response Time. Determine the 3.1 Certification Requirements. To receive percent and 100 percent readings are response time by producing the series of five certification as a qualified observer, a produced without adjustment. Simulated 0 simulated 0 percent and 100 percent opacity candidate must be tested and demonstrate percent and 100 percent opacity values may values and observing the time required to the ability to assign opacity readings in 5 be produced by alternately switching the reach stable response. Opacity values of 0 percent increments to 25 different black power to the light source on and off while percent and 100 percent may be simulated by plumes and 25 different white plumes, with the smoke generator is not producing smoke. alternately switching the power to the light
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Sources; appendix A; Method 9 for Visual instantaneous limitation regulation is an 2.3.1 Recording Observations for 15-second Determination of the Opacity of Emissions opacity limit which is never to be exceeded. from Stationary Sources. Final Rule. 39 FR 1.2 Principle. The opacity of emissions Observation Interval Regulations. Record 219. Washington, DC. U.S. Government from sources of visible emissions is opacity observations to the nearest 5 percent Printing Office. November 12, 1974. determined visually by a qualified observer. at 15-second intervals on an observational 2. Office of Air and Radiation. ‘‘Quality 2. Procedures record sheet. Each momentary observation recorded represents the average of emissions Assurance Guideline for Visible Emission The observer qualified in accordance with Training Programs.’’ EPA–600/S4–83–011. for a 15-second period. section 3 of this method shall use the 2.3.2 Recording Observations for 5-second Quality Assurance Division. Research following procedures for visually Observation Interval Regulations. Record Triangle Park, N.C. May 1982. determining the opacity of emissions. opacity observations to the nearest 5 percent 3. ‘‘Method 9—Visible Determination of 2.1 Procedures for Emissions From at 5-second intervals on an observational the Opacity of Emissions from Stationary Stationary Sources. Same as 2.1, Method Sources.’’ February 1984. Quality Assurance 203A. record sheet. Each momentary observation Handbook for Air Pollution Measurement 2.1.1 Position. Same as 2.1.1, Method recorded represents the average of emissions Systems. Volume III, section 3.1.2. Stationary 203A. for 5-second period. Source Specific Methods. EPA–600–4–77– 2.1.2 Field Records. Same as 2.1.2, Method 2.4 Data Reduction for Instantaneous 027b. August 1977. Office of Research and 203A. Limitation Regulations. For an instantaneous Development Publications, 26 West Clair 2.1.3 Observations. Make opacity limitation regulation, a 1-minute averaging Street, Cincinnati, OH. observations at the point of greatest opacity time will be used. Divide the observations 4. Office of Air Quality Planning and in that portion of the plume where recorded on the record sheet into sets of Standards. ‘‘Opacity Error for Averaging and condensed water vapor is not present. consecutive observations. A set is composed Nonaveraging Data Reduction and Reporting Do not look continuously at the plume. of the consecutive observations made in 1 Techniques.’’ Final Report–SR–1–6–85. Instead, observe the plume momentarily at minute. Sets need not be consecutive in time, Emission Measurement Branch, Research the interval specified in the subject and in no case shall two sets overlap. Reduce Triangle Park, N.C. June 1985. regulation. Unless otherwise specified, a 15- opacity observations by dividing the sum of 5. The U.S. Environmental Protection second observation interval is assumed. all observations recorded in a set by the Agency. Preparation, Adoption, and 2.1.3.1 Attached Steam Plumes. Same as number of observations recorded in each set. Submittal of State Implementation Plans. 2.1.3.1, Method 203A. 2.4.1 Data Reduction for 15-second Methods for Measurement of PM Emissions 10 2.1.3.2 Detached Steam Plumes. Same as Observation Intervals. Reduce opacity from Stationary Sources. Final Rule. Federal 2.1.3.2, Method 203A. observations by averaging four consecutive Register. Washington, DC. U.S. Government 2.2 Procedures for Fugitive Process Dust observations recorded at 15-second intervals. Printing Office. Volumes 55. No. 74. pps. Emissions. Divide the observations recorded on the 14246–14279. April 17, 1990. 2.2.1 Position. Same as section 2.2.1, record sheet into sets of four consecutive (ii) Method 203C—Visual Determination of Method 203A. observations. For each set of four Opacity of Emissions From Stationary 2.2.2 Field Records. Same as section 2.2.2, observations, calculate the average by Sources for Instantaneous Limitation Method 203A. summing the opacity of the four observations Regulations 2.2.3 Observations. and dividing this sum by four. Method 203C is virtually identical to EPA’s 2.2.3.1 Observations for a 15-second 2.4.2 Data Reduction for 5-second Method 9 (40 CFR Part 60, Appendix A), Observation Interval Regulations. Same as Observation Intervals. Reduce opacity except for the data-reduction procedures section 2.2.3, Method 203A. observations by averaging 12 consecutive which have been modified for application to 2.2.3.2 Observations for a 5-second observations recorded at 5-second intervals. instantaneous limitation regulations. Observation Interval Regulations. Same as Divide the observations recorded on the Additionally, Method 203C provides section 2.2.3, Method 203A, except, observe record sheet into sets of 12 consecutive procedures for fugitive dust applications the plume momentarily at 5-second intervals. observations. For each set of 12 observations, which were unavailable when Method 9 was 2.3 Recording Observations. Record calculate the average by summing the opacity promulgated. The certification procedures in opacity observations to the nearest 5 percent of the 12 observations and dividing this sum section 3 are identical to Method 9. These at the prescribed interval on an observational by 12. certification procedures are provided in record sheet. Each momentary observation Method 203A as well, and, therefore, have recorded represents the average of emissions 3. Qualification and Test not been repeated in this method. for the prescribed period. If a 5-second Same as section 3, Method 203A.
TABLE A.ÐSMOKE METER DESIGN AND PERFORMANCE SPECIFICATIONS
Parameter Specification a. Light Source ...... Incandescent lamp operated at nominal rated voltage. b. Spectral response of photocell ... Photopic (daylight spectral response of the human eyeÐReference 4.1 of section 4.) c. Angle of view ...... 15 degrees maximum total angle d. Angle of projection ...... 15 degrees maximum total angle. e. Calibration error ...... ±3 percent opacity, maximum. f. Zero and span drift ...... ±1 percent opacity, 30 minutes. g. Response time ...... ≤5 seconds.
B. Silt Content (i) Collect a sample of loose surface dustpan or other similar device. Collect the Conduct the following test method to material from an area 30 cm by 30 cm (1 foot sample from a routinely-traveled portion of determine the silt loading and silt content of by 1 foot) in size to a depth of approximately the surface which receives a preponderance unpaved road and unpaved parking lot 1 cm or until a hard subsurface is reached, of vehicle traffic, i.e. as commonly evidenced surfaces. whichever occurs first. Use a brush and by tire tracks. Conduct sweeping slowly so
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Place the scale on a level Dust Loading Samples’’, (Fifth Edition, normally purchased with the pan. surface and zero it with the weight of the Volume I, Appendix C.2.3 ‘‘Silt Analysis’’, 2.7 Place nested sieves into the mechanical empty container. Transfer the entire sample 1995), AP–42, Office of Air Quality Planning sieving device and sieve for 10 minutes collected to the container, minimizing escape & Standards, U.S. Environmental Protection (min). Remove pan containing minus No. 200 of particles into the air. Weigh the sample Agency, Research Triangle Park, North and record its weight. Carolina. and weigh. Repeat the sieving at 10-min (iii) Obtain and stack a set of sieves with 1. Objective—Several open dust emission intervals until the difference between 2 the following openings: 4 mm, 2 mm, 1 mm, factors have been found to be correlated with successive pan sample weighings (with the 0.5 mm, and 0.25 mm. Place the sieves in the silt content(< 200 mesh) of the material pan tare weight subtracted) is less than 3.0%. order according to size openings beginning being disturbed. The basic procedure for silt Do not sieve longer than 40 min. with the largest size opening at the top. Place content determination is mechanical, dry 2.8 Weigh each sieve and its contents and a collector pan underneath the bottom (0.25 sieving. For sources other than paved roads, record the weight. Check the zero before mm) sieve. Pour the entire sample into the the same sample which was oven-dried to every weighing. top sieve, minimizing escape of particles into determine moisture content is then 2.9 Collect the laboratory sample. Place the the air by positioning the sieve/collector pan mechanically sieved. sample in a separate container if further unit in an enclosed or wind barricaded area. 2.1 Procedure—Select the appropriate 20- analysis is expected. Cover the sieve/collector pan unit with a lid. cm (8-in.) diameter, 5-cm (2-in.) deep sieve 2.10 Calculate the percent of mass less than Shake the covered sieve/collector pan unit sizes. the 200 mesh screen (75 micrometers [µm]). vigorously for a period of at least one (1) Recommended U. S. Standard Series sizes This is the silt content. minute in both the horizontal and vertical are 3/8 in., No. 4, No. 40, No. 100, No. 140, Figure A. Example silt analysis form. planes. Remove the lid from the sieve/ No. 200, and a pan. Comparable Tyler Series collector pan unit and disassemble each sieve sizes can also be used. The No. 20 and the Silt Analysis separately beginning with the largest sieve. No. 200 are mandatory. The others can be Dated: lllll As each sieve is removed, examine it for a varied if the recommended sieves are not By: llllllllllll complete separation of material in order to available, or if buildup on 1 particulate sieve Sample No: llll Sample Weight (after ensure that all material has been sifted to the during sieving indicates that an intermediate drying) finest sieve through which it can pass. If not, sieve should be inserted. Material: llll reassemble and cover the sieve/collector pan 2.2 Obtain a mechanical sieving device, llllll 1 Pan + Sample: unit and shake it for period of at least one such as a vibratory shaker or a Roto-Tap Pan: llllll (1) minute. After disassembling the sieve/ without the tapping function. Split Sample Balance: llllll collector pan unit, transfer the material 2.3 Clean the sieves with compressed air Dry Sample: lllllll which is captured in the collector pan into and/or a soft brush. Any material lodged in llllll llllll the lightweight container originally used to the sieve openings or adhering to the sides Make Capacity: Smallest Division llll collect and weigh the sample. Minimize of the sieve should be removed, without llllll escape of particles into the air when handling the screen roughly, if possible. Final Weight ÷ transferring the material into the container. 2.4 Obtain a scale (capacity of at least 1600 % Silt = [Net Weight <200 Mesh] [Total Net × ll Weigh the container with the material from grams [g] or 3.5 lb) and record make, Weight 100] = % the collector pan and record its weight. capacity, smallest division, date of last Multiply the resulting weight by 0.38 if the calibration, and accuracy. (See Figure A) SIEVING source is an unpaved road or by 0.55 if the 2.5 Weigh the sieves and pan to determine source is an unpaved parking lot to estimate tare weights. Check the zero before every Time: Start: Weight (Pan Only) silt loading. Divide by the total sample weighing. Record the weights. weight and multiply by 100 to arrive at the 2.6 After nesting the sieves in decreasing Initial (Tare): percent silt content. order of size, and with pan at the bottom, 10 min: (iv) As an alternative to conducting the dump dried laboratory sample (preferably 20 min: procedure described above in section I.B.(ii) immediately after moisture analysis) into the 30 min: and section I.B.(iii) of this appendix, the top sieve. The sample should weigh between 40 min: sample (collected according to section I.B.(i) ∼ 400 and 1600 g (∼ 0.9 and 3.5 lb). This
Screen Tare weight (screen) Final weight (screen + sample) Net weight (sample) %
3¤8 in. 4 mesh. 10 mesh. 20 mesh. 40 mesh. 100 mesh. 140 mesh. 200 mesh. Pan.
(v) The silt loading and percent silt content order to simplify the sieve test procedures in other two samples, and the combined weight for any given unpaved road surface or section I.B.(ii) and section I.B.(iii) of this of the samples and unit area from which they unpaved parking lot surface shall be based on appendix, the three samples may be were collected is calculated and recorded the average of at least three (3) samples that combined as long as all material is sifted to accurately. are representative of routinely-traveled the finest sieve through which it can pass, portions of the road or parking lot surface. In each sample weighs within 1 ounce of the
1 CFR part 60, App. A, Meth. 5, 2.1.2, footnote 2.
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II. Vacant Lots (i) Obtain and stack a set of sieves with the and inhibit soil loss by consuming part of the The following test methods shall be used following openings: 4 millimeters (mm), 2 shear stress of the wind. Non-erodible for determining whether a vacant lot, or mm, 1 mm, 0.5 mm, and 0.25 mm. Place the elements include stones and bulk surface portion thereof, has a stabilized surface. sieves in order according to size openings material but do not include flat or standing Should a disturbed vacant lot contain more beginning with the largest size opening at the vegetation. For surfaces with non-erodible than one type of disturbance, soil, vegetation top. Place a collector pan underneath the elements, determine corrections to the TFV or other characteristics which are visibly bottom (0.25 mm) sieve. Collect a sample of by identifying the fraction of the survey area, distinguishable, test each representative loose surface material from an area at least as viewed from directly overhead, that is surface for stability separately in random 30 cm by 30 cm in size to a depth of occupied by non-erodible elements using the areas according to the test methods in section approximately 1 cm using a brush and following procedure. Select a survey area of II. of this appendix and include or eliminate dustpan or other similar device. Only collect one (1) meter by 1 meter. Where many non- it from the total size assessment of disturbed soil samples from dry surfaces (i.e. when the erodible elements lie on the disturbed surface surface area(s) depending upon test method surface is not damp to the touch). Remove area, separate them into groups according to results. A vacant lot surface shall be any rocks larger than 1 cm in diameter from size. For each group, calculate the overhead considered stabilized if any of the test the sample. Pour the sample into the top area for the non-erodible elements according methods in section II. of this appendix sieve (4 mm opening) and cover the sieve/ to the following equations: indicate that the surface is stabilized such collector pan unit with a lid. Minimize (Average length) × (Average width) = Average that the conditions defined in paragraph escape of particles into the air when Dimensions Eq. 1 (b)(16)(ii) of this section are met: transferring surface soil into the sieve/ (Average Dimensions) × (Number of collector pan unit. Move the covered sieve/ Elements) = Overhead Area Eq. 2 1. Visible Crust Determination collector pan unit by hand using a broad, Overhead Area of Group 1 + Overhead Area (i) Where a visible crust exists, drop a steel circular arm motion in the horizontal plane. of Group 2 (etc.) = Total Overhead Area ball with a diameter of 15.9 millimeters Complete twenty circular arm movements, Eq. 3 (0.625 inches) and a mass ranging from 16 to ten clockwise and ten counterclockwise, at a Total Overhead Area/2 = Total Frontal Area 17 grams from a distance of 30 centimeters speed just necessary to achieve some relative Eq. 4 (one foot) directly above (at a 90 degree angle horizontal motion between the sieves and the (Total Frontal Area/Survey Area) × 100 = perpendicular to) the soil surface. If particles. Remove the lid from the sieve/ Percent Cover of Non-erodible Elements blowsand is present, clear the blowsand from collector pan unit and disassemble each sieve Eq. 5 the surfaces on which the visible crust test separately beginning with the largest sieve. (Ensure consistent units of measurement, e.g. method is conducted. Blowsand is defined as As each sieve is removed, examine it for square meters or square inches when thin deposits of loose uncombined grains loose particles. If loose particles have not calculating percent cover.) covering less than 50 percent of a vacant lot been sifted to the finest sieve through which which have not originated from the they can pass, reassemble and cover the Repeat this procedure on an additional two representative vacant lot surface being tested. sieve/collector pan unit and gently rotate it (2) distinct survey areas representing a If material covers a visible crust which is not an additional ten times. After disassembling disturbed surface and average the results. Use blowsand, apply the test method in section the sieve/collector pan unit, slightly tilt and Table 2 to identify the correction factor for II.2 of this appendix to the loose material to gently tap each sieve and the collector pan the percent cover of non-erodible elements. determine whether the surface is stabilized. so that material aligns along one side. In Multiply the TFV by the corresponding (ii) A sufficient crust is defined under the doing so, minimize escape of particles into correction factor to calculate the TFV following conditions: once a ball has been the air. Line up the sieves and collector pan corrected for non-erodible elements. dropped according to section II.1.(i) of this in a row and visibly inspect the relative appendix, the ball does not sink into the quantities of catch in order to determine TABLE 2.ÐCORRECTION FACTORS FOR surface so that it is partially or fully which sieve (or whether the collector pan) THRESHOLD FRICTION VELOCITY surrounded by loose grains and, upon contains the greatest volume of material. If a removing the ball, the surface upon which it visual determination of relative volumes of Percent cover of non-erodible Correction fell has not been pulverized so that loose catch among sieves is difficult, use a elements factor grains are visible. graduated cylinder to measure the volume. (iii) Conduct three tests, dropping the ball Estimate TFV for the sieve catch with the ≥10% ...... 5 once per test, within a survey area the size greatest volume using Table 1, which ≥5% and < 10% ...... 3 of one foot by one foot. The survey area shall provides a correlation between sieve opening < 5% and ≥ 1% ...... 2 be considered sufficiently crusted if at least size and TFV. < 1% ...... None. two out of three tests meet the definition in section II.1.(ii) of this appendix. Select at TABLE 1 (METRIC UNITS).ÐDETER- 3. Determination of Flat Vegetation Cover least two other survey areas that represent the disturbed surface area and repeat this MINATION OF THRESHOLD FRICTION Flat vegetation includes attached (rooted) procedure. Whether a sufficient crust covers VELOCITY (TFV) vegetation or unattached vegetative debris the disturbed surface area shall be based on lying on the surface with a predominant horizontal orientation that is not subject to a determination that all of the survey areas Tyler Sieve No. Opening TFV tested are sufficiently crusted. (mm) (cm/s) movement by wind. Flat vegetation which is (iv) At any given site, the existence of a dead but firmly attached shall be considered sufficient crust covering one portion of a 5 ...... 4 >100 equally protective as live vegetation. Stones disturbed surface may not represent the 10 ...... 2 100 or other aggregate larger than one centimeter existence or protectiveness of a crust on 18 ...... 1 76 in diameter shall be considered protective another disturbed surface(s). Repeat the 35 ...... 0.5 58 cover in the course of conducting the line visible crust test as often as necessary on 60 ...... 0.25 43 transect method. Where flat vegetation exists, each representative disturbed surface area for Collector Pan ...... 30 conduct the following line transect method. an accurate assessment of all disturbed (i) Stretch a one-hundred (100) foot surfaces at a given site. Collect at least three (3) soil samples which measuring tape across a disturbed surface are representative of the disturbed surface area. Firmly anchor both ends of the 2. Determination of Threshold Friction area, repeat the above TFV test method for measuring tape into the surface using a tool Velocity (TFV) each sample and average the resulting TFVs such as a screwdriver with the tape stretched For disturbed surface areas that are not together to determine the TFV uncorrected taut and close to the soil surface. If vegetation crusted or vegetated, determine threshold for non-erodible elements. exists in regular rows, place the tape friction velocity (TFV) according to the (ii) Non-erodible elements are distinct diagonally (at approximately a 45 degree following sieving field procedure (based on elements on the disturbed surface area that angle) away from a parallel or perpendicular a 1952 laboratory procedure published by W. are larger than one (1) cm in diameter, position to the vegetated rows. Pinpoint an S. Chepil). remain firmly in place during a wind episode area the size of a 3⁄32 inch diameter brazing
VerDate 15-DEC-99 18:00 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm08 PsN: 21DER1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations 71315 rod or wooden dowel centered above each surface that is the shape of a square with with the outlined shape. There must be at one-foot interval mark along one edge of the sides equal to at least ten (10) times the least 10 gridline intersections within the tape. Count the number of times that flat average height of the vegetative structures. outlined area and preferably more than 20, vegetation lies directly underneath the For smaller standing vegetation, select a otherwise, use smaller grid boxes. Draw pinpointed area at one-foot intervals. survey area of three (3) feet by 3 feet. small circles (no greater than a 3⁄32 inch Consistently observe the underlying surface (ii) Count the number of standing diameter) at each gridline intersection from a 90 degree angle directly above each vegetative structures within the survey area. counted within the outlined area. Replace the pinpoint on one side of the tape. Do not Count vegetation which grows in clumps as vegetation on the grid within its outlined count the underlying surface as vegetated if a single unit. Where different types of shape. From a distance of approximately two any portion of the pinpoint extends beyond vegetation exists and/or vegetation of feet directly above the grid, observe each the edge of the vegetation underneath in any different height and width exists, separate circled gridline intersection. Count and the vegetative structures with similar direction. If clumps of vegetation or record the number of circled gridline dimensions into groups. Count the number of vegetative debris lie underneath the intersections that are not covered by any vegetative structures in each group within pinpointed area, count the surface as piece of the vegetation. To calculate percent vegetated unless bare soil is visible directly the survey area. Select an individual vegetative density, use Equations 10 and 11 below the pinpointed area. When 100 structure within each group that represents of this appendix. If percent vegetative density observations have been made, add together the average height and width of the is equal to or greater than 30, use the the number of times a surface was counted vegetation in the group. If the structure is equation (Eq. 14, 15 or 16) that matches the as vegetated. This total represents the percent dense (i.e. when looking at it vertically from of flat vegetation cover (e.g. if 35 positive base to top there is little or zero open air outline used to trace the vegetation (Figure B, counts were made, then vegetation cover is space within its perimeter), calculate and C or D) to calculate its Frontal Silhouette 35 percent). If the disturbed surface area is record its frontal silhouette area according to Area. If percent vegetative density is less too small for 100 observations, make as many Equation 6 of this appendix. Also use than 30, use Equations 12 and 13 of this observations as possible. Then multiply the Equation 6 if the survey area is larger than appendix to calculate the Frontal Silhouette count of vegetated surface areas by the nine square feet, estimating the average Area. appropriate conversion factor to obtain height and width of the vegetation. (iv) Within a disturbed surface area that percent cover. For example, if vegetation was Otherwise, use the procedure in section contains multiple types of vegetation with counted 20 times within a total of 50 II.4.(iii) of this appendix to calculate the each vegetation type uniformly distributed, observations, divide 20 by 50 and multiply Frontal Silhouette Area. Then calculate the results of the percent cover associated with by 100 to obtain a flat vegetation cover of 40 percent cover of standing vegetation the individual vegetation types may be added percent. according to Equations 7, 8 and 9 of this together. (ii) Conduct the above line transect test appendix. (Ensure consistent units of (v) Repeat this procedure on an additional method an additional two (2) times on areas measurement, e.g. square feet or square two (2) distinct survey areas representing the representative of the disturbed surface and inches when calculating percent cover.) disturbed surface and average the results. average results. (iii) Vegetative Density Factor. Cut a single, Height × Width = Frontal Silhouette Area representative piece of vegetation (or Eq. 6 4. Determination of Standing Vegetation consolidated vegetative structure) to within 1 (Frontal Silhouette Area of Individual Cover cm of surface soil. Using a white paper grid Vegetative Structure) × Number of Standing vegetation includes vegetation or transparent grid over white paper, lay the Vegetation Structures Per Group = Group that is attached (rooted) with a predominant vegetation flat on top of the grid (but do not Frontal Silhouette Area of Group Eq. 7 vertical orientation. Standing vegetation apply pressure to flatten the structure). Grid which is dead but firmly rooted shall be boxes of one inch or one half inch squares Frontal Silhouette Area of Group 1 + Frontal considered equally protective as live are sufficient for most vegetation when Silhouette Area of Group 2 (etc.) = Total vegetation. Conduct the following standing conducting this procedure. Using a marker or Frontal Silhouette Area Eq. 8 vegetation test method to determine if 30 pencil, outline the shape of the vegetation (Total Frontal Silhouette Area/Survey Area) × percent cover or more exists. If the resulting along its outer perimeter according to Figure 100 = Percent Cover of Standing percent cover is less than 30 percent but B, C or D of this appendix, as appropriate. Vegetation Eq. 9 equal to or greater than 10 percent, then (Note: Figure C differs from Figure D [(Number of circled gridlines within the conduct the Threshold Friction Velocity test primarily in that the width of vegetation in outlined area counted that are not covered in section II.2 of this appendix in order to Figure C is narrow at its base and gradually by vegetation / Total number of gridline × determine whether the disturbed surface area broadens to its tallest height. In Figure D, the intersections within the outlined area) is stabilized according to paragraph width of the vegetation generally becomes 100] = Percent Open Space Eq. 10 (b)(16)(ii)(E) of this section. narrower from its midpoint to its tallest 100 = Percent Open Space = Percent (i) For standing vegetation that consists of height.) Remove the vegetation and count Vegetative Density Eq. 11 large, separate vegetative structures (for and record the total number of gridline Percent Vegetative Density/100 = Vegetative example, shrubs and sagebrush), select a intersections within the outlined area, but do Density Eq. 12 survey area representing the disturbed not count gridline intersections that connect BILLING CODE 6560±50±P
Vegetative Density 05. []Max. Height * Width *. = Frontal Silhouette Area Eq 13 0.4
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BILLING CODE 6560±50±C Underwriters/National Association of 2. Section 1001.952 is amended by III. Alternative Test Methods Life Underwriters.’’ republishing the introductory text, and Alternative test methods may be used upon On page 63507 of the preamble, in the by revising paragraphs (t)(1)(i)(B) and obtaining the written approval of the EPA. third column, second paragraph, the (t)(1)(ii)(B) to read as follows: reference to ‘‘paragraph (1)(i)(A)(IV)’’ [FR Doc. 99–32760 Filed 12–20–99; 8:45 am] § 1001.952 Exceptions. should be corrected to read as BILLING CODE 6560±50±P ‘‘paragraph (1)(i)(A)(4).’’ Similarly, in The following payment practices shall the third paragraph on this page, the not be treated as a criminal offense reference to ‘‘§ 1001.952(t)(1)(i)(A)(IV)’’ under section 1128B of the Act and DEPARTMENT OF HEALTH AND should be corrected to read as shall not serve as the basis for an HUMAN SERVICES ‘‘§ 1001.952(t)(i)(A)(4).’’ exclusion: In the first column on page 63508, in * * * * * Office of Inspector General the second full paragraph, line 15, the (t) Price reductions offered to eligible words ‘‘or cost’’ should be inserted after managed care organizations. * * * 42 CFR Part 1001 (1) * * * the words ‘‘programs on a fee-for- (i) * * * RIN 0991±AA91 service.’’ (B) In establishing the terms of the On page 63511, in the first column, agreement, neither party gives or Federal Health Care Program: Fraud the first line of the first full paragraph, and Abuse; Statutory Exception to the receives remuneration in return for or to the regulatory reference induce the provision or acceptance of Anti-Kickback Statute for Shared Risk ‘‘§ 1001.965(u)(2)(i)(B)’’ should be Arrangements; Correction business (other than business covered corrected to read as by the agreement) for which payment AGENCY: Office of Inspector General ‘‘§ 1001.952(u)(1)(i)(B).’’ In addition, in may be made in whole or in part by a (OIG), HHS. the third full paragraph in column one Federal health care program on a fee-for- on the same page, on the fourth and fifth ACTION: Interim final rule with comment service or cost basis. lines, the parenthetical phrase period; correction amendment. * * * * * ‘‘(paragraphs (u)(1)(i)(C)(I)–(III))’’ is (ii) * * * SUMMARY: This document contains revised to read as ‘‘(paragraphs (B) In establishing the terms of the corrections to the interim final (u)(1)(i)(C)(1)–(3)).’’ Lastly, in the last agreement, neither party gives or regulations which were published in the paragraph in column one, the receives remuneration in return for or to Federal Register on Friday, November parenthetical reference ‘‘(paragraph induce the provision or acceptance of 19, 1999 (64 FR 63504). These (u)(1)(i)(C)(IV))’’ should be corrected to business (other than business covered regulations established two new safe read as ‘‘(paragraph (u)(1)(i)(C)(4)).’’ by the agreement) for which payment harbors from the anti-kickback statute In addition, we are correcting the may be made in whole or in part by a (section 1128B(b) of the Social Security regulatory text that was set forth in Federal health care program on a fee-for- Act) to provide protection for certain § 1001.952(t). In the regulations text on service or cost basis. managed care arrangements. A number page 63513, § 1001.952(t)(1)(i)(B) is * * * * * of inadvertent errors appeared in both amended by adding the words ‘‘or cost’’ the preamble and in the text of the after the words ‘‘fee-for-service.’’ In Dated: December 14, 1999. regulations that warrant clarification or addition, in § 1001.952(t)(1)(ii)(B), we Joel Schaer, revision. As a result, we are setting forth are (1) adding the words ‘‘for or’’ after OIG Regulations Officer. these revisions in order to assure the the phrase ‘‘receives remuneration in [FR Doc. 99–32940 Filed 12–20–99; 8:45 am] technical correctness of that document return’’ and (2) are adding the words ‘‘or BILLING CODE 4152±01±P and the regulations. cost’’ after the words ‘‘fee-for-service.’’ EFFECTIVE DATE: December 21, 1999. These words were inadvertent omitted in the November 19, 1999 interim final FOR FURTHER INFORMATION CONTACT: Joel FEDERAL EMERGENCY Schaer, (202) 619–0089, OIG rule. MANAGEMENT AGENCY Regulations Officer. List of Subjects in 42 CFR Part 1001 44 CFR Part 64 SUPPLEMENTARY INFORMATION: The HHS Administrative practice and [Docket No. FEMA±7725] Office of Inspector General (OIG) issued procedure, Fraud, Grant programs— interim final regulations on November health, Health facilities, Health Suspension of Community Eligibility 19, 1999 (64 FR 63504) that set forth two professions, Maternal and child health, new safe harbors from the anti-kickback Medicaid, Medicare, Social Security. AGENCY: Federal Emergency statute to provide protection for certain Accordingly, 42 CFR part 1001 is Management Agency, FEMA. managed care arrangements. In that ACTION: Final rule. interim final rule, a number of corrected by making the following correcting amendments: inadvertent errors appeared in the SUMMARY: This rule identifies preamble and in 42 CFR part 1001 PART 1001ÐPROGRAM INTEGRITYÐ communities, where the sale of flood which are now being corrected. MEDICARE AND STATE HEALTH insurance has been authorized under In the preamble on page 63505, CARE PROGRAMS the National Flood Insurance Program second column, an extra bullet point (NFIP), that are suspended on the was inserted before the words 1. The authority citation for part 1001 effective dates listed within this rule ‘‘Underwriters/National Association of continues to read as follows: because of noncompliance with the Life Underwriters.’’ As corrected, the Authority: 42 U.S.C. 1302, 1320a–7, floodplain management requirements of eleventh bullet point appearing in 1320a–7b, 1395u(j), 1395y(d), 1395y(e), the program. If the Federal Emergency column two should read as 1395cc(b)(2)(D), (E) and (F), and 1395hh; and Management Agency (FEMA) receives ‘‘Independent Insurance Agents of sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 documentation that the community has America/National Association of Health U.S.C. 6101 note). adopted the required floodplain
VerDate 15-DEC-99 10:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\21DER1.XXX pfrm03 PsN: 21DER1 71318 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations management measures prior to the In addition, the Federal Emergency flood insurance coverage unless an effective suspension date given in this Management Agency has identified the appropriate public body adopts rule, the suspension will be withdrawn special flood hazard areas in these adequate floodplain management by publication in the Federal Register. communities by publishing a Flood measures with effective enforcement EFFECTIVE DATES: The effective date of Insurance Rate Map (FIRM). The date of measures. The communities listed no each community’s suspension is the the FIRM if one has been published, is longer comply with the statutory third date (‘‘Susp.’’) listed in the third indicated in the fourth column of the requirements, and after the effective column of the following tables. table. No direct Federal financial date, flood insurance will no longer be ADDRESSES: If you wish to determine assistance (except assistance pursuant to available in the communities unless whether a particular community was the Robert T. Stafford Disaster Relief they take remedial action. and Emergency Assistance Act not in suspended on the suspension date, Regulatory Classification contact the appropriate FEMA Regional connection with a flood) may legally be Office or the NFIP servicing contractor. provided for construction or acquisition This final rule is not a significant FOR FURTHER INFORMATION CONTACT: of buildings in the identified special regulatory action under the criteria of Robert F. Shea, Jr., Division Director, flood hazard area of communities not section 3(f) of Executive Order 12866 of Program Support Division, Mitigation participating in the NFIP and identified September 30, 1993, Regulatory Directorate, 500 C Street, SW., Room for more than a year, on the Federal Planning and Review, 58 FR 51735. Emergency Management Agency’s 417, Washington, DC 20472, (202) 646– Paperwork Reduction Act 3619. initial flood insurance map of the community as having flood-prone areas SUPPLEMENTARY INFORMATION: The NFIP This rule does not involve any (section 202(a) of the Flood Disaster enables property owners to purchase collection of information for purposes of Protection Act of 1973, 42 U.S.C. flood insurance which is generally not the Paperwork Reduction Act, 44 U.S.C. 4106(a), as amended). This prohibition otherwise available. In return, 3501 et seq. against certain types of Federal communities agree to adopt and assistance becomes effective for the Executive Order 12612, Federalism administer local floodplain management communities listed on the date shown aimed at protecting lives and new This rule involves no policies that in the last column. The Associate construction from future flooding. have federalism implications under Director finds that notice and public Section 1315 of the National Flood Executive Order 12612, Federalism, comment under 5 U.S.C. 553(b) are Insurance Act of 1968, as amended, 42 October 26, 1987, 3 CFR, 1987 Comp., impracticable and unnecessary because U.S.C. 4022, prohibits flood insurance p. 252. communities listed in this final rule coverage as authorized under the have been adequately notified. Executive Order 12778, Civil Justice National Flood Insurance Program, 42 Each community receives a 6-month, Reform U.S.C. 4001 et seq., unless an 90-day, and 30-day notification This rule meets the applicable appropriate public body adopts addressed to the Chief Executive Officer standards of section 2(b)(2) of Executive adequate floodplain management that the community will be suspended Order 12778, October 25, 1991, 56 FR measures with effective enforcement unless the required floodplain 55195, 3 CFR, 1991 Comp., p. 309. measures. The communities listed in management measures are met prior to this document no longer meet that the effective suspension date. Since List of Subjects in 44 CFR Part 64 statutory requirement for compliance these notifications have been made, this with program regulations, 44 CFR part final rule may take effect within less Flood insurance, Floodplains. 59 et seq. Accordingly, the communities than 30 days. Accordingly, 44 CFR part 64 is will be suspended on the effective date amended as follows: in the third column. As of that date, National Environmental Policy Act flood insurance will no longer be This rule is categorically excluded PART 64Ð[AMENDED] available in the community. However, from the requirements of 44 CFR part some of these communities may adopt 1. The authority citation for Part 64 10, Environmental Considerations. No continues to read as follows: and submit the required documentation environmental impact assessment has of legally enforceable floodplain been prepared. Authority: 42 U.S.C. 4001 et seq.; management measures after this rule is Reorganization Plan No. 3 of 1978, 3 CFR, published but prior to the actual Regulatory Flexibility Act 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, suspension date. These communities The Associate Director has 3 CFR, 1979 Comp., p. 376. will not be suspended and will continue determined that this rule is exempt from their eligibility for the sale of insurance. the requirements of the Regulatory § 64.6 [Amended] A notice withdrawing the suspension of Flexibility Act because the National 2. The tables published under the the communities will be published in Flood Insurance Act of 1968, as authority of § 64.6 are amended as the Federal Register. amended, 42 U.S.C. 4022, prohibits follows:
Date certain Federal Community assistance no longer avail- State/location No. Effective date of eligibility Current effective map date able in special flood hazard areas
Region II New York: Sloatsburg, village of, 360690 July 7, 1975, Emerg.; January 6, December 1, 1999 ...... December 1, 1999. Rockland County. 1982, Reg.; December 1, 1999, Susp.
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Date certain Federal Community assistance no longer avail- State/location No. Effective date of eligibility Current effective map date able in special flood hazard areas
Region I Rhode Island: North Providence, 440020 October 6, 1972, Emerg.; De- December 6, 1999 ...... December 6, 1999. town of, Providence County. cember 15, 1977, Reg.; De- cember 6, 1999, Susp. Region III Philadelphia: Smithfield, town- 421896 November 8, 1974, Emerg.; ...... do ...... Do. ship of, Monroe County. March 4, 1988, Reg.; Decem- ber 6, 1999, Susp. Region V Michigan: Nashville, village of, Barry 260902 July 29, 1992, Emerg.; Decem- ...... do ...... Do. County. ber 6, 1999, Reg.; December 6, 1999, Susp. Northville, city of, Wayne & 260235 March 29, 1976, Emerg.; Sep- ...... do ...... Do. Oakland Counties. tember 16, 1981, Reg.; De- cember 6, 1999, Susp. Ohio: Bay Village, city of, Cuya- 390093 June 14, 1974, Emerg.; Decem- ...... do ...... Do. hoga County. ber 1, 1977, Reg.; December 6, 1999, Susp. Wisconsin: Ozaukee County, unincor- 550310 May 14, 1971, Emerg.; May 16, ...... do ...... Do. porated areas. 1977, Reg.; December 6, 1999, Susp. Saukville, village of, 550317 April 18, 1984, Emerg.; Decem- ...... do ...... Do. Ozaukee County. ber 16, 1980, Reg.; December 6, 1999, Susp. Region VI Oklahoma: Lincoln County, unin- 400457 September 28, 1990, Emerg.; ...... do ...... Do. corporated areas. February 3, 1993, Reg.; De- cember 6, 1999, Susp.. Texas: Midland, city of, Midland 480477 May 16, 1975, Emerg.; Sep- ...... do ...... Do. County. tember 27, 1991, Reg.; De- cember 6, 1999, Susp. Midland County, unincor- 481239 March 8, 1978, Emerg.; Sep- ...... do ...... Do. porated areas. tember 27, 19991, Reg.; De- cember 6, 1999, Susp. Odessa, city of, Midland 480206 March 27, 1980, Emerg.; March ...... do ...... Do. County. 4, 1991, Reg.; December 6, 1999, Susp. Region VII Iowa: Ankeny, city of, Polk Coun- 190226 June 13, 1975, Emerg.; May 16, ...... do ...... Do. ty. 1983, Reg.; December 6, 1999, Susp. Missouri: Foristell, city of, St. Charles 290902 February 24, 1993, Reg.; De- ...... do ...... Do. County. cember 6, 1999, Susp. Lee's Summit, city of, Jack- 290174 February 4, 1972, Emerg.; April ...... do ...... Do. son & Cass Counties. 3, 1978, Reg.; December 6, 1999, Susp. Nebraska: Albion, city of, Boone Coun- 310009 May 9, 1975, Emerg.; April 2, ...... do ...... Do. ty. 1986, Reg.; December 6, 1999, Susp. Boone County, unincor- 310008 July 28, 1982, Emerg.; Sep- ...... do ...... Do. porated areas. tember 18, 1987, Reg.; De- cember 6, 1999, Susp. Petersburg, village of, 310308 August 13, 1976, Emerg.; Sep- ...... do ...... Do. Boone County. tember 24, 1984, Reg.; De- cember 6, 1999, Susp. St. Edward, village of, 310010 November 2, 1974, Emerg.; ...... do ...... Do. Boone County. February 1, 1990, Reg.; De- cember 6, 1999, Susp. Region VIII Utah: Santa Clara, town of, 490178 August 7, 1975, Emerg.; August ...... do ...... Do. Washington County. 5, 1986, Reg.; December 6, 1999, Susp.
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Date certain Federal Community assistance no longer avail- State/location No. Effective date of eligibility Current effective map date able in special flood hazard areas
Region X Alaska: Kenai Peninsula, bor- 020012 June 19, 1970, Emerg.; Novem- ...... do ...... Do. ough of. ber 20, 1986, Reg.; December 6, 1999, Susp. Washington: Kittitas County, un- 530095 February 5, 1974, Emerg.; May ...... do ...... Do. incorporated areas.. 5, 1981, Reg.; December 6, 1999, Susp. Region I Vermont: Bellows Falls, village of, 500125 June 23, 1975, Emerg.; July 16, December 20, 1999 ...... December 20, 1999. Windham County. 1979, Reg.; December 20, 1999, Susp. Rockingham, town of, 500135 January 24, 1975, Emerg.; May ...... do ...... Do. Windham County. 15, 1980, Reg.; December 20, 1999, Susp. Springfield, town of, Windsor 500154 June 17, 1975, Emerg.; Decem- ...... do ...... Do. County. ber 4, 1979, Reg.; December 20, 1999, Susp. Thetford, town of, Orange 500075 October 20, 1975, Emerg; June ...... do ...... Do. County. 3, 1991, Reg.; December 20, 1999, Susp. Region IV South Carolina: Hollywood, town of, Charles- 450037 February 18, 1986, Emerg.; ...... do...... Do. ton County. June 17, 1986, Reg.; Decem- ber 20, 1999, Susp. Ravenel, town of, Charles- 450043 September 25, 1975, Emerg.; ...... do ...... Do. ton County. April 1, 1981, Reg.; December 20, 1999, Susp. Tennessee: Lincoln County, unincor- 470104 June 3, 1991, Emerg.; October ...... do ...... Do. porated areas. 1, 1992, Reg.; December 20, 1999 Susp. Petersburg, town of, Lincoln 470106 March 24, 1975, Emerg.; Sep- ...... do ...... Do. County. tember 29, 1986, Reg.; De- cember 20, 1999, Susp. Region V Minnesota: Sauk Rapids, city of, 270023 June 18, 1973, Emerg.; October ...... do ...... Do. Benton County. 14, 1977, Reg.; December 20, 1999, Susp. Wisconsin: Grant County, unin- 555557 March 26, 1971, Emerg.; May ...... do ...... Do. corporated areas. 25, 1973, Reg.; December 20, 1999, Susp. Code for reading third column: Emerg.ÐEmergency; Reg.ÐRegular; Rein.ÐReinstatement; Susp.ÐSuspension.
(Catalog of Federal Domestic Assistance No. DEPARTMENT OF COMMERCE SUMMARY: NMFS announces that the 83.100, ‘‘Flood Insurance’’) summer flounder commercial quota Issued: December 7, 1999. National Oceanic and Atmospheric available to the State of New Jersey has Michael J. Armstrong, Administration been harvested. Vessels issued a commercial Federal fisheries permit for Associate Director for Mitigation. 50 CFR Part 648 [FR Doc. 99–33009 Filed 12–20–99; 8:45 am] the summer flounder fishery may not land summer flounder in New Jersey for BILLING CODE 6718±05±P [Docket No. 981014259±8312±02; I.D. 121499B] the remainder of calendar year 1999, unless additional quota becomes Fisheries of the Northeastern United available through a transfer. Regulations States; Summer Flounder Fishery; governing the summer flounder fishery Commercial Quota Harvested for New require publication of this notification Jersey. to advise the State of New Jersey that the quota has been harvested, and to AGENCY: National Marine Fisheries advise vessel permit holders and dealer Service (NMFS), National Oceanic and permit holders that no commercial Atmospheric Administration (NOAA), quota is available for landing summer Commerce. flounder in New Jersey. ACTION: Commercial quota harvest.
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DATES: Effective 0001 hours December Region (Regional Administrator) to Jersey by vessels holding commercial 22, 1999 through 2400 hours December monitor state commercial quotas and to Federal fisheries permits are prohibited 31, 1999. determine when a state’s commercial for the remainder of the 1999 calendar FOR FURTHER INFORMATION CONTACT: Paul quota is harvested. The Regional year, unless additional quota becomes H. Jones, Fishery Policy Analyst, (978) Administrator is further required to available through a transfer and is 281–9273. publish notification in the Federal announced in the Federal Register. SUPPLEMENTARY INFORMATION: Register advising a state and notifying Effective the same date, federally Regulations governing the summer Federal vessel and dealer permit holders permitted dealers are also advised that flounder fishery are found at 50 CFR that, effective upon a specific date, the they may not purchase summer flounder part 648. The regulations require annual state’s commercial quota has been from federally permitted vessels that specification of a commercial quota that harvested and no commercial quota is land in New Jersey for the remainder of is apportioned on a percentage basis available for landing summer flounder the calendar year, or until additional among the coastal states from North in that state. The Regional quota becomes available through a Carolina through Maine. The process to Administrator has determined, based transfer. upon dealer reports and other available set the annual commercial quota and the Classification percent allocated to each state are information, that the State of New Jersey described in § 648.100. has attained its quota for 1999 as of This action is required by 50 CFR part The final total commercial quota for December 22, 1999. 648 and is exempt from review under summer flounder for the 1999 calendar The regulations at § 648.4(b) provide E.O. 12866. year was set equal to 10,729,274 lb that Federal permit holders agree as a Authority: 16 U.S.C. 1801 et seq. (4,866,717 kg) (64 FR 46596, August 26, condition of the permit not to land 1999). The percent allocated to vessels summer flounder in any state that the Dated: December 15, 1999. landing summer flounder in New Jersey Regional Administrator has determined Gary C. Matlock, is 16.72499 percent, or 1,853,926 lb no longer has commercial quota Director, Office of Sustainable Fisheries, (840,927 kg). available. Therefore, effective 0001 National Marine Fisheries Service. Section 648.101(b) requires the hours December 22, 1999, further [FR Doc. 99–33012 Filed 12–16–99; 4:48 pm] Regional Administrator, Northeast landings of summer flounder in New BILLING CODE 3510±22±F
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Proposed Rules Federal Register Vol. 64, No. 244
Tuesday, December 21, 1999
This section of the FEDERAL REGISTER www.aphis.usda.gov/ppd/rad/ move without restriction from a contains notices to the public of the proposed webrepor.html. quarantined area. issuance of rules and regulations. The We are proposing this change based purpose of these notices is to give interested FOR FURTHER INFORMATION CONTACT: Christine Markham, Regional Program on information we have accumulated persons an opportunity to participate in the during the course of our regulatory rule making prior to the adoption of the final Manager, 920 Main Campus Drive, Suite rules. 200, Raleigh, NC 27606–5202; (919) program. When we added pine wreaths 716–5582; or Coanne E. O’Hern, and garlands to the list of regulated Operations Officer, 4700 River Road, articles in 1995, we regulated the DEPARTMENT OF AGRICULTURE Unit 134, Riverdale, MD 20737–1236; commodities as a precautionary (301) 734–8247. measure because they are made of live Animal and Plant Health Inspection plant (pine) material. At that time, Service SUPPLEMENTARY INFORMATION: industry in quarantined areas did not Background produce significant amounts of these 7 CFR Part 301 commodities. Since that time, the Pine shoot beetle is a pest of pine [Docket No. 99±082±1] domestic production of these trees. Pine shoot beetle can cause commodities has increased, and we Pine Shoot Beetle; Regulated Articles damage in weak and dying trees, where have learned a great deal about the risk reproduction and immature stages of associated with the movement of these AGENCY: Animal and Plant Health pine shoot beetle occur, and in the new commodities. Inspection Service, USDA. growth of healthy trees. During Over the years, we have learned that ACTION: Proposed rule. ‘‘maturation feeding,’’ young beetles the manufacture of pine wreaths and tunnel into the center of pine shoots garlands greatly reduces the risk that SUMMARY: We propose to amend the (usually of the current year’s growth), these commodities will carry pine shoot pine shoot beetle regulations by causing stunted and distorted growth in beetle. To increase the value and removing pine wreaths and garlands host trees. Adults can fly at least 1 enhance the appearance of their from the list of regulated articles. We kilometer, and infested trees and pine products, producers of pine wreaths and believe that these commodities do not products are often transported long garlands choose the freshest, healthiest, present a risk of spreading pine shoot distances; these factors may result in the and most attractive pine material to beetle. This action would eliminate establishment of pine shoot beetle create wreaths and garlands. First, this restrictions on the movement of pine populations far from the location of the means that producers cut the pine wreaths and garlands from areas original host tree. This pest damages material from the tree as close to the quarantined because of pine shoot urban ornamental trees and can cause time of sale as possible. Therefore, beetle. economic losses to the timber, because most pine wreaths and garlands DATES: We invite you to comment on Christmas tree, and nursery industries. are sold for the Christmas holiday, the this docket. We will consider all The regulations at 7 CFR 301.50 material is removed from pine trees after comments that we receive by February through 301.50–10, ‘‘Subpart—Pine the pine shoot beetle has moved to the 22, 2000. Shoot Beetle,’’ restrict the interstate base of the tree for overwintering. ADDRESSES: Please send your comment movement of regulated articles from Second, this means that producers do and three copies to: Docket No. 99–082– quarantined areas in order to prevent not include any brown or thinning pine 1, Regulatory Analysis and the spread of pine shoot beetle into shoots in wreaths and garlands. In doing Development, PPD, APHIS, Suite 3C03, noninfested areas of the United States. so, producers are excluding material 4700 River Road, Unit 118, Riverdale, Section 301.50–2 lists articles that could be infested with pine shoot MD 20737–1238. Please state that your regulated because of pine shoot beetle. beetle. comment refers to Docket No. Regulated articles are the following pine We have also learned that, most often, 99–082–1. products (Pinus spp.): Bark nuggets ‘‘pine’’ wreaths produced in You may read any comments that we (including bark chips), Christmas trees, quarantined areas are actually made receive on this docket in our reading logs with bark attached, lumber with from balsam fir (Abies balsamea) room. The reading room is located in bark attached, nursery stock, pine adorned by minimal sprigs of pine and room 1141 of the USDA South Building, wreaths and garlands, raw pine other species, such as arborvitae (Thuja 14th Street and Independence Avenue, materials for pine wreaths and garlands, spp.). Balsam fir is not a host of pine SW., Washington, DC. Normal reading and stumps. shoot beetle. Likewise, pine garlands room hours are 8 a.m. to 4:30 p.m., We propose to remove pine wreaths produced in quarantined areas are Monday through Friday, except and garlands from the list of regulated generally made from eastern white pine holidays. To be sure someone is there to articles in § 301.50–2. This would mean (Pinus strobus), a pine species that is help you, please call (202) 690–2817 that these commodities would no longer not a preferred host for pine shoot before coming. need to be issued a certificate or limited beetle. Although pine shoot beetle will APHIS documents published in the permit to move out of an area feed on the shoots of, and breed in, Federal Register, and related quarantined because of pine shoot eastern white pine and other pine information, including the names of beetle, and they would no longer have species, pine shoot beetle prefers to feed organizations and individuals who have to be cold treated or fumigated prior to on and breed in Scots pine (Pinus commented on APHIS rules, are movement from a quarantined area. Pine sylvestris) or jack pine (Pinus available on the Internet at http:// wreaths and garlands would be able to banksiana). However, even if pine
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71323 wreaths and garlands were made of Nurseries with less than $3.5 million in Authority: 7 U.S.C. 147a, 150bb, 150dd, favored host pine material, we believe sales are classified as small business by 150ee, 150ff, 161, 162, and 164–167; 7 CFR that the way these commodities are the SBA. Therefore, approximately 65 2.22, 2.80, and 371.2(c). manufactured would preclude the percent of all nurseries are considered 2. In § 301.50–2, paragraph (a) would presence of pine shoot beetle. small businesses. In addition, Christmas be revised to read as follows: Therefore, we believe that pine tree farms with less than $500,000 in wreaths and garlands do not pose a risk sales are considered small businesses. § 301.50±2 Regulated articles. of spreading pine shoot beetle. Nationwide, more than 70 percent of * * * * * Accordingly, we propose to amend Christmas tree farms are considered (a) Pine products (Pinus spp.), as § 301.50–2(a) by removing pine wreaths small businesses. follows: Bark nuggets (including bark and garlands from the list of regulated This rule would eliminate treatment chips); Christmas trees; logs with bark articles. Raw pine materials for wreaths and certification requirements for pine attached; lumber with bark attached; and garlands, however, would continue wreaths and garlands. This would save nursery stock; raw pine materials for to be listed as regulated articles in affected producers time and money and pine wreaths and garlands; and stumps. § 301.50–2(a) because those articles would facilitate the movement of these * * * * * present a risk of spreading pine shoot commodities. Specifically, the 3. In § 301.50–10, paragraph (b), up to beetle. elimination of treatment requirements and including the colon, and paragraph As a result of removing pine wreaths for pine wreaths and garlands moving (c), up to the table, would be revised to and garlands from the list of regulated out of quarantined areas would save read as follows: articles, we also propose to amend affected producers an average of 1 § 301.50–10(b) and (c) by removing percent of revenue generated from the § 301.50±10 Treatments. references to treatment options for pine sale of these commodities. * * * * * wreaths and garlands. If pine wreaths Under these circumstances, the (b) Cold treatment is authorized for and garlands were no longer regulated, Administrator of the Animal and Plant cut pine Christmas trees, pine nursery there would be no reason to list Health Inspection Service has stock, and raw pine materials for pine treatments for these commodities in the determined that this action would not wreaths and garlands as follows: * * * regulations. have a significant economic impact on (c) Any one of these fumigation a substantial number of small entities. Executive Order 12866 and Regulatory treatments is authorized for use on cut Flexibility Act Executive Order 12372 pine Christmas trees and raw pine materials for pine wreaths and garlands. This proposed rule has been reviewed This program/activity is listed in the Cut pine Christmas trees and raw pine Catalog of Federal Domestic Assistance under Executive Order 12866. For this materials for pine wreaths and garlands under No. 10.025 and is subject to action, the Office of Management and may be treated with methyl bromide at Executive Order 12372, which requires Budget has waived its review process normal atmospheric pressure as follows: intergovernmental consultation with required by Executive Order 12866. *** We propose to amend the pine shoot State and local officials. (See 7 CFR part beetle regulations by removing pine 3015, subpart V.) Done in Washington, DC, this 14th day of December 1999. wreaths and garlands from the list of Executive Order 12988 regulated articles. We believe that these Craig A. Reed, commodities do not present a risk of This proposed rule has been reviewed Administrator, Animal and Plant Health spreading pine shoot beetle. This action under Executive Order 12988, Civil Inspection Service. would eliminate restrictions on the Justice Reform. If this proposed rule is [FR Doc. 99–33058 Filed 12–20–99; 8:45 am] movement of pine wreaths and garlands adopted: (1) All State and local laws and BILLING CODE 3410±34±U from areas quarantined because of pine regulations that are inconsistent with shoot beetle. this rule will be preempted; (2) no In 1995, nurseries and other retroactive effect will be given to this DEPARTMENT OF JUSTICE producers in quarantined areas earned rule; and (3) administrative proceedings an average of 4 percent of their revenue will not be required before parties may Immigration and Naturalization Service from wreaths and garlands. However, file suit in court challenging this rule. 8 CFR Parts 103, 214, and 299 over the next 3 years, that amount Paperwork Reduction Act doubled; in 1998, nurseries and other [INS No. 1991±99] producers in quarantined areas This proposed rule contains no new RIN 1115±AF56 increased their earnings from the sale of information collection or recordkeeping requirements under the Paperwork wreaths and garlands to an average of 8 Authorizing Collection of the Fee to 10 percent of their revenue. Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Levied on F, J, and M Nonimmigrant The highest levels of production of Classifications Under Public Law 104± these commodities in quarantined areas List of Subjects in 7 CFR Part 301 208 occurs in northeastern States. In 1998, Agricultural commodities, Plant production of wreaths and garlands AGENCY: Immigration and Naturalization diseases and pests, Quarantine, amounted to approximately $5.3 million Service, Justice. Reporting and recordkeeping in Vermont, approximately $3 million requirements, Transportation. ACTION: Proposed rule. in New Hampshire, and approximately $10 to $12 million in Maine. Most Accordingly, we propose to amend 7 SUMMARY: This rule proposes to amend wreaths and garlands produced in CFR part 301 as follows: the Immigration and Naturalization quarantined areas are sold locally. PART 301ÐDOMESTIC QUARANTINE Service’s (Service) regulations to: Most of the producers of pine wreaths NOTICES Establish a $95 fee, that schools and and garlands are small businesses, exchange visitor programs must collect according to the standards of the Small 1. The authority citation for part 301 and remit on behalf of F–1, J–1, and M– Business Administration (SBA). would continue to read as follows: 1 nonimmigrants who are subject to this
VerDate 15-DEC-99 17:24 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm11 PsN: 21DEP1 71324 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules fee when they first register or enroll in The F–1 nonimmigrants are foreign Why is the Service proposing to collect school or first commence exchange nationals enrolled as students in information relating to nonimmigrant program participation in the United Service-approved colleges, universities, foreign students and other exchange States; explain which F–1, J–1; and M– seminaries, conservatories, academic program participants? 1 nonimmigrants are required to pay the high schools, private elementary On September 30, 1996, President fee; describe the consequences that an schools, other academic institutions, Clinton signed into law the IIRIRA, Pub. F–1, J–1, or M–1 nonimmigrant faces and in language training programs in the L. 104–208, Division C. Subtitle D of upon failure to pay the fee; specify the United States. For the purposes of this Title VI of the IIRIRA amended the Act consequences that an approved school regulation, the term school refers to all and added new statutory provisions or exchange program faces if it fails to of these types of Service-approved relating to nonimmigrants admitted to collect the fee and remit it to the institutions. An F–2 nonimmigrant is a or applying for classification under Service; and to specify which F–1, J–1, foreign national who is the spouse or section 101(a)(15) (F), (J), and (M) of the and M–1 nonimmigrants are exempt qualifying child of an F–1 student. Act. Section 641(a)(1) of the IIRIRA, in from the fee. The J–1 nonimmigrants are foreign particular, directs the Attorney General, This rule is necessary to implement in consultation with the Secretary of nationals who have been selected by a section 641 (regarding the Program to State and the Secretary of Education, to United States Information Agency Collect Information Relating to develop and conduct a program to (USIA) designated sponsor to participate Nonimmigrant Foreign Students and collect information on nonimmigrant Other Exchange Program Participants) of in an exchange visitor program in the foreign students and exchange visitors the Illegal Immigration Reform and United States. A J–2 nonimmigrant is a from approved institutions of higher Immigrant Responsibility Act of 1996 foreign national who is the spouse or education and designated exchange (IIRIRA), as well as the authority that qualifying child of a J–1 exchange visitor programs. the Service already has under sections visitor. Independent of the requirements of 103 (regarding the Powers and Duties of The M–1 nonimmigrants are foreign section 641 of the IIRIRA, the Service the Commissioner of the Service) and nationals enrolled as students in collects information on nonimmigrant 214 (regarding Admission of Service-approved vocational or other students from educational institutions Nonimmigrants) of the Immigration and recognized nonacademic institutions, pursuant to the authority under sections Nationality Act (Act) and under 31 other than in language training 103 and 214 of the Act. These sections, U.S.C. 9701 and section 286(m) of the programs in the United States. The term that the Attorney General has delegated Act. school also encompasses those to the Service, give the Service authority DATES: Written comments must be institutions attended by M–1 students to establish regulations governing the submitted on or before February 22, for the purpose of this proposed admission of nonimmigrants. Under this authority, the Service requires 2000. rulemaking. An M–2 nonimmigrant is a educational institutions to maintain ADDRESSES: Please submit written foreign national who is the spouse or records on nonimmigrant students and comments, in triplicate, to the Director, qualifying child of an M–1 student. Policy Directives and Instructions to provide information from the records Branch, Immigration and Naturalization What are institutions of higher to the Service upon request of the Service, 425 I Street, NW., Room 5307, education and designated exchange Service. To the extent that these record Washington, DC 20536. To ensure visitor programs? collection activities cause the Service to proper handling, please references INS expend appropriated funds and yield No. 1991–99 on your correspondence. Section 641 of the IIRIRA refers to particularized benefits to program Comments are available at the above institutions of higher education participants, 31 U.S.C. 9701 requires the address by calling (202) 514–3048 to approved by the Service in consultation Service to assess a fee for providing the arrange for an appointment. with the Department of Education (ED) benefit. and exchange visitor programs This proposed rule, therefore, rests on FOR FURTHER INFORMATION CONTACT: the authority that the Service exercises Kristen L. Casa or Song Park, Program designated by the USIA. In consultation with the ED and the USIA, the Service under section 103 and 214 of the Act, Analysts, or Maurice R. Berez, as well as section 641 of the IIRIRA. Adjudications Officer, Adjudications has determined definitions for the terms Division, Immigration and institution of higher education and Who will be included in the program to Naturalization Service, 415 I Street NW., designated exchange visitor program collect information relating to Room 3214, Washington, DC 20536, drawing on generally accepted nonimmigrant foreign students and telephone (202) 514–3228. definitions of these terms as well as other exchange program participants? definitions contained in the Higher SUPPLEMENTARY INFORMATION: The Service intends to include F–1, J– Education Act and other Service and 1, and M–1 nonimmigrants at all Who are F, J, and M Nonimmigrants? USIA regulations. For the purpose of educational levels in this program. The Act provides for the admission of this rule, institutions of higher Section 641 of the IIRIRA, by its terms, different classes of nonimmigrants. The education include those defined as such expressly applied this reporting purpose of the nonimmigrant’s intended under section 101(a) of the Higher program to F–1 and M–1 students stay in the United States determines his Education Act of 1965; designated enrolled in institutions of higher or her proper nonimmigrant exchange visitor programs are those education and to J–1 exchange visitors classification. Some classifications entities designated pursuant to 22 CFR in all USIA designated exchange visitor permit the nonimmigrant’s spouse and 514.6 by the USIA as authorized to bring programs that the Attorney General qualifying child(ren) to accompany the nonimmigrants to the United States to selected for inclusion in the program. nonimmigrant to the United States, or to participate in a program designated As noted, however, sections 103 and join the nonimmigrant here. To qualify, under section 101(a)(15)(J) of the Act 214 of the Act also authorize the a child must be unmarried and under and further designated by the Service collection of this information. The the age of 21. for the mandated reporting process. Service anticipates that it will be better
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71325 able to serve all F–1, J–1, and M–1 not impose the fee on F–1 and M–1 What variables were used in immigrants as a result of this program. nonimmigrants who are enrolled in determining the fee? For example, the information to be private academic high schools or in The Service conducted a fee study collected will assist the Service and other approved schools that are not that considered all of the costs incurred school or exchange visitor program in ‘‘institutions of higher education’’ as as a result of the foreign student and determining whether the F–1, J–1, or M– defined in section 101(a) of the Higher exchange visitor information collection 1 nonimmigrant has maintained his or Education Act of 1965, as amended. (It program in order to determine the her lawful nonimmigrant status. This should be noted that attendance of amount of the fee. Initially, section information is important in the public elementary schools is prohibited 641(e)(4)(A) of the IIRIRA sets the determination of the nonimmigrant’s for F–1 and M–1 nonimmigrants under maximum permissible fee at $100. The eligibility for permanent residence or section 625 of the IIRIRA. Therefore, amount of the proposed fee is $95. The other immigration benefits. Thus, the public elementary schools are not amount of the fee is subject to change inclusion of all F–1, J–1, and M–1 addressed in this rulemaking.) in the future based upon periodic nonimmigrants in this information review and analysis of the cost of collection program will benefit the Section 641(e)(4)(B) of the IIRIRA conducting the information collection nonimmigrants themselves, as well as does not clearly authorize the Service to schools, exchange visitor programs, and deposit to the Examinations Fee program, as required in section 641(f)(2) the Service. Account the fees that would be paid of the IIRIRA. The following discussion It is the Service’s desire to understand under this proposed rule by schools on provides a description of the calculation the needs and concerns of the behalf of F–1 and M–1 students who are of the fee. educational community to the best of its not enrolled in approved institutions of The proposed fee was calculated ability while completely fulfilling its higher education. Exempting these based on the program and system costs statutory requirements and obligations. students is consistent with 31 U.S.C. and the estimated population base of The Service would encourage and 9701 because the Service believes that covered fee payers. The calculated costs welcome comment from the educational the funds that could be collected from include those expenses incurred by the community regarding its proposal to these nonimmigrants would not justify Government to develop, produce, deploy, operate, and maintain the include F–1, J–1, and M–1 the costs of collecting and accounting program and system. In addition, the nonimmigrants at all educational levels for the fees. in this program. proposed fee will cover the costs The Service invites comments on how associated with the creation and Why is the Service proposing a fee? it plans to impose the mandated fee population of new positions required to Section 641(e) of the IIRIRA requires through this proposed rule. In addition, support this program. that a Service-approved institution of comments are invited regarding who The revenue from the proposed fee higher education and a USIA designated will be subject to the fee and who may will also cover the costs of technical and exchange visitor program shall impose be exempt from the fee. program support that the Government and collect a fee from each F–1 and needs to administer benefits and to How will the Service handle the fees it M–1 student and each J–1 exchange monitor schools, program sponsors, collects? visitor identified under section 641(e)(3) students, and exchange visitors solely of the IIRIRA to support the described The general principle, set forth in for the purpose of this reporting information collection program. Just as section 286(c) of the Act, is that, except program. In addition, a portion of the section 641 of the IIRIRA is not the only for fees collected from persons living in revenue from the proposed fee will be statutory basis for this program, section Guam or the Virgin Islands, the Service, used for the direct support of Service 641(e) of the IIRIRA is not the only as the Attorney General’s delegate, must operations relating to student and statutory basis for assessing a fee. Under deposit with the Department of Treasury exchange visitor-related activities. 31 U.S.C. 9701, the Service must assess as miscellaneous receipts all filing fees Program Costs a fee for the participation in any and other fees. Section 641(e)(4)(B) of program that affords a particular benefit For the Fee Study, program costs were the IIRIRA permits the Service, as the to an identifiable recipient. As noted, defined and organized into nonrecurring Attorney General’s delegate, to deposit the Service intends this program to costs and recurring costs. the fees that the Service would collect benefit all F–1, J–1, and M–1 Nonrecurring Costs nonimmigrants by creating a process for under this proposed rule into the verifying their satisfactory compliance Examinations Fee Account established The following include the with the conditions of their status. Since under section 286(m) of the Act. Under nonrecurring costs that total $12.3 the program will benefit all of these section 641(h) of the IIRIRA, only those million: nonimmigrants and the schools and F–1 and M–1 nonimmigrants who are • Development: Development costs exchange visitor programs in which enrolled in approved institutions of are associated with designing and they enroll, all F–1, J–1, and M–1 higher education and those J–1 developing the new program and nonimmigrants, except those nonimmigrants who participate in associated system. The system will specifically identified in the proposed designated exchange programs that the utilize an Internet-based processing rule, will, pursuant to 31 U.S.C. 9701, Service has selected for participation in approach, with electronic data transfer be subject to the fee. Under the first the program are within the scope of and electronic ‘‘event’’ notifications, to exception, J–1 nonimmigrants who section 641 of the IIRIRA. Since the maintain accurate electronic files on participate in exchange programs Service has selected all approved foreign students and exchange visitors. sponsored by the Federal Government institutions of higher education and all School and exchange sponsors will will not have to pay the fee. This designated exchange programs for submit to the Service, via the Internet, exception is required by section participation in this program, the ongoing electronic ‘‘event’’ notifications 641(e)(3) of the IIRIRA. Service will deposit to the Examinations throughout the individual’s program in Under the second exception, the Fee Account all fees paid under this the United States. These notifications, Service has determined that it should proposed rule. made electronically through the system,
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4702 Sfmt 4700 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71326 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules will immediately inform the Service of support for the current operational change program category will again pay changes in student or exchange visitor electronic reporting prototype and a the proposed fee to their new school, status. The system is ultimately planned Beta test of the national institution, or program for remittance on expected to improve the timeliness for electronic reporting program and their behalf by the new school, benefits processing as well as the system, including software and institution or exchange visitor program. accuracy of the information used for equipment maintenance, such as server Upon transfer they will be paying as processing foreign students and maintenance. new students or exchange visitors in the exchange visitors from point of visa • Program operations include those new school, institution, program or issuance, admission to the United costs for full-scale Program operation, category, together with the initial States, and throughout the course of such as the Operations Help Desk, students and exchange visitors admitted their stay in the United States while coordination with schools/programs, each year. The user base, including all pursuing their program of education or staffing Service offices and other F–1, J–1, and M–1 nonimmigrants, was exchange. System development will Government agencies, and computer calculated to the approximately 251,000 begin after successful completion of the system processing. These costs include, in both FY 2000 and FY 2001. The total operational prototype. The Service will but are not limited to, Service population for this 2-year period is incur system development costs from Headquarters and contract support. 501,000 paying students and exchange • 1999 through 2001. These costs include Overhead costs relate to the visitors. system and application design, management and administrative (M&A) development, integration, applications costs to support the planned electronic How were enrollment figures projected? testing, and verification and validation. reporting program. Calculation of the Available data was analyzed based on • Deployment: Deployment funds student/exchange visitor program trends experienced by the Service in will be expended to deliver and install contribution is based upon comparing other programs as well as trends the new national system software at resources between the entire Service as projected by the aggregate totals designated Service regional offices an agency and the information estimated for students and exchange (SROs), district offices (DOs), service collection program for foreign students visitors. The analysis also reflects the centers (SCs), ports-of-entry (POEs), and exchange visitors. An allocation following assumptions. Service Headquarters, DOS was calculated based upon the • The student and exchange visitors Headquarters and DOS Consular Posts, proportion of the program resources to population base will not change U.S. Information Service (USIS) Offices, total Service resources. dramatically over the next 2 years (2000 and the United States Customs Service The cost projections use FY 1999 and 2001). (USCS). through FY 2001 budget estimates as the • The data on the student and Development and deployment base for determining the full cost to exchange visitor population found in nonrecurring costs span several years design and deploy the program. the 1996 Statistical Yearbook for the beyond fiscal Year (FY) 2001 at varying The Service is estimating the fee as Immigration and Naturalization Service funding levels. For example, the proposed in this rule to be $95, and and the Institute for International Service, in partnership with the USCS invites comments on this proposed fee Education’s (IIE) ‘‘Open Doors 1996– and DOS (including USIA functions amount. 1997’’ publication are the best available merged into DOS), will incur data at present. How was the user fee population base • deployment expenses in FY 2002 and calculated? The USIA-provided data on the FY 2003. Partnership with USCS is exchange visitor population are the best necessary as the Service shares The statute specifies that certain available. information technology with that agency nonimmigrants are subject to the • A portion of the student/exchange at POEs throughout the country, and proposed fee as follows: students and visitor population is not subject to the deployment of the program would not exchange visitors in the F–1, J–1, and proposed fee. be complete without linkage to these M–1 nonimmigrant categories. By statute, the only nonimmigrants When must a school or exchange visitor share systems. Subsequent fee studies program collect and remit the fee? will include cost projections for the exempted from the fee are J–1 exchange • years beyond FY 2001 and may result in visitors who are participants in a For those F–1, J–1, and M–1 an adjustment to the fee amount. program sponsored by the Federal nonimmigrants who are subject to the Government and, as discussed above, fee and who first register at a school, Recurring Costs the Service has also exempted F–1 and commence participation in an exchange These recurring costs which total M–1 nonimmigrants enrolled in private visitor program, transfer to a new approximately $31 million are provided elementary schools and public or school/program, or change exchange for the period October 1, 1999, through private academic high schools. The visitor category between August 1, 1999, September 30, 2001 and consist of the remainder of nonimmigrants in the F–1, and the date on which the Service following: J–1, and M–1 nonimmigrant categories publishes the final rule in the Federal • Service Personnel costs include are subject to the proposed fee. For the Register, the fee must be collected and funding support staff at Service purposes of this regulation, the only remitted to the Service by not later than Headquarters, DOS Headquarters (for students and exchange visitors who will the end of a grace period, to be specified DOS and USIA expenditures relating to be required to pay the proposed fee will by the Service, after the date of work performed by DOS and USIA be those who have a program start date publication of the final rule. The Service personnel to meet this new Service occurring on or after August 1, 1999. invites comments and suggestions as to requirement, including, but not limited In the user base calculation, the the amount of time that would to, USIA functions merged into DOS), proposed fee is levied on new students constitute an adequate and reasonable Service field offices, and Help Desk and exchange visitors whose programs grace period for students and exchange customer support. begin on or after August 1, 1999. In visitors who qualify as outlined above • System Operations and subsequent years, those initial students in this paragraph. Maintenance (O&M) costs include or exchange visitors who transfer into a • For those F–1, J–1, and M–1 expenses for ongoing operational new school, institution or program, or nonimmigrants who are subject to the
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Predominant among school/program, or change exchange these concerns are a perceived Service-approved schools and USIA visitor category after the date on which expansion in the role of the Designated designated exchange visitor programs the Service publishes the final rule in School Official/Responsible Officer will collect the proposed fee when an the Federal Register, the fee must be (DSO/RO) as an agent of the Federal F–1, J–1, or M–1 nonimmigrant who is collected and remitted to the Service not Government, and the short timeline subject to the fee first registers, enrolls, later than 90 calendar days from the first provided for public institutions to or transfers into a program of study at date cited in block 5 of the Form I–20 coordinate with State educational the school, or changes exchange visitor or block 3 of the Form IAP–66. authorities and local governments to category, or begins participation in the A detailed description and set of authorize them to assume the proposed designated exchange visitor program. If procedures delineating the entire fee collection and remittance an F–1, J–1, or M–1 nonimmigrant who payment remittance process, including responsibility. is subject to the fee transfers to a new the provision for a grace period as To meet its responsibility under this school or program, or otherwise described above, and the definition of a proposal, the institution, school, or commences a new program or changes valid form of payment will be provided exchange program must: category, the nonimmigrant will once in a Federal Register Notice that will be • Establish a means to collect, remit, again be subject to the proposed fee, published concurrently with the final and account for all fees collected from even if the same institution conducts rule. nonimmigrants who are subject to the the new program. The following fee; instances are examples provided for Under what circumstances must an • Inform each F–1, J–1, or M–1 reference: F–1, J–1 or M–1 nonimmigrant pay the nonimmigrant who is subject to the fee • If a nonimmigrant F–1 student in a fee again? of his/her obligation to pay the fee; bachelor degree program at university The fee must be paid whenever a new • Verify that a Form I–901 has been ‘‘A’’ transfers to university ‘‘B’’ to Form I–20, Certificate of Eligibility for a completed, either manually or continue to pursue his/her bachelors Nonimmigrant Academic or Vocational electronically, by or in behalf of each degree at university ‘‘B,’’ university ‘‘B’’ Student, or a new Form IAP–66, F–1, J–1, or M–1 nonimmigrant who is would be required to collect and remit Certificate of Eligibility for an Exchange subject to the fee; the proposed fee on behalf of the F–1 • Visitor, is issued by a Service approved Collect the required fee from each student. school or a designated exchange F–1, J–1, or M–1 nonimmigrant who is • Two additional examples would be program for any of the following subject to the fee; • if a nonimmigrant student completes purposes to an F–1, J–1, or M–1 Remit the form and fee together to his/her undergraduate course of studies, nonimmigrant who is subject to the fee: the Service in accordance with and then enters a graduate program at • Transfer to a new school/exchange § 103.2(a); and the same university, or if a J–1 exchange • Verify fee payment as a prerequisite visitor program; visitor changes category from a research • for any and all administrative or benefit Commencement of a new program scholar to a student at the same applications through the DSO/RO, or to after completion of the initial program; institution, the school, or exchange the Service subsequent to or visitor program must again collect and • Change of exchange visitor commencement of the program. For example, a DSO or RO must verify remit the proposed fee on behalf of the category. described nonimmigrant. Under the above three circumstances, that any F–1, J–1, or M–1 nonimmigrant the proposed fee must be collected and who is subject to the fee has paid the fee Because section 641(e)(1) mandates remitted by the school or exchange before the DSO or RO may take any of that the Service receive the proposed fee visitor program not later than 90 days the following actions: endorsing a Form through the school or exchange visitor after: I–20 or Form IAP–66; recommending to program only at the time the • The report date indicated in block the Service/USIA that a benefit be nonimmigrant first registers or first 5 of the new Form I–20, Certificate of granted; or granting a benefit to a commences participating in the Eligibility for Nonimmigrant Student student/exchange visitor through exchange, the amount of the proposed Status, for F–1 and M–1 students, or authority that has been delegated by fee will be set to recover the cost of • The begin date indicated in block 3 Government regulation. It should be providing the services related to section of the new Form IAP–66, Certificate of noted that failure by a DSO or RO to 641 of the IIRIRA, based on the average Eligibility for Exchange Visitor Status, comply with these requirements may length of an F–1, J–1, or M–1 for J–1 exchange visitors. constitute grounds for withdrawal of nonimmigrant’s program in the United school approval or program designation States. If a particular nonimmigrant Who is responsible for collection and under existing Service regulations at 8 leaves earlier, the Service will not remittance of the fee to the Service? CFR 214.4(a) and USIA regulations at 22 refund the balance of the proposed fee. Section 641(e) of the IIRIRA stipulates CFR 514.60. Form I–901 will be available to that ‘‘an approved institution of higher The Service welcomes and encourages schools and designated exchange education and a designated exchange comment from the educational programs from the Service’s website. visitor program ‘‘must collect the community on this entire regulation, Valid payment of the fee is required in proposed fee from each F–1, J–1, and particularly in regard to the proposed order for an F–1, J–1, or M–1 M–1 nonimmigrant who is subject to the requirement that schools and exchange nonimmigrant who is subject to the fee fee and must then remit the fees to the visitor programs collect and remit the to maintain status. However, payment of Service. Each approved institution or fee. It is the Service’s desire to the proposed fee alone does not create program that is subject to this understand and meet the needs of the or maintain F–1, J–1, or M–1 status for requirement, therefore, must actually educational community to the best of its any nonimmigrant who is subject to the collect and remit the fees. The Service ability while completely fulfilling its fee and who fails to comply fully with recognizes that this aspect of the law statutory requirements and obligations. all applicable regulations under 8 CFR
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214.2(f), 214.2(j), 214.2(m), and 22 CFR employment, endorsement for academic Small Business Regulatory Enforcement part 514. training, and application for Fairness Act of 1996 reinstatement. Will the Service furnish a receipt to This proposed rule is not a major rule paying nonimmigrants? Failure by an authorized institution or as defined by section 804 of the Small designated exchange visitor program to Business Regulatory Enforcement Act of Yes. As evidence of payment, a impose, collect, and remit the fee may 1996. This rule will not result in an receipt will be furnished to both the also result in withdrawal of school annual effect on the economy of $100 institution or exchange visitor program approval from the Service to issue Form million or more; a major increase in collecting and remitting the fee as well I–20 under 8 CFR 214.4(a) or costs or prices; or significant adverse as to each F–1, J–1, and M–1 termination of program designation by effects on competition, employment, nonimmigrant who is subject to and has USIA under 22 CFR 514.60. The Service investment, productivity, innovation, or paid the fee. The receipt must be in cooperation with USIA may decide to on the ability of United States-based retained and produced by the student, review fee payer data against various companies to compete with foreign- exchange visitor, school, or program government and school records to based companies in domestic and upon request by the Service. A detailed analyze compliance by schools, export markets. description and set of procedures exchange programs, students, and delineating the entire payment exchange visitors. The Service may bill Assessment of Regulatory Impact on the remittance process and definition of schools or exchange visitor sponsors for Family valid form of payment will be provided fees not remitted. As provided by section 654 of the in a Federal Register Notice that will be 1999 Treasury and General Government published concurrently with the final Who is exempt from the fee? Appropriations Act, Pub. L. 105–277, rule. The only nonimmigrants in F, J, and Division A, 101(h), 112 Stat. 2681–528, What happens if a school or exchange M status exempt from the fee are: the Commissioner has determined that visitor program fails to collect and • J–1 nonimmigrants who come to the this proposed rule will not have an remit the fee on behalf of an F–1, J–1, United States as participants in adverse impact on the strength or or M–1 nonimmigrant who is subject to programs sponsored by the Federal stability of the family. the fee? Government, Executive Order 12866 • F–1 and M–1 nonimmigrants Failure to collect and remit the fee as This proposed rule is considered by required will result in the enrolled in private elementary schools and public or private academic high the Department of Justice, Immigration nonimmigrant’s loss of status. For any and Naturalization Service, to be a nonimmigrant who is subject to the fee, schools, and • F–2, J–2, and M–2 dependents. ‘‘significant regulatory action’’ under formal reinstatement will be necessary Executive Order 12866, section 3(f), If the fee is remitted in error by any in order to regain lawful nonimmigrant Regulatory Planning and Review. nonimmigrant, it will not be refunded. status as an F–1 or M–1 student and Accordingly, this regulation has been valid program status as a J–1 exchange Regulatory Flexibility Act submitted to the Office of Management visitor. Application for reinstatement and Budget (OMB) for review. While the should be conducted as prescribed at The Commissioner, in accordance with the Regulatory Flexibility Act (15 economic impact of this proposed rule § 214.2(f)(16), 62 FR 19925, and is expected to be an annual revenue § 214.2(m)(16) for F, J, and M U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies approximately $23.87 million to the nonimmigrants respectively. Service, such an impact does not meet In addition, a copy of the receipt that this rule will not have a significant the threshold to be considered evidencing payment of the fee must also economic impact on a substantial economically significant as specified be included as supporting evidence of number of small entities. The regulation under Executive Order 12866. valid status with all subsequent levies an annual fee in the amount of applications for benefits. This includes $95 on nonimmigrant students and Executive Order 13132 benefits authorized, recommended or exchange visitors initially arriving or This proposed rule will not have endorsed by a DSO or RO as well as continuing a program in the United substantial direct effects on the States, applications for benefits filed with the States. The volume of fee payers or the relationship between the National Service by an F–1, J–1, or M–1 expected is approximately 251,000 in Government and the States, or on the nonimmigrant who is subject to the fee, each of the first 2 years of program distribution of power and and/or his/her dependents, or with operation. The total projected revenues responsibilities among the various USIA by a J–1 nonimmigrant and/or his/ for each fiscal year, therefore, amount to levels of Government. Therefore, in her dependents. approximately $24 million. Individuals accordance with section 6 of Executive An F–1, J–1, or M–1 nonimmigrant as opposed to small businesses file these Order 13132, it is determined that this who is subject to the fee would be applications. rule does not have sufficient federalism required to provide a copy of his/her Unfunded Mandates Reform Act of implications to warrant the preparation receipt evidencing payment of the 1995 of a federalism survey impact statement. proposed fee in order to apply for benefits that include, but are not limited This proposed rule will not result in Executive Order 12988 Civil Justice to: change of status, authorization for the expenditure by State, local, and Reform curricular practical training, tribal governments, in the aggregate, or This proposed rule meets the recommendation for and authorization by the private sector, or $100 million or applicable standards set forth in of optional practical training, more in any one year, and it will not sections 3(a) and 3(b)(2) of Executive recommendation for employment significantly or uniquely effect small Order 12988. authorization based on severe economic governments. Therefore, no actions were hardship, reduction in course load, deemed necessary under the provisions Paperwork Reduction Act extension in program length, of the Unfunded Mandates Reform Act The information required by the authorization for off-campus of 1995. proposed Form I–901, Fee Remittance
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Form for Certain F–1, J–1, and M–1 Naturalization Service, 425 I Street, § 214.2 Special requirements for Nonimmigrants, is considered an NW., Room 5307, Washington, DC admission, extension, and maintenance of information collection and subject to 20536. The comments or suggestions status. review and clearance under the should be submitted within 60 days of * * * * * Paperwork Reduction Act procedures. publication of this rulemaking. (f)*** The information collection requirement (17) Remittance of the fee. (i) An contained in this rule has been List of Subjects F–1 nonimmigrant who begins a submitted to the OMB under the 8 CFR Part 103 program of study at a Service-approved Paperwork Reduction Act for review institution of higher education, as and approval. The OMB control number Administrative practice and defined in section 101(a) of the Higher for this collection is contained in 8 CFR procedure, Authority delegations Education Act of 1965, as amended, on 299.5, Display of control numbers. (Government agencies), Freedom of or after August 1, 1999, is subject to a Since the rulemaking action needs to Information, Privacy, Reporting and fee payable to the Service. The fee and be completed in an expedited manner to recordkeeping requirements. Form I–901, Fee Remittance Form for comply with statutory mandates, the 8 CFR Part 214 Certain F–1, J–1, and M–1 Service is providing for the review of Nonimmigrants, will be collected and the form I–901 as part of the proposed Administrative practice and remitted to the Service by the school on rule. Therefore, the Service solicits procedure, Aliens, Employment, behalf of the F–1 student. The fee will public comments for 60 days on the Reporting and recordkeeping be due 90 days from publication of a information collection requirement in requirements, Students. final rule in the Federal Register or 90 days after the first date appearing in order to: 8 CFR Part 299 • Evaluate whether the proposed block 5 of the Form I–20, whichever collection of information is necessary Immigration, Reporting and date is later. An F–1 nonimmigrant for the proper performance of the recordkeeping requirements. described in paragraph (f)(17)(v) of this functions of the agency, including Accordingly, chapter I of title 8 of the section is not subject to this fee. (ii) A Service-approved school must whether the information will have Code of Federal Regulations is proposed collect the fee from an F–1 practical utility; to be amended as follows: • Evaluate the accuracy of the nonimmigrant described in paragraph agency’s estimate of the burden of the PART 103ÐPOWERS AND DUTIES OF (f)(17)(i) of this section when he or she proposed collection of information, SERVICE OFFICERS: AVAILABILITY first registers at the school and remits it including the validity of the OF SERVICE RECORDS directly to the Service in order for the methodology and assumptions used; F–1 student and his or her F–2 • Enhance the quality, utility, and 1. The authority citation for part 103 dependents to remain in lawful clarity of the information to be continues to read as follows: nonimmigrant status. Failure by the collected; and school to impose, collect, and remit the • Authority: 5 U.S.C. 552, 552(a): 8 U.S.C. Minimize the burden of the 1101, 1103, 1201, 1252 note, 1252b, 1304, fee is conduct which does not comply collection of information on those who 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR with Service regulations and may cause are to respond, including through the 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 the Service to initiate action to use of appropriate automated, CFR part 2. withdraw approval pursuant to electronic, mechanical, or other § 214.4(a)(1)(v). Failure by such an F–1 technological collection techniques or 2. In § 103.7, paragraph (b)(1) is student to pay the fee as required is a other forms of information technology, amended by adding the entry for ‘‘Form violation of status for the F–1 principal e.g., permitting electronic submission of I–901’’ to the listing of fees, in proper as well as any F–2 dependents, and responses. numerical sequence, to read as follows: neither the F–1 nor F–2 nonimmigrant The Service, in calculating the overall § 103.7 Fees. will be considered to have gone out of burden this requirement will place upon * * * * * status ‘‘through no fault of his or her the public, estimates that approximately own’’ or ‘‘for technical reasons.’’ (b)*** 251,000 forms will be submitted Payment of the fee does not, however, annually. The Service also estimates (1)*** preserve the lawful status of any F–1 or that it will take a given nonimmigrant * * * * * F–2 nonimmigrant who has violated his approximately 19 minutes to comply Form I–901. for remittance of the fee or her status in some other way. with the requirements. This calculation levied on specified F–1, J–1, and M–1 (iii) Any F–1 student who is out of amounts to 79,483 total burden hours. nonimmigrant aliens required under status for late payment or nonpayment As required by section 3507(d) of the section 641(e) of Public Law 104–208— of the required fee must also apply for Paperwork Reduction Act of 1995, the $95. This fee may not be waived. reinstatement as provided under Service has submitted a copy of this * * * * * paragraph (f)(16) of this section. The proposed rule to OMB for its review of Form I–539, Application to Extend the information requirement. Other PART 214ÐNONIMMIGRANT CLASSES Status/Change Nonimmigrant Status, organizations and individuals interested must be submitted together with a copy in submitting comments regarding this 3. The authority citation for part 214 of a valid receipt from the Service as burden estimate or any aspect of this continues to read as follows: evidence of having paid the fee in order information collection requirement, Authority: 8 U.S.C. 1101, 1103, 1182, 1184, to be eligible to apply for reinstatement including suggestions for reducing the 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2. to F–1 status. Approval of the Form I– burden should direct them to: Stuart 539 also reinstates the status of any F– 4. Section 214.2 is amended by: Shapiro, OMB, Office of Information 2 dependents. and Regulatory Affairs, 725 17th Street, a. Adding a new paragraph (f)(17); (iv) If an F–1 nonimmigrant is subject NW., Washington, DC 20503, and b. Adding a new paragraph (j)(5); to the fee, the F–1 nonimmigrant and Director, Policy Directives and c. Adding a new paragraph (m)(18), to his/her F–2 dependents must present a Instructions Branch, Immigration and read as follows: copy of the receipt evidencing payment
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71330 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules of the fee in order to be eligible for any her status in some other way. Failure by nonimmigrant described in paragraph benefit endorsed or authorized by a DSO the exchange visitor program to attempt (m)(18)(i) of this section and remit it or with applications for benefits filed to collect and remit the fee may cause directly to the Service in order for an with the Service by the F–1 the Service to request the USIA to M–1 student and any M–2 dependents nonimmigrant and/or his/her terminate program designation pursuant to remain in lawful nonimmigrant dependents, including change of status. to 22 CFR 514.60. status. Failure by the school to impose, A DSO’s failure to verify that an F–1 (iii) Any J–1 exchange visitor who is collect, and remit the fee is conduct that nonimmigrant who is subject to the fee out of program status for late payment does not comply with Service has paid the fee before endorsing or or nonpayment of the required fee must regulations, and may cause the Service authorizing any application for benefits also apply for reinstatement as provided to initiate action to withdraw approval is conduct which does not comply with under 22 CFR Part 514. The application pursuant to § 214.4(a)(1)(v). Failure by Service regulations and may cause the or request for reinstatement to valid such an M–1 student to pay the fee as Service to initiate action to withdraw program status must be submitted to the required is a violation of status for the approval pursuant to § 214.4(a)(1)(v). If USIA together with a copy of a valid M–1 principal as well as any M–2 an F–1 nonimmigrant subject to this fee receipt from the Service as evidence of dependents, and neither the M–1 transfers to a new institution of higher having paid the fee in order to be student nor any M–2 dependent will be education or begins a new program at eligible to apply for reinstatement to considered to have gone out of status the same institution, the F–1 valid J–1 program status. Reinstatement ‘‘through no fault of his or her own’’ or nonimmigrant must pay the fee when of the J–1’s status also reinstates the ‘‘for technical reasons.’’ Payment of the the F–1 nonimmigrant begins studies at status of any J–2 dependents. fee does not, however, preserve the the new institution or in the new (iv) If a J–1 nonimmigrant is subject lawful status of any M–1 or M–2 program. to the fee, the J–1 nonimmigrant and nonimmigrant who has violated his or (v) An F–1 nonimmigrant is not his/her J–2 dependents must present a her status in some other way. subject to the requirements of this copy of the receipt evidencing payment (iii) Any M–1 student who is out of paragraph if the F–1 nonimmigrant is of the fee with all subsequent benefits status for late payment or nonpayment enrolled in a private elementary school endorsed or authorized by an RO as well or a public or private academic high as applications for benefits filed with of the required fee must also apply for school in the United States. the Service or USIA by the J–1 reinstatement as provided under paragraph (m)(16) of this section. The * * * * * nonimmigrant and/or his/her dependents, including change of status. Form I–539, Application to Extend (j)*** Status/Change Nonimmigrant Status, (5) Remittance of the fee. (i) A If a J–1 nonimmigrant transfers to a new exchange visitor program, or to a must be submitted together with a copy nonimmigrant in J–1 status commencing of a valid receipt from the Service as participation in a USIA-designated different exchange visitor program or category at the same institution, the J– evidence of having paid the fee for all exchange visitor program on or after applicable programs in order to be August 1, 1999, is subject to a fee 1 nonimmigrant must pay the fee when participation at the new institution or in eligible to apply for reinstatement to payable to the Service. The fee and M–1 status. Approval of the Form I–539 Form I–901, Fee Remittance Form for the new program or category commences. also reinstates the lawful status of any Certain F–1, J–1, and M–1 M–2 dependents. Nonimmigrants, will be collected and (v) A J–1 nonimmigrant is not subject remitted to the Service by the exchange to the requirements of this paragraph if (iv) If an M–1 nonimmigrant is subject visitor program on behalf of the J–1 the J–1 nonimmigrant comes to the to this fee, the M–1 nonimmigrant and exchange visitor. The fee will due 90 United States as a participant in a his/her M–2 dependents must include a days from publication of the final rule program sponsored by the Federal copy of the receipt evidencing payment in the Federal Register or 90 days after Government. of the fee with all subsequent requests the first date appearing in block 3 of the * * * * * for benefits endorsed or authorized by a Form IAP–66, whichever date is later. A (m) * * * DSO as well as applications for benefits J–1 nonimmigrant described in (18) Remittance of the fee. (i) An filed with the Service by the M–1 paragraph (j)(5)(v) of the section is not M–1 nonimmigrant who begins a nonimmigrant and/or his/her subject to this fee. program of study at a Service-approved dependents, including change of status. (ii) A designated exchange visitor institution of higher education, as A DSO’s failure to verify that an M–1 program must collect the fee from a J– defined by section 101(a) of the Higher nonimmigrant who is subject to the fee 1 nonimmigrant who is subject to the Education Act of 1965, as amended, on has paid the fee before endorsing or fee described in paragraph (j)(5)(i) of or after August 1, 1999, is subject to a authorizing any application for benefits this section in order for the J–1 fee payable to the Service. The fee and is conduct which does not comply with exchange visitor and his or her J–2 Form I–901, Fee Remittance Form for Service regulations and may cause the dependents to remain in valid program Certain F–1, J–1, and M–1 Service to initiate action to withdraw status. Failure by such a J–1 exchange Nonimmigrants, will be collected and approval pursuant to § 214.4(a)(1)(v). If visitor to pay the fee as required is a remitted to the Service by the school on an M–1 nonimmigrant transfers to a new violation of valid J–1 program status for behalf of the M–1 student. The fee will institution of higher education, or the J–1 principal as well as any J–2 be due 90 days from publication of the begins a new program at the same dependents, and neither the J–1 final rule in the Federal Register or 90 institution, the M–1 nonimmigrant must principal nor the J–2 dependents will be days after the first date appearing in pay the fee when the M–1 considered to have gone out of status block 5 of the Form I–20, whichever nonimmigrant begins training at the ‘‘through no fault of his or her own’’ or date is later. An M–1 nonimmigrant new institution or in the new program. ‘‘for technical reasons.’’ Payment of the described in paragraph (m)(18)(v) of this (v) An M–1 nonimmigrant is not fee does not, however, preserve the section is not subject to the is fee. subject to the requirements of this lawful status of any J–1 or J–2 (ii) A Service-approved school must paragraph if the M–1 nonimmigrant is nonimmigrant who has violated his or collect the fee from an M–1 enrolled in a private elementary school
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71331 or a public or private academic high NUCLEAR REGULATORY These same documents also may be school in the United States. COMMISSION viewed and downloaded electronically * * * * * via the rulemaking website. 10 CFR Parts 71 and 73 FOR FURTHER INFORMATION CONTACT: PART 299ÐIMMIGRATION FORMS RIN 3150±AG41 Tony DiPalo, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear 5. The authority citation for part 299 Advance Notification to Native Regulatory Commission, Washington, continues to read as follows: American Tribes of Transportation of DC 20555–0001, telephone (301) 415– Authority: 8 U.S.C. 1101, 1103; 8 CFR part Certain Types of Nuclear Waste 6191, e-mail [email protected] or Stephanie 2. R. Martz, Office of the General Counsel, AGENCY: Nuclear Regulatory U.S. Nuclear Regulatory Commission, 6. Section 299.1 is amended in the Commission. Washington, DC 20555–0001, telephone table by adding, in proper numerical ACTION: Advance notice of proposed (301) 415–1520, e-mail [email protected]. sequence, the entry for From ‘‘I–901’’ to rulemaking. SUPPLEMENTARY INFORMATION: read as follows: SUMMARY: The Nuclear Regulatory Background § 299.1 Prescribed forms. Commission (NRC) is considering an Current NRC regulations require that amendment to its regulations that would licensees inform State governors of Form No. Edition date Title require NRC licensees to notify Native certain radioactive waste shipments American Tribes of shipments of certain passing through or across the boundary types of high-level radioactive waste, of the State. *****including spent nuclear fuel, prior to In particular, 10 CFR 71.97 requires I±901 ...... XXXXX ...... Remittance of the transport to or across the boundary of fee required for advance notification to States of Tribal lands. Current NRC regulations shipments of certain types of radioactive certain F±1, J± require advance notification of these 1, and M±1 waste and small quantities of irradiated shipments to States. In recognition of reactor fuel. The types of shipments nonimmigrant Tribal sovereignty and the need for aliens. covered by the Part 71 notification Tribes to be informed about activities requirements are specified in 10 CFR that occur on Tribal lands, the NRC * * * * * 71.97(b). seeks to extend these regulations to 6. Section 299.5 is amended in the In 10 CFR 73.37, advance notification include advance notification of these to States of shipments of certain table by adding, in proper numerical shipments to Federally recognized quantities of irradiated reactor fuel is sequence, the entry for Form ‘‘I–901’’ to Native American Tribes. This advance required. The notification requirements read as follows: notice of proposed rulemaking is issued in Part 73 apply to most shipments of to invite early input from affected § 299.5 Display of control numbers. irradiated reactor fuel. The types of parties and the public on the issue of shipments covered by the Part 73 * * * * * advance notification. notification requirements are detailed in DATES: The comment period expires 10 CFR 73.37(a). NRC regulations (10 Currently March 22, 2000. Comments received INS Form INS form title assigned OMB CFR 73.37(g)) require State officials and No. control No. after this date will be considered if it is other individuals to protect schedule practical to do so, but the Commission information related to these fuel *****is able to assure consideration only for shipments from unauthorized disclosure I±901 ...... Remittance 1115± comments received on or before this as specified in 10 CFR 73.21. The NRC of the fee date. was directed to promulgate these required ADDRESSES: Mail comments to: The regulations by the NRC Authorization for certain Secretary, U.S. Nuclear Regulatory F±1, J±1, Act for Fiscal Year 1980 (Sec. 301(a), and M±1 Commission, Washington, DC 20555– Pub. L. 96–295). non- 0001, Attention: Rulemakings and In accordance with the notification immigrant Adjudications Staff. procedures in Part 71, a licensee must aliens. Hand deliver comments to: 11555 notify the governor of a State, or the Rockville Pike, Rockville, Maryland, governor’s designee, in writing, prior to * * * * * between 7:30 am and 4:15 pm on a shipment of radioactive waste or Dated: December 14, 1999. Federal workdays. nuclear fuel. If the notification is Doris Meissner, You may also provide comments via delivered by mail, it must be the NRC’s interactive rulemaking postmarked at least 7 days before the Commissioner, Immigration and Naturalization Service. website (http://ruleforum.llnl). This site beginning of the 7-day period during provides the availability to upload which it is estimated that the shipment [FR Doc. 99–32842 Filed 12–20–99; 8:45 am] comments as files (any format), if your will depart from its point of origin. If BILLING CODE 4410±10±M web browser supports that function. For the notification is hand-delivered, it information about the interactive must be delivered at least 4 days before rulemaking site, contact Ms. Carol the beginning of the 7-day period during Gallagher, (301) 415–5905; e-mail which it is estimated that the shipment [email protected]. will depart from its point of origin. Certain documents related to this In accordance with 10 CFR 71.97, a rulemaking, including comments list of the names and mailing addresses received, may be examined at the NRC of the governor’s designees receiving Public Document Room, 2120 L Street advance notification is published in the NW. (Lower Level), Washington, DC. Federal Register and is updated on a
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71332 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules yearly basis (see, e.g., 64 FR 35197 (June (4) For a shipment in a series of licensees provide timely advance 30, 1999)). shipments whose schedules are related, notification to Native American Tribes The notification for shipments under a statement that schedule information prior to transport of certain types of Part 71 must contain the following must be protected in accordance with nuclear waste, including spent fuel, to information: the provisions of 10 CFR 73.21, as or across the boundary of Tribal lands. (1) The name, address, and telephone Safeguards Information, until at least 10 This amendment would require number of the shipper, carrier, and days after the last shipment in the series licensees to provide to the Native receiver of the irradiated reactor fuel or has entered or originated within the American Tribes notification similar to nuclear waste shipment; State, and an estimate of the date on that now required to be provided to the (2) A description of the irradiated which the last shipment in the series States. reactor fuel or nuclear waste contained will enter or originate within the State. In 1994, the U.S. Department of in the shipment; To help minimize the possibility for Energy (DOE) notified the NRC of its (3) The point of origin of the shipment radiological sabotage, schedules and intent to implement its Tribal and the 7-day period during which the itineraries for shipments of irradiated notification policy for DOE’s shipments shipment is estimated to depart; reactor fuel under Part 73 are required of spent nuclear fuel and high-level (4) The 7-day period during which the to be protected as Safeguards radioactive waste. DOE presently shipment is estimated to arrive at the Information. State officials, State accomplishes these shipments under State boundary; employees, and other responsible DOE regulations. An amendment to (5) The shipment’s destination and parties who receive schedule NRC regulations would clarify how the 7-day period during which the information are required to protect that DOE, when making shipments under shipment is estimated to arrive at its information from unauthorized NRC regulations, and NRC licensees destination; and disclosure under 10 CFR 73.21 and would provide notification to Native (6) A point of contact, with a 73.37(g). Title 10 of the Code of Federal American Tribes of spent nuclear fuel telephone number, for current shipment Regulations, 10 CFR 73.21(a), stipulates and high-level radioactive waste information. that information protection procedures shipments that pass to or across the If the schedule of the shipment employed by State and local police boundary of Tribal lands. Such an changes by more than 6 hours from the forces are deemed to meet the amendment would advance NRC’s information furnished, the licensee information protection measures efforts to recognize the sovereignty of must notify the governor or the specified in 10 CFR 73.21(b) through (i). Federally recognized Native American governor’s designee (‘‘the responsible Title 10 of the Code of Federal Tribes in accordance with President party’’) of the schedule change by Regulations, 10 CFR 73.21(c), Clinton’s 1994 memorandum entitled, telephone (or other means), and must specifically limits information ‘‘Government-to-Government Relations inform the responsible party of the disclosure except to persons with an with Native American Tribal number of hours that the schedule has established ‘‘need to know.’’ For State Governments.’’ [59 FR 22951; May 4, changed (i.e., advanced or delayed) and local governments, these persons 1994] This memorandum states, in part, relative to the previously furnished are either the governor, the governor’s information. designated representative, or a member The United States Government has a unique legal relationship with Native The notification for shipments under of a State or local law enforcement American tribal governments as set forth in 10 CFR 73.37(f)(2) must contain the authority that is responsible for the Constitution of the United States, treaties, following information: responding to requests for assistance statutes, and court decisions. As executive (1) The name, address, and telephone during safeguards emergencies. Title 10 departments and agencies undertake number of the shipper, carrier, and of the Code of Federal Regulations, 10 activities affecting Native American tribal receiver; CFR 73.21(d), prescribes protection rights or trust resources, such activities (2) A description of the shipment; required while the information is being should be implemented in a knowledgeable, (3) A listing of the routes to be used used or stored, and 10 CFR 73.21(g) sensitive manner respectful of tribal sovereignty. within the State; and specifies the protection required when (4) A statement that certain the information is transmitted outside The President’s memorandum does information, which is provided as a an authorized place of use or storage. not impose any new obligations on separate enclosure to the written With respect to the provision of 10 CFR NRC, as an independent regulatory notification, is required by NRC 73.37(f)(4) that the governor’s agency, or on other Executive regulations in 10 CFR 73.21 to be representative be notified in the event of departments and agencies. However, protected as Safeguards Information. a change in the schedule, NRC policy is this memorandum encourages Federal The information to be provided as a that the licensee need notify only a agencies, among other things, to consult separate enclosure to the notification single designated individual within with Tribal governments, before under Part 73 is as follows: each State (47 FR 600; January 6, 1982). engaging in activities that may affect (1) The estimated date and time of Further information regarding NRC’s Tribes, and to remove any procedural departure from the point of origin of the transportation requirements can be impediments to agencies being able to shipment; found in NUREG–0725, ‘‘Public work directly with Tribal governments. (2) The estimated date and time of Information Circular for Shipments of To accomplish this, the memorandum entry into the State; Irradiated Reactor Fuel,’’ Revision 13, encourages each Executive department (3) For a single shipment whose October 1998. Single copies are and agency to ‘‘apply the requirements schedule is not related to the schedule available for purchase from the National of Executive Order Nos. 12875 of any subsequent shipment, a statement Technical Information Service, 5285 (‘‘Enhancing the Intergovernmental that schedule information must be Port Royal Road, Springfield, Virginia Partnership’’) and 12866 (‘‘Regulatory protected in accordance with the 22161. Planning and Review’’) to design provisions of 10 CFR 73.21, as solutions and tailor Federal programs, Safeguards Information, until at least 10 Specific Proposal in appropriate circumstances, to address days after the shipment has entered or The Commission is considering specific or unique needs of tribal originated within the State; and amending Parts 71 and 73 to require that communities.’’
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The primary purpose of the rule C.2. Should DOE and NRC licensees Information to responsible Tribal contemplated by the Commission would develop and maintain a central data government officials? be to inform Native American Tribes of base regarding the location of Tribal The preliminary views expressed in shipments passing to or across the lands? Should NRC look to Geographic this notice may change in light of boundary of Tribal lands as a Information System (GIS) resources to comments received. If the proposed rule recognition of Tribal sovereignty as well provide licensees with information is developed by the Commission, there as the need for Tribes to be aware of regarding the location of Tribal lands? will be another opportunity for activities that occur on Tribal lands. C.3. What types of Tribal lands should additional public comment in While emergency preparedness would the rule apply to (e.g., Trust Lands, Fee connection with that proposed rule. not be the main reason for developing Lands (i.e., lands owned by Native List of Subjects such a rule, Tribes that do have Americans but not held in trust by the emergency preparedness capabilities Federal government), etc.)? 10 CFR Part 71 would benefit from notification. D. Safeguards Information Criminal penalties, Hazardous Specific Considerations D.1. Should advance notification of materials transportation, Nuclear Before the NRC prepares a proposed spent fuel shipments be provided to any materials, Packaging and containers, rule on the subject, the NRC is seeking federally recognized Native American Reporting and recordkeeping advice and recommendations on this Tribe when spent fuel shipments are requirements. matter from all interested persons. transported to or across tribal 10 CFR Part 73 Comments accompanied by supporting boundaries? Criminal penalties, Hazardous reasons are particularly requested on the D.2 The NRC’s ‘‘need-to-know’’ materials transportation, Exports, following questions arranged by topic: requirement for advance notification of spent fuel shipment information is Imports, Nuclear materials, Nuclear A. Developing a List of Native American found in 10 CFR 73.21. Should this power plants and reactors, Reporting Tribe Contacts requirement be broadened to include and recordkeeping requirements, and A.1. In preparing the list of Tribal other entities, such as Federally Security measures. contacts, the NRC would most likely recognized Native American Tribes? The authority citation for this look to the list of Federally recognized D.3. Does wider dissemination of document is: 42 U.S.C. 2201; 42 U.S.C. Native American Tribes maintained by shipment information increase the risk 5841. the Bureau of Indian Affairs (BIA), U.S. to safeguarding spent fuel shipments Dated at Rockville, Maryland, this 14th day Department of the Interior. Is this an (i.e., protecting public health and of December, 1999. appropriate approach? Are there any safety)? How should the NRC address For the Nuclear Regulatory Commission. other sources that the NRC should any increase in risk compared with the Annette L. Vietti-Cook, consider? (See the BIA website at http:/ benefits to be gained from Tribal Secretary of the Commission. /www.doi.gov/bureau-indian- notification? [FR Doc. 99–32929 Filed 12–20–99; 8:45 am] D.4. How should the rule address the affairs.html). BILLING CODE 7590±01±P A.2. How can the NRC ensure that point of contact for Safeguards contact information is kept current, Information in the context of Tribal particularly for smaller Tribes? In notification? DEPARTMENT OF TRANSPORTATION maintaining State contacts, the NRC D.5. A recipient of Safeguards Information must expend resources to provides each State with the Federal Aviation Administration opportunity to update its information ensure the information is handled annually. Should NRC follow the same properly. Are there Tribes who may not 14 CFR Part 39 approach for Tribal contacts? wish to be recipients of Safeguards A.3. How can licensees effectively Information? [Docket No. 98±NM±56±AD] and efficiently provide notification to D.6. If a Tribal government receives RIN 2120±AA64 Native American Tribes, particularly Safeguards Information, should the NRC smaller Tribes, of a schedule change review the Tribe’s actions to control and Airworthiness Directives; Airbus Model that would require updated notification protect Safeguards Information? A300 B2, A300±B2K, A300 B4±2C, by telephone at any time of day? D.7. 10 CFR 73.21(a) states that A300 B4±100, and A300 B4±200 Series ‘‘information protection procedures Airplanes B. Minimizing the Licensees’ employed by State and local police Administrative Burden forces are deemed to meet the AGENCY: Federal Aviation B.1. In what ways can licensees information protection requirements of Administration, DOT. comply with this advance notification § 73.21(b) through (i).’’ Should the NRC ACTION: Notice of proposed rulemaking requirement, while keeping their determine the ability of Tribal (NPRM). administrative burden at a minimum? governments to protect Safeguards B.2. If a shipper is unable to make Information and, if so, how? SUMMARY: This document proposes the contact with a Tribe prior to or during D.8. Should the contemplated rule supersedure of an existing airworthiness a shipment, should the shipment include an exemption to the notification directive (AD), applicable to all Airbus proceed? requirement if there is reason to believe Model A300 B2, A300 B2K, A300 B2– that a Tribe will not be able to protect 200, A300 B4, A300 B4–100, and A300 C. Identifying the Location of Tribes the Safeguards Information from B4–200 series airplanes, that currently Along Shipment Routes disclosure? What basis would the NRC requires certain structural inspections C.1. How can licensees effectively and need for granting such an exemption? and modifications. This action would comprehensively identify the location of D.9. Should 10 CFR 73.37(f) be require that those inspections be Native American Tribes along a changed to a permissive form? That is, accomplished on additional airplanes. particular vehicle, rail, or vessel should the licensee be permitted rather This action also would require new shipment route? than required to release Safeguards repetitive inspections for airplanes in
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71334 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules certain configurations at revised Commenters wishing the FAA to were referenced in AD 96–08–08 as thresholds and intervals. This proposal acknowledge receipt of their comments appropriate sources of service is prompted by issuance of mandatory submitted in response to this notice information; except, the inspections continuing airworthiness information by must submit a self-addressed, stamped have been revised from eddy current a foreign civil airworthiness authority. postcard on which the following inspections to visual inspections. In The actions specified by the proposed statement is made: ‘‘Comments to addition, the effectivity listing of AD are intended to detect and correct Docket Number 98–NM–56–AD.’’ The Revision 2 of the service bulletin has corrosion and cracking of the wings and postcard will be date stamped and been revised to include airplanes on fuselage, which could result in reduced returned to the commenter. which Airbus Modification 1446 has structural integrity of the airplane. Availability of NPRMs been accomplished (i.e., Configuration 3 DATES: Comments must be received by Any person may obtain a copy of this airplanes). The remaining affected January 20, 2000. NPRM by submitting a request to the airplanes (Configurations 1 and 2) were ADDRESSES: Submit comments in FAA, Transport Airplane Directorate, subject to the requirements of AD 96– triplicate to the Federal Aviation ANM–114, Attention: Rules Docket No. 08–08. Administration (FAA), Transport 98–NM–56–AD, 1601 Lind Avenue, Accomplishment of the actions Airplane Directorate, ANM–114, SW., Renton, Washington 98055–4056. specified in the service bulletins is Attention: Rules Docket No. 98–NM– Discussion intended to adequately address the 56–AD, 1601 Lind Avenue, SW., identified unsafe condition. The DGAC Renton, Washington 98055–4056. On April 10, 1996, the FAA issued classified these service bulletins as Comments may be inspected at this AD 96–08–08, amendment 39–9574 (61 mandatory and issued French location between 9:00 a.m. and 3:00 FR 18661, April 29, 1996), applicable to airworthiness directive 90–222– p.m., Monday through Friday, except all Airbus Model A300 B2, A300 B2K, Federal holidays. A300 B2–200, A300 B4, A300 B4–100, 116(B)R4, dated March 27, 1996, in order to assure the continued The service information referenced in and A300 B4–200 series airplanes, to the proposed rule may be obtained from require structural inspections and airworthiness of these airplanes in Airbus Industrie, 1 Rond Point Maurice modifications. That action was France. Bellonte, 31707 Blagnac Cedex, France. prompted by reports of incidents FAA’s Conclusions This information may be examined at involving fatigue cracking and corrosion the FAA, Transport Airplane in transport category airplanes that are These airplane models are Directorate, 1601 Lind Avenue, SW., approaching or have exceeded their manufactured in France and are type Renton, Washington. economic design goal. These incidents certificated for operation in the United FOR FURTHER INFORMATION CONTACT: have jeopardized the airworthiness of States under the provisions of section Norman B. Martenson, Manager, the affected airplanes. The requirements 21.29 of the Federal Aviation International Branch, ANM–116, FAA, of that AD are intended to prevent Regulations (14 CFR 21.29) and the Transport Airplane Directorate, 1601 degradation of the structural capability applicable bilateral airworthiness Lind Avenue, SW., Renton, Washington of the affected airplanes. agreement. Pursuant to this bilateral 98055–4056; telephone (425) 227–2110; Actions Since Issuance of Previous Rule airworthiness agreement, the DGAC has fax (425) 227–1149. Since the issuance of that AD, Airbus kept the FAA informed of the situation SUPPLEMENTARY INFORMATION: has issued Revision 6 of Airbus Service described above. The FAA has examined the findings of the DGAC, Comments Invited Bulletin A300–53–0162, dated March 20, 1996. The inspections and reviewed all available information, and Interested persons are invited to modifications described in Revision 6 of determined that AD action is necessary participate in the making of the the service bulletin are identical to for products of this type design that are proposed rule by submitting such those in Revisions 4 and 5 of the service certificated for operation in the United written data, views, or arguments as bulletin (which were referenced in AD States. they may desire. Communications shall 96–08–08 as appropriate sources of Explanation of Requirements of identify the Rules Docket number and service information). However, the Proposed Rule be submitted in triplicate to the address effectivity listing of Revision 6 of the specified above. All communications service bulletin has been revised to Since an unsafe condition has been received on or before the closing date include airplanes on which Airbus identified that is likely to exist or for comments, specified above, will be Modifications 3275 and 5724 or Airbus develop on other airplanes of the same considered before taking action on the Service Bulletin A300–53–0161 has type design registered in the United proposed rule. The proposals contained been accomplished (i.e., Configuration 2 in this notice may be changed in light States, the proposed AD would airplanes). The remaining affected supersede AD 96–08–08 to continue to of the comments received. airplanes (Configuration 1) were subject require certain structural inspections Comments are specifically invited on to the requirements of AD 96–08–08. the overall regulatory, economic, Airbus also has issued Service and modifications. The proposed AD environmental, and energy aspects of Bulletin A300–53–0278, Revision 2, would require that those inspections be the proposed rule. All comments dated November 10, 1995, which accomplished on additional airplanes. submitted will be available, both before describes procedures for inspections of The proposed AD also would require and after the closing date for comments, an additional area between fuselage new repetitive inspections for airplanes in the Rules Docket for examination by frames FR10 and FR10A. The actions in in certain configurations at revised interested persons. A report Revision 2 are similar to those described thresholds and intervals. The new summarizing each FAA-public contact in the original version and Revision 1 of actions would be required to be concerned with the substance of this Service Bulletin A300–53–278 (the accomplished in accordance with the proposal will be filed in the Rules service bulletin number was revised in service bulletins described previously, Docket. Revision 2 to A300–53–0278), which except as discussed below.
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Differences Between Proposed Rule and A copy of it may be obtained by thereafter at intervals not to exceed those Service Bulletin contacting the Rules Docket at the specified in the corresponding service location provided under the caption bulletin for the inspection. After April 13, Operators should note that, although 1992 (the effective date of AD 92–02–09, ADDRESSES. the service bulletins specify that the amendment 39–8145), the actions shall only manufacturer may be contacted for List of Subjects in 14 CFR Part 39 be accomplished in accordance with the disposition of certain repair conditions, latest revision of the service bulletins Air transportation, Aircraft, Aviation specified. this proposal would require the repair of safety, Safety. those conditions to be accomplished in (1) Airbus Service Bulletin A300–53–103, The Proposed Amendment Revision 4, dated June 30, 1983; or Revision accordance with a method approved by 5, dated February 23, 1994; the FAA. Accordingly, pursuant to the (2) Airbus Service Bulletin A300–53–126, Cost Impact authority delegated to me by the Revision 7, dated November 11, 1990; or Administrator, the Federal Aviation Revision 8, dated September 18, 1991; There are approximately 13 airplanes Administration proposes to amend part (3) Airbus Service Bulletin A300–53–146, of U.S. registry that would be affected 39 of the Federal Aviation Regulations Revision 7, dated April 26, 1991; by this proposed AD. (14 CFR part 39) as follows: Note 2: Airbus Service Bulletin A300–53– The actions that were previously 146 provides for a compliance threshold of required by AD 96–08–08, and retained PART 39ÐAIRWORTHINESS within 5 years after the date of issuance of in this AD, take approximately 2 work DIRECTIVES French airworthiness directive 90–222– hours per airplane to accomplish, at an 116(B), issued on December 12, 1990, the 1. The authority citation for part 39 accomplishment of which is required by AD average labor rate of $60 per work hour. 85–07–09, amendment 39–5033. Based on these figures, the cost impact continues to read as follows: (4) For Configuration 1 airplanes identified Authority: 49 U.S.C. 106(g), 40113, 44701. of the currently required actions on U.S. in Airbus Service Bulletin A300–53–0162, operators is estimated to be $120 per § 39.13 [Amended] Revision 6, dated March 20, 1996: Airbus airplane, per inspection cycle. Service Bulletin A300–53–162, Revision 4, The new inspection that is proposed 2. Section 39.13 is amended by dated November 12, 1990; Revision 5, dated in this AD action would take removing amendment 39–9574 (61 FR March 17, 1994; or Revision 6, dated March approximately 3 work hours per 18661, April 29, 1996), and by adding 20, 1996. After the effective date of this new airplane to accomplish, at an average a new airworthiness directive (AD), to AD, only Revision 6 of the service bulletin labor rate of $60 per work hour. Based read as follows: shall be used. (5) Airbus Service Bulletin A300–53–196, Airbus Industrie: Docket 98–NM–56–AD. on these figures, the cost impact of the Revision 1, dated November 12, 1990; as Supersedes AD 96–08–08, Amendment proposed requirements of this AD on amended by Service Bulletin Change Notice 39–9574. U.S. operators is estimated to be $180 1.A., dated February 4, 1991, or Revision 2, Applicability: All Model A300 B2, A300 per airplane, per inspection cycle. dated March 17, 1994. B2K, A300 B2–200, A300 B4–2C, A300 B4– The cost impact figures discussed 100, and A300 B4–200 series airplanes, Note 3: Airbus Service Bulletin A300–53– above are based on assumptions that no certificated in any category. 196 provides for a compliance threshold of within 6,000 landings after accomplishment operator has yet accomplished any of Note 1: This AD applies to each airplane of Airbus Service Bulletin A300–53–194, the current or proposed requirements of identified in the preceding applicability accomplishment of which is required by AD this AD action, and that no operator provision, regardless of whether it has been 87–04–12, amendment 39–5536. would accomplish those actions in the otherwise modified, altered, or repaired in future if this AD were not adopted. the area subject to the requirements of this (6) Airbus Service Bulletin A300–53–225, AD. For airplanes that have been modified, Revision 2, dated May 30, 1990; Regulatory Impact altered, or repaired so that the performance (7) Airbus Service Bulletin A300–53–226, of the requirements of this AD is affected, the Revision 4, dated November 12, 1990; or The regulations proposed herein Revision 5, dated September 7, 1991; would not have substantial direct effects owner/operator must request approval for an alternative method of compliance in Note 4: Airbus Service Bulletin A300–53– on the States, on the relationship accordance with paragraph (h) of this AD. 226 provides for a compliance threshold of between the national government and The request should include an assessment of within 5 years after the issuance of French the States, or on the distribution of the effect of the modification, alteration, or airworthiness directive 90–222–116(B), power and responsibilities among the repair on the unsafe condition addressed by issued on December 12, 1990; but not later various levels of government. Therefore, this AD; and, if the unsafe condition has not than 20 years after first delivery; the in accordance with Executive Order been eliminated, the request should include accomplishment of which is required by AD 12612, it is determined that this specific proposed actions to address it. 90–03–08, amendment 39–6481. proposal would not have sufficient Compliance: Required as indicated, unless (8) For Configuration 1 and 2 airplanes federalism implications to warrant the accomplished previously. identified in Airbus Service Bulletin A300– preparation of a Federalism Assessment. To detect and correct corrosion and 53–0278, Revision 2, dated November 10, 1995: Airbus Service Bulletin A300–53–278, For the reasons discussed above, I cracking of the wings and fuselage, which could result in reduced structural integrity of dated November 12, 1990; or Revision 1, certify that this proposed regulation (1) the airplane, accomplish the following: dated March 17, 1994; is not a ‘‘significant regulatory action’’ (9) Airbus Service Bulletin A300–54–045, under Executive Order 12866; (2) is not Inspection and Modification Revision 4, dated January 31, 1990; or a ‘‘significant rule’’ under the DOT (a) Accomplish the inspections and Revision 6, dated February 25, 1994; Regulatory Policies and Procedures (44 modifications contained in the Airbus service (10) Airbus Service Bulletin A300–54–060, FR 11034, February 26, 1979); and (3) if bulletins listed below prior to or at the Revision 2, dated September 7, 1988, and promulgated, will not have a significant thresholds identified in each of those service Change Notice 2.A., dated February 13, 1990; economic impact, positive or negative, bulletins, or within 1,000 landings or 12 or Revision 3, dated February 25, 1994; months after April 13, 1992 (the effective (11) Airbus Service Bulletin A300–54–063, on a substantial number of small entities date of AD 92–02–09, amendment 39–8145), Revision 1, dated April 22, 1987, and Change under the criteria of the Regulatory whichever occurs later, except as provided in Notice 1.A., dated February 13, 1990; or Flexibility Act. A copy of the draft paragraph (d) of this AD for the service Revision 2, dated February 25, 1994; and regulatory evaluation prepared for this bulletin identified in paragraph (a)(8) of this (12) Airbus Service Bulletin A300–54–066, action is contained in the Rules Docket. AD. Required inspections shall be repeated Revision 1, dated February 15, 1989, and
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Change Notice 1.A., dated February 13, 1990; (d) For Configuration 1 and 2 airplanes contact Airbus for appropriate action: Prior to or Revision 2, dated February 25, 1994. identified in Airbus Service Bulletin A300– further flight, repair in accordance with a (b) Accomplish the inspections and 53–0278, Revision 2, dated November 10, method approved by the Manager, modifications contained in the Airbus service 1995: Accomplish the inspections contained International Branch, ANM–116, FAA, bulletins listed below prior to or at the in Airbus Service Bulletin A300–53–0278, Transport Airplane Directorate; or the DGAC thresholds identified in each of those service Revision 2, dated November 10, 1995; at the (or its delegated agent). For a repair method bulletins, or within 1,000 landings or 12 time specified in paragraph (d)(1) or (d)(2) of to be approved by the Manager, International months after March 29, 1996 (the effective this AD, as applicable. Repeat the inspections Branch, ANM–116, as required by this date of AD 96–08–08, amendment 39–9574), thereafter at intervals not to exceed 3,600 paragraph, the Manager’s approval letter whichever occurs later. Required inspections flight cycles. Accomplishment of the must specifically reference this AD. shall be repeated thereafter at intervals not to inspections required by this paragraph exceed those specified in the corresponding constitutes terminating action for the Alternative Methods of Compliance service bulletin for the inspection. inspections required by paragraph (a)(8) of (h) An alternative method of compliance or (1) Airbus Service Bulletin A300–57–0194, this AD. adjustment of the compliance time that Revision 2, including Appendix 1, dated (1) For airplanes that have not been provides an acceptable level of safety may be August 19, 1993; inspected in accordance with paragraph (a) used if approved by the Manager, Note 5: Airbus Service Bulletin A300–57– and (a)(8) of this AD prior to the effective International Branch, ANM–116, FAA, 0194 provides for a compliance threshold of date of this AD: Inspect at the time specified Transport Airplane Directorate. Operators prior to the accumulation of 36,000 landings in paragraph (d)(1)(i) or (d)(1)(ii) of this AD, shall submit their requests through an for Model A300 B2 series airplanes on which as applicable. appropriate FAA Principal Maintenance the modification described in Airbus Service (i) For Configuration 1 airplanes: Prior to Inspector, who may add comments and then Bulletin A300–57–165 has not been the accumulation of 18,300 total landings, or send it to the Manager, International Branch, accomplished and for Model A300 B2 series within 1,000 landings or 12 months after the ANM–116. airplanes on which that modification has effective date of this AD, whichever occurs Note 8: Information concerning the been accomplished prior to the accumulation later. existence of approved alternative methods of of 24,000 landings on the airplane. Airbus (ii) For Configuration 2 airplanes: At the compliance with this AD, if any, may be Service Bulletin A300–57–0194 also provides earlier of the times specified in paragraphs obtained from the International Branch, for a compliance threshold of prior to the (d)(1)(ii)(A) or (d)(1)(ii)(B) of this AD. ANM–116. accumulation of 12,000 landings after the (A) At the time specified in paragraphs (a) accomplishment of Airbus Service Bulletin and (a)(8) of this AD. Special Flight Permits A300–57–165 (for Model A300 B2 series (B) Prior to the accumulation of 22,000 (i) Special flight permits may be issued in airplanes on which the modification total landings, or within 1,000 landings or 12 accordance with sections 21.197 and 21.199 described in Airbus Service Bulletin A300– months after the effective date of this AD, of the Federal Aviation Regulations (14 CFR 57–165 has been accomplished on or after the whichever occurs later. 21.197 and 21.199) to operate the airplane to accumulation of 24,000 landings on the (2) For airplanes that have been inspected a location where the requirements of this AD airplane). in accordance with paragraph (a) and (a)(8) can be accomplished. of this AD prior to the effective date of this (2) Airbus Service Bulletin A300–57–166, Note 9: The subject of this AD is addressed Revision 3, including Appendix 1, dated July AD: Perform the next inspection within 3,600 landings after accomplishing the last in French airworthiness directive 90–222– 12, 1993; 116(B)R4, dated March 27, 1996. (3) Airbus Service Bulletin A300–57–0167, inspection, or within 1,000 landings or 12 Issued in Renton, Washington, on Revision 1, including Appendix 1, dated May months after the effective date of this AD, December 15, 1999. 25, 1993; whichever occurs later. (4) Airbus Service Bulletin A300–57–0168, (e) For Configuration 3 airplanes identified D.L. Riggin, Revision 3, including Appendix 1, dated in Airbus Service Bulletin A300–53–0278, Acting Manager, Transport Airplane November 22, 1993; Revision 2, dated November 10, 1995: Directorate, Aircraft Certification Service. (5) Airbus Service Bulletin A300–57–0180, Accomplish the inspections contained in [FR Doc. 99–32983 Filed 12–20–99; 8:45 am] Revision 1, dated March 29, 1993; Airbus Service Bulletin A300–53–0278, BILLING CODE 4910±13±U (6) Airbus Service Bulletin A300–57–0185, Revision 2, dated November 10, 1995, prior Revision 1, including Appendix 1, dated to the accumulation of 26,000 total flight March 8, 1993; and cycles; or within 1,000 landings or 12 months DEPARTMENT OF TRANSPORTATION Note: 6: The Airbus service bulletins after the effective date of this AD, whichever occurs later. Repeat the inspections thereafter specified in paragraphs (b)(2), (b)(3), (b)(4), Federal Aviation Administration (b)(5), and (b)(6) of this AD provide for a at intervals not to exceed 5,000 flight cycles. Note 7: Accomplishment of the inspections compliance threshold of prior to the 14 CFR Part 39 accumulation of 36,000 landings (for Model specified in Airbus Service Bulletin A300– A300 B2 series airplanes); 30,000 landings 53–0278, Revision 2, dated November 10, [Docket No. 99±NM±30±AD] (for Model A300 B4–100 series airplanes); 1995, is considered acceptable for and 25,000 landings (for Model A300 B4–200 compliance with the significant structural RIN 2120±AA64 series airplanes) after the effective date of details (SSD) inspection 536206 of ‘‘Airbus French airworthiness directive 93–154– Industrie A300 Supplemental Structural Airworthiness Directives; Boeing 149(B), issued on September 15, 1993. Inspection Document’’ (SSID), Revision 2, Model 747±200, ±300, and ±400 Series (7) Airbus Service Bulletin A300–54–0084, dated June 1994, required by AD 96–13–11, Airplanes dated April 21, 1994. amendment 39–9679 (61 FR 35122, July 5, (c) For Configuration 2 airplanes identified 1996). AGENCY: Federal Aviation in Airbus Service Bulletin A300–53–0162, Administration, DOT. Corrective Action Revision 6, dated March 20, 1996: ACTION: Notice of proposed rulemaking Accomplish the inspections contained in (f) If any discrepant condition identified in (NPRM). Airbus Service Bulletin A300–53–0162, any service bulletin referenced in this AD is Revision 6, dated March 20, 1996, prior to or found during any inspection required by this SUMMARY: This document proposes the at the thresholds identified in the service AD, prior to further flight, accomplish the supersedure of an existing airworthiness corresponding corrective action specified in bulletin; or within 1,000 landings or 12 directive (AD), applicable to certain months after the effective date of this AD, the service bulletin, except as specified in whichever occurs later. Required inspections paragraph (g) of this AD. Boeing Model 747–200, –300, –400 shall be repeated thereafter at intervals not to (g) If any crack is found during any series airplanes, that currently requires exceed those specified in the service bulletin inspection required by this AD; and the repetitive high frequency eddy current for the inspection. applicable service bulletin specifies to (HFEC) inspections to detect cracking of
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71337 the front spar web of the center section the proposed rule. All comments spar web and then the limiting access of the wing, and repair, if necessary. submitted will be available, both before holes of the front spar; this would result This action would require that the and after the closing date for comments, in a loss of pressurization, but not existing inspection be accomplished at in the Rules Docket for examination by sudden decompression. This would also a reduced threshold. This action also interested persons. A report not result in damage to unpressurized would add a requirement that the summarizing each FAA-public contact areas. Therefore, no unsafe condition existing HFEC inspection be concerned with the substance of this exists on Model 747SR series airplanes. accomplished on repaired areas. This proposal will be filed in the Rules Explanation of Relevant Service proposal is prompted by reports of Docket. Information cracking in repaired areas of the front Commenters wishing the FAA to spar web and cracking of the front spar acknowledge receipt of their comments Subsequent to the finding of this new web on an airplane that had submitted in response to this notice cracking, the manufacturer issued and accumulated fewer flight cycles than the must submit a self-addressed, stamped the FAA reviewed and approved Boeing inspection threshold of the existing AD. postcard on which the following Service Bulletin 747–57A2298, Revision The actions specified by the proposed statement is made: ‘‘Comments to 2, dated October 2, 1997, and Boeing AD are intended to prevent the leakage Docket Number 99–NM–30–AD.’’ The Alert Service Bulletin 747–57A2298, of fuel into the forward cargo bay, as a postcard will be date stamped and Revision 3, dated January 7, 1999. result of fatigue cracking in the front returned to the commenter. The method of inspection in Revision 2 of the service bulletin is identical to spar web, which could result in a Availability of NPRMs potential fire hazard. that described in Revision 1 of the Any person may obtain a copy of this DATES: Comments must be received by service bulletin (which was referenced February 4, 2000. NPRM by submitting a request to the in AD 97–05–01 as the appropriate FAA, Transport Airplane Directorate, source of service information). However, ADDRESSES: Submit comments in ANM–114, Attention: Rules Docket No. Revision 2 revises the inspection triplicate to the Federal Aviation 99–NM–30–AD, 1601 Lind Avenue, procedures to include instructions for Administration (FAA), Transport SW., Renton, Washington 98055–4056. repetitive HFEC inspections of the aft Airplane Directorate, ANM–114, side of the front spar web to detect Attention: Rules Docket No. 99–NM– Discussion cracking. These instructions were added 30–AD, 1601 Lind Avenue, SW., On February 19, 1997, the FAA issued to allow inspection when a prior repair Renton, Washington 98055–4056. AD 97–05–01, amendment 39–9945 (62 precludes access to the forward side of Comments may be inspected at this FR 8613, February 26, 1997), applicable the front spar web. location between 9 a.m. and 3 p.m., to certain Boeing Model 747–200, –300, The inspection procedures in Monday through Friday, except Federal and –400 series airplanes, to require Revision 3 of the service bulletin are holidays. repetitive high frequency eddy current identical to those described in Revision The service information referenced in (HFEC) inspections to detect cracking of 2 of the service bulletin. Revision 3 the proposed rule may be obtained from the front spar web of the center section reduces the inspection threshold and Boeing Commercial Airplane Group, of the wing, and repair, if necessary. revises the listing of current operators of P.O. Box 3707, Seattle, Washington That action was prompted by reports of affected airplanes. 98124–2207. This information may be fatigue cracking found in the front spar Accomplishment of the actions examined at the FAA, Transport web. The requirements of that AD are specified in the service bulletins is Airplane Directorate, 1601 Lind intended to prevent the leakage of fuel intended to adequately address the Avenue, SW., Renton, Washington. into the forward cargo bay, as a result identified unsafe condition. FOR FURTHER INFORMATION CONTACT: of fatigue cracking in the front spar web, Tamara Anderson, Aerospace Engineer, which could result in a potential fire Explanation of Requirements of Airframe Branch, ANM–120S, FAA, hazard. Proposed Rule Seattle Aircraft Certification Office, Since an unsafe condition has been 1601 Lind Avenue, SW., Renton, Actions Since Issuance of Previous Rule identified that is likely to exist or Washington; telephone (425) 227–2771; Since the issuance of AD 97–05–01, develop on other products of this same fax (425) 227–1181. the FAA has received reports of type design, the proposed AD would SUPPLEMENTARY INFORMATION: cracking in repaired areas of the front supersede AD 97–05–01 to continue to spar web on Model 747SR series require accomplishment of the Comments Invited airplanes. Also, the FAA has received a requirements of the existing AD and to Interested persons are invited to report for the first time of cracking in require accomplishment of the actions participate in the making of the the front spar web on a Model 747–200 specified in the service bulletins proposed rule by submitting such series airplane. The Model 747–200 described previously, except as written data, views, or arguments as series airplane had accumulated 13,309 discussed below. they may desire. Communications shall total flight cycles, which is less than the identify the Rules Docket number and 18,000 total landing compliance time Differences Between Proposed Rule and be submitted in triplicate to the address specified in AD 97–05–01 for certain the Service Bulletins specified above. All communications airplanes. Operators should note that, although received on or before the closing date The front spar web on Model 747SR the alert service bulletin specifies that for comments, specified above, will be series airplanes is identical to that on the manufacturer may be contacted for considered before taking action on the the affected Model 747–200 series disposition of certain repair conditions, proposed rule. The proposals contained airplanes, except there is no fuel located this proposed AD would require the in this notice may be changed in light behind the front spar web on Model repair of those conditions to be of the comments received. 747SR series airplanes. In addition, if accomplished in accordance with a Comments are specifically invited on the subject fatigue cracking were to method approved by the FAA, or in the overall regulatory, economic, occur on these airplanes, the cabin accordance with data meeting the type environmental, and energy aspects of pressure would vent through the front certification basis of the airplane
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71338 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules approved by a Boeing Company 39 of the Federal Aviation Regulations later; after accomplishing the initial Designated Engineering Representative (14 CFR part 39) as follows: inspection, and thereafter at intervals not to who has been authorized by the FAA to exceed 1,400 landings. make such findings. PART 39ÐAIRWORTHINESS (2) For all other airplanes: Perform the DIRECTIVES initial inspection prior to the accumulation Cost Impact of 18,000 total landings or within 12 months 1. The authority citation for part 39 after April 2, 1997, whichever occurs later. There are approximately 485 continues to read as follows: Repeat this inspection thereafter at intervals airplanes of the affected design in the not to exceed 1,400 landings. worldwide fleet. The FAA estimates that Authority: 49 U.S.C. 106(g), 40113, 44701. New Requirements of This AD 105 airplanes of U.S. registry would be § 39.13 [Amended] affected by this proposed AD. Repetitive Inspections The inspections that are currently 2. Section 39.13 is amended by removing amendment 39–9945 (62 FR (b) Prior to accumulation of 12,000 total required by AD 97–05–01 and retained landings, or within 12 months after the in this AD, take approximately 8 work 8613, February 26, 1997), and by adding effective date of this AD, whichever occurs hours per airplane to accomplish, at an a new airworthiness directive (AD), to later, perform an HFEC inspection to detect average labor rate of $60 per work hour. read as follows: cracking of the front spar web of the center Based on these figures, the cost impact BOEING: Docket 99–NM–30–AD. section of the wing, in accordance with of the currently required actions on U.S. Boeing Service Bulletin 747–57A2298, Supersedes AD 97–05–01, amendment Revision 2, dated October 2, 1997; or Boeing operators is estimated to be $50,400, or 39–9945. Alert Service Bulletin 747–57A2298, $480 per airplane, per inspection cycle. Applicability: Model 747–200, –300, –400 Revision 3, dated January 7, 1999. Repeat the The cost impact figures discussed series airplanes, up to and including line HFEC inspection thereafter at intervals not to above are based on assumptions that no number 744, certificated in any category. exceed 1,400 landings. Accomplishment of operator has yet accomplished any of Note 1: This AD applies to each airplane the HFEC inspection constitutes terminating the current or proposed requirements of identified in the preceding applicability action for the repetitive inspection this AD action, and that no operator provision, regardless of whether it has been requirements of paragraph (a) of this AD. would accomplish those actions in the modified, altered, or repaired in the area subject to the requirements of this AD. For Repair future if this AD were not adopted. airplanes that have been modified, altered, or (c) If any cracking is detected during any Regulatory Impact repaired so that the performance of the inspection required by paragraph (a) or (b) of requirements of this AD is affected, the this AD, prior to further flight, confirm the The regulations proposed herein owner/operator must request approval for an cracking with secondary procedures in would not have substantial direct effects alternative method of compliance in accordance with Boeing Service Bulletin on the States, on the relationship accordance with paragraph (d) of this AD. 747–57A2298, Revision 2, dated October 2, between the national government and The request should include an assessment of 1997, or Boeing Alert Service Bulletin 747– the States, or on the distribution of the effect of the modification, alteration, or 57A2298, Revision 3, dated January 7, 1999. power and responsibilities among the repair on the unsafe condition addressed by Thereafter repeat the HFEC inspection this AD; and, if the unsafe condition has not required by paragraph (a) or (b) of this AD various levels of government. Therefore, at intervals not to exceed 1,400 landings. in accordance with Executive Order been eliminated, the request should include specific proposed actions to address it. (1) If any vertical crack is found that is less 12612, it is determined that this Compliance: Required as indicated, unless than 10 inches in length and has not proposal would not have sufficient extended in a diagonal direction, prior to accomplished previously. further flight, repair in accordance with the federalism implications to warrant the To prevent the leakage of fuel into the service bulletin. preparation of a Federalism Assessment. forward cargo bay, as a result of fatigue (2) If any vertical crack is found that is 10 For the reasons discussed above, I cracking in the front spar web, which could inches or greater in length; or if any crack is certify that this proposed regulation (1) result in a potential fire hazard, accomplish found that has extended in a diagonal is not a ‘‘significant regulatory action’’ the following: direction (regardless of the length); or if any under Executive Order 12866; (2) is not Restatement of Requirement of AD 97–05–01, crack is found that would affect an existing a ‘‘significant rule’’ under the DOT Amendment 39–9945 repair, prior to further flight, repair in Regulatory Policies and Procedures (44 accordance with a method approved by the FR 11034, February 26, 1979); and (3) if Repetitive Inspections Manager, Seattle Aircraft Certification Office promulgated, will not have a significant (a) Perform a high frequency eddy current (ACO), FAA, Transport Airplane Directorate; economic impact, positive or negative, (HFEC) inspection to detect cracking of the or in accordance with data meeting the type on a substantial number of small entities front spar web of the center section of the certification basis of the airplane approved under the criteria of the Regulatory wing, in accordance with Boeing Alert by a Boeing Designated Engineering Service Bulletin 747–57A2298, Revision 1, Representative who has been authorized by Flexibility Act. A copy of the draft dated September 12, 1996; Boeing Service the FAA to make such findings. For a repair regulatory evaluation prepared for this Bulletin 747–57A2298, Revision 2, dated method to be approved by the Manager, action is contained in the Rules Docket. October 2, 1997; or Boeing Alert Service Seattle ACO, or a Boeing DER, as required by A copy of it may be obtained by Bulletin 747–57A2298, Revision 3, dated this paragraph, the approval letter must contacting the Rules Docket at the January 7, 1999; at the time specified in specifically reference this AD. location provided under the caption paragraph (a)(1) or (a)(2) of this AD, as Alternative Methods of Compliance ADDRESSES. applicable, until accomplishment of the requirements of paragraph (b) of this AD. (d) An alternative method of compliance or List of Subjects in 14 CFR Part 39 (1) For airplanes that have accumulated adjustment of the compliance time that 12,000 to 17,999 total landings as of April 2, provides an acceptable level of safety may be Air transportation, Aircraft, Aviation used if approved by the Manager, Seattle safety, Safety. 1997 (the effective date of AD 97–05–01, amendment 39–9945): Perform the initial ACO. Operators shall submit their requests The Proposed Amendment inspection within 12 months after April 2, through an appropriate FAA Principal 1997, unless previously accomplished within Maintenance Inspector, who may add Accordingly, pursuant to the the last 12 months prior to April 2, 1997. comments and then send it to the Manager, authority delegated to me by the Perform this inspection again prior to the Seattle ACO. Administrator, the Federal Aviation accumulation of 18,000 total landings or Note 2: Information concerning the Administration proposes to amend part within 1,400 landings, whichever occurs existence of approved alternative methods of
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71339 compliance with this AD, if any, may be or damage to or loss of real or personal As required by the Unfunded obtained from the Seattle ACO. property resulting from the conduct of Mandates Reform Act, NASA certifies Special Flight Permits NASA’s functions. Meritorious claims that this regulation will not compel the are those claims that NASA decides, as (e) Special flight permits may be issued in expenditure in any 1 year of $100 accordance with sections 21.197 and 21.199 a matter of equity or fairness, to pay, but million or more by State, local, and of the Federal Aviation Regulations (14 CFR for which the United States could not be tribal governments in the aggregate, or 21.197 and 21.199) to operate the airplane to held legally liable to the claimant. 42 by the private sector. Therefore, the a location where the requirements of this AD U.S.C. 2473(c)(13) authorizes NASA to detailed statement under section 202 of can be accomplished. consider and pay such meritorious the Unfunded Mandates Reform Act of Issued in Renton, Washington, on claims in amounts of $25,000 or less 1995 is not required. December 15, 1999. and to consider for payment such List of Subjects D.L. Riggin, meritorious claims exceeding $25,000. Acting Manager, Transport Airplane In turn, 31 U.S.C. 3104 requires the 14 CFR Part 1261 Secretary of the Treasury to certify Directorate, Aircraft Certification Service. Accidents, Administrative practice payment of any claim exceeding [FR Doc. 99–32982 Filed 12–20–99; 8:45 am] and procedure, Claims, Tort claims. BILLING CODE 4910±13±U $25,000 which NASA considers meritorious. 14 CFR Part 1267 NASA regulations at 14 CFR subpart 1261.3 presently govern the processing Accidents, Administrative practice NATIONAL AERONAUTICS AND of meritorious claims. Subpart 1261.3 and procedure, Claims, Federal SPACE ADMINISTRATION discusses tort and meritorious claims Acquisition Regulations, Government contracts, Government procurement, [NOTICE (99±159)] without drawing any significant distinctions between the two types of Space transportation and exploration, 14 CFR Parts 1261 and 1267 claims. Moreover, subpart 1261.3 does Tort claims. For the reasons set forth in the RIN 2700±AC35 not discuss the relationship between NASA and the Secretary of the Treasury preamble, NASA proposes to amend 14 CFR parts 1261 and 1267 as follows: Meritorious Claims Which Result From in processing meritorious claims settled the Conduct of NASA Functions by NASA. Addressing meritorious PART 1261ÐPROCESSING OF claims separately from tort claims helps MONETARY CLAIMS (GENERAL) AGENCY: National Aeronautics and to clarify the bases NASA deems Space Administration. acceptable for considering meritorious Subpart 1261.3ÐClaims Against NASA ACTION: claims. Notice of proposed rulemaking. or Its Employees for Damage to or The proposed rule creates a new part SUMMARY: The National Aeronautics and 1267 of 14 CFR governing NASA’s Loss of Property or Personal Injury or Space Administration (NASA) proposes processing of meritorious claims. The DeathÐAccruing on or After January to amend its rules regarding the new part 1267 establishes specific 18, 1967 submission and processing of procedures for considering meritorious 1. The authority citation for subpart meritorious claims under section 203 of claims arising from NASA space launch 1261.3 is revised to read as follows: the National Aeronautics and Space Act activities. of 1958, as amended. NASA regulations The proposed rule applies only to Authority: 28 U.S.C. 2671–2680; and 28 currently discuss the submission and meritorious claims brought by third CFR part 14. processing of meritorious, as well as parties. The proposed rule does not 2. Remove § 1261.301 paragraphs (b) tort, claims by NASA. This proposal apply to claims arising from NASA and (c) and redesignate paragraph (d) as provides separate coverage for space launches for which the United (b). meritorious claims in a new part. The States provides its space launch 3. Remove § 1261.307 paragraph (b) proposal reflects the statutes and contractor indemnification against third and redesignate paragraph (c) as (b). requirements governing these two types party claims under other statutory 4. Amend § 1261.308 by: of claims, differences in their processing authority. Moreover, the proposed rule, A. Amending paragraph (c) by and settlement by NASA, and read in conjunction with proposed removing the phrase ‘‘pursuant either to differences in their payment. implementing coverage in the NASA the Federal Tort Claims Act, or 42 DATES: Comments must be received on supplement to the Federal Acquisition U.S.C. 2473(c)(13)’’; and or before February 22, 2000. Regulation, addresses certain insurance B. Removing paragraph (d). requirements levied on space launch ADDRESSES: Send comments to 5. Amend § 1261.312 paragraph (a) by Associate General Counsel (Contracts), contractors for the payment of third removing the phrase ‘‘a Voucher for Code GK, National Aeronautics and party claims which might otherwise be Payment of Tort Claims (NASA Form Space Administration, 300 E Street, filed as meritorious claims. Finally, the 616) if the claim has been acted upon SW., Washington, DC 20546–0001. new part 1267 discusses administrative pursuant to 42 U.S.C. 2473(c)(13), or’’. Submit electronic comments and other matters, such as filing and documenting 6. Add part 1267 to read as follows: data to [email protected]. NASA will meritorious claims, time limitations, processing by NASA officials, and final PART 1267ÐMERITORIOUS CLAIMS consider late comments to the extent WHICH RESULT FROM THE CONDUCT practicable. approval by the NASA General Counsel. As required by the Regulatory OF NASA FUNCTIONS FOR FURTHER INFORMATION CONTACT: Flexibility Act, NASA certifies that this Bernard J. Roan, (202) 358–2072 (voice), Sec. proposed rule will not have a significant 1267.100 Scope of the part. (202) 358–4355 (fax), and economic impact on small business [email protected] (e-mail). 1267.101 Authorities. entities. 1267.102 Applicability. SUPPLEMENTARY INFORMATION: 42 U.S.C. These regulations do not require 1267.103 Definitions. 2473(c)(13) governs meritorious claims additional reporting under the criteria of 1267.104 Claims. against NASA for bodily injury, death, the Paperwork Reduction Act of 1980. 1267.105 Presentation of claims.
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1267.106 Filing and processing third party resulting from the launch under the 31 U.S.C. 1304 and implementing claims involving launch service authority of 42 U.S.C. 2473(c)(13) and regulations; provided, the claim exceeds contractors. the procedures prescribed in this part. $25,000 and the launch service 1267.107 Evidence and information (b) This part does not apply to contractor has exhausted any insurance required from third party claimants. launches for which the NASA 1267.108 Time limitations for third party coverage required by the contract. Administrator has provided claims. § 1267.105 Presentation of claims. 1267.109 NASA action on a launch service indemnification pursuant to Public Law claim. 85–804, or to launches for which the (a) For damage to or loss of real or 1267.110 Confidentiality. Department of Transportation has personal property, the owner of the Authority: 42 U.S.C. 2473(c)(13); 31 U.S.C. issued or transferred a license under the property or his or her duly authorized 1304. Commercial Space Launch Act, 49 agent or legal representative may U.S.C., Chapter 701. present a claim. § 1267.100 Scope of the part. (b) For bodily injury, the injured This part sets forth the procedures for § 1267.103 Definitions. person or his or her duly authorized submitting and processing claims (a) Meritorious claims are those agent or legal representative may against the United States for bodily claims that NASA decides to pay as a present a claim. injury, death, or damage to or loss of matter of equity or fairness, but for (c) For wrongful death, the executor real or personal property resulting from which the United States could not be or administrator of the decedent’s estate the conduct of certain space launch held legally liable to the claimant. or any other person legally entitled to functions by NASA through launch (b) Third party claimant means any assert such a claim in accordance with service contractors. This part further person or entity, other than NASA, the applicable state law may present a designates the NASA officials launch service contractor, or the launch claim. authorized to act upon these claims. service contractor’s subcontractors, at (d) For any loss wholly compensated any tier, involved in the performance of by insurance, an insurer with the rights § 1267.101 Authorities. launch services pursuant to a contract of a subrogee may present a claim. For 42 U.S.C. 2473(c)(13)(A), sec. with NASA. For purposes of this part, any loss partially compensated by 203(c)(13)(A) of the National employees of the Government, insurance, multiple parties with the Aeronautics and Space Act of 1958, as employees of the launch service rights of subrogees may present claims amended, authorizes NASA to consider, contractor, and employees of the launch individually as their respective interests ascertain, adjust, determine, settle, and service contractor’s subcontractors come appear, or jointly. An insurer that pay, on behalf of the United States, any within the definition of third party provides insurance required by the claim made against the United States for claimant. NASA launch service contract may not $25,000 or less for bodily injury, death, present a subrogation claim based on § 1267.104 Claims. or damage to or loss of real or personal that insurance. property resulting from the conduct of (a) For purposes of this part, a (e) If an agent or legal representative NASA’s functions as specified in 42 meritorious claim arises as a demand by presents a claim, it must be presented in U.S.C. 2473(a). NASA may settle and a third party claimant against a NASA the name of the claimant. The agent or pay a claim under this authority even launch service contractor for money legal representative must sign the claim, though the United States could not be damages, in a sum certain, for bodily showing the title or legal capacity of the held legally liable to the claimant. injury, death, or damage to or loss of person signing, accompanied by (a) 42 U.S.C. 2473(c)(13)(B) authorizes real or personal property resulting from evidence of the legal authority of the NASA to consider a claim in excess of a launch conducted by NASA through agent or representative to present a $25,000 which, but for the dollar that launch service contractor. claim on behalf of the claimant. amount, would otherwise be covered by (b) NASA will consider a third party 42 U.S.C. 2473(c)(13)(A). claim, originally made against a launch § 1267.106 Filing and processing third (b) 31 U.S.C. 1304, as amended by service contractor, as a claim against the party claims involving launch service Public Law 104–316, appropriates United States for purposes of 42 U.S.C. contractors. amounts to pay settlements of 2473(c)(13) if the launch services were (a) To come under this part, a third meritorious claims, when certified by provided pursuant to a contract party claim arising out of a launch the Secretary of the Treasury and in containing the clause at NASA Federal conducted by NASA through a launch excess of the amount payable from Acquisition Regulation Supplement service contractor must first be filed Agency appropriations under 42 U.S.C. (NFS) 1852.228–XX. Once received and with the contractor providing the 2473. evaluated, NASA will consider a third launch service. If the identity of the party claim that is reasonable in amount cognizant launch service contractor is § 1267.102 Applicability. to be meritorious, unless the gross not apparent, a claimant should contact (a) One of NASA’s primary functions negligence or willful misconduct of the the nearest NASA Center for is launching Government and third party claimant, or any launch information. Government-sponsored payloads into service contractor or subcontractor, (b) The cognizant launch service space. In recognition of this fact, NASA caused or was an intervening cause in contractor must promptly process any has determined that launches conducted the bodily injury, death, or damage to or third party claim received in accordance by NASA through launch service loss of real or personal property for with the terms of the contract and this contractors constitute, for purposes of which damages are sought. part. As an initial matter, the launch considering claims under 42 U.S.C. (c) NASA will forward any service contractor must verify that any 2473(c)(13), the conduct of a NASA meritorious claim that is reasonable in third party claim for bodily injury, function. Accordingly, NASA will amount and arose out of the conduct of death, or damage to or loss of real or include in its contracts for launch NASA’s space launch function to the personal property resulted from a services a clause designating the launch Secretary of the Treasury for launch conducted by NASA through the as being the conduct of a NASA certification for payment from the launch service contractor. If the claim function and agreeing to consider claims permanent Judgment Fund pursuant to resulted from a launch by NASA
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(d) The NASA General Counsel must been exhausted, the claim must be given the occurrence of the accident or fully evaluate and consider any launch to the NASA contracting officer. The incident out of which the claim arose. service claim forwarded in accordance contracting officer must consider any If the launch service contractor receives with paragraph (c) of this section. If the remaining liability as a claim against the a third party claim within this time General Counsel deems the claim to be United States in accordance with this period, but after the launch service reasonable, the General Counsel will subpart, the terms of the launch service contract has expired, or if the claim is refer the launch service claim to the contract, the Federal Acquisition still pending when the contract expires, the contracting officer will reserve the Secretary of the Treasury for Regulation (FAR), and the NASA FAR certification and payment from the Supplement (NFS). As such, the matter for resolution during final contract closeout. permanent indefinite judgment fund contracting officer must examine the pursuant to 31 U.S.C. 1304. remaining liability to determine (b) A third party claimant has whether the amount claimed is properly filed a claim for purposes of § 1267.110 Confidentiality. reasonable. For amounts determined to paragraph (a) of this section, when the Under the process prescribed in this be unreasonable, the contracting officer cognizant launch service contractor subpart, NASA officials may gain access must refer the claim back to the launch receives from the claimant, or the to contractor documents and other service contractor to conduct further claimant’s duly authorized agent or materials that are privileged, business discussions. Ultimately, the contract’s legal representative, a written sensitive, or confidential. In accordance disputes clause prescribes procedures notification and description of the with 18 U.S.C. 1905, NASA officials for resolving disagreements, if incident or accident giving rise to the may not disclose these materials in any necessary. For amounts determined to claim, accompanied by substantiation of manner or to any extent not authorized be reasonable, the contracting officer the amount claimed. by law and must take appropriate steps must process the claim in accordance to prevent unauthorized disclosures. with § 1267.109. § 1267.109 NASA action on a launch service claim. Daniel S. Goldin, § 1267.107 Evidence and information (a) The contracting officer must Administrator. required from third party claimants. investigate any launch service claim [FR Doc. 99–32591 Filed 12–20–99; 8:45 am] (a) A third party claimant should, submitted by the launch service BILLING CODE 7510±01±P insofar as possible, provide competent contractor. As necessary, the contracting evidence to the launch service officer may request any NASA office or contractor to substantiate the other Federal agency to assist in the SECURITIES AND EXCHANGE circumstances alleged to have given rise investigation. COMMISSION to the claim and the amount claimed. A (b) The contracting officer must third party claimant should obtain evaluate any launch service claim 17 CFR Part 250 supporting statements, repair bills, one submitted by a launch service contractor [Release No. 35±27110; International Series or more estimates for repair, and other to determine that it is meritorious and Release No. 1210; File No. S7±30±99] data, if possible. Documentation from reasonable in amount. As part of this disinterested parties should be obtained evaluation, the contracting officer must Registered Public-Utility Holding whenever possible. verify that the amount requested is over Companies and Internationalization (b) With regard to the amount and above any insurance required by the AGENCY: Securities and Exchange claimed, a third party claimant must contract and that the launch service Commission. contractor or its insurer has, in fact, notify the launch service contractor of, ACTION: Concept release; request for paid out an amount to the third party and provide information concerning, comments. any money or other property received as claimant equal to the amount of any damages or compensation, or which the required insurance coverage. SUMMARY: We are seeking comment on third party claimant may be entitled to (c) The NASA General Counsel is various issues surrounding the receive from other sources by reason of NASA’s final approving official for acquisition of United States utilities by the claimed bodily injury, death, or claims arising under 42 U.S.C. 2473, in foreign companies that will register as damage to or loss of real or personal an amount exceeding $25,000. To pay holding companies following the property. These other sources of money, this type of claim from the permanent transaction. damages, or compensation include, but indefinite judgment fund, however, 31 DATES: Comments must be submitted on are not limited to, other launch service U.S.C. 1304 requires certification by the or before February 4, 2000. contractors, insurers, employers, and Secretary of the Treasury. Accordingly, ADDRESSES: Please send three copies of persons whose conduct may have to facilitate the processing of claims the comment letter to Jonathan G. Katz, caused or contributed to the accident or under this part, the contracting officer Secretary, Securities and Exchange incident. must forward to the NASA General Commission, 450 Fifth Street, NW, (c) A third party claimant must Counsel the following documentation: Washington, DC 20549–0609. provide an English translation of any (1) A short and concise statement of Comments also may be submitted supporting document written in a the general facts surrounding the launch electronically at the following E-mail foreign language. service claim as a whole; address: [email protected]. All
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comment letters should refer to File No. registered under the Act and National political and economic changes S7–30–99; include this file number on Grid has announced its intention to do worldwide have created a large demand the subject line if E-mail is used. so. The acquisition of a U.S. utility or for American utility expertise and Anyone can read and copy the comment holding company by a foreign company significant investment opportunities for letters at our Public Reference Room, and the acquiror’s subsequent United States companies. Registered 450 Fifth Street, NW Washington, DC registration raise a number of public utility holding companies have 20549. Electronically submitted interpretative and policy issues under taken advantage of these opportunities. comment letters also will be posted on the Act. We will need to address these As of December 31, 1998, registered our Internet web site (http:// issues when such transactions are holding companies had invested $8.2 www.sec.gov). presented to us for any necessary billion in FUCOs and $892 million in FOR FURTHER INFORMATION CONTACT: approvals or when the foreign domestic and foreign EWGs. Based on Catherine A. Fisher, Assistant Director, companies register under the Act. We publicly reported information, we or Mark F. Vilardo, Senior Counsel, both are, therefore, seeking comment from believe that investments made by at 202/942–0545. the public relating to these issues. exempt holding companies and public SUPPLEMENTARY INFORMATION: Today we II. Background utilities not part of a registered or are requesting comment on issues exempt holding company system, are Congress amended the Holding significantly higher.4 At the same time, arising under the Act with respect to Company Act in 1992 in response to foreign acquisitions of U.S. utilities. foreign energy companies have made changes in the United States utility significant investments in the United Table of Contents industry. As discussed in greater detail States, primarily through acquisition of below, the Energy Policy Act created I. Executive Summary and Introduction electric wholesale generation units II. Background new categories of exempt entities and which, by virtue of the Energy Policy III. Acquisition of U.S. Utilities by Foreign thereby provided greater flexibility for Act, are exempt from the Act.5 In this Companies U.S. and foreign companies to acquire Release, we are requesting comment on A. The Legal Framework EWGs and for U.S. utilities to acquire 3 issues relating to the acquisition of U.S. B. Areas for Comment both EWGs and FUCOs. utility companies by foreign holding The utility business is rapidly 1. General Policies of the Act companies. 2. Section 11 evolving into a global industry, with 3. Other Standards for Reviewing participants seeking multinational III. Acquisition of U.S. Utilities by Acquisitions investment opportunities. Sweeping Foreign Companies 4. Substantive Regulation of Foreign In 1994, in recognition of the Holding Companies Megawatt Daily, Dec. 8, 1998, at 1. On December 5. Accounts and Records; Jurisdiction 14, 1998, National Grid, an electric transmission increasingly international nature of the 6. Other Issues utility, also based in the U.K., announced its energy business, we requested public proposed acquisition of New England Electric I. Executive Summary and Introduction comment on the concept of foreign System (‘‘NEES’’), an electric utility operating in the ownership of U.S. utilities.6 We asked, In 1992, Congress adopted the Energy northeast United States, for $3.2 billion in cash. See Laura Johannes, Electric Utility Set to Be Acquired Policy Act of 1992 [Pub. L. 102–486, 106 by National Grid, Wall St. J., Dec. 14, 1998, at A2. 4 As of December 31, 1998, holding companies Stat. 2776 (1992)] (‘‘Energy Policy Act’’). In June 1999, the Federal Energy Regulatory exempt under rule 2 of the Act had invested $12.3 The legislation amended the Public Commission (‘‘FERC’’) approved each of these billion in FUCOs and domestic and foreign EWGs. Utility Holding Company Act of 1935 transactions. See Howard Buskirk, FERC Approves In addition, domestic energy companies that are not Foreign Buys of U.S. Utilities, The Energy Daily, part of either a registered or exempt holding [15 U.S.C. 79(a) et seq.] (‘‘Holding Jun. 17, 1999, at 3. On November 30, 1999, company system have made major investments in Company Act’’ or ‘‘Act’’) to create two ScottishPower announced that it had completed its FUCOs and EWGs in recent years. For example, in new types of exempt entities, exempt acquisition of PacifiCorp. On December 1, 1999, 1995 and 1996, PacifiCorp, a public utility company wholesale generators (‘‘EWGs’’) and ScottishPower filed with this Commission its Form operating in the western United States, acquired an U5A, notification of registration as a holding Australian electric distribution company and an foreign utility companies (‘‘FUCOs’’). company under the Act. National Grid’s application interest in an Australian power plant and mine for The legislation was intended to concerning its acquisition of NEES is pending at the a total of $1.7 billion. According to a U.S. facilitate investments in foreign utilities Commission. See Holding Co. Act Release Nos. Department of Energy report, U.S. energy by U.S. companies. 27085 and 27086 (Oct. 8, 1999), 64 FR 56236 (Oct. companies have played ‘‘a major role * * * as 18, 1999) and 64 FR 56372 (Oct. 19, 1999) (notices investors in the reformed and privatized electricity Just as registered holding companies of the applications relating to the proposed sectors’’ in the United Kingdom, Australia and have pursued investment opportunities acquisition of NEES by National Grid and National Argentina. See Electricity Reform Abroad and U.S. abroad, foreign companies are Grid’s financing authorizations). ScottishPower Investment, Energy Information Administration, concluded that, under section 9(a) of the Act, it did September 1997, at v. increasingly seeking to enter the utility 5 1 not require our approval to acquire PacifiCorp. See In 1998, foreign utilities invested $31.3 billion business in the United States. Recently, infra note 29 for a discussion of the circumstances in the United States. See Power Legislation; Foreign two British companies engaged in the under which a utility acquisition requires our Companies Acquiring U.S. Utility Systems: utility or energy business, Scottish approval. Overcoming PUHCA, Power Economics, March 31, Power plc (‘‘ScottishPower’’) and The 3 The Energy Policy Act amended the Holding 1999, at p. 23. For example, National Power plc, the Company Act by, among other things, adding U.K.’s largest power generator, has invested over National Grid Group plc (‘‘National section 33, which addresses acquisition and $1.0 billion in U.S. generating facilities and had Grid’’), have announced (and, in the ownership of FUCOs. In section 33(c)(1), Congress announced plans to spend an additional $1.6 case of ScottishPower, completed) plans directed the Commission to adopt rules concerning billion on U.S. generation projects and acquisitions. to acquire U.S. utilities or public-utility FUCO acquisitions by registered holding See Overseas Investments; National Power Steps 2 companies. See 15 U.S.C. 79z–5b(c)(1). Under this Over the Pond, Power Economics, Nov. 30, 1998, at holding companies. ScottishPower has directive, the Commission proposed rules 55 and 56 5. In addition, British Energy Inc., a British utility, in 1993, but deferred action on those rules in order in partnership with PECO Energy Co., an inactive 1 See infra note 5. to consider the comments received on the rules. See registered holding company, have agreed to buy 2 On December 7, 1998, ScottishPower, an Holding Company Act Release No. 25757 (Mar. 8, three of four U.S. nuclear plants that have been put electric, gas and water utility based in the United 1993), 58 FR 13719 (Mar. 15, 1993) (proposing up for sale in the past year. See Christopher Kingdom, announced its proposed acquisition of release); Holding Company Act Release No. 25886 Palmieri and John Gorham, Give Me Your Nukes, PacifiCorp, a electric utility operating in the (Sept. 23, 1993), 58 FR 51488 (Oct. 1, 1993) Forbes, Sept. 6, 1999, at 124–25. See also infra note western United States, in a share exchange valued (adopting certain rules, deferring action on rules 55 37. at $12.8 billion, including assumed debt. See and 56). The Commission will consider reproposing 6 See Request for Comments on Modernization of ScottishPower Offers $7.8 Billion for PacifiCorp, rules 55 and 56 in the near future. the Regulation of Public-Utility Holding
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among other things, whether the therefore, to renew our request for however, at least in recent times, to Holding Company Act permits foreign comment on the issues related to foreign address the registration under the Act of ownership; what conditions should be ownership of U.S. utilities. a foreign holding company. placed on foreign ownership; whether It appears that Congress, in 1935, did A. The Legal Framework there was a national security interest in not intend or foresee ownership of a restricting foreign ownership of U.S. Federal law imposes various domestic utility by a holding company utilities; whether there are difficulties in restrictions on foreign ownership of domiciled outside the United States. obtaining information from foreign some significant industries. Some laws The Act places structural and companies that would support specifically restrict foreign ownership.13 geographic limitations upon public- limitations on foreign ownership; and Others provide for ownership subject to utility holding company systems. what types of safeguards or limitations certain conditions. The Federal Aviation Section 11 of the Act generally limits a on ownership might prevent or Act, for example, establishes percentage registered holding company to minimize such risks. limitations on board membership and ownership of a single ‘‘integrated Most commenters appeared to agree voting interests in determining whether public-utility system,’’ defined in terms that the Holding Company Act did not, an air carrier is considered a United of a group of naturally related operating 14 or should not, prohibit foreign States citizen. properties. Under section 2(a)(29) of the ownership of U.S. utilities.7 In contrast, the Holding Company Act Act, an integrated public-utility system Commenters suggested that foreign is silent concerning foreign ownership is ‘‘confined in its operations to a single ownership could bring some advantages of domestic utilities. Nowhere does the area or region, in one or more to domestic utilities—increased sources Act explicitly require that a holding 17 15 States * * *.’’ of capital (which could reduce the cost company be organized under U.S. law. For many years, it was generally of capital) and management experienced Indeed, we have noted that the Holding assumed that the integration provisions 8 Company Act ‘‘contains no prohibition in dealing with competitive markets. of the Act would generally preclude a against foreign holding companies as Commenters agreed that foreign holding U.S. registered holding company from such.’’ 16 We have not had occasion, companies would and should be subject owning both domestic and foreign to the same regulatory requirements as utility properties, especially if the U.S. companies.9 Local regulators were 13 See, e.g., 16 U.S.C. 797 (power production on land and water controlled by the U.S. government); foreign utility operations were located divided on whether foreign ownership 42 U.S.C. 2131–2134 (prohibition of foreign in a country not contiguous to the would impede their ability to obtain ownership or control of facilities that produce or United States.18 For virtually identical information relevant to ratemaking.10 use nuclear materials); 42 U.S.C. 6508 and 43 U.S.C. reasons, the integration provisions were 1701 et seq. (oil and gas leases within the National Since our initial request for comment, understood to bar a holding company there have been significant foreign Petroleum Reserve). 14 See 49 U.S.C. 1301(16) (air carrier considered with foreign utility operations from investments in domestic power U.S.citizen if president and two-thirds of board of acquiring a U.S. utility.19 11 projects. The prospect of foreign directors and other managing officers are U.S. In 1992, we determined that a U.S. citizens and at least 75% of voting interest is owned ownership of significant U.S. utilities is registered holding company could raised by ScottishPower’s acquisition of or controlled by U.S. citizens). 15 The key definitions in the Holding Company acquire foreign utility properties PacifiCorp and National Grid’s proposed Act (e.g., ‘‘electric utility company,’’ ‘‘gas utility notwithstanding the integration acquisition of NEES.12 ScottishPower company,’’ ‘‘public-utility holding company,’’ has registered under the Act, and ‘‘holding company,’’ ‘‘holding-company system’’) utility by a Canadian gas holding company and National Grid has announced its make no reference to a company’s domicile. See, e.g., sections 2(a)(3) [15 U.S.C. 79b(a)(3)], 2(a)(4) [15 granted the holding company an exemption from intention to do so. The acquisition of a U.S.C. 79b(a)(4)], 2(a)(5) [15 U.S.C. 79b(a)(5)], registration under section 3(a)(5) of the Act. Section U.S. utility or holding company by a 2(a)(7) [15 U.S.C. 79b(a)(7)] and 2(a)(9) [15 U.S.C. 3(a)(5) makes an exemption available to a holding foreign company and the acquiror’s 79b(a)(9)] of the Act. Section 5 [15 U.S.C. 79e] of company that ‘‘is not, and derives no material part the Act, which sets forth certain procedural of its income, directly or indirectly, from any one subsequent registration raise a number requirements for registration under the Act, does or more subsidiary companies which are, a of interpretative and policy issues under not refer to the domicile of the holding company. company or companies the principal business of the Act. We think it appropriate, Section 4(b) [15 U.S.C. 79d(b)] of the Act does which within the United States is that of a public- make reference to holding companies’ being utility company.’’ 17 The provisions of section 11(b)(1)(A)–(C) create Companies, Holding Co. Act Rel. No. 26153 (Nov. organized under state law. This section generally an exception to the requirement of a single 2, 1994), 59 FR 55573 (Nov. 8, 1994). requires that a holding company must register with the Commission if any of its securities that were integrated system. Clause B would permit a 7 Consolidated Natural Gas Company; NEES; publicly offered after January 1, 1925 are held ‘‘by registered holding company to own, in addition to Southern Company (‘‘Southern’’); Wisconsin persons not resident in the State in which such its primary U.S. integrated system, an additional Electric Power Company; City of New Orleans; holding company is organized.’’ (Section 2(a)(24) of system located in a contiguous foreign country. American Gas Association (‘‘AGA’’); National the Act defines the term ‘‘State’’ to mean ‘‘any State 18 See, e.g., Electric Bond and Share Co., 33 S.E.C. Power PLC/American National Power, Inc.; New of the United States or the District of Columbia.’’) 21 (1952) (‘‘the provisions of Section 11(b)(1) stand York State Bar; Yorkshire Electricity Group/ The legislative history suggests that section 4(b) was in almost every detail as an unyielding barrier’’ to National Grid Company (‘‘Yorkshire’’). Only two included to assure that the Act subjected to federal the simultaneous holding of large domestic utility commenters, the staff of the Michigan Public regulation those companies that might in some way operations and utility operations in Cuba, Mexico, Service Commission (‘‘MPSC’’) and Allegheny affect interstate commerce, rather than to require Central and South America, China and India). See Power System (‘‘APS’’), suggested that foreign that holding companies be organized under state also Report Relating to Intercorporate Relations ownership should be prohibited. Comments we law. See S. Rep. No. 621, 74th Cong., 1st Sess. 25: Between the General Public Utilities Corp. and the received in response to our initial request for [Section 4(b)] subjects to Federal jurisdiction Manila Electric Company, S. Rep. 2787, 84th Cong., comments may be found in File No. S7–32–94. those holding companies which, though they may 2d Sess. (July 25, 1956) (report of Senator 8 City of New Orleans; Southern; Yorkshire. not contemplate new acts in interstate commerce in Magnuson from the Committee on Interstate and 9 See, e.g., AGA; City of New Orleans. the immediate future, are nevertheless affected with Foreign Commerce to accompany H.R. 10621, a bill 10 The MPSC expressed concern that absentee a national public interest by reason of the fact that to exempt General Public Utilities Corp., a owners may not place sufficient emphasis on they have in the past set in motion through the registered holding company, from the provisions of service and the public interest, and that access to channels of interstate commerce forces which affect section 11(b)(1) of the Act, under which we had books and records may be compromised. On the investors throughout the country, which forces are ordered the holding company to divest its other hand, City of New Orleans stated that foreign still in operation in more than one State and cannot Philippine utility subsidiary). ownership would not impair access to relevant be effectively dealt with by any State. 19 See Gaz Met, supra note 16. In Gaz Met, we books and records. 16 Gaz Metropolitain, Inc., Holding Co. Act Rel. determined that the integration provisions did not 11 See supra notes 4 and 5. No. 26170 (Nov. 23, 1994) (‘‘Gaz Met’’). In Gaz Met bar the Canadian gas holding company from owning 12 See supra note 2. we approved the acquisition of a Vermont gas a Vermont gas utility.
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71344 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules provision.20 In that year also, as legislation was designed to enable U.S. • the effects of foreign ownership on discussed previously, Congress companies to respond to domestic and consumer protection. amended the Holding Company Act to overseas investment opportunities. In particular, a registered foreign permit the ownership of EWGs and Nothing in the legislative history holding company would likely own FUCOs—utility properties that would suggests that section 33 was intended to significant foreign utility operations. not, when combined with existing be a vehicle for foreign investment in The magnitude of these foreign utility utility properties, constitute an the United States. operations could be significantly greater integrated system. Moreover, although section 33(c)(1) than those currently owned by U.S. Sections 32 and 33 provide that EWGs does not expressly preclude foreign holding companies; they could be and FUCOs are not public-utility holding companies, we do not believe it significantly larger than the holding companies. Thus, the Act’s statutory should be interpreted to permit a foreign company’s U.S. utility system. Will this integration provisions, by their terms, holding company to acquire a U.S. expose U.S. ratepayers to greater risks? are not applicable to these entities. To utility if doing so would undercut the Should newly registered, foreign eliminate any doubt that ownership fundamental purpose of the Act—to holding companies’ interests in FUCOs does not implicate the Act’s integration protect consumers and investors.23 We and EWGs be ‘‘grandfathered,’’ with requirements, section 33(c)(3) provides recognize that foreign registered holding only post-registration FUCO and EWG that ownership of a FUCO is considered companies present novel and important investments counted toward the to be ‘‘consistent with the operation of issues. We therefore are soliciting aggregate investment test of rule a single integrated public utility system, comments generally on the registration 53(a)(1)? 25 U.S. holding companies, in within the meaning of section and regulation of foreign holding seeking authorization to issue securities 11 * * *.’’ 21 Section 32(h)(1) contains companies. These comments will to finance the acquisition of FUCOs, a similar provision for EWGs. inform our consideration of rule 55, our have represented that they will not seek Section 33 is neutral on its face with consideration of applications and recovery in rates for any losses, or respect to the ownership of a FUCO by requests for interpretative guidance inadequate returns, on their investments a foreign holding company.22 It is thus concerning foreign holding companies in FUCOs and EWGs. Will foreign possible to construe section 33(c)(1) to and our review, under section 11, of holding companies be in a position to allow a foreign holding company to registration statements filed by foreign make similar undertakings with respect qualify its foreign utility operations as a holding companies. The comments may to their FUCO operations? FUCO, and the foreign holding company also suggest an additional rulemaking to We also request comments on to acquire a U.S. utility without regard address these issues. whether structural safeguards can be to the integration of the foreign and developed to limit the risk that financial domestic operations. As explained B. Areas for Comment problems in the holding company’s above, the Act would otherwise 1. General Policies of the Act FUCOs will have an adverse effect on generally raise significant barriers to an The Holding Company Act was U.S. ratepayers and security holders of acquisition of U.S. utility properties by intended to address the practices by the holding company’s U.S. a foreign company with existing foreign which small groups of investors, by subsidiaries. For example, would utility properties. means of the holding company requiring the U.S. utility subsidiary In adopting the Energy Policy Act, structure, were able to exploit vast stock to be owned by an intermediate Congress did not address this possibility networks of utility companies, to the holding company based in the U.S. and and therefore may not have intended detriment of utility consumers and other organized under state law provide any this interpretation of section 33(c)(1). security holders. The specific problems additional protection to U.S. interests? The legislative history of the Energy identified by Congress included Would such intermediate holding Policy Act emphasizes that the inadequate disclosure, excessive companies be consistent with the Act’s leverage, abusive affiliate transactions, goal of simplifying the corporate 20 See Southern Co., Holding Co. Act Release No. evasion of state regulation, and the structure of holding companies? We are 25639 (Sept. 23, 1992) (authorizing registered particularly interested in the views of holding company to acquire Australian utility growth and extension of holding state regulators and consumers operations). We relied upon the second clause of companies without regard to the concerning the effects of foreign section 10(c)(2), which provides that section economy of management and operation 10(c)(2), requiring us to find that an acquisition ownership on state regulation and of system utility companies.24 ‘‘will serve the public interest by tending towards consumer protection. the economical and efficient development of an We request comment whether foreign integrated public-utility system,’’ does not apply to registered holding companies, by virtue 2. Section 11 an acquisition of a public-utility company operating of being foreign, are inconsistent with exclusively outside the United States. In 1992, also, Section 11 has been described by the we granted orders of exemption under section 3(b) the Holding Company Act’s policies. In Supreme Court as the ‘‘very heart’’ of from all provisions of the Act for two newly formed general, we request comment the Act.26 In addition to the general indirect Australia subsidiaries of SCEcorp, an concerning: requirement that a registered holding exempt holding company. See SCEcorp., Holding • the effects of foreign ownership on Co. Act Release No. 25564 (June 29, 1992). company own a single integrated effective Commission regulation; 21 Section 11 also provides that any nonutility public-utility system, section 11 limits • the effects of foreign ownership on business owned by a registered holding company be nonutility businesses to those that are ‘‘reasonably incidental, or economically necessary effective state regulation; or appropriate, to the operations of such integrated • the effects of foreign ownership on 25 public utility system * * *.’’ Section 33(c)(3) investor protection; and Rule 53 provides a partial ‘‘safe harbor’’ for provides that ownership of a FUCO satisfies this EWG financings by registered holding companies. standard. Among other things, in order to qualify for the safe 22 Section 33(a)(1) provides an exemption for a 23 See Crandon v. United States, 494 U.S. 152, 158 harbor the amount of a registered holding FUCO ‘‘notwithstanding that the [FUCO] may be a (1990) (‘‘In determining the meaning of [a federal] company’s aggregate investments in EWGs and subsidiary***of a holding company or of a statute, [the court] look[s] not only to the particular FUCOs cannot exceed 50% of the system’s public utility company.’’ The nationality of the statutory language, but to the design of the statute consolidated retained earnings. See rule 53(a)(1) [17 holding company is not a component of the as a whole and to its object and policy.’’) (citations CFR 250.53(a)(1)]. exemption. Similarly, section 32 allows ownership omitted). 26 SEC v. New England Elec. System, 384 U.S. of a domestic EWG without regard to the owner’s 24 Section 1(b) of the Holding Company Act [15 176, 180 (1966), citing North American Co. v. SEC, nationality. U.S.C. 79a(b)]. 327 U.S. 686, 704 n.14 (1946).
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‘‘reasonably incidental, or economically of the locality. For example, the acquisitions. Section 10(b) provides that necessary or appropriate’’ to system advantages of localized management can we shall approve an acquisition unless utility operations, on our finding that be realized where the authority and we affirmatively find that the the nonutility businesses are ‘‘necessary responsibility for local policy-making acquisition will have certain adverse or appropriate in the public interest or are properly delegated throughout the consequences.31 Section 10(c)(2) for the protection of investors or service territory of the holding provides that we shall not approve an consumers and not detrimental to the company. Would a foreign holding acquisition unless we affirmatively find proper functioning of such system or company be able to preserve the that the acquisition will ‘‘[tend] towards systems.’’ Section 11 further directs us advantages of local management? the economical and the efficient to require the simplification of the Section 11 not only addresses the development of an integrated public- corporate structure of registered systems integration of utility properties but also utility system.’’ Finally, section 10(f) and to ensure that voting power is fairly requires us to limit the nonutility requires us to be satisfied that there is and equitably distributed among businesses of a registered holding compliance with state law. security holders. company to those that are ‘‘reasonably We request comments concerning The policies underlying section 11 incidental, or economically necessary or whether the foreign nature of an must also enter into our consideration of appropriate to the operations of’’ the acquiror raises any particular issues the acquisition of a U.S. utility by a holding company system. We have concerning the application of section foreign company. Section 10(c)(1) interpreted this provision to reflect a 10. In addition to the issues relating to provides that we cannot approve an Congressional policy against nonutility section 10(c), we must consider the acquisition if it would be detrimental to acquisitions that bear no functional following issues: the carrying out of the provisions of relationship to the core utility business Section 10(b)(1) Will the acquisition section 11. Section 10(c)(2) provides of the registered holding company. We tend towards interlocking relations or that we must find that the acquisition request comments on how this the concentration of control of public- will serve the public interest by tending provision should apply with respect to utility companies, of a kind or to an towards the economical and efficient non-utility businesses of a FUCO. extent detrimental to the public interest development of an integrated public- or the interest of investors, or utility system. 3. Other Standards for Reviewing consumers? Section 10(c)(2) ‘‘make[s] clear that Acquisitions Traditionally, our evaluation of this the Commission was not to approve factor has been informed by federal Section 9 of the Act provides that, 32 acquisitions of utility securities merely under certain circumstances, the antitrust policies. Should we weigh because of the absence of indications of acquisition of a public-utility company concentration of control issues in view any positive detriment to the carrying or public-utility holding company of the increasing internationalization of out of Section 11.’’ 27 What types of requires our prior approval.29 The main the energy business? Should we direct or indirect benefits should be purpose of section 9 is to prevent ‘‘the continue to rely, where appropriate, considered under section 10(c)(2) when growth and extension of holding upon the findings and requirements of other agencies that address the potential a foreign company seeks to acquire a companies [that bear] no relation to anticompetitive effects of an domestic utility? For example, would a economy of management and operation acquisition? domestic public-utility system benefit or the integration and coordination of from an affiliation with a financially Section 10(b)(3): Will the acquisition related operating properties’’ (an abuse unduly complicate the capital structure stronger foreign holding company, or a that led to enactment of the Holding foreign company that has experience in 30 of the holding-company system of the Company Act). Section 10 of the Act applicant or be detrimental to the public operating in competitive markets? Are sets forth the standards for reviewing these benefits a sufficient basis for interest or the interest of investors or consumers or the proper functioning of making the findings required by section 29 Section 9(a)(1) of the Act requires our prior 10(c)(2)? Are there other economies and approval under section 10 of a direct or indirect such holding-company system? efficiencies that foreign ownership acquisition by a registered holding company of any We request comments concerning would confer upon a domestic system? securities or utility assets. how foreign ownership could ‘‘unduly Commenters should specifically Section 9(a)(2) of the Act bars any person who is complicate the capital structure of the an affiliate of a public-utility or holding company holding company system * * *.’’ We address the key goals of an integrated from becoming an affiliate of any other public- system as reflected in section 2(a)(29)— utility company or holding company without our would, of course, have to consider the ‘‘advantages of localized prior approval. Section 2(a)(11)(A) defines an whether the holding company has management, efficient operation, and ‘‘affiliate’’ of a specified company as ‘‘any person that directly or indirectly owns, controls, or holds 31 In addition to the findings discussed below, we the effectiveness of with power to vote 5 per centum or more of the must find that the consideration paid in connection 28 regulation * * *.’’ Localized outstanding voting securities of such specified with the acquisition is not reasonable or does not management is a particular issue in this company.’’ As noted above, a FUCO is not a public- bear a fair relation to the sums invested in or the context. The advantage of localized utility company for purposes of the Act. earning capacity of the utility assets to be acquired An entity that has no public utility affiliate may or the utility assets underlying the securities to be management is that policies affecting acquire the securities of a single utility without the acquired. consumers and local regulators are need to seek or obtain our prior authorization. This 32 See, e.g., Sempra Energy, Holding Co. Act handled by persons who are intimately acquisition, which is known as a ‘‘first bite,’’ would Release No. 26890 (June 26, 1998) (relying upon familiar with local conditions and are not be subject to section 9(a)(2). For example, findings and remedial measures of the Department ScottishPower concluded that its acquisition of sensitive and responsive to the interests of Justice, the FERC and the interested state PacifiCorp constituted its ‘‘first bite’’ for purposes commission to address potential anticompetitive of the community and of consumers. of section 9(a). See PacifiCorp proxy statement, effects of acquisition); Entergy Corp., Holding Co. This does not necessarily mean that the dated May 6, 1999, at 69. Act Release No. 25952 (Dec. 17, 1993) (relying upon directors and officers of the holding An acquisition of a company having two or more hearing records and orders of FERC and state company must be permanent residents utility subsidiaries, however, would simultaneously commissions). See also Madison Gas and Electric involve both a ‘‘first bite’’ and a ‘‘second bite’’ and Co. v. SEC, slip op., Dkt. No. 98–1216 (DC Cir. Mar. so be subject to section 9(a)(2). See Coral Petroleum, 16, 1999) (‘‘We have previously observed that the 27 Electric Bond and Share Co., supra note 18, at Inc., Holding Co. Act Release No. 21632 (June 19, SEC is entitled to ‘watchfully’ defer to the 31. 1980). determinations of other regulatory bodies * * *.’’) 28 Section 2(a)(29) of the Act. 30 See section 1(b)(4) of the Act. (citations omitted).
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71346 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules issued stock with special voting rights of a domestic registered holding President may investigate the national to any particular group or class.33 In this company, would generally be exempt security effects of ‘‘foreign control of regard, we understand that, in from the Act. Moreover, a FUCO may persons engaged in interstate commerce connection with certain foreign utility issue and acquire securities without our in the United States,’’ and suspend or privatization transactions, foreign authorization. A registered holding prohibit any acquisition, merger, or governments hold special or ‘‘golden’’ company with large FUCO operations takeover of such persons in order to shares that give them veto rights with may be able to issue securities through protect the national security.38 United respect to certain corporate transactions. a FUCO to finance other businesses. States companies have acquired We recognize that these shares are Does this raise significant policy issues significant interests in FUCOs over the intended to protect the foreign under the Act, even if the holding past several years. Would restrictions on government’s regulatory interests rather company’s U.S. utilities do not have any foreign ownership of U.S. utilities be than to create the type of abusive capital liability with respect to those likely to lead to restrictions on structure that led to passage of the Act. financings? investment in FUCOs by U.S. investors? Are these types of arrangements 5. Accounts and Records; Jurisdiction Dated: December 14, 1999. inconsistent with the Act? By the Commission. We would also consider whether The Holding Company Act contains a Margaret H. McFarland, foreign law imposed any impediments number of provisions designed to on our ability to inspect the foreign prevent companies in registered holding Deputy Secretary. holding company and its subsidiaries. company systems from engaging in [FR Doc. 99–32952 Filed 12–20–99; 8:45 am] Such impediments could be detrimental abusive affiliate transactions. In order BILLING CODE 8010±01±P to the public interest, the interests of for these provisions to be effective, we investors and consumers, and ‘‘the were given the authority to monitor proper functioning of [a] holding- intra-system transactions by requiring DEPARTMENT OF LABOR company system.’’ the making and keeping of holding company system records and mandating Employment and Training 4. Substantive Regulation of Foreign that we have access to those records.36 Administration Holding Companies We anticipate that we would be able The Holding Company Act imposes a to exercise this authority with respect to 20 CFR Part 604 comprehensive federal framework of foreign registered holding companies. RIn 1205±AB21 regulation on registered holding We request any information concerning companies. A registered foreign holding possible impediments to our exercise of Birth and Adoption Unemployment company would be subject to this our inspection authority and Compensation; Correction framework to the same degree as a jurisdiction. Are there difficulties in registered domestic company. For obtaining information from foreign AGENCY: Employment and Training example, we must approve: companies that are inconsistent with Administration, Labor. • issuances and sales of securities; 34 regulation under the Holding Company ACTION: Notice of Proposed Rulemaking; • certain acquisitions; 35 and Act? What types of safeguards or Correction. • sales of utility assets. limitations on ownership might prevent We also have jurisdiction over or minimize such risks? SUMMARY: This document corrects the intrasystem transactions. For example, preamble to a notice of proposed 6. Other Issues section 12 requires our prior approval rulemaking published in the Federal for a registered holding company or its Are there any other policy issues Register of December 3, 1999 (64 FR subsidiary ‘‘to lend or in any manner related to foreign acquisitions of U.S. 67971), concerning Birth and Adoption extend its credit to or indemnify any utilities that we should consider? For Unemployment Compensation. The company in the same holding-company example, do we need to consider preamble to the notice of proposed system.’’ Section 13 authorizes us to national security interests that would be rulemaking provided only a mailing regulate service, sales and construction implicated by a foreign acquisition of a address to which written comments contracts between operating utilities U.S. utility? 37 We note that the could be submitted. This correction within a registered system and other provides an e-mail address to which companies within the same system and 36 See section 15 of the Act. comments may be submitted. require that such services be performed 37 In response to our prior request for comments, FOR FURTHER INFORMATION CONTACT: APS raised national security concerns. Most of the at cost. Finally, registered holding other commenters did not believe that there were Gerard Hildebrand, Unemployment companies are subject to extensive any national security concerns or that any such Insurance Service, ETA, U.S. reporting, recordkeeping and accounting concerns should be addressed by Congress. Some Department of Labor, 200 Constitution requirements. federal laws specifically restrict foreign ownership Avenue, NW, Room S–4231, of certain regulated entities, while others provide Despite our jurisdiction over for ownership subject to certain conditions. See, Washington, DC 20210. Telephone: registered holding companies, the EWGs e.g., 42 U.S.C. 2131–2134 (prohibition of foreign (202) 219–5200 ext. 391 (this is not a and FUCOs owned by a foreign ownership or control of facilities that produce or toll-free number); facsimile: (202) 219– registered holding company, like those use nuclear materials). The Nuclear Regulatory 8506. Commission (‘‘NRC’’) has developed a ‘‘Standard Review Plan’’ for use in reviewing nuclear power 33 See section 11(b)(2). plant licenses involving foreign interests. See Final owned by PECO Energy Co., an inactive registered 34 Sections 6 and 7 require our prior approval Standard Review Plan on Foreign Ownership, holding company, and British Energy Inc., a British under specified qualitative standards for most types Control, or Domination, 64 FR 5355 (Sept. 28, utility company), and PacifiCorp (Trojan Nuclear of securities issuances. 1999). The NRC has approved, with certain Plant), 64 FR 63060 (Nov. 18, 1999) (NRC order 35 Section 11(b)(1) confines the nonutility restrictions on foreign ownership and control, approving transfer of licenses to ScottishPower). businesses of a registered holding company to those transfers of the operating license for three nuclear See also supra note 5. that have a functional relationship to its core utility power plants. See NRC Approves AmerGen’s 38 50 U.S.C. App. 2170. The President has business. Rule 58 under the Act permits a registered Takeover of Clinton Plant, The Energy Daily, Nov. established the Committee on Foreign Investment in holding company to acquire certain types of non- 30, 1999 (describing transfers of two operating the United States to administer this authority. See utility businesses without our approval. licenses to AmerGen Energy Co., a company jointly 31 CFR 800.101, et seq.
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Correction predicate device. The purpose of this commercial distribution in the United In the notice of proposed rulemaking requirement is to provide applicants States through three regulatory FR Doc. 99–30445, beginning on page improved opportunity to protect processes: Premarket approval (PMA), 67971 in the issue of December 3, 1999, nonpublic information contained in product development protocol (PDP), make the following correction in the their premarket notifications while and premarket notification (a premarket Addresses section. On page 67972 in the facilitating the release of information to notification is generally referred to as a first column, add at end of the first which the public is entitled under the ‘‘510(k)’’ after the section of the act sentence (after the ZIP code) the Federal Food, Drug, and Cosmetic Act where the requirement is found). In following: ‘‘, or by e-mail to the (the act); the Freedom of Information addition, a significant number of following address: Act; and FDA’s Public Information devices have been exempted, subject to [email protected].’’ regulations. The proposed rule does not the limitations on exemptions, from any require submission of a redacted version Dated: December 15, 1999. requirement to obtain premarket of any premarket notification received notification clearance because FDA has Raymond L. Bramucci, by FDA prior to the effective date of the determined that the remaining general Assistant Secretary of Labor. regulation. [FR Doc. 99–32987 Filed 12–20–99 8:45 am] controls and special controls are DATES: Submit written comments by BILLING CODE 4510±30±M adequate to provide a reasonable March 22, 2000. Submit written assurance of the safety and effectiveness comments on the information collection of those devices. A variety of general requirements by January 20, 2000. DEPARTMENT OF HEALTH AND controls, such as good manufacturing HUMAN SERVICES ADDRESSES: Submit written comments practices (GMP’s), establishment to the Dockets Management Branch registration and device listing, and Food and Drug Administration (HFA–305), Food and Drug Medical Device Reporting (problem Administration, 5630 Fishers Lane, rm. reporting), and special controls for class 21 CFR Part 807 1061, Rockville, MD 20852. Submit II devices, are applicable to devices written comments on information [Docket No. 99N±4784] exempted from premarket notification to collection requirements to the Office of control the risks presented by these Premarket Notification; Requirement Information and Regulatory Affairs, Office of Management and Budget devices. For additional information on for Redacted Version of Substantially- exemption from premarket notification, Equivalent Premarket Notification (OMB), New Executive Office Bldg., 725 17th St. NW., Washington, DC 20503, see 21 CFR 807.85 and FDA’s medical AGENCY: Food and Drug Administration, Attn: Desk Officer for FDA. device classification regulations, 21 CFR HHS. parts 862 through 892. FOR FURTHER INFORMATION CONTACT: ACTION: Proposed rule. Joseph M. Sheehan, Regulations Staff A. Premarket Notification SUMMARY: The Food and Drug (HFZ–215), Center for Devices and Administration (FDA) is proposing to Radiological Health, Food and Drug Of the three regulatory processes used amend its premarket notification Administration, 9200 Corporate Blvd., by FDA to clear medical devices for regulations to require applicants to Rockville, MD 20857, 301–827–2974. commercial distribution, the premarket submit a redacted version of each SUPPLEMENTARY INFORMATION: notification or 510(k) process is the premarket notification submission for most commonly used. The following which FDA has issued an order I. Background table 1 summarizes FDA’s experience declaring a device to be substantially Under the act, 21 U.S.C. 301 et seq., during fiscal year (FY) 1998: equivalent to a legally marketed FDA clears medical devices for
TABLE 1.ÐPRODUCT APPLICATIONS PROCESSED DURING FY 1998
Premarket Notifications Premarket Approval Product Development Protocols Responsible center Applications 1 Received Clear Received Approved Received Approved Complete
CBER 33 44 2 0 0 0 0 CDRH 4,623 3,824 55 46 11 4 0 All FDA 4,656 3,868 57 46 11 4 0 1 Approval of a PDP protocol does not constitute marketing approval. A Notice of Completion must be submitted and approved before a device may be marketed under a PDP.
The purpose of a premarket III into class I or class II (the act device which has been found to be notification is to demonstrate that the provides three classes of devices: Class substantially equivalent through the new device is substantially equivalent I devices are regulated primarily 510(k) premarket notification process. to a legally-marketed predicate device. through general controls, such as Under section 513(i) of the act (21 A predicate device can be any of the registration, listing, and GMP’s; class II U.S.C. 360c), a device is substantially following: A device legally marketed devices are subject to both general equivalent if it has the same intended prior to May 28, 1976 (the date the controls and special controls, such as use and technological characteristics as Medical Device Amendments of 1976 performance standards; class III devices a predicate device, or has different and its premarket notification are subject to general and special characteristics but data demonstrate that requirement became law); a device controls and must also undergo the new device is as safe and effective which has been reclassified from class premarket review and approval); or a as the predicate device and does not
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A device that is not shown to which required agencies to establish CFR 20.61(d) through (f)). be substantially equivalent to a predisclosure notification procedures It has been FDA’s experience that predicate device can be marketed only under FOIA to protect confidential many 510(k) holders who are provided after the sponsor submits, and obtains commercial information in the agencies’ predisclosure notification by the agency FDA approval of, a PMA or notice of files. fail to respond adequately; they may not completion of a PDP, unless the device In addition to FOIA’s exemption from provide an appropriately redacted is reclassified into class I or class II disclosure for trade secrets and 510(k), not offer reasons to support under section 513(e) or section 513(f) of confidential commercial information, redactions, or not respond at all. One the act. FOIA permits the Government to reason for this occurrence is that, given withhold information about individuals the tight statutory timeframes FDA faces B. Statutory and Regulatory in personnel, medical, and similar files, for responding to FOIA requests, the Requirements Relating to Release of when the disclosure of such information 510(k) holder can only be given a very Information in a 510(k) would constitute a clearly unwarranted short time to respond to the Certain information in a 510(k) that invasion of personal privacy (5 U.S.C. predisclosure notification; § 20.61(e)(2) has been cleared by FDA (i.e., found to 552(b)(6)). With regard to 510(k)s, the requires a response in 5 working days. be substantially equivalent to a legally- issue of personal privacy protection A second reason is that by the time a marketed predicate device) is subject to occasionally arises when medical FOIA request is filed and predisclosure public disclosure under section 513(i)(3) records or other data with patient notification is given, a significant period of the act. That section and FDA’s identifiers are included or summarized of time may have passed since the implementing regulations require in a 510(k). FDA’s regulations 510(k) was cleared by FDA. As a result, applicants to provide FDA with an implementing FOIA request applicants the team of experts at the submitter adequate summary (510(k) summary) of to delete names or other information company that contributed to the any information in their submission that could identify patients or research development of the 510(k) submission regarding safety and effectiveness for subjects prior to submitting records to may not be readily available to respond disclosure by FDA upon request, or FDA, and require FDA to delete such to the predisclosure notification and alternatively, to submit a statement information from any records it will, in any case, have to spend time (510(k) statement) to FDA promising discloses (21 CFR 20.63). Similarly, reviewing the 510(k) to refresh that they themselves will make certain FDA’s regulations relating to 510(k)s recollections and identify trade secrets 510(k) information available to the require those 510(k) holders who or confidential commercial information public upon request. submitted a 510(k) statement to FDA to that may be protected from public A second Federal statute relevant to delete such information before releasing disclosure. the release of 510(k) information is the a 510(k) (§ 807.93(c) (21 CFR 807.93(c))). In addition, because there is no Freedom of Information Act (FOIA), 5 (Submission of a 510(k) statement requirement at present for a 510(k) U.S.C. 552. The FOIA generally makes obligates the firm to provide a copy of holder to inform FDA when ownership available for public disclosure all an appropriately-redacted 510(k) to any of the 510(k) is transferred to a new records in an agency’s files, whether requestor.) party, FDA has, in many instances, been created by or submitted to the agency, Except for information that is exempt unable to locate and verify the current except to the extent those records are from disclosure under FOIA, all 510(k) holder for purposes of sending covered by one or more of the nine information in a 510(k) submission is predisclosure notification. Many other exemptions enumerated in the statute (5 available for disclosure to the public 510(k) holders simply fail to respond at U.S.C. 552(b)). In particular, exemption once the 510(k) is cleared. This includes all to FDA’s predisclosure notification. 4 of FOIA protects from mandatory the original submission, correspondence Consequently, FDA assumed the job of disclosure trade secrets and confidential with FDA, memoranda of telephone unilaterally redacting many 510(k)s commercial information (5 U.S.C. conversations, amendments, or other when responding to FOIA requests for 552(b)(4)). In addition, the act requires supplemental information submitted those records. As FDA has invested withholding of trade secret information prior to clearance of the 510(k) by FDA. more time and effort in redacting from the public, 21 U.S.C. 331(j), and 510(k)s, the resources devoted to C. Predisclosure Notification and Other the Trade Secrets Act also prohibits responding to 510(k) FOIA requests has Issues Relating to FOIA Requests for disclosure of trade secrets and inevitably increased. At times, this has 510(k)s confidential commercial information resulted in significant backlogs that unless specifically authorized by law, When a request is received for a have delayed the release of information 18 U.S.C. 1905. Accordingly, when FDA particular 510(k) that has not been to the public and diverted limited receives FOIA requests for 510(k) previously released under FOIA, FDA agency resources from other records (other than 510(k) summaries, provides the 510(k) holder with a responsibilities, including support for which are intended for public ‘‘predisclosure notification’’ in premarket review and postmarket disclosure as submitted by the accordance with Executive Order 12600. surveillance. applicant) trade secret and confidential Subject to certain exceptions, Executive commercial information will ordinarily Order 12600 requires the Government to II. Procedural Amendments be redacted (i.e., deleted) before the notify submitters of records containing The proposed rule would amend materials are released to the public. confidential commercial information § 807.87 (21 CFR 807.87) to require Prior to making final decisions about prior to disclosure of those records in 510(k) applicants to include a statement redactions and releasing these records to response to a FOIA request. The that would commit the applicant to the public, FDA currently solicits the submitter is then permitted an provide a redacted version of the 510(k) 510(k) holders’ views on what opportunity to object to the disclosure within 30 days of FDA’s finding the information in their 510(k) submissions of any part of the records and to state device substantially equivalent. may be released to the public and what the basis for each such objection. FDA’s Proposed § 807.91 sets forth the information may properly be withheld predisclosure notification procedures statement that must be submitted. The as exempt under FOIA. This practice is implementing Executive Order 12600 statement is referred to as a
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‘‘commitment to submit a redacted FDA encourages, but would not notification within an appropriate time. 510(k).’’ The redacted version is one require, the redacted version to be Because FDA is unlikely to have all the that can be immediately released in submitted on disk, preferably as a information that would be available to response to a freedom of information portable document format file (.pdf file). the submitter, FDA may not identify request, published on the Internet, or Submission of .pdf files will facilitate trade secret and confidential otherwise made available to the public. FDA’s release of information in commercial information in the 510(k) in The redacted version would include all electronic form, thereby assisting FDA the same way as the 510(k) holder sections of the 510(k) submission, in complying with its new obligations would have done. including amendments, supplements, under the Electronic Freedom of In addition to these two direct and all other documents included in the Information Act Amendments of 1996 benefits, device applicants would also 510(k) submission, except to the extent (EFOIAA) to make reasonable efforts to benefit indirectly from the approach set that information may be appropriately furnish records in an electronic format forth in the proposed rule because FDA redacted that is exempt from disclosure when requested to do so. would be able to free some resources it under FOIA, such as trade secrets, The proposed rule does not address currently spends on efforts to determine confidential commercial information, the redaction of 510(k)s submitted to what information should be protected and personal privacy information. FDA prior to the effective date of the from disclosure. Therefore the focus The requirement to provide the regulation. FDA will continue to would be on those resources instead on redacted version within 30 days of provide predisclosure notification for activities more directly related to the FDA’s decision is consistent with the those documents under the existing device review process. statutory time set by section 513(i) of approach for the 10 years following The proposed rule would benefit FDA the act for submission of a 510(k) their date of submission to the agency in two key ways: summary or statement. Although FOIA (Executive Order 12600 requires 1. It would eliminate the need to requires FDA to respond to FOIA predisclosure notification for 10 years routinely provide individual requests within 20 days, FDA believes it following submission of a document), predisclosure notification to 510(k) is unlikely that there will be a real and will address redaction of these holders when a 510(k) is requested conflict between these two timeframes. 510(k)s on a case-by-case basis using under FOIA; currently, 510(k) This is because FDA publishes a list of FDA’s current approach. Eighty percent submissions are the only significant 510(k) clearances about the same time of recent FOIA requests for 510(k)s have category of records maintained by FDA each month, resulting in a lag time of at been for files less than 2 years old. that requires predisclosure notification. least 5 days, and up to 35 days, between Consequently, the agency expects most Given the significant volume of FOIA the time of FDA’s decision and the of its current predisclosure notification requests for 510(k)s and the time and announcement of the decision. workload to be significantly reduced effort required to process them under Although a 510(k) submitter may over time. the current system, adopting the disclose the clearance of a 510(k) before The requirement to provide a redacted approach established by the proposed FDA does, FDA believes it is extremely 510(k) within 30 days of FDA’s rule would significantly improve FDA’s unlikely that the clearance would be clearance is expected to provide 510(k) ability to provide timely responses to made known and a FOIA request applicants and holders two significant FOIA requests for 510(k)s and at the submitted so rapidly that the FDA benefits: same time would allow the agency to response would be delayed due to the First, this approach would permit redirect resources to product reviews 30 days applicants would be permitted applicants to consider and address and other activities more closely related to provide a redacted version of the FOIA disclosure issues during and to the agency’s public health mission. 510(k) to FDA. immediately following the development 2. As discussed above, the regulation Applicants would be permitted to use and assembly of the 510(k), while the would ensure that the party that is in either of two techniques to redact expert team that contributed to the the best position to identify trade secret information: (1) The entire 510(k) may development of the 510(k) is available and confidential commercial be resubmitted with the information to and engaged. FDA believes it will be information assumes primary be withheld from disclosure physically significantly easier and less expensive responsibility for redacting that obscured to render it unintelligible (e.g., for the applicant to deal with FOIA information. by covering the text or figure with black disclosure issues at an early stage rather The proposed rule will benefit the ink), or (2) the information to be than having to reassemble experts to public by making information to which withheld may be omitted from the review the 510(k) and resolve disclosure the public is entitled available in a more redacted version, but the extent of each issues at some indeterminate time in the timely manner and at lower cost. deletion must be described at the place future. A. Copyrighted Information Provided in in the document where the redaction Second, FDA believes this approach was made (e.g., an indication that would permit applicants to have a larger a 510(k) ‘‘pages 12 through 15 have been voice in determining what information Submitters of 510(k)s occasionally redacted’’ or ‘‘paragraph concerning would be protected from disclosure. provide copyrighted materials to FDA in sources of raw materials has been Indeed, this approach recognizes that support of their submissions. When a deleted’’). Simply providing FDA with the firm is in a uniquely well-qualified FOIA request is received for a 510(k) written instructions such as, ‘‘please do position to identify trade secret and that includes copyrighted materials, not release Section IV,’’ and then confidential commercial information FDA may include a copy of any of those expecting FDA to follow those relating to its own 510(k) submission. materials in response to the request, instructions to locate and redact the Currently, FDA assumes the entire except to the extent that such materials information as specified by the responsibility for designating what are exempt under FOIA exemption four. applicant would be insufficient to information is considered trade secret or FDA’s disclosure of nonexempt comply with the requirement to submit other confidential information in a information contained in copyrighted a 510(k) already redacted of information 510(k) when it cannot locate the current materials in response to a FOIA request that is exempt from disclosure to the owner of the 510(k) or when the owner is generally considered a ‘‘fair use under public. fails to respond to predisclosure the Copyright Act of 1976 (17 U.S.C. 101
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71350 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules et seq.) and, thus, does not constitute include them in any redacted 510(k) FDA has also requested that the copyright infringement. See 17 U.S.C. made available through FDA’s Internet Department of Justice provide its 107, and Office of Information and site. FDA also intends to include a opinion concerning FDA’s proposed Privacy, U.S. Department of Justice, warning concerning the need to respect approach. FDA will consider the Copyrighted Materials and the FOIA, copyrights with all copyrighted Department of Justice’s response and FOIA Update, Fall 1983, at pp. 3 to 5. materials the agency provides through any comments received on FDA’s The EFOIAA amend FOIA to require the Internet. An applicant who is proposed approach and alternative Federal agencies to make certain FOIA concerned about possible copyright approaches in preparing a final rule. responses available to the public ‘‘by infringement by persons who obtain a B. Implementation and Enforcement computer telecommunications or *** redacted 510(k) from FDA’s web site other electronic means,’’ such as posting may wish to clearly indicate when Under the proposed rule, FDA would the FOIA response on the Internet. The included material is copyrighted or not routinely review each redacted Department of Justice has advised reformat the information prior to 510(k) to ensure that the applicant has Federal agencies that when records are submitting a 510(k) to avoid submitting redacted all confidential commercial made available through electronic copyrighted materials. information potentially eligible for means such as the Internet, the agency FDA recognizes that there is some protection. In addition, except for cases ‘‘should guard against the possibility uncertainty concerning the most of clearly abusive redactions (e.g., a that such extraordinarily wide appropriate method of protecting claim by a submitter that an entire file dissemination of the record *** might copyrighted materials included in a is exempt from disclosure), FDA will be regarded as copyright infringement.’’ 510(k). For that reason, FDA is rely on parties that request a 510(k) See U.S. Department of Justice, requesting comments on both the (through FOIA or other channels) to Amendment Implementation Questions, approach set forth in the proposed rule raise any issue of excessive redaction. If FOIA Update, Winter 1997, at pp. 3 to and on alternative approaches. Possible FDA learns that an applicant has inappropriately redacted information 4. alternatives include, but are not limited not eligible for protection from FDA intends to make all redacted to, the following: 510(k)s available through the Internet, disclosure under FOIA, FDA may FDA could permit copyrighted regardless of whether a FOIA request require the applicant to resubmit an materials from any source to be has been received. This will make the appropriately redacted version, or may included anywhere in the 510(k) and information in those 510(k)s available to release the inappropriately redacted could include those materials with the the public more rapidly and without information and pursue enforcement redacted 510(k) made available through having to pay fees which may be action. This approach will enable FDA the agency’s Internet site, while assessed when FDA responds to a FOIA to provide information more rapidly and request. FDA recognizes the need to providing a clear and prominent focus more of its resources on device avoid infringing copyrights when warning to persons who download the review. providing redacted 510(k)s through the redacted 510(k) that they must avoid FDA retains exclusive authority to Internet, and believes that it can provide infringing copyrights and may not make make final determinations concerning appropriate protection of copyrighted use of any copyrighted material unless whether a redaction is permitted under materials by distinguishing between two such use would be a ‘‘fair use.’’ FOIA and is not delegating this categories of materials: Those whose FDA could require explicit consent authority to any person required to copyright is owned by the applicant from each copyright holder, permitting submit a redacted 510(k). Failure to (e.g., an operating manual for a device) FDA to release those copyrighted provide a redacted version of a 510(k) in and those whose copyright is owned by materials through the agency’s Internet accordance with a commitment to another person (e.g., a copy of an article site as part of the redacted version of the submit a redacted 510(k) made under from a medical journal). 510(k). An applicant would not be § 807.87(j) would be a prohibited act Under the proposed rule, copyrighted permitted to submit copyrighted under sections 301(p) and (q) of the act materials whose copyright is owned by material without providing the required (failure to provide any information a person other than the applicant must consent. If a copyright holder refuses to required by section 510(k) and failure or be placed in a single appendix, as provide the required consent, the refusal to furnish information required required by proposed § 807.90(e), and applicant would be required to reformat under section 519 of the act, records and listed in a bibliography, as required by or summarize the relevant information reports on devices), 21 U.S.C. 331(p) proposed § 807.87(k). These copyrighted from copyrighted materials prior to and (q), and may result in FDA materials may not be included in any submitting the 510(k) for clearance. enforcement action, including other portion of the 510(k). They may be FDA could prohibit the inclusion of administrative civil money penalties of referred to at any point in the 510(k) by any copyrighted materials whose up to $15,000 per violation (21 U.S.C. citing the appropriate entry in the copyright is owned by the applicant or 333(f)). Some of the resources currently bibliography of copyrighted materials. by any person who prepared the devoted to identifying what information FDA will not release the appendix materials at the request of the applicant should be protected from disclosure containing copyrighted materials as part unless the applicant or its agent could be redirected, when necessary, to of a redacted 510(k) made available consents to release of the material on compliance actions against submitters through FDA’s Internet site, but would FDA’s Internet site. Applicants who did who do not follow the new rule. release the bibliography of materials not provide the required consent would included in the appendix. have to reformat the information to C. Relation to Requirement for a 510(k) Copyrighted materials whose avoid the need to submit the Summary or 510(k) Statement copyright is owned by the applicant copyrighted material. Applicants would Section 513(i)(3) of the act requires a may be included, at the applicant’s be permitted to submit copyrighted 510(k) applicant to include an adequate discretion, in any portion of a 510(k). materials from medical journals and summary of any information respecting FDA would treat these materials in the other independent sources by including safety and effectiveness (‘‘510(k) same manner as any other information them in a separate appendix and listing summary’’) with each 510(k) submission submitted in a 510(k) and would them in a bibliography. or to state that such information will be
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Applicants by a firm that chooses to have FDA requires that agencies prepare an who choose to include a 510(k) respond on the firm’s behalf to such assessment of anticipated costs and statement in lieu of a 510(k) summary requests. benefits before proposing any rule that must respond to written requests by an A person who previously submitted a may result in an expenditure by State, individual for a copy of the 510(k), 510(k) statement, and thereby local, and tribal Governments, in the excluding patient identifiers and trade committed to make available a redacted aggregate, or by the private sector, of secret and confidential commercial copy of the 510(k) upon the request of $100 million in any one year (adjusted information, within 30 days of receipt of any person, may revoke that statement annually for inflation). the request. The information to be made by submitting a redacted 510(k) to FDA. The agency believes that this available to a requestor is ‘‘a duplicate FDA will then assume the responsibility proposed rule is consistent with the of the premarket notification submission for responding to requests for the regulatory philosophy and principles including any adverse safety and redacted copy on behalf of that person. identified in Executive Order 12866. effectiveness information but excluding Submitting a redacted 510(k) to FDA The proposed rule is limited to all patient identifiers and trade secret or permits persons who have found it minimize its impact in two significant confidential commercial information, as burdensome to respond to such requests ways: (1) There is no retrospective defined in § 20.61’’ (21 CFR 807.3(o)). an opportunity to shift the effect, because the regulation will not Holders of 510(k)s may not charge responsibility to FDA. apply to premarket notifications requestors for compiling and providing received by FDA prior to the effective III. Request for Comments this information. Noncompliance with date of the regulation, and (2) it will not the 510(k) statement is a prohibited act Interested persons may, on or before apply to premarket notifications that under section 301(p) of the act. March 22, 2000, submit to the Dockets were not found substantially equivalent The information which a 510(k) Management Branch (address above) or which were withdrawn. FDA believes submitter must provide to requestors written comments regarding this there will be no long-term impact on when it elects to submit a 510(k) proposal. Comments regarding the most persons whose premarket statement is the same information that information collection provisions notifications are found substantially would be required to be submitted to should be submitted by January 20, equivalent because the primary effect of FDA under this proposed regulation, 2000. Two copies of any comments are the regulation will affect only the timing that is, a redacted 510(k). To avoid to be submitted, except that individuals of when a redacted version will be imposing redundant burdens on 510(k) may submit one copy. Comments are to required. submitters, FDA will, at the submitter’s be identified with the docket number FDA currently bears the burden of option, assume the burden of found in brackets in the heading of this redacting 35 percent of premarket responding to requests for safety and document. Received comments may be notifications requested under FOIA effectiveness information made under seen in the office above between 9 a.m. without any input from the applicant, section 513(i) of the act. Submitters who and 4 p.m., Monday through Friday. either because the applicant cannot be have submitted an appropriately located or does not respond to IV. Environmental Impact redacted 510(k) to FDA will be predisclosure notification. Therefore, permitted under proposed § 807.93(d) to The agency has determined under 21 this rule is expected to shift to a great refer all such requests to FDA’s Internet CFR 25.30(h) that this action is of a type extent the resources needed to redact site (at http://www.accessdata.fda.gov/ that does not individually or submissions from FDA to the applicant scripts/cdrh/cfdocs/cfpmn/search.cfm). cumulatively have a significant effect on who is in a much better position to Assuming the submitter has provided an the human environment. Therefore, redact the 510(k). FDA estimates that appropriately redacted 510(k) that meets neither an environmental assessment 1,240 submissions are affected and that FDA’s requirements, all the 510(k) nor an environmental impact statement for each submission it will take submitter will be required to do to fulfill is required. manufacturers 2 hours to comply. In addition, submitters of the 4,423 its statutory obligation is to inform the V. Analysis of Impacts requestor that the requested information premarket notifications that are found is available on FDA’s Internet site; this FDA has examined the impacts of the substantially equivalent will spend up response to the requestor would have to proposed rule under Executive Order to 15 minutes to prepare and submit a be made within 10 days of the request. 12866, under the Regulatory Flexibility statement of compliance with this rule FDA believes this approach will reduce Act (5 U.S.C. 601–612), and under the to FDA. Using hourly earnings of $35, costs submitters now accrue when they Unfunded Mandates Reform Act (Public FDA estimates the total annual cost of submit a 510(k) statement and that Law 104–4). Executive Order 12866 compliance with this proposed rule is requestors will find it easier to obtain all directs agencies to assess all costs and approximately $125,500. The hourly such information from a single source. benefits of available regulatory earnings are derived from the Statistical A submitter who wishes to submit a alternatives and, when regulation is Abstract of the United States 1997, 510(k) summary instead of a 510(k) necessary, to select regulatory Table 672 median annual earnings in statement will still be permitted to do approaches that maximize net benefits 1995 for men in a professional specialty, so, but submission of a 510(k) summary (including potential economic, adjusted for fringe benefits and pay will not relieve the submitter of its environmental, public health and safety, increases (30 percent and 20 percent, obligation under this proposed rule to and other advantages; and distributive respectively). Because these costs are submit a redacted 510(k) to FDA. impacts and equity). The Regulatory based on no more than 2.25 hours per Section 807.93(a) has been amended to Flexibility Act requires an analysis of submission and are spread over many provide alternative 510(k) statements. regulatory options that would minimize submitters, this rule will not have a Section 807.93(a)(i) provides the any significant impact of a rule on small significant economic impact on small statement to be submitted by a firm that entities unless an agency certifies that a entities. chooses to continue to reply directly to rule will not have a significant FDA further believes that by requests for safety and effectiveness economic impact on a substantial preparing the redacted version earlier, information; proposed § 807.93(a)(ii) number of small entities. Section 202 of while the expert team that contributed
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The regulatory action as defined by the information technology. proposed rule would preserve scarce Executive Order, and is not subject to Title: Addition of Written FDA resources because it proposes to review under the Executive Order. This Commitment to Submit, and eliminate the need for FDA to routinely rule does not impose any mandates on Submission of, a Redacted Premarket redact any 510(k) submitted after the State, local, or tribal governments, nor is Notification upon FDA’s Finding of effective date except to the extent it a significant regulatory action under Substantial Equivalency challenges are raised to the redactions the Unfunded Mandates Reform Act. Description: The statutory authority made by the applicant or in other cases Furthermore, the agency certifies that for this proposed regulation includes: where the agency finds that the this rule will not have a significant (1) The authority to require premarket applicant has not provided an notification (generally referred to as economic impact on a substantial appropriately redacted 510(k). The 510(k)) ( 21 U.S.C. 360(k)); (2) The number of small entities. Therefore, proposed rule also would preserve FDA Freedom of Information Act (5 U.S.C. under the Regulatory Flexibility Act, no resources by eliminating the need to 552) (FOIA) because a premarket further regulatory flexibility analysis is routinely provide individual required. notification that has been cleared by predisclosure notification and followup FDA (found to be substantially VI. Paperwork Reduction Act of 1995 equivalent) is subject to public to 510(k) holders when a 510(k) is This proposed rule contains disclosure under 5 U.S.C. 552, which requested. The proposed written information collection provisions that requires Federal agencies to release all commitment to submit a redacted 510(k) are subject to review by OMB under the agency records, including materials is intended to provide FDA with Paperwork Reduction Act of 1995 (the obtained by the agency, except to the assurance that the applicant agrees to PRA) (44 U.S.C. 3501–3520). The title, extent a FOIA exemption applies; (3) provide the redacted 510(k) within 30 description, and respondent description FOIA sections 552(b) and (c), and days of FDA issuing its substantial of the information collection provisions specifically 552(b)(4), permit equivalence order. are shown below with an estimate of the withholding of certain information from The proposed rule would require the annual reporting burden. Included in public disclosure, including ‘‘trade premarket submission to include a the estimate is the time for reviewing secrets and commercial or financial written commitment from the submitter instructions, searching existing data information obtained from a person and agreeing to provide a redacted version of sources, gathering and maintaining the privileged or confidential;’’ and (4) their 510(k) (from which those portions data needed, and completing and section 513(i)(3) of the act requires an that contain ‘‘trade secrets and reviewing each collection of adequate summary of information commercial or financial information information. respecting safety and effectiveness to be obtained from a person and privileged FDA invites comments on: (1) provided by the submitter of a 510(k) or confidential or protected personal Whether the proposed collection of that has been cleared by FDA. In privacy information’’ are deleted) information is necessary for the proper addition, the act requires withholding of within 30 days of FDA issuing its order performance of FDA’s functions, trade secret information from the public of substantial equivalence, together with including whether the information will (21 U.S.C. 331(j)), and the Trade Secrets a redacted copy of the 510(k). have a practical utility; (2) the accuracy Act also prohibits disclosure of trade of FDA’s estimate of the burden of the secrets and confidential commercial Description of Respondents: proposed collection of information, information unless specifically Businesses or other for profit including the validity of the authorized by law, 18 U.S.C. 1905. organizations. methodology and assumptions used; (3) These proposed reporting FDA estimates the burden of this ways to enhance the quality, utility, and requirements are intended to provide collection of information as follows:
TABLE 2.ÐESTIMATED ANNUAL REPORTING BURDEN1
Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response
807.87(j) and 807.91 4,423 1 4,423 0.25 1,106 807.95(f) 3,675 1 3,675 2.00 7,350 Total Hours 2.25 8,456 1 There are no operating and maintenance costs or capital costs associated with this collection of information.
Several steps were performed by FDA few years has been decreasing at (approximately 4,423) affected by to derive the burden hour estimates. approximately that rate (6,434 510(k)s proposed § 807.87(j). FDA estimated the number of were received during FY 94, compared To determine the number of respondents by first taking the number with 4,656 during FY 98; 510(k) receipts respondents affected by proposed of 510(k)s filed and cleared during FY have decreased each year since FY 94). § 807.95(f), FDA estimated the number 1998 (4,656) and reducing those The projected number of 510(k)s filed of 510(k)s expected to be cleared numbers by roughly 5 percent because provides the number of respondents (approximately 3,675), using the the number of 510(k)s filed in the past methodology previously described.
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FDA then estimated the amount of (k) A bibliography of all copyrighted (ii) Option 2—For firms that choose to hours per response. The estimate for materials included in the premarket have FDA respond on the firm’s behalf proposed § 807.87(j) is based on FDA’s notification submission. to all requests for information: professional judgment. The estimate for * * * * * I certify that, in my capacity as (the proposed § 807.95(f) is based on FDA’s 3. Section 807.90 is amended by position held in company by person required direct experience in redacting 510(k)s. adding paragraph (f) to read as follows: to submit the premarket notification, FDA then multiplied the total annual preferably the official correspondent in the firm), of (company name), I will refer all responses by the hours per response to § 807.90 Format of a premarket notification submission. requests for information included in this obtain the total hours. The hours per premarket notification to FDA’s Internet site response includes the amount of time to * * * * * (http://www.accessdata.fda.gov/scripts/cdrh/ add the statement to the premarket (f) Include any copies of copyrighted cfdocs/cfpmn/search.cfm) within 10 days of submission and to review and redact the materials in a single appendix, which request by any person if the device described premarket submission. There are no shall be the final section of the in the premarket notification submission is capital or operating and maintenance premarket notification. Copyrighted determined to be substantially equivalent. costs associated with this information materials whose copyright is not owned (2) The statement in paragraph collection. by the applicant shall not be included (a)(1)(i) of this section should be signed In compliance with section 3507(d) of in any other section of the premarket by the certifier, made on a separate page the PRA (44 U.S.C. 3507(d)), FDA has notification. of the premarket notification submitted the information collection 4. Section 807.91 is added to subpart submission, and clearly identified as provisions of this proposed rule to OMB E to read as follows: ‘‘510(k) statement.’’ (3) The statement in paragraph for review. Interested persons are § 807.91 Commitment to submit a redacted requested to send comments regarding (a)(1)(ii) of this section should be signed 510(k). by the certifier, made on a separate page information collection by January 20, (a) A statement committing to submit 2000, to the Office of Information and of the premarket notification a redacted 510(k) shall state as follows: submission, and clearly identified as Regulatory Affairs, OMB, New I certify that, in my capacity as the Executive Office Bldg., 725 17th St. ‘‘Commitment to Refer 510(k) Requests (position held in company by person to FDA.’’ NW., rm. 10235, Washington, DC 20503, required to submit the premarket Attn: Desk Officer for FDA. notification, preferably the official * * * * * correspondent in the firm) of (company (d) At the option of a 510(k) submitter List of Subjects in 21 CFR Part 807 name), I will submit to FDA, no later than 30 who has elected to submit the statement Confidential business information, days after the date of an FDA order under provided in paragraph (a)(1)(ii) of this Imports, Medical devices, Reporting and § 807.100(a)(1) declaring this device to be section and who has submitted an substantially equivalent, a redacted copy of appropriately redacted 510(k) to FDA recordkeeping requirements. the entire premarket notification as required Therefore, under the Federal Food, under § 807.95(f), all requests received by § 807.95(f). by the submitter for information Drug, and Cosmetic Act and under the (b) The statement in paragraph (a) of included in paragraph (a) of this section authority delegated to the Commissioner this section should be signed by the may be satisfied by referring the of Food and Drugs, it is proposed that certifier, made on a separate page of the 21 CFR part 807 be amended as follows: requestor to FDA’s Internet cite. premarket notification submission, and (e) A previously submitted 510(k) clearly identified as ‘‘Commitment to statement may be revoked any time, PART 807ÐESTABLISHMENT Submit a Redacted 510(k).’’ REGISTRATION AND DEVICE LISTING subject to the following requirements: 5. Section 807.93 is amended by (1) A revocation of a 510(k) statement FOR MANUFACTURERS AND INITIAL revising paragraph (a) and by adding IMPORTS OF DEVICES is made by submitting a copy of all paragraphs (d) and (e) to read as follows: information submitted with, or 1. The authority citation for 21 CFR § 807.93 Content and format of a 510(k) incorporated by reference in, the part 807 continues to read as follows: statement. premarket submission, from which (a)(1) A 510(k) statement submitted as information that is exempt from public Authority: 21 U.S.C. 331, 351, 352, 360, disclosure under part 20 of this chapter 360c, 360e, 360i, 360j, 371, 374. part of a premarket notification shall state as follows (choose one): has been redacted. 2. Section 807.87 is amended by (2) Redactions shall be made as redesignating paragraphs (j), (k), and (l), (i) Option 1—For firms that will directly respond to all requests for specified by § 807.95(f). as paragraphs (l), (m), and (n); and by (3) The redacted copy is to be sent to adding new paragraphs (j) and (k) to information: I certify that, in my capacity as (the FDA’s Center that reviewed the 510(k) at read as follows: position held in company by person required the appropriate address provided in § 807.87 Information required in a to submit the premarket notification, § 807.95(f)(4). premarket notification submission. preferably the official correspondent in the (4) A revocation of a 510(k) statement firm), of (company name), I will make becomes effective 30 days after it has * * * * * available all information included in this been submitted to FDA. The submitter (j) A written commitment, as premarket notification on safety and must respond to all requests for described in § 807.91 that the submitter effectiveness within 30 days of request by information received prior to the will provide to FDA, no later than 30 any person if the device described in the effective date. days after the date of the FDA order premarket notification submission is 6. Section 807.95 is amended by determined to be substantially equivalent. declaring the device to be substantially adding paragraph (f) to read as follows: equivalent under § 807.100(a)(1), a copy The information I agree to make available will be a duplicate of the premarket § 807.95 Confidentiality of information. of the premarket notification notification submission, including any submission, with all information that is adverse safety and effectiveness information, * * * * * exempt from public disclosure in but excluding all patient identifiers, and (f)(1) Not later than 30 days after the accordance with part 20 of this chapter trade secret and confidential commercial date of the FDA order issued under redacted in accordance with § 807.95(f). information, as defined in § 20.61. § 807.100(a)(1) declaring a device to be
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71354 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules substantially equivalent, the submitter specifications for both assigned and material has been commercially shall send to FDA a copy of all unassigned colors found in the Manual available and the original CIE information submitted with, or on Uniform Traffic Control Devices Illuminant C 1 has been replaced with incorporated by reference in, a (MUTCD). Color specifications for CIE Illuminant D 65. In addition, an premarket submission, from which fluorescent colors and pavement extensive international effort is in information that is exempt from public marking material would also be progress to specify the nighttime disclosure under part 20 of this chapter included. appearance of retroreflective materials. has been redacted in one of the DATES: Comments must be received on Lastly, expanding the specifications to following two ways: or before June 21, 2000. include fluorescent materials is also (i) The information exempt from ADDRESSES: Signed, written comments necessary at this time. In addition to disclosure has been physically obscured should refer to the docket number that revising the daytime color specifications so as to render it illegible, e.g., by appears at the top of this document and for retroreflective sign sheeting material covering the text or figure with black must be submitted to the Docket Clerk, used primarily for traffic signs, color ink. U.S. DOT Dockets, Room PL–401, 400 specifications for pavement markings (ii) The information exempt from Seventh Street, SW., Washington, DC and markers would be added. The first disclosure has been omitted. In such 20590–0001. All comments received introduction of the color specification cases, the extent of the deletions shall will be available for examination at the for nighttime use of these materials be described, e.g., ‘‘Pages 12 through 15 above address between 9 a.m. and 5 would be included in this revision. have been deleted.’’ p.m., e.t., Monday through Friday, Instrumentation for measuring (2) Whenever copyrighted materials except Federal holidays. Those desiring retroreflectivity is now available for in- are obscured or omitted, a reference to notification of receipt of comments must situ measurements as well as ease in the bibliographic entry identifying the include a self-addressed, stamped quality control and lab measurements. material under § 807.87(k) shall be envelope or postcard. Color instruments are available for included at the point where the FOR FURTHER INFORMATION CONTACT: daytime measurements of traffic signs materials originally appeared in the Mr. Ernest Huckaby, Office of and pavement markings. New pigment submission. formulations, especially for pavement (3) The redacted copy may be Transportation Operations (202) 366– 9064, or Mr. Raymond Cuprill, Office of marking material, are now in use submitted on a disk as a portable because of environmental concerns. The document format (.pdf) file. the Chief Counsel (202) 366–1377, Federal Highway Administration, 400 American Traffic Safety Services (4) The redacted copy is to be sent to Association assisted FHWA in soliciting the center that reviewed the 510(k) at Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. samples for measurement from sign the appropriate address: Food and Drug sheeting material and pavement Administration, Center for Devices and to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. marking material manufacturers. Radiological Health (HFZ–82), 2098 Samples were received from 11 SUPPLEMENTARY INFORMATION: Gaither Rd., Rockville, MD 20850, or manufacturers. Several types of Food and Drug Administration, Center Electronic Access pavement marking materials were for Biologics Evaluation and Research Internet users may access all received, i.e., paint, tape, epoxy, and (HFM–99), 11401 Rockville Pike, polyester. Polycarbonate and other Rockville, MD 20852. comments received by the U.S. Dockets, Room PL–401 by using the universal signing materials were not included in Dated: December 10, 1999. resource locator (URL): http:// the sampling. Manufacturers of Margaret M. Dotzel, dms.dot.gov. It is available 24 hours polycarbonate and other material may Acting Associate Commissioner for Policy. each day, 365 days each year. Please provide signs that conform to the color [FR Doc. 99–33003 Filed 12–20–99; 8:45 am] follow the instructions online for more limits stated for sign sheeting material. BILLING CODE 4160±01±F information and help. An electronic Definitions copy of this document may be The following discussion on the downloaded using a modem and procedures followed to develop this DEPARTMENT OF TRANSPORTATION suitable communications software from proposed revision contains the Government Printing Office’s abbreviations which are defined as Federal Highway Administration Electronic Bulletin Board Service at follows: (202) 512–1661. Internet users may Material types: 23 CFR Part 655 reach the Office of the Federal Register’s eg = enclosed lens sheeting material [FHWA Docket No. FHWA±99±6190] home page at: http://www.nara.gov/ encp = encapsulated lens sheeting fedreg and the Government Printing RIN 2125±AE67 material Office’s database at: http:// seg = super-engineering grade Traffic Control Devices on Federal-Aid www.access.gpo.gov/nara. material and Other Streets and Highways; Color Background up = microprismatic sheeting material Specifications for Retroreflective Sign (or vinyl) The MUTCD is incorporated by and Pavement Marking Materials exp = exposed glass spheres for reference in 23 CFR. The color pavement marking materials AGENCY: Federal Highway specifications found in the appendix to Measurement units: Administration (FHWA), DOT. subpart F of part 655 of 23 CFR are mm = millimeter ACTION: Notice of proposed rulemaking incorporated by reference in the (NPRM); request for comments. MUTCD. 1 Illuminant C is a standard from the International The current specifications for the Commission on Illumination (CIE) for filtered SUMMARY: The FHWA proposes to revise color of retroreflective sign sheeting tungsten illumination that simulates average daylight with a color temperature of 6,774 degrees its color specifications for retroreflective were determined on the basis of K. Illuminant D 65 is a standard representing signing materials. This revision would material available more than 15 years daylight with a correlated color temperature of 6504 include daytime and nighttime ago. Since then, new microprismatic K.
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nm = nanometer readings for each sample were monochromator. The Xenon light source Colors: automatically determined and are the was positioned at an angle of B = blue; G = green; W= white; BR = values used in this report. Calibration of approximately 0.33° from the collection brown; BK = black; R = red; O = the Labscan II was performed using a optics. The goniometer for the sheeting orange; Y = yellow; YG = yellow- certified white reference standard was set at 5° to the optical axis of the green; F as a prefix means the number LS–14277 with tristimulus light source. The goniometer is a material is fluorescent. values of X=79.79; Y=84.47; and photometer for measuring the Chromaticity coordinates and Z=90.59. The reference standard was directional light distribution luminous factors: x and y for a 2° CIE calibrated traceable to the National characteristics of sources, media, and Standard Photopic Observer. Institute of Standards and Technology surfaces. For the pavement marking CIE Illuminant D 65 for daytime in August 1996. The data was taken for materials the collection optics were measurements and CIE Illuminant A for the 10° Standard Observer and raised to 1.0° from the light source and nighttime measurements. calculated for the 2° observer after the goniometer set at 88.76° Y CIE tristimulus value for the collection. approximating 30 meter geometry. luminous factor (total luminous factor For the fluorescent samples, Nighttime color specification limits for for fluorescent materials). YF CIE measurement was performed on red and blue pavement marking material tristimulus value for the fluorescence Labspheres Bispectral Fluorescence were not included in Table 6. Samples luminance factor. Nighttime Colorimeter Model BFC–450 Serial received from the manufacturers were chromaticity coordinates are given only Number 2. The illumination and too small in size to provide reliable for x and y as the coefficient of collection geometry was 45/0. This measurements for nighttime retroreflection is specified elsewhere. instrument consists of two specifications. monochromators with the irradiating The color boxes are given by corner Procedure coordinates in x and y. one using a Xenon light source and the other a rapid scanning array detector Calibration of the spectroradiometer Measurement Equipment and type. The sample port is 32mm in was performed using a certified white Procedures diameter with the illumination area diffuse standard for the 100° line and Daytime Measurements and Equipment 25mm in diameter. The excitation the zero or dark value was obtained irradiance wavelength range is from with the light source illuminating a All of the measurements involved in 300–780nm and the emission black sample. Compensation for the this proposed revision were performed wavelength range is from 380–780nm. ambient level is automatically at the FHWAs Turner-Fairbank Highway Computation of the reflectance performed in the software. The relative Research Center (TFHRC) in McLean, luminance factor and the fluorescence spectral reflectance data over the above Virginia, with the lone exception being luminance factor is automatically wavelength range was stored and the the fluorescent measurements made at performed in the software for CIE D 65 chromaticity computation was Labsphere Corp. in North Sutton, New Standard Illuminant and the CIE 2° automatically performed. Hampshire. The facility used at the Standard Photopic Observer. The total Rulemaking Analyses and Notices TFHRC was the Visibility and chromaticity in 1931 coordinates is also Photometric Laboratory. Daytime given. The data used in this report is the All comments received before the measurements were made in the facility combined chromaticity coordinates for close of business on the comment using a Hunter LabScan Model II with the total luminance factor. Calibration is closing date indicated above will be a serial number 14277. This instrument performed against certified white considered and will be available for was loaned to the Visibility and diffuse standards. examination using the docket number Photometric Laboratory by Hunter appearing at the top of this document in Associates in Reston, Virginia. The Nighttime Measurements and the docket room at the above address. instrument uses a scanning interference Equipment The FHWA will file comments received filter and optics to rapidly scan the The ART Model 940D Computer after the comment closing date in the visible spectrum. The sample port is Controlled Photometric Range System docket and will consider late comments about 30mm in diameter and is was used for the nighttime to the extent practicable. The FHWA illuminated by a filtered tungsten- measurements. The illumination source may, however, issue a final rule at any halogen light source normal to the was a 150 W Oriel Xenon arc lamp time after the close of the comment sample. The reflected light is collected projector and the collection used an period. In addition to late comments, by a series of fiber optics at 45° arranged Optronics, Model 754 SN 9420–1009 the FHWA will also continue to file, in circumferentially to the sample normal. Spectroradiometer. The double the docket, relevant information The spectral data from 380 to 780nm is monochromator model 754–0–PMT SN becoming available after the comment then analyzed and the CIE Chromaticity 94102011 was used for the spectrum closing date, and interested persons Coordinates x, y and the luminance analysis. The wavelength range was set should continue to examine the docket factor Y for CIE Illuminant D 65 and the at 380–780nm with an interval of 10nm. for new material. 2° CIE Standard Photopic Observer are The high-voltage on the multiplier Executive Order 12866 (Regulatory computed and stored in memory in the phototube was varied depending on the Planning and Review) and DOT computer. This type of instrument is sample size and efficiency. The absolute Regulatory Policies and Procedures widely used in many material and value of the radiance is not required for testing laboratories in the United States chromaticity measurements and the The FHWA has determined that this and was chosen for this reason. coefficient of retroreflection action does not constitute a significant determination is not a part of this regulatory action within the meaning of Procedure report. The optical collection of the E.O. 12866, nor is it considered Each sample was measured in two retroreflected radiant flux was obtained significant under the regulatory policies locations on the sample, rotating the using a large 65mm diameter achromat and procedures of the DOT. It is sample in its own plane for each lens and quartz fiber optics circle to line anticipated that the economic impact of measurement. The averages of the two configuration as input to the double this rulemaking will be minimal and
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71356 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules will not have a significant economic Executive Order 12372 Authority: 23 U.S.C. 109(d), 114(a), 315, affect on small businesses, industry, or (Intergovernmental Review) and 402(a); 49 CFR 1.48. highway agencies. The color revisions Catalog of Federal Domestic 2. Revise the appendix to subpart F to will not be noticeable to the general Assistance Program Number 20.205, read as follows: public, however, the quality of the color Highway Planning and Construction. in the signs will improve. This Appendix to Subpart F of Part 655— The regulations implementing Executive rulemaking proposes to revise the color Alternate Method of Determining the Order 12372 regarding specifications currently stated in 23 CFR Color of Retroreflective Sign Materials intergovernmental consultation on which are also incorporated by and Pavement Marking Materials Federal programs and activities apply to reference in the Manual on Uniform this program. 1. Although the FHWA Color Tolerance Traffic Control Devices. Therefore, a full Charts depreciate the use of regulatory evaluation is not required. Paperwork Reduction Act spectrophotometers or accurate tristimulus colorimeters for measuring the daytime color Regulatory Flexibility Act The proposal in this document does of retroreflective materials, recent testing has In compliance with the Regulatory not contain information collection determined that 0/45 or 45/0 Flexibility Act (5 U.S.C. 601–612), the requirements for the Paperwork spectroradiometers and tristimulus FHWA has evaluated the effects of this Reduction Act of 1995, 44 U.S.C. 3501– colorimeters have proved that the proposal on small entities. Based on its 3520. measurements can be considered reliable. 2. The daytime color of non-fluorescing evaluation of this proposal, the FHWA National Environmental Policy Act retroreflective materials may be measured in certifies that this action would not have The agency has analyzed this action accordance with ASTM Test Method E 1349, a significant economic impact on a ‘‘Standard Test Method for Reflectance substantial number of small entities. for the purpose of the National Factor and Color by Spectrophotometry Environmental Policy Act of 1969 (42 Using Bidirectional Geometry’’ or ASTM Test Executive Order 12612 (Federalism U.S.C. 4321 et seq.) and has determined Method E 1347, (Replaces E 97) ‘‘Standard Assessment) that this proposed revision would not Test Method for Color and Color-Difference This action has been analyzed in have any effect on the quality of the Measurement by Tristimulus (Filter) accordance with the principles and environment. Colorimetry.’’ The latter test method specifies bidirectional geometry for the measurement criteria contained in Executive Order Unfunded Mandates Reform Act of 1995 13132 dated August 4, 1999, and it has of retroreflective materials. The geometric conditions to be used in both test methods been determined that this action does This proposed rule would not impose are 0/45 or 45/0 circumferential illumination not have a substantial direct effect or a Federal mandate resulting in the or viewing. Uniplanar geometry is not sufficient federalism implications on expenditure by State, local, and tribal recommended for material types IV or higher States that would limit the governments, in the aggregate, or by the (designated microprismatic). The CIE policymaking discretion of the States. private sector, of $100 million or more standard illuminant used in computing the Nothing in this document directly in any one year (2 U.S.C. 1532). colorimetric coordinates shall be D65 and the preempts any State law or regulation. 2° Standard CIE Observer shall be used. Regulation Identification Number 3. For fluorescent retroreflective materials Executive Order 12988 (Civil Justice A regulation identification Number ASTM E 991 may be used to determine the chromaticity provided that the D65 Reform) (RIN) is assigned to each regulatory This action meets applicable illumination meets the requirements of E action listed in the Unified Agenda of 991. This practice, however, allows only the standards in sections 3(a) and 3(b)(2) of Federal Regulations. The Regulatory total luminous factor to be measured. The Executive Order 12988, Civil Justice Information Service Center publishes luminescent luminous factor must be Reform, to minimize litigation, the Unified Agenda in April and determined using bispectral fluorescent eliminate ambiguity, and reduce October of each year. The RIN contained colorimetry. Commercial instruments are burden. in the heading of this document can be available which allow such determination. Some testing laboratories are also equipped Executive Order 13045 (Protection of used to cross reference this action with the Unified Agenda. to perform these measurements. Children) 4. For nighttime measurements CIE We have analyzed this action under List of Subjects in 23 CFR Part 655 Standard Illuminant A shall be used in Executive Order 13045, Protection of computing the colorimetric coordinates and Design standards, Grant programs— the 2° Standard CIE Observer shall be used. Children from Environmental Health transportation, Highways and roads, 5. Average performance sheeting is Risks and Safety Risks. This rule is not Incorporation by reference, Signs, identified as Types I and II sheeting and high an economically significant rule and Traffic regulations. performance sheeting is identified as Type does not concern an environmental risk III. Super-high intensity sheeting is identified Issued on: December 14,1999. — to health or safety that may as Types V, VI and VII in ASTM D 4956. disproportionately affect children. Kenneth R. Wykle, 6. The following six tables depict the 1931 Federal Highway Administrator. CIE Chromaticity Diagram x and y Executive Order 12630 (Taking of coordinates for the corner points defining the Private Property) In consideration of the foregoing, the recommended color boxes in the diagram. FHWA proposes to amend title 23, Code This proposed revision will not effect Lines drawn between these corner points of Federal Regulations, part 655, as set a taking of private property or otherwise specify the limits of the chromaticity allowed forth below: in the 1931 Chromaticity Diagram. Color have taking implications under coordinates of samples that lie within these Executive Order 12630, Governmental PART 655Ð[AMENDED] lines are acceptable. For blue and green Actions and Interference with colors the spectrum locus is the defining Constitutionally Protected Property 1. Revise the authority citation for limit between the corner points located on Rights. part 655 to read as follows: the spectrum locus:
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TABLE 1 TO PART 655, SUBPART F.ÐDAYTIME COLOR SPECIFICATION LIMITS FOR RETROREFLECTIVE MATERIALS WITH CIE 2° STANDARD OBSERVER AND 45/0 (0/45) GEOMETRY AND CIE D65 STANDARD ILLUMINANT
Chromaticity coordinates (corner points) Luminance fac- tor range Color 1234Y in percent
xyxyxyxyMin.1 Min.2
White ...... 355 .355 .305 .305 .285 .325 .335 .375 ≥35 ≥27 Red ...... 648 .351 .735 .265 .629 .281 .565 .346 ≥5 ≥3 Orange ...... 562 .350 .645 .355 .570 .429 .506 .404 ≥17 ≥12 Brown ...... 430 .340 .430 .390 .518 .434 .570 .382 ≥3±10 ≥3±10 Yellow ...... 498 .412 .557 .442 .479 .520 .438 .472 ≥27 ≥16 Green ...... 026 .399 .166 .364 .286 .446 .207 .771 ≥4 ≥3 Blue ...... 078 .171 .150 .220 .210 .160 .137 .038 ≥1 ≥1 Lt. Blue ...... 180 .260 .240 .300 .270 .260 .230 .200 ≥15 ≥15 Yellow/green ...... 387 .610 .460 .540 .421 .486 .368 .539 ≥≥50 Purple ...... 302 .064 .307 .202 .374 .247 .457 .136 ≥3 ≥2 Coral * ...... Black ...... 355 .355 .305 .305 .285 .325 .335 .375 ≥3 ...... max. * No coordinates recommended for this color. 1 Types I and II. 2 Types III±VII.
TABLE 2 TO PART 655, SUBPART F.ÐNIGHTTIME COLOR SPECIFICATION LIMITS FOR RETROREFLECTIVE MATERIALS WITH CIE 2° STANDARD OBSERVER AND OBSERVATION ANGLE = 0.33°, ENTRANCE ANGLE = +5° (BETA ANGLE 2 AND EPSI- LON = 0°) AND CIE STANDARD ILLUMINANT A
Chromaticity coordinates (corner points) Color 1234 xyxyxyxy
White ...... 475 .452 .360 .415 .392 .370 .515 .409 Red ...... 650 .348 .620 .348 .712 .255 ...... Orange ...... 643 .355 .613 .355 .565 .405 .595 .405 Brown ...... 595 .405 .540 .405 .570 .365 .643 .355 Yellow ...... 513 .487 .500 .470 .545 .425 .572 .425 Green ...... 007 .570 .200 .500 .322 .590 .193 .782 Blue ...... 033 .370 .180 .370 .230 .240 .091 .133 Lt Blue * ...... Coral * ...... Purple * ...... *No coordinates recommended for this color.
TABLE 3 TO PART 655, SUBPART F.ÐDAYTIME COLOR SPECIFICATION LIMITS FOR FLUORESCENT RETROREFLECTIVE MATERIAL WITH CIE 2° STANDARD OBSERVER AND 45/0 (0/45) GEOMETRY AND CIE D65 STANDARD ILLUMINANT
Chromaticity coordinates (corner points) Luminance factor limits % 1234 Color YYF xyxyxyxyMin Max
Fluorescent Orange ...... 562 .350 .645 .355 .570 .429 .506 .404 20 10 Fluorescent Yellow ...... 557 .442 .498 .412 .438 .472 .479 .520 35 15 Fluorescent Yellow/Green ...... 387 .610 .368 .539 .421 .486 .460 .540 50 20 Fluorescent Green ...... 320 .590 .320 .682 .210 .770 .230 .670 30 15
TABLE 4 TO PART 655, SUBPART F.ÐNIGHTTIME COLOR SPECIFICATION LIMITS FOR FLUORESCENT RETROREFLECTIVE MATERIAL WITH CIE 2° STANDARD OBSERVER AND OBSERVATION ANGLE = 0.33°, ENTRANCE ANGLE =+5° (BETA ANGLE 2 AND EPSILON = 0°) AND CIE STANDARD ILLUMINANT A
Chromaticity coordinates (corner points) Color 1234 xyxyxyxy
Fluorescent Orange ...... 625 .375 .669 .331 .636 .330 .589 .376 Fluorescent Yellow ...... 554 .445 .610 .390 .569 .394 .526 .437
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TABLE 4 TO PART 655, SUBPART F.ÐNIGHTTIME COLOR SPECIFICATION LIMITS FOR FLUORESCENT RETROREFLECTIVE MATERIAL WITH CIE 2° STANDARD OBSERVER AND OBSERVATION ANGLE = 0.33°, ENTRANCE ANGLE =+5° (BETA ANGLE 2 AND EPSILON = 0°) AND CIE STANDARD ILLUMINANT AÐContinued
Chromaticity coordinates (corner points) Color 1234 xyxyxyxy
Fluorescent Yellow/Green ...... 480 .520 .550 .449 .523 .440 .473 .490 Fluorescent Green ...... 007 .570 .200 .500 .322 .590 .193 .782
TABLE 5 TO PART 655, SUBPART F.ÐDAYTIME COLOR SPECIFICATION LIMITS FOR PAVEMENT MARKINGS MATERIAL WITH CIE 2° STANDARD OBSERVER AND 45/0 (0/45) GEOMETRY AND CIE D65 STANDARD ILLUMINANT
Chromaticity coordinates (corner points) Y values % Without Color With Glass Glass xyxyxyxy Beads Beads Min Max Min Max
White ...... 355 .355 .305 .305 .285 .325 .335 .375 60 ...... 70 ...... Yellow ...... 560 .440 .460 .400 .420 .440 .490 .510 30 ...... 35 ...... Red ...... 480 .300 .690 .315 .620 .380 .480 .360 6 15 ...... Blue ...... 105 .100 .220 .180 .200 .260 .060 .220 5 14 ......
TABLE 6 TO PART 655, SUBPART F.ÐNIGHTTIME COLOR SPECIFICATION LIMITS FOR PAVEMENT MARKING RETROREFLECTIVE MATERIAL WITH CIE 2° STANDARD OBSERVER AND OBSERVATION ANGLE = 1.05°, ENTRANCE ANGLE = 88.76° (BETA ANGLE 2 AND EPSILON = 0°) AND CIE STANDARD ILLUMINANT A
Chromaticity coordinates (corner points) Color 1234 xyxyxyxy
White ...... 480 .410 .430 .380 .405 .405 .455 .435 Yellow ...... 575 .425 .490 .410 .460 .440 .510 .490
[FR Doc. 99–32910 Filed 12–20–99; 8:45 am] Administrator, and recognized as the ADDRESSES: Signed, written comments BILLING CODE 4910±22±P national standard for traffic control on should refer to the docket number that all public roads. The FHWA announced appears at the top of this document and its intent to rewrite and reformat the must be submitted to the Docket Clerk, DEPARTMENT OF TRANSPORTATION MUTCD on January 10, 1992, at 57 FR U.S. DOT Dockets, Room PL–401, 400 1134. Seventh Street, SW., Washington, DC Federal Highway Administration This document proposes new text for 20590–0001. All comments received 23 CFR Part 655 the MUTCD in Chapter 2B—Regulatory will be available for examination at the Signs, Part 5—Traffic Control Devices above address between 9 a.m. and 5 [FHWA Docket No. FHWA±99±6298] for Low-Volume Rural Roads, and Part p.m., e.t., Monday through Friday, RIN 2125±AE66 8—Traffic Control for Highway-Rail except Federal holidays. Those desiring Grade Crossings (update information). notification of receipt of comments must Revision of the Manual On Uniform The purpose of this rewrite effort is to include a self-addressed, stamped Traffic Control Devices; Regulatory reformat the text for clarity of intended postcard. Signs, Low Volume Rural Roads, and meanings, to include metric dimensions Traffic Control for Highway-Rail Grade and values for the design and FOR FURTHER INFORMATION CONTACT: For Crossings installation of traffic control devices, information regarding the notice of and to improve the overall organization proposed amendments contact Ms. AGENCY: Federal Highway and discussion of the contents in the Linda Brown, Office of Transportation Administration (FHWA), DOT MUTCD. The proposed changes Operations, Room 3408, (202) 366–2192, ACTION: Notice of proposed amendments included herein are intended to or Mr. Raymond Cuprill, Office of Chief to the Manual on Uniform Traffic expedite traffic, promote uniformity, Counsel, Room 4217, (202) 366–0834, Control Devices (MUTCD); request for improve safety, and incorporate Department of Transportation, Federal comments. technology advances in traffic control Highway Administration, 400 Seventh SUMMARY: The MUTCD is incorporated device application. Street, SW., Washington, DC 20590. DATES by reference in 23 CFR part 655, subpart : Submit comments on or before SUPPLEMENTARY INFORMATION: F, approved by the Federal Highway June 30, 2000.
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Electronic Access reformatting the MUTCD. The NCUTCD Incident Management and updates to Internet users may access all proposal is available from the U.S. DOT the following previously published comments received by the U.S. DOT Dockets (see address above). Pursuant to parts of the MUTCD: Part 1— Dockets, Room PL 401, by using the 23 CFR Part 655, the FHWA is Definitions; Part 3— Markings; and Part universal resource locator (URL): http/ responsible for approval of changes to 4—Signals. The proposed new style of the dms.dot.gov. It is available 24 hours the MUTCD. Although the MUTCD will be revised MUTCD would be a 3-ring binder with each day, 365 days each year. Please in its entirety, it is being completed in 8–1⁄2 x 11 inch pages. Each part of the follow the instructions online for more phases due to the enormous volume of MUTCD would be printed separately in information and help. An electronic text. The FHWA reviewed the a bound format and then included in the copy of this notice of proposed NCUTCD’s proposal for MUTCD Part 3-ring binder. If someone needed to amendment may be downloaded using a 3—Markings, Part 4—Signals, and Part reference information on a specific part modem and suitable communications 8—Traffic Control for Highway-Rail of the MUTCD, it would be easy to software from the Government Printing Intersections. The summary of proposed remove that individual part from the Office’s Electronic Bulletin Board changes for Parts 3, 4, and 8 was binder. The proposed new text would be Service at (202) 512–1661. Internet users published as Phase 1 of the MUTCD in column format and contain four may reach the Office of the Federal rewrite effort in a previous notice of categories as follows: (1) Standards— Register’s home page at: http:// proposed amendment dated January 6, representing ‘‘shall’’ conditions; (2) www.nara.gov/fedreg and the 1997, at 62 FR 691. The FHWA Guidance—representing ‘‘should’’ Government Printing Office’s database reviewed the NCUTCD’s proposal for conditions; (3) Options—representing at: http://www.access.gpo.gov/nara. Part 1—General Provisions and Part 7— ‘‘may’’ conditions; and (4) Support— The text for the proposed sections of Traffic Control for School Areas. The representing descriptive and/or general the MUTCD is available from the FHWA summary of proposed changes for Parts information. This new format would Office of Transportation Operations 1 and 7 was published as phase 2 of the make it easier to distinguish standards, (HOTO–1) or from the FHWA Home MUTCD rewrite effort in a previous guidance, and optional conditions for Page at the URL: http:// notice of proposed amendment dated the design, placement, and application www.fhwa.dot.gov/operations/mutcd. December 5, 1997, at 62 FR 64324. The of traffic control devices. The adopted Please note that the current proposed FHWA reviewed the NCUTCD’s final version of the new MUTCD will be sections contained in this docket for proposal for Chapter 2A—General in metric and English units. Dual units MUTCD Chapters 2B, Part 5, and Part 8 Provisions and Standards for Signs, will be shown in the MUTCD will take approximately 8 weeks from Chapter 2D—Guide Signs for particularly for speed limits, guide sign the date of publication before they will Conventional Roads, Chapter 2E—Guide distances, and other measurements be available at this web site. Signs—Freeways and Expressways, which the public must read. Background Chapter 2F—Specific Service Signs, and The FHWA invites comments on the Chapter 2I—Signing for Civil Defense. proposed text for MUTCD chapter 2B, The 1988 MUTCD with its revisions The summary of proposed changes for part 5, and part 8 update. A summary are available for inspection and copying Chapters 2A, 2D, 2E, 2F, and 2I was of the proposed significant changes as prescribed in 49 CFR Part 7. It may published as Phase 3 of the MUTCD contained in these sections are included be purchased for $57.00 (Domestic) or rewrite effort in a previous notice of in the following discussion: $71.25 (Foreign) from the proposed amendment dated June 11, Superintendent of Documents, U.S. 1998, at 63 FR 31950. The summary of Discussion of Proposed Amendments to Government Printing Office, P.O. Box proposed changes for Chapters 2G— Chapter 2B—Regulatory Signs 371954, Pittsburgh, PA 15250–7954, Tourist Oriented Directional Signs, The following items are the most Stock No. 650–001–00001–0. This Chapter 2H—Recreational and Cultural significant proposed revisions to notice is being issued to provide an Interest Signs, and Part 9—Traffic Chapter 2B: opportunity for public comment on the Control for Bicycles was published as 1. In Section 2B.1, the FHWA desirability of proposed amendments to Phase 4 of the MUTCD rewrite effort in proposes to delete the sentence the MUTCD. Based on the comments a previous notice of proposed indicating that all regulatory signs shall received and its own experience, the amendment dated June 24, 1999, at 64 be retroreflective or illuminated since FHWA may issue a final rule concerning FR 33802. The summary of proposed this information is covered in Section the proposed changes included in this changes for Chapter 2C—Warning Signs 2A.8 which provide general notice. and Part 10—Traffic Control for requirements for all signs, including The National Committee on Uniform Highway-Light Rail Transit Grade regulatory signs. Traffic Control Devices (NCUTCD) has Crossings was published as Phase 5 of 2. In Section 2B.3, the FHWA taken the lead in this effort to rewrite the MUTCD rewrite effort in a previous proposes to include an explanation of and reformat the MUTCD. The NCUTCD notice of proposed amendment dated when various sign sizes should be used is a national organization of individuals June 24, 1999, at 64 FR 33806. based on the roadway classification. from the American Association of State This notice of proposed amendments This information is currently shown in Highway and Transportation Officials is Phase 6 of the MUTCD rewrite effort the ‘‘Standard Highway Signs’’ book.1 (AASHTO), the Institute of and includes the summary of proposed However, we believe it is worth Transportation Engineers (ITE), the changes for MUTCD Chapter 2B, Part 5, mentioning in the MUTCD text as well. National Association of County and update information for previously 3. In Section 2B.3, the FHWA Engineers (NACE), the American Public published proposed changes to Part 8. proposes to add Table 2B.1 which Works Association (APWA), and other The public will have an opportunity to organizations that have extensive review and comment on the remaining 1 ‘‘Standard Highway Signs,’’ FHWA, 1979 experience in the installation and parts of the MUTCD in a future notice (Metric) is included by reference in the 1988 MUTCD. It is available for inspection and copying maintenance of traffic control devices. of proposed amendment. The remaining at the FHWA Washington Headquarters and all The NCUTCD voluntarily assumed the parts include Part 6—Traffic Control for FHWA Division Offices as prescribed at 49 CFR part arduous task of rewriting and Construction, Maintenance, Utility, and 7.
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71360 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules shows the sign codes, the standard sign information in a table format will increase the standard letter size for the sizes, and applicable MUTCD sections provide an easy and quick reference for following signs: for more detailed information. The the readers. In an effort to improve sign FHWA believes that having this visibility, the FHWA also proposes to
TABLE SHOWING SIGNS WITH PROPOSED INCREASED STANDARD LETTER SIZES
Sign Code Proposed standard size
Two-Way Left Turn Only ...... R3±9b ...... 750mm x 1050mm (30′′ x42′′). Center Lane Buses and HOV 2+ Only ...... R3±11 ...... 1050mm x 1500mm (42′′ x60′′). Do Not Enter ...... R5±1 ...... 900mm x 900mm (36′′ x36′′). Pedestrians and Bicycles Prohibited ...... R5±10b ...... 900mm x 600mm (36′′ x24′′). Pedestrians Prohibited ...... R5±10c ...... 750mm x 450mm (30′′ x18′′). One Way ...... R6±1 ...... 900mm x 900mm (36′′ x36′′). One Way ...... R6±2 ...... 900mm x 900mm (36′′ x36′′). Divided Highway ...... R6±3 and 3a ...... 900mm x 900mm (36′′ x36′′). No Parking/Restricted Times ...... R7±200 ...... 500mm x 450mm (20′′ x18′′). Hitch Hiking Prohibited (symbol) ...... R9±4a ...... 600mm x 600mm (24′′ x24′′). Left on Green Arrow Only ...... R10±5 ...... 900mm x 1200mm (36′′ x48′′). Use Lane with Green Arrow ...... R10±8 ...... 750mm x 900mm (30′′ x36′′). Left (Right) Turn Signal ...... R10±10 ...... 750mm x 900mm (30′′ x36′′). Left Turn Yield on Green Ball ...... R10±12 ...... 750mm x 900mm (30′′ x36′′). No Trucks Over 7000 lbs Empty Weight ...... R12±3 ...... 750mm x 900mm (30′′ x36′′).
4. In Section 2B.4, paragraph 2, the discussed in section 2B.5 also apply to appropriate to include this general FHWA proposes to require the use of Multiway STOP signs (section 2B.7). practice in the MUTCD text. the 4–WAY supplemental plaque (R1–3) 9. In Section 2B.6, paragraph 4, the 13. In Section 2B.7, paragraph 3, the at intersections where all approaches FHWA proposes to change the following FHWA also proposes to recommend are controlled by STOP signs. In the sentence from an OPTION condition to criteria that should be considered in the 1988 MUTCD this was a recommended a GUIDANCE condition: ‘‘Stop lines, engineering study. This proposed practice. However, the FHWA believes when used to supplement a STOP sign, change also eliminates the that due to the increased aggressive should be located at the point where the misunderstood term ‘‘warrants’’ and driving behavior, disregard of STOP road user should stop.’’ The use of uses instead the term ‘‘engineering signs, and the hazardous nature of these pavement markings helps to reinforce study.’’ The recommended criteria are type intersections, the required use of sign and other traffic control device generally consistent with the text in the the 4–WAY supplemental plaque will messages. We believe that 1988 MUTCD except for the following provide additional emphasis and recommending the use of the STOP line proposed changes: motorist information at these locations. provides the road user with additional (a) In item 3a which discusses 5. In Section 2B.5, the FHWA information on which to make safe minimum vehicle volumes at proposes to change the title from traffic operation decisions. intersections where multiway stop signs are considered, the FHWA proposes to ‘‘Warrants for Stop Signs’’ to ‘‘Stop Sign 10. In Section 2B.6, paragraph 5, the change ‘‘500 vehicles per hour’’ to ‘‘300 Application.’’ This proposed change FHWA proposes to add a sentence vehicles per hour.’’ This proposed attempts to eliminate the which states that STOP signs should not change allows more consideration misunderstanding created by the term be placed on the far-side of the flexibility and allows more intersections ‘‘warrants’’ which has a ‘‘legal intersection. Although this is not new to qualify for multiway stop sign sanctions’’ connotation. The GUIDANCE guidance and is shown in many of the installlations. provided in Section 2B.5 for installing typical figures in the 1988 MUTCD, we (b) In item 3b, the FHWA proposes to STOP signs is not intended to be a legal believe that it is appropriate to include add bicycle volumes to the combination sanction or authorization, but instead is this proposed text to eliminate any volume studies of vehicles and intended to list possible situations ambiguity. pedestrians. Bicycle travel is one of the where these signs could be appropriate 11. In Section 2B.7, the FHWA based on an engineering study. FHWA’s program emphasis areas proposes to add the word ‘‘application’’ identified in our strategic plan. The 6. In Section 2B.5, paragraph 6, the to the title since this term is more FHWA believes that bicycle travel FHWA proposes to add GUIDANCE to descriptive of the information contained should be an integral part of traffic describe the appropriate street to stop in this section on multi-way stop signs. control considerations. traffic in a two-way STOP control In Section 2B.7, paragraph 2, the FHWA (c) In item 4, the FHWA proposes to situation. proposes to add GUIDANCE to provide a means for combining data on 7. In Section 2B.5, paragraph 7, the recommend that the decision to install the accident experience and volume FHWA proposes to include Multiway Stop signs should be based on counts when considering the considerations that may help engineers an engineering study. installation of multiway stop signs. and other transportation officials decide 12. In Section 2B.7, paragraph 2, the 14. The discussion in Section 2B.7, the appropriate street to install STOP FHWA proposes to specifically state paragraph 3, provides primary criteria signs at 2–WAY STOP intersections. that the decision to install multi-way for consideration when installing 8. In Section 2B.5, paragraph 9, the stop signs should be based on an Multiway Stop signs. In Section 2B.7, FHWA proposes to include SUPPORT engineering study. Although this paragraph 4, the FHWA proposes to information to clarify to the reader that recommended GUIDANCE is usually include additional supporting criteria restrictions on the use of STOP signs as followed, the FHWA believes it is for consideration. Also in paragraph 4,
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71361 the FHWA proposes to add a crosss- Truck Speed Sign and to include the turn prohibition sign at signalized reference to a proposed new section design in the ‘‘Standard Highway Signs’’ intersections, the FHWA proposes to 2C.31 which discusses the optional use book. include a sentence stating that installing of a new ‘‘CROSS TRAFFIC DOES NOT 19. In Section 2B.11, paragraph 3, the a post-mounted turn prohibition sign to STOP sign’’ at multiway stop FHWA proposes to designate 3 as the supplement the overhead sign is an intersections. This proposed sign may maximum number of speed limits OPTION. be used where engineering study displayed on any one speed limit sign 26. In Section 2B.16, paragraph 2, the indicates drivers frequently mistake 2- or assembly sign. In the 1988 MUTCD FHWA proposes to add a new way and multiway stop controlled this was recommended GUIDANCE. The Intersection Lane Control Sign (R3–5a) intersections. FHWA proposes to change this to which may be used to explain to road 15. The FHWA proposes to separate STANDARD practice because 3 speed users that they must stay in the same the discussion on Yield signs to cover limits is the maximum amount of lane and proceed straight through an general design and purpose for Yield information that the road user can safely intersection. signs (Section 2B.8); ‘‘Yield Sign read and comprehend. 27. In Section 2B.16, paragraph 3, the Application’’ (Section 2B.9); and ‘‘Yield 20. In Section 2B.12, Paragraph 2, the FHWA proposes to add a new Sign Placement’’ (Section 2B.10). This FHWA proposes to add another option requirement that whenever lane use proposed change also avoids the use of for day and night speed limits using control signs are installed, lane-use the misunderstood term ‘‘warrants.’’ changeable message signs that change pavement markings shall also be 16. In Section 2B.10, paragraph 2, the for traffic and ambient conditions installed. This requirement would apply FHWA proposes to change the following provided that the appropriate speeds are whether the lane-use control message sentence from a GUIDANCE condition shown at the proper times. This was for mandatory or optional traffic to a STANDARD condition: ‘‘The YIELD proposed change will allow Intelligent movements. In the 1988 MUTCD the use sign shall be located as close as practical Transportation Systems (ITS) of pavement markings was to the intersection it regulates, while technology for changeable message recommended, but not required, for optimizing its visibility to the road signs. mandatory movement situations only. user.’’ The FHWA believes that 21. In Section 2B.14, paragraph 6, the This proposed change to require lane- enhancing sign visibility will help FHWA proposes to include an optional use pavement markings and signs in improve intersection safety and reduce method for installing Reduced Speed both mandatory and optional traffic intersection crashes. This same change Ahead (R2–5 series) signs which are movement situations will benefit the is proposed for STOP signs in Section intended to advise road users of the road users by providing additional 2B.6, paragraph 2. appropriate speed limit change ahead. information to assist them in the 17. In Section 2B–8 of the 1988 The proposed optional method decisionmaking tasks involved with MUTCD, the following sentence was discussed in item 2 was submitted by perceiving and executing safe and included: ‘‘YIELD signs should not be the Minnesota Department of appropriate traffic maneuvers. This used on the through roadway of Transportation. The proposed optional proposed change is also consistent with expressways.’’ The FHWA proposes not method would use an assembly the proposed text for mandatory-turn to include this sentence in the new consisting of the Speed Limit Sign (R2– pavement markings discussed in Section 2B.10, ‘‘Yield Sign 1) with the supplemental legend plaque Chapter 3B.12. Requiring pavement Application.’’ The reason for not ‘‘BEGIN’’ mounted above the R2–1 sign markings along with lane-use control including this sentence is to avoid and the supplemental distance plaque signs means that road users who may potential conflict with YIELD signs (1⁄4 mile, etc.) mounted below the R2– not see the sign (particularly ground- installed at signalized intersections on 1 sign. The recommended color for the mounted signs) may have an expressways for the purpose of supplemental plaques is yellow. opportunity to see the pavement controlling right-turn movements. 22. In Section 2B.15, the FHWA marking and react accordingly. This is 18. In Section 2B.11, paragraph 2, the proposes to combine the discussion for a practice that is successfully used in FHWA proposes the following revisions the Turn Prohibition and the U-Turn Europe and it is called ‘‘horizontal to help clarify the design and Prohibition signs into one section since signing.’’ European traffic engineers application of the Truck Speed Sign. they are both related. have found that the redundancy The ‘‘TRUCKS 40’’ sign currently shown 23. In Section 2B.15, paragraph 1, the provided by horizontal signing is a very in the 1988 MUTCD is intended to be FHWA proposes to reword this sentence important element of attaining and the supplemental plaque message that is and classify it as a STANDARD since improving both traffic efficiency and required for use below the Speed Limit the Turn Prohibition Signs (R3–1 to R3– safety for road users. The FHWA Sign (R2–1). The FHWA proposes to 4) are the appropriate and standard proposes a 10 year compliance period assign the ‘‘TRUCKS 40’’ supplemental signs for use where turns are prohibited. based on the effective date of the plaque the sign code (R2–2P). The R2– 24. In Section 2B.15, paragraph 5, the MUTCD final rule. This would allow 2P supplemental plaque is not to be FHWA proposes to change the condition States time to implement this proposed used independently. The FHWA also for installing turn prohibition signs (R3– change. proposes to clarify that the legend 1 to R3–4) adjacent to a signal face from 28. In Section 2B.16, paragraphs 6 and ‘‘TRUCKS 40’’ may also be included an OPTION to GUIDANCE. In situations 7, the FHWA proposes to add language within the same panel as the Speed where signals are present, placing the to distinguish between when overhead Limit Sign (R2–1). turn prohibition sign adjacent to the and ground mounted intersection lane- In addition to the above clarification, signal face is recommended because it use control signs are used. The the FHWA proposes to modify the 1988 enhances the sign’s visibility and following language is proposed: ‘‘When MUTCD to explain that a Truck Speed improves the road user’s ability to see the number of through lanes for an Sign (R2–2) contains the legend the sign placed in this overhead approach is two or less, the intersection ‘‘TRUCKS 40 MPH’’ or ‘‘TRUCK SPEED position. lane-use control signs (R3–5, R3–6, or 40’’ and is used independently. The 25. In Section 2B.15, paragraph 6, in R3–8) may be either overhead or ground FHWA proposes to develop a design addition to recommending the mounted. When the number of approach drawing for the R2–2 independent installation of an overhead-mounted lanes is three or more, these intersection
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In Section 2B.21, paragraph 17, vehicles in the adjacent lanes. reversible lane control signs may be the FHWA proposes to recommend that 29. The FHWA proposes to add a new either static or changeable message where left turning vehicles may impact Section 2B.17 that specifically addresses signs. The FHWA supports the use of the traffic safety and operational the standard application and placement changeable message signs especially in efficiency of reversible lanes, location for mandatory movement lane- situations where real time motorist consideration should be given to use control signs (R3–5 and R3–7). The information is needed for changing prohibiting left and U-turns for a FHWA proposes to clarify the traffic conditions. specified time period. placement location for these signs. In 33. In Section 2B.21, paragraph 2, paragraph 1, the FHWA proposes to although the Reversible Lane Control 40. In Section 2B.26, the FHWA clarify that the word message ‘‘LEFT signs may be either ground or overhead proposes to change the title from ‘‘Signs LANE MUST TURN LEFT’’ (R3–7) sign mounted, the FHWA proposes to require for Uphill Traffic Lanes’’ to ‘‘Slow shall be for ground mounting only. that when ground mounted Reversible Moving Traffic Lane Signs.’’ Since slow In paragraph 3, the FHWA proposes to Lane Control signs are used, they shall moving traffic is not only attributed to change the 1988 MUTCD text to indicate be used as a supplement to overhead ‘‘uphill’’ roadway conditions, the that the ‘‘LEFT OR RIGHT TURN signs or signals. The ground mounted FHWA proposes to delete the reference ONLY’’ (R3–5) symbol sign can be either sign will provide the road user with to uphill traffic and use the term ‘‘slow ground mounted or overhead mounted. additional information and an added moving traffic’’ instead. This is also consistent with the opportunity to view the sign message 41. In Section 2B.26, paragraph 2, the proposed language in Section 2B.15, and react accordingly. FHWA proposes to recommend that the paragraph 5. In paragraph 3, the FHWA 34. In Section 2B.21, paragraph 3, the TRUCK LANE XX FEET sign (R4–6) also proposes to add a new design FHWA proposes to require the use of should be installed in advance of the standard for the R3–5 symbol sign. A Reversible Lane Control signs at TRUCKS USE RIGHT LANE (R4–5) sign. proposed word message plaque LEFT locations where it is determined by a In the 1988 edition of the MUTCD this LANE, CENTER LANE, etc. would be traffic engineering study that lane use is an optional condition which means required below the R3–5 symbol sign so control signals or barriers are not that the sign may or may not be that the road user will know which lane necessary to operate a reversible lane. installed. The FHWA believes that applies to the sign. 35. There are times when jurisdictions changing this to a recommended 30. In Section 2B–18, the FHWA responsible for traffic control may want condition will provide the road user proposes to expand the discussion on to exercise the option of installing only with important advanced information the Optional Movement Lane-Use pavement markings and reversible lane that will aid in the driver’s Control (R3–6) sign and include the control signs rather than lane control decisionmaking task. discussion in a new separate section. In signals to reverse traffic flow. In Section 42. In Section 2B.26, paragraph 3, the paragraph 1, the FHWA proposes to 2B.21, paragraph 4, the FHWA proposes FHWA proposes to add a sentence to specifically state that the Optional 3 conditions that must be considered explain that the SLOWER TRAFFIC Movement Lane-Use Control (R3–6) sign before a decision is made to reverse KEEP RIGHT sign (R4–3) may be used shall be installed at the intersection traffic flow with the use of only as a supplement or alternative to the location. pavement markings and reversible lane TRUCKS USE RIGHT LANE sign (R4–5). In paragraph 2, the FHWA proposes to control signs. This is particularly useful in situations specifically state that the Optional 36. In Section 2B.21, paragraph 5, the where the slower traffic may not be just Movement Lane-Use Control (R3–6) sign FHWA proposes to refer the reader to a truck traffic. shall indicate all permissible lane new Table 2B.2 which describes the movements at the intersection. meanings of symbols and legends used 43. In Section 2B.29, paragraph 1, the 31. In Section 2B.19, the FHWA on reversible lane control signs. In FHWA proposes to include a reference proposes to classify the Double Turn paragraph 5 through 8, the FHWA to direct readers to Figure 2–5a which Lane-Use Control (R3–8) sign as an proposes to provide a discussion for the shows the signing and pavement Advance Intersection Lane-Use Control appropriate design principles of marking treatments for divided highway sign. The FHWA also proposes to reversible lane control signs. intersections with medians 9 m (30 ft.) provide placement guidance that 37. In Section 2B.21, paragraphs 9 or wider. The FHWA proposes to revise indicates the R3–8 sign would be through 12, the FHWA proposes to the figure shown in the 1988 MUTCD. installed in advance of the tapers or at provide a discussion for the appropriate The figure currently shown in the 1988 the beginning of the turn lane so that placement principles for reversible lane MUTCD shows two diagrams: one for road users can determine in advance control signs. The new signs R3–9g, R3– divided highways with medians less their appropriate vehicle placement for 9h are proposed for advance reversible than 9 m (30 ft.) and one for divided lane changes. lane control application and the R3–9i highways with medians 9 m (30 ft.) or 32. The FHWA proposes to add a new sign is proposed for use at the wider. The proposed new figure for Section 2B.21, ‘‘Reversible Lane Control termination of the reversible lane medians 9 m (30 ft.) or wider is Signs.’’ The use of reversible lane traffic control. expanded to show stop lines, wrong- control is a practice which is commonly 38. In Section 2B.21, paragraph 13, way pavement markings, and pavement used throughout the United States and the FHWA proposes to require that the markings which show the vehicle it is appropriate for the MUTCD to Turn Prohibition signs be mounted turning path. This figure was one of the provide design, application, and overhead and separate from the recommendations included in the placement information. Reversible Lane Control signs. In ‘‘Older Driver Highway Design
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Handbook.’’ 2 It is intended to reduce follow when making sure that the address the application and placement the potential for wrong-way movements parking signs are visible, particularly for HOV signs. Significant deployment for drivers turning left from the minor with regards to the surrounding traffic has occurred with HOV lanes used on roadway. This proposed figure is shown setting. This guidance would include roadway facilities throughout the in the proposed text for Chapter 2B for such considerations as the roadway United States and the FHWA believes it docket comment purposes. If adopted, it geometry and surrounding conditions— is appropriate to address design, will replace the figure currently shown such as curves or shrubbery that may application and placement of signs and in Chapter 2A. hinder sign visibility. pavement markings for these special 44. In Section 2B.30, paragraph 6, the 50. In the title for section 2B.36, the facilities. The language proposed for FHWA proposes to clarify that the FHWA proposes to change the title from section 2B.48 would provide agencies PEDESTRIAN PROHIBITED signs (R9– ‘‘Emergency Parking Signs’’ to that own and operate HOV lanes with 3a or R5–10c) should be installed so as ‘‘Emergency Restriction Signs.’’ This an overall discussion on HOV signing to be clearly visible to pedestrians at a proposed change will allow the section principles. In addition to this proposed location where an alternative route or to cover not just the EMERGENCY new section, the FHWA proposes the path is available. Pedestrian safety is a PARKING ONLY (R8–4) sign but other following MUTCD changes related to program emphasis area for the FHWA emergency restriction signs such as the HOV lanes: and we believe that this proposed EMERGENCY STOPPING (R8–7) and (a) The FHWA proposes to revise the change will help reduce the potential DO NOT STOP ON TRACKS (R8–8) R3–10 through R3–15 preferential lane for pedestrians to walk in unsafe areas. signs. signs (see proposed section 2B.22). 45. In Section 2B.31, paragraph 2, the 51. In section 2B.36, paragraph 3, the These signs would be specifically FHWA proposes to change the FHWA proposes to allow the choice of designated for high occupancy vehicle recommendation regarding placement of using either the color red or black for (HOV) lanes which by definition the One Way signs (R6–1 and R6–2) to the legend on emergency restriction include carpools, vanpools, and buses a requirement. The FHWA believes that signs R8–4, R8-7, and R8–8. Red is the carrying at least two or more persons. requiring the placement of the One Way color designated in section 1A of the The word message ‘‘restricted lane’’ sign parallel to the one-way street at all Manual for restrictions and prohibition shown on the R3–10, R3–12, R3–13, and alleys or roadway intersections to one signs and black is the color designated R3–15 would be revised to identify the way streets will: (1) Give motorists for regulatory signs. The FHWA believes type of preferential vehicle traffic clearer directions, and (2) make traffic that either of these colors is appropriate. allowed in the lane (example: HOV lane, operations safer by reducing the chance The background for these signs will bus lane, or taxi lane.) When the of road users inadvertently making remain white. preferential lane is for high occupancy wrong-way movements. 52. The 1988 MUTCD contains a vehicles, the word message ‘‘HOV’’ 46. In Section 2B.32, paragraph 3, the sentence that the WALK ON LEFT (R9– would be required along with the FHWA proposes to modify the text to 1) and NO HITCH HIKING (R9–4) signs minimum allowable vehicle occupancy allow the option of placing the Divided do not need to be retroreflective. The level (example: HOV 2+). The minimum Highway Crossing signs (R6–3 and R6– FHWA proposes to change the 1988 allowable vehicle occupancy level 3a) beneath the STOP or YIELD signs. In MUTCD by requiring that all signs, would vary based on the level the 1988 MUTCD this option only including pedestrian signs, shall be established for a particular facility by applied to the STOP sign. either retroreflective or illuminated to the State or local highway agency. 47. In Sections 2B.33, 2B.34, and increase their visibility to road users. The diamond symbol is proposed for 2B.35, the FHWA proposes to eliminate This proposed new requirement applies exclusive HOV use lanes. In situations the distinction between urban and rural to all pedestrian signs and includes where a preferential lane is not an HOV parking, stopping, and standing signs Section 2B.37, ‘‘Walk on Left and No lane but is reserved for bus and/or taxi since the design and placement Hitch Hiking Signs,’’ Section 2B.38, use, then the word message ‘‘BUS (or principles for both urban and rural ‘‘Pedestrian Crossing Signs,’’ and TAXI)’’ would replace the message on conditions are substantially the same. Section 2B.39, ‘‘Traffic Signal Signs, the R3–10 through R3–15 signs. The The FHWA also proposes to separate the Auxiliary.’’ sign number for these proposed new discussion on design and placement of 53. In Section 2B.39, paragraphs 7 and signs would be R3–10a, R3–11a, etc. these signs into individual sections 10, the FHWA proposes to add 2 new NOTE: In the proposed changes for (2B.34 and 2B.35). symbol signs for NO RIGHT TURN ON MUTCD Part 9—Bicycles, the FHWA 48. In Section 2B.34, ‘‘Design of RED (R10–11c) and NO LEFT TURN ON has proposed to delete the diamond Parking, Stopping, and Standing Signs,’’ RED (R10–11d). These new symbol symbol from the R3–16 and R3–17 the FHWA proposes to require all street signs would combine the standard NO ‘‘Bicycle Lane’’ signs since the diamond parking signs to be illuminated or RIGHT TURN (R3–1) and NO LEFT symbol has become synonymous with retroreflective. This proposed change is TURN (R3–2) symbols with the legend high occupancy vehicle lanes. The consistent with Section 2A.8 which ‘‘ON RED.’’ FHWA also proposes to add a new HOV discusses the general provisions and 54. In Section 2B.39, paragraph 12, supplemental plaque (R3–5c) to the text standards for signs. the FHWA proposes to add 2 new signs in proposed section 2B.17, ‘‘Mandatory 49. In Section 2B.35, paragraph 2, the for use with emergency beacon Movement Lane Control Signs.’’ This FHWA proposes to include a sentence installations. These 2 proposed word plaque would be used with the R3–5 indicating that the spacing of parking message signs are: EMERGENCY ground mounted sign on HOV facilities signs should be based on legibility and SIGNAL (R10–13) and EMERGENCY to indicate the appropriate mandatory sign orientation. The FHWA believes SIGNAL/STOP WHEN FLASHING RED lane movement. this is helpful placement guidance to (R10–14). (b) The FHWA proposes to add the 55. The FHWA proposes to add a new following definitions in Part 1: 2 ‘‘Older Driver Highway Design Handbook,’’ section 2B.48 that will include High Occupancy Vehicle (HOV)—a Report No. FHWA–RD–99–045, available from the FHWA Research and Technology Report Center, provisions for the design and operation motor vehicle carrying at least two or 9701 Philadelphia Court,Unit Q, Lanham, Maryland of high occupancy vehicle (HOV) lanes more persons, including carpools, 20706. and a new section 2B.49 that will vanpools, and buses. The agencies that
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In Section 5E.2, the FHWA per vehicle may be required. corporate limits of communities and proposes adding additional criteria for HOV lane—any preferential lane have a traffic volume of less than 200 considering centerline installation on designated for exclusive use by HOVs AADT (average annual daily traffic). Category 3 roads (paved roads with less for all or part of a day—including a 3. In Section 5A.1, the FHWA than 200 AADT) that supplement the designated lane on a freeway, other proposes to provide three categories of criteria proposed in Chapter 3B highway, street, or independent low volume rural roads for use published in the notice of proposed roadway on a separate right-of-way. throughout Part 5: amendment dated January 6, 1997. Occupancy requirement—any Category 1—Unimproved roadways Discussion of Proposed Amendments to restriction that regulates the use of a Category 2—Graded drained earth or Part 8—Traffic Control for Highway- facility for any period of the day based gravel roadways Rail Grade Crossings (Update) on a specified number of persons in a Category 3—Paved roadways The summary of proposed changes for vehicle. 4. The FHWA is proposing to add to Part 8 was published as Phase 1 of the Occupants—the number of people in Part 5 typical figures for those signs that MUTCD rewrite effort in a previous a car, truck, bus, or other vehicle. may have metric message. These notice of proposed amendment dated Concurrent flow HOV lane—an HOV include SPEED LIMIT sign (R2–1), January 6, 1997, at 62 FR 691. Since that lane that is operated in the same NIGHT Speed sign (R2–3), LOCAL time, a number of tragic highway-rail direction as the adjacent mixed flow TRAFFIC ONLY (R11–3), WEIGHT grade crossing crashes have occurred. lanes, separated from the adjacent LIMIT sign (R12–1), Advisory Speed Following the Fox River Grove, Illinois general purpose freeway lanes by a Plaque (W13–1), NEXT XX M (FT) sign school bus crash, the United States standard lane stripe, painted buffer, or (W7–3a), ROAD WORK XX M (FT) sign Department of Transportation (USDOT) barrier. (W20–1), and Supplemental Plate decided to build upon its 1994 Contraflow lane—a lane operating in (W16–1). Highway-Rail Crossing Safety Action a direction opposite to the normal flow 5. In Section 5.A.2, the FHWA Plan by forming an internal USDOT of traffic designated for peak direction proposes options for the deployment of Task Force to review the of travel during at least a portion of the traffic control devices on low volume decisionmaking process for designing, day. Contraflow lanes are usually rural roads that vary from what is, constructing, and operating rail separated from the off-peak direction typically, appropriate for higher class crossings and provide lanes by plastic pylons, moveable or facilities. recommendations. The following permanent barrier. 6. In Section 5A.4, paragraph 2, the proposed changes are based on the (c) The FHWA proposes to also FHWA proposes, for low volume roads, Highway-Rail Crossing Safety Action include provisions for HOV signs and an option to allow a 0.6 m (2 ft) offset Plan, the USDOT Task Force markings to MUTCD Chapter 2E—Guide from the edge of a shoulder, or roadway Implementation Report dated June 1, Signs—Freeways and Expressways and without shoulders, to the near edge of 1997, and the National Transportation MUTCD Part 3—Markings. a sign. This varies from the Safety Board recommendations. These recommended offset of 1.8 m (6 ft) from Discussion of Proposed New Part 5— proposed changes are intended as the edge of the shoulder or 3.6 m (12 ft) Traffic Control Devices for Low Volume updates to the previously published from the edge of the traveled way, Rural Roads notice of proposed amendment (NPA) where no shoulder exists, as published dated January 6, 1997: 1. The FHWA proposes adding a new in Section 2A.24 of the 1988 MUTCD; 1. Based on the notice of proposed Part 5, ‘‘Traffic Control Devices For Low or 1.8 m (6 ft) from the shoulder or amendments published December 5, Volume Rural Roads.’’ The current Part traveled way as proposed in Section 1997 at 62 FR 64324, the title of Part 8 5 (Islands) is proposed to be 2A.19 published in the notice of would be changed from ‘‘Traffic Control incorporated into Part 3 as discussed in proposed amendment dated June 11, for Roadway-Rail Intersections’’ to the notice of proposed amendment 1998, at 63 FR 31950. The proposed ‘‘Traffic Control for Highway-Rail Grade dated January 6, 1997, at 62 FR 691. The option would be allowed on low volume Crossings.’’ This new terminology is intent is to have a part of the MUTCD roads if roadside features such as incorporated in the language in this dedicated to those low volume facilities terrain, shrubbery, and/or trees prevent notice of proposed amendments. that constitute a high percentage of the lateral placement in accordance with 2. The FHWA proposes to update total road miles in the United States. Section 2A.19. Section 8A.1, paragraph 5, to include 16 The goal of Part 5 is to provide 7. In Section 5B.2, the FHWA terms specific to highway-rail grade standards and guidance for traffic proposes adding supplemental criteria crossing traffic control devices. The control devices that are unique to or for use with the warrant criteria in definitions for these following terms are most applicable to low volume Sections 2B.4 through 2B.8 of the 1988 included in the proposed text: (1) roadways. Part 5 is currently designed MUTCD to guide the installation of Stop Minimum Track Clearance Distance; (2) to reference other applicable sections of and Yield signs on low volume rural Clear Storage Distance; (3) Preemption; the MUTCD relative to standards and roads. (4) Interconnection; (5) Monitored guidance for traffic control devices that 8. In Section 5C.11, the FHWA Interconnected Operation; (6) Minimum are appropriate for low volume roads proposes adding a new NO TRAFFIC Warning Time—Through Train but are also applicable to higher class SIGNS warning sign for optional use on Movements; (7) Right-of-Way Transfer facilities. An alternative format could be Category 1 roads (unimproved roadways Time; (8) Queue Clearance Time; (9) to eliminate a separate Part 5 and place with less than 200 AADT) as proposed Separation Time; (10) Maximum the small amount of information that is by the National Committee on Uniform Preemption Time; (11) Advance applicable only to low volume rural Traffic Control Devices. The FHWA is Preemption and Advance Preemption
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Time; (12) Simultaneous Preemption; crossbuck sign. Therefore, the FHWA active warning devices. This regulatory (13) Pre-Signal; (14) Cantilevered Signal proposes to modify the language in this sign would direct road users to look for Structure; (15) Design Vehicle; and (16) section accordingly. approaching trains. Dynamic Envelope. 10. The FHWA proposes to update 18. The FHWA proposes to update 3. The FHWA proposes to update Section 8B.2, paragraph 4, to require Section 8C.1, paragraph 2 to indicate Section 8A.2, paragraph 6 to clarify the retroreflective material to be used on that luminares shall be located so that fact that all highway-rail grade crossings supports at all highway-rail grade they do not impose unnecessary glare shall comply with the MUTCD as stated crossings, not just passive highway-rail on approaching road users. in 23 CFR 655.603(b). The FHWA also grade crossings. This proposed change 19. The FHWA proposes to update proposes to also add a new discussion would improve visibility of the grade Section 8D.2 to move paragraph 10 from in paragraphs 2 and 3 to allow the crossing supports. a recommendation (GUIDANCE) to a option of using the national highway- 11. The FHWA proposes to update mandatory (STANDARD) condition. The rail intersection (HRI) architecture as a Section 8B.3 by adding a new paragraph paragraph will read: ‘‘Flashing-light method for conducting an engineering 6 under GUIDANCE to read, ‘‘Where the signals shall be placed to the right of study to determine the method for distance between the railroad and the approaching highway traffic on all linking the highway, vehicles, and parallel highway from edge of track to highway approaches to a crossing. They traffic management systems with rail edge of highway is less than 30 m (100 shall be located laterally with respect to operations and wayside equipment. 3 feet), it is not necessary to install a the highway in conformance with 4. The FHWA proposes to update W10–1 sign if the W10–2, W10–3, or Figure 8–5. This shall not apply where Section 8A.4, paragraph 5, by changing W10–4 signs are used on the parallel such location would adversely affect the following sentence from a highway.’’ The purpose of this proposed signal visibility.’’ The FHWA proposes recommendation (GUIDANCE) to a change is to reduce the sign clutter on this change because we believe flashing- mandatory (STANDARD) condition: ‘‘If highways where there is less than 30 m light signals shall always be placed on the existing traffic control devices at a (100 feet) between the highway-rail the right side of the road where people multiple-track crossing become grade crossing and a highway expect to receive roadway information. improperly placed or inaccurate because intersection. 20. The FHWA proposes to revise of the removal of the tracks, the existing 12. The FHWA proposes to update Section 8D.2 to delete the last sentence devices shall be relocated and/or Section 8B.7, paragraph 1, by adding a of paragraph 6. The reason for this modified.’’ new phrase to the end of this paragraph proposed change is to avoid limiting the 5. The FHWA proposes to update the that would read, ‘‘* * * in accordance type of technology used to charge the last paragraph of Section 8A.5 by with Chapter 2C.’’ The FHWA believes batteries for highway-rail grade crossing changing the following sentence from a that this addition would help ensure warning systems. recommendation (GUIDANCE) to a that STOP AHEAD (W3–1a) or YIELD 21. In Section 8D.4, the FHWA mandatory (STANDARD) condition: ‘‘If AHEAD (W3–2a) advance warning signs proposes to include a discussion to a highway-rail grade crossing exists are used. require that the approach lane gate arms either within or in the vicinity or 13. The FHWA proposes to add a new be designed to fail safe in the down roadway work activities, then lane Section 8B.9 to discuss the application position. This is consistent with the restrictions, flagging, or other operations and placement of highway-rail crossing discussion already covered in Section shall not be performed in a manner that identification signs and 1–800 numbers 8D.5 for exit lane gate arms. 22. The FHWA proposes to add a new would cause vehicles to stop on the to provide a means for emergency Section 8D.5 to provide standards and railroad tracks with no means to notification. The former Section 8B.9 guidance for Four Quadrant Gate escape.’’ published in the January 6, 1997, notice 6. The FHWA proposes to add a new would become Section 8B.14, Systems. Four Quadrant Gate Systems Section 8A.6 to describe the dynamic ‘‘Pavement Markings.’’ consists of a series of automatic gates envelope clearance concept and provide 14. The FHWA proposes to add a new used as an adjunct to flashing lights to standards and guidance for delineating Section 8B.10 to provide a sign for use control traffic on all lanes at the this clearance required for the train and on class 5 or higher railroad tracks highway-rail grade crossing. 23. The FHWA proposes to update its cargo overhang. where trains may exceed 130 km (80 7. The FHWA proposes to add a new mph). The former Section 8B.10 Section 8D. 6 of the previously Section 8A.7 to discuss the application published in the January 6, 1997, notice published January 6, 1997, notice (see of Storage Space Signs (W10–11 and would become Section 8B.15, ‘‘Stop section 8D.7 in this proposed update for 11a) which are intended to warn road Lines.’’ Part 8.) The FHWA proposes to change users of locations where vehicle storage 15. The FHWA proposes to add a new paragraph 2 to indicate that traffic space is limited between the railroad Section 8B.11 to provide a sign for use control signals shall not be used on tracks and the adjacent highway at highway-rail grade crossings which roadways at highway-rail grade intersection. have the Federal Railroad crossings in lieu of gates and/or flashing 8. The FHWA proposes to add a new Administration’s authorization for trains lights where train speeds are greater Section 8A.8 to define private highway- not to sound horns. The former Section than 32 km/h (20 mph). The FHWA also rail grade crossings and to discuss 8B.11 published in the January 6, 1997, proposes to add the following 2 new issues related to these private crossings. notice would become Section 8B.16, paragraphs: (1) At the end of the 9. The FHWA proposes to update ‘‘Low Ground Clearance Crossings.’’ GUIDANCE for this section the FHWA Section 8B.2, paragraph 3. If crossbuck 16. The FHWA proposes to add a new proposes to recommend that a NO signs are installed back-to-back, any Section 8B.12 to provide a sign to warn TURN ON RED sign should be used retroreflective material used on the back road users that a particular highway-rail where a pre-signal is installed at an of one crossbuck blade would be grade crossing is not equipped with interconnected highway-rail grade blocked by the second mounted automated signals. crossing near a signalized intersection 17. The FHWA proposes to add a new with a storage problem; and (2) The 3 Available from Federal Railroad Administration, Section 8B.13 to provide a sign for use FHWA proposes a new OPTION which 4007th Street, SW., Washington, DC 20590. at highway-rail grade crossings without would allow the highway traffic signals
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71366 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules to be mounted on the same cantilevered significant economic impact on a Executive Order 13045 (Protection of device as the railroad flashing lights in substantial number of small entities. Children) situations where the highway-rail grade Unfunded Mandates Reform Act of We have analyzed this action under crossing and the highway intersection 1995 Executive Order 13045, Protection of are in close proximity and when Children from Environmental Health determined feasible by an engineering This proposed rule would not impose Risks and Safety Risks. This rule is not study. a Federal mandate resulting in the an economically significant rule and expenditure by State, local, and tribal Rulemaking Analysis and Notices does not concern an environmental risk governments, in the aggregate, or by the to health or safety that may All comments received before the private sector, of $100 million or more disproportionately affect children. close of business on the comment in any one year (2 U.S.C. 1532). closing date indicated above will be Executive Order 12630 (Taking of Executive Order 13132 (Federalism) considered and will be available for Private Property) examination in the docket at the above This action has been analyzed in This rule will not effect a taking of address. Comments received after the accordance with the principles and private property or otherwise have comment closing date will be filed in criteria contained in Executive Order taking implications under Executive the docket and will be considered to the 13132, dated August 4, 1999, and it has Order 12630, Governmental Actions and extent practicable, but the FHWA may been determined that this action does Interference with Constitutionally issue a final rule at any time after the not have a substantial direct effect or Protected Property Rights. close of the comment period. In sufficient federalism implications on addition to late comments, the FHWA States that would limit the National Environmental Policy Act will also continue to file in the docket policymaking discretion of the States. The agency has analyzed this action relevant information that becomes Nothing in this document directly for the purpose of the National available after the comment closing preempts any State law or regulation. Environmental Policy Act of 1969 (42 date, and interested persons should The MUTCD is incorporated by U.S.C. 4321 et seq.) and has determined continue to examine the docket for new reference in 23 CFR part 655, subpart F, that this action would not have any material. which requires that changes to the effect on the quality of the environment. national standards issued by the FHWA Executive Order 12866 (Regulatory shall be adopted by the States or other Regulation Identification Number Planning and Review) and DOT Federal agencies within two years of A regulation identification number Regulatory Policies and Procedures issuance. The proposed amendment is (RIN) is assigned to each regulatory The FHWA has determined in keeping with the Secretary of action listed in the Unified Agenda of preliminarily that this action will not be Transportation’s authority under 23 Federal Regulations. The Regulatory a significant regulatory action within U.S.C. 109(d), 315, and 402(a) to Information Service Center publishes the meaning of Executive Order 12866 promulgate uniform guidelines to the Unified Agenda in April and or significant within the meaning of promote the safe and efficient use of the October of each year. The RIN contained Department of Transportation regulatory highway. To the extent that this in the heading of this document can be policies and procedures. It is amendment would override any existing used to cross reference this action with anticipated that the economic impact of State requirements regarding traffic the Unified Agenda. this rulemaking would be minimal. The control devices, it does so in the List of Subjects in 23 CFR Part 655 new standards and other changes interests of national uniformity. proposed in this notice are intended to Design standards, Grant programs— Executive Order 12372 transportation, Highways and roads, improve traffic operations and safety, (Intergovernmental Review) and provide additional guidance, Incorporation by reference, Signs, clarification, and optional applications Catalog of Federal Domestic Traffic regulations. for traffic control devices. The FHWA Assistance Program Number 20.205, Authority: 23 U.S.C. 109(d), 114(a), 315, expects that these proposed changes Highway Planning and Construction. and 402(a); 23 CFR 1.32; 49 CFR 1.48. will create uniformity and enhance The regulations implementing Executive Issued on: December 13, 1999. safety and mobility at little additional Order 12372 regarding Kenneth R. Wykle, expense to public agencies or the intergovernmental consultation on motoring public. Therefore, a full Federal programs and activities apply to Federal Highway Administrator. regulatory evaluation is not required. this program. [FR Doc. 99–32907 Filed 12–20–99; 8:45 am] BILLING CODE 4910±22±P Regulatory Flexibility Act Paperwork Reduction Act In compliance with the Regulatory This action does not contain a Flexibility Act (5 U.S.C. 601–612), the collection of information requirement ENVIRONMENTAL PROTECTION FHWA has evaluated the effects of this for purposes of the Paperwork AGENCY proposed action on small entities. This Reduction Act of 1995, 44 U.S.C. 3501 notice of proposed rulemaking adds et seq. 40 CFR Part 2 some new and alternative traffic control Executive Order 12988 (Civil Justice devices and traffic control device [FRL±6513±1] Reform) applications. The proposed new Elimination of Special Treatment for standards and other changes are This action meets applicable Category of Confidential Business intended to improve traffic operations standards in sections 3(a) and 3(b)(2) of Information: Extension of the and safety, expand guidance, and clarify Executive Order 12988, Civil Justice Comment Period application of traffic control devices. Reform, to minimize litigation, The FHWA hereby certifies that these eliminate ambiguity, and reduce AGENCY: Environmental Protection proposed revisions would not have a burden. Agency.
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ACTION: Proposed rule; extension of FOR FURTHER INFORMATION CONTACT: this action may be filed online at many comment period. Rebecca Moser, (202) 260–6780. Federal Depository libraries. Dated: December 13, 1999. Please submit a copy of any references SUMMARY: On October 25, 1999, the Margaret N. Schneider, cited in your comments. Facsimiles Environmental Protection Agency (EPA) (faxes) cannot be accepted. EPA would published a notice in the Federal Acting Assistant Administrator, Office of Environmental Information. appreciate one original and three copies Register (64 FR 57421) proposing to of your comments and enclosures amend its regulations to eliminate the [FR Doc. 99–33029 Filed 12–20–99; 8:45 am] BILLING CODE 6560±50±P (including any references). Commenters special treatment given to a category of who would like EPA to acknowledge confidential business information (CBI). receipt of their comments should This category of information includes ENVIRONMENTAL PROTECTION include a self-addressed, stamped comments received from businesses to envelope. substantiate their claims of AGENCY The proposed rule and supporting confidentiality for previously submitted 40 CFR Parts 141 and 142 information (a ‘‘substantiation’’). Under documents, including public comments, EPA’s current regulations (40 CFR 2.205 [WH±FRL±6513±5] are available for review in the Water (c)), if a substantiation is properly Docket at the address listed previously. marked as confidential when received RIN 2040±AA94 The Docket also has several of the key by EPA (in accordance with 40 CFR supporting documents electronically National Primary Drinking Water 2.203(b)) and not otherwise possessed available as PDF files. For information Regulations; Radon-222 by EPA, the substantiation ‘‘will be on how to access Docket materials, please call (202) 260–3027 between 9 regarded as entitled to confidential AGENCY: Environmental Protection a.m. and 3:30 p.m. Eastern Time, treatment and will not be disclosed by Agency (EPA). Monday through Friday. EPA without the [submitter’s] consent, ACTION: Proposed radon in drinking unless its disclosure is duly ordered by water rule; notice of extension of public FOR FURTHER INFORMATION CONTACT: For a Federal court, notwithstanding other comment period. general information on radon in provisions of this subpart to the drinking water, contact the Safe contrary.’’ EPA proposes to amend its SUMMARY: Today, the Environmental Drinking Water Hotline, phone (800) regulations to remove this provision, so Protection Agency (EPA) is providing 426–4791. The Safe Drinking Water that substantiations will be treated in notice to extend the public comment Hotline is open Monday through Friday, exactly the same way as other period for the proposed rule that would excluding Federal holidays, from 9:00 information requested under FOIA and provide a multimedia approach to a.m. to 5:30 p.m. Eastern Time. For claimed as confidential. EPA believes reducing radon risks in indoor air technical inquiries regarding the that the special treatment of (where the problem is greatest), while proposed regulations, contact Sylvia substantiations under 40 CFR 2.205 (c) protecting public health from the Malm, Office of Ground Water and is not necessary to encourage businesses highest levels of radon in drinking water Drinking Water, U.S. Environmental to submit sufficient information to (40 CFR Parts 141 and 142). The Protection Agency (mailcode 4607), 401 support their confidentiality claims and proposed rule for radon in drinking M Street, SW, Washington DC, 20460. that its CBI determination procedures water was published in the Federal Phone: (202) 260–0417. E-mail: (40 CFR part 2, subpart B) provide Register on November 2, 1999 (64 FR [email protected]. For inquiries adequate safeguards to prevent the 59246). regarding the proposed multimedia improper release of additional CBI DATES: EPA must receive public mitigation program, contact Anita contained in a submitter’s comments, in writing, on the proposed Schmidt, Office of Radiation and Indoor substantiation. In addition, the removal regulations by February 4, 2000. Air, U.S. Environmental Protection of this provision will bring EPA into Comments provided electronically will Agency, (mailcode 6609J), 401 M Street, conformity with other Federal agencies be considered timely if they are SW, Washington, DC, 20460. Phone: which do not provide special treatment submitted electronically by 11:59 p.m. (202) 564-9452. E-mail: for substantiations. (Eastern time) February 4, 2000. [email protected]. For general As detailed in 64 FR 57421, EPA ADDRESSES: You may send written information on radon in indoor air, originally sought comments on the comments to the Radon-222, W–99–08 contact the Radon Hotline at 1–800– proposed rule by December 27, 1999. In Comments Clerk, Water Docket (MC– SOS–RADON (1–800–767–7236). response to requests from interested 4101); U.S. Environmental Protection SUPPLEMENTARY INFORMATION: On parties for additional time to analyze Agency; 401 M Street, SW., Washington, November 2, 1999, EPA published the and comment on the proposed rule, EPA DC 20460. Comments may be hand- proposed regulation for radon in hereby extends the comment period for delivered to the Water Docket, U.S. drinking water, 40 CFR Parts 141 and 30 days to January 26, 2000. Environmental Protection Agency; 401 142 (64 FR 59246). The November 2 DATES: Comments on the proposed rule M Street, SW., East Tower Basement, notice provided a deadline of 60 days must be submitted by January 26, 2000. Washington, DC 20460. Comments may from the date of publication for receipt ADDRESSES: Written comments on this be submitted electronically to ow- of public comments. Since the proposed rule should be addressed to [email protected]. Electronic publication date, EPA has received Rebecca Moser, Environmental comments must be submitted as an requests to extend the comment period Protection Agency, Office of ASCII, WP6.1, or WP8 file avoiding the to allow sufficient time for all parties Environmental Information (Mail Code use of special characters and any form potentially impacted by this proposal to 2822), 401 M Street, SW, Washington, of encryption. Electronic comments consider and provide comprehensive DC 20460. Documents related to this must be identified by the docket number comments. In response to these proposed rule will be available for W–99–08. Comments and data will also requests, EPA has decided to extend the public inspection and viewing by be accepted on disks in WP6.1, WP8, or public comment period by an additional appointment. ASCII format. Electronic comments on 30 days to February 4, 2000.
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The Agency is proposing a Maximum ENVIRONMENTAL PROTECTION within the Federal packaging standards Contaminant Level Goal (MCLG) and AGENCY by adopting the DOT standards. In National Primary Drinking Water addition, the changes would decrease Regulations (NPDWR) for radon-222 in 40 CFR Part 165 the estimated economic impact by public water supplies. Under the [OPP±190001B; FRL±6396±7] reducing the number of pesticide framework set forth in the 1996 products subject to the container RIN 2070±AB95 amendments to the SDWA, EPA is also requirements compared to the original proposal. proposing an alternative maximum Standards for Pesticide Containers DATES: Comments, identified by the contaminant level (AMCL) and and Containment; Extension of docket control number OPP–190001B, requirements for multimedia mitigation Comment Period (MMM) programs to address radon in must be received on or before February AGENCY: indoor air. Public water systems (PWS) Environmental Protection 19, 2000. Agency (EPA). ADDRESSES: Comments may be are defined in the Safe Drinking Water ACTION: Proposed rule; extension of submitted by mail, electronically, or in Act (SDWA). This proposed rule applies comment period. person. Please follow the detailed to community water systems (CWS), a instructions for each method as SUMMARY: On October 21, 1999 (64 FR subset of PWSs. Under the proposed provided in Unit I. of the 56918), EPA reopened the comment rule, CWSs may comply with the AMCL ‘‘SUPPLEMENTARY INFORMATION.’’ period on the proposed rule ‘‘Standards if they are in States that develop an To ensure proper receipt by EPA, it is for Pesticide Containers and EPA-approved MMM program or, in the imperative that you identify docket Containment’’(59 FR 6712, February 11, absence of a State program, develop a control number OPP–190001B in the 1994) to obtain comment on four State-approved CWS MMM program. subject line on the first page of your specific issues. EPA is extending the This approach is intended to encourage response. comment period by 60 days until States, Tribes, and CWSs to reduce the FOR FURTHER INFORMATION CONTACT: February 19, 2000. The comment period health risk of radon in the most cost- Nancy Fitz, Field and External Affairs was initially scheduled to close on effective way. The Agency is also December 20, 1999. The October 21, Division (7506C), Office of Pesticide proposing a maximum contaminant 1999 notice solicited comments on Programs, Environmental Protection level (MCL) for radon-222, to apply to potential changes that would reduce the Agency, 401 M St., SW., Washington, CWSs in non-MMM States that choose scope of the container standards, add an DC 20460; telephone number: (703) not to implement a CWS MMM exemption for certain antimicrobial 305–7385; fax number: (703) 308–3259; program. The proposal also includes pesticides, and adopt some of the e-mail address: [email protected]. monitoring, reporting, public Department of Transportation (DOT) SUPPLEMENTARY INFORMATION: notification, and consumer confidence hazardous materials regulations. That I. General Information report requirements for radon-222 in notice also requested comments on the drinking water. definition for small business used to A. Does this Action Apply to Me? Dated: December 15, 1999. identify small pesticide formulators, You may be potentially affected by agrichemical dealers and commercial this action if you are a pesticide Dana D. Minerva, pesticide applicators in the small entity formulator, agrichemical dealer, or an Acting Assistant Administrator. impact analysis. These potential independent commercial applicator. [FR Doc. 99–33031 Filed 12–20–99; 8:45 am] changes, if adopted in the final rule, However, the issues addressed in this BILLING CODE 6560±50±P would support EPA’s goal of pollution action apply mainly to pesticide prevention by promoting the use of formulators. Potentially affected refillable containers and would categories and entities may include, but harmonize and promote consistency are not limited to:
Categories NAICS SIC Examples of Potentially Affected Entities
Pesticide formulators ...... 32532 2879 Establishments that formulate and prepare insecticides, fungicides, herbicides, or other pesticides from technical chemicals or concentrates produced by pesticide manufac- turing establishments. Some formulating establishments are owned by the large basic pesticide producers and others are independent. Agrichemical dealers ...... 44422 5191 Retail dealers that distribute or sell pesticides to agricultural users. Independent commercial applicators 115112 0721 Businesses that apply pesticides for compensation (by aerial and/or ground application) and that are not affiliated with agrichemical dealers.
This listing is not intended to be determining whether or not this action (59 FR 6712, February 11, 1994). If you exhaustive, but rather provides a guide applies to certain entities. To determine have any questions regarding the for readers regarding entities likely to be whether you or your business is affected applicability of this action to a affected by this action. Other types of by this action, you should carefully particular entity, consult the person entities not listed above could also be examine the applicability provisions in listed in the ‘‘FOR FURTHER affected. The Standard Industrial Unit VII of the proposed rule published INFORMATION CONTACT’’ section. Classification (SIC) codes and the North in the Federal Register of October 21, American Industrial Classification 1999 (64 FR 56918) and in §§ 165.100, System (NAICS) codes have been 165.120, 165.122, 165.140, 165.141, and provided to assist you and others in 165.142 of the original proposed rule
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B. How Can I Get Additional you submit in response to this 1999 Federal Register notice solicited Information, Including Copies of this document as CBI by marking any part or comments on four aspects of the original Document and Other Related all of that information as CBI. 1994 proposed rule that proposed Documents? Information so marked will not be container design and residue removal 1. Electronically. You may obtain disclosed except in accordance with requirements for refillable and electronic copies of this document and procedures set forth in 40 CFR part 2. nonrefillable pesticide containers and various support documents from the A copy of the comment that does not standards for pesticide containment EPA internet Home Page at http:// contain CBI must be submitted for structures. (59 FR 6712, February 11, www.epa.gov/. On the Home Page select inclusion in the public version of the 1994) (FRL–4168–9). Because of the ‘‘Laws and Regulations’’ and then look official record. Information not marked lengthy time period between the up the entry for this document under confidential will be included in the original proposal in 1994 and the recent the ‘‘Federal Register - Environmental public version of the official record by notice to reopen the comment period, Documents.’’ You can also go directly to EPA without prior notice. If you have EPA believes that granting the extension the ‘‘Federal Register’’ listings at http:/ any questions about CBI or the is warranted. procedures for claiming CBI, please /www.epa.gov/fedrgstr/. B. What is the Agency’s Authority for consult with the person identified in the 2. In person. The EPA has established Taking this Action? an official record for this action under ‘‘FOR FURTHER INFORMATION CONTACT’’ section. EPA proposed the standards for docket control number OPP–190001B. pesticide containers and containment The official record consists of the E. What Should I Consider as I Prepare based on the authority in section 19 of documents specifically referenced in My Comments for EPA? the Federal Insecticide, Fungicide, and this action, any public comments We invite you to provide your views Rodenticide Act. received during an applicable comment on the various options we discuss in period, and other information related to III. Do Any Regulatory Assessment this document, new approaches we this action, including any information Requirements Apply to this Action? haven’t considered, the potential claimed as confidential business impacts of the various options No. This action is not a rulemaking, information (CBI). This official record (including possible unintended it merely extends the date by which includes the documents that are consequences), and any data or public comments must be submitted to physically located in the docket, as well information that you would like the EPA on a proposed rule that previously as the documents that are referenced in Agency to consider during the published in the Federal Register of those documents. The public version of development of the final action. You October 21, 1999 (64 FR 56918). For the official record does not include any may find the following suggestions information about the applicability of information claimed as CBI. A public helpful for preparing your comments: the regulatory assessment requirements version of this record, including • Explain your views as clearly as to that proposed rule, which published printed, paper versions of any electronic possible. in the Federal Register, please refer to comments submitted during the • Describe any assumptions that you the discussion in Unit X of that comment period is available for use. document. inspection in the Public Information • Provide solid technical information and Records Integrity Branch (PIRIB), List of Subjects in 40 CFR Part 165 and/or data to support your views. Environmental protection, Rm. 119, Crystal Mall #2, 1921 Jefferson • If you estimate potential burden or Antimicrobial pesticides, Packaging and Davis Highway, Arlington, VA, from costs, explain how you arrive at the containers, Pesticides and pests. 8:30 a.m. to 4 p.m., Monday through estimate. Friday, excluding legal holidays. The • Tell us what you support, as well as Dated: December 10, 1999. PIRIB telephone number is 703–305– what you disagree with. Susan H. Wayland, 5805. • Provide specific examples to C. How and to Whom do I Submit illustrate your concerns. Deputy Assistant Administrator for Prevention, Pesticides and Toxic Substances. Comments? • Offer alternative ways to improve the rule. [FR Doc. 99–33034 Filed 12–20–99; 8:45 am] As described in Unit I. of the • Make sure to submit your comments BILLING CODE 6560±50±F proposed rule published in the Federal by the deadline in this notice. Register of October 21, 1999 (64 FR • To ensure proper receipt by EPA, be 56918) (FRL–5776–3), you may submit sure to identify the docket control your comments through the mail, in FEDERAL COMMUNICATIONS number assigned to this action in the person, or electronically. Please follow COMMISSION subject line on the first page of your the instructions that are provided in the response. You may also provide the 47 CFR Part 0, 80, and 90 proposed rule. Do not submit any name, date, and Federal Register information electronically that you [WT Docket No. 99±332; FCC 99±348] citation. consider to be CBI. To ensure proper receipt by EPA, be sure to identify II. Background Making the Frequency 156.250 MHz docket control number OPP–190001B in Available for Port Operations Purposes A. What Action is EPA Taking? the subject line on the first page of your in Los Angeles and Long Beach, CA response. EPA is extending the comment period Ports for 60 days in response to a request for AGENCY: Federal Communications D. How Should I Handle CBI an extension. On October 21, 1999 (64 Information That I Want to Submit to Commission. FR 56918) (FRL–5776–3), EPA reopened ACTION: Proposed rule. the Agency? the comment period on the rule Do not submit any information ‘‘Standards for Pesticide Containers and SUMMARY: This document proposes to electronically that you consider to be Containment’’ to obtain comment on amend the Commission’s rules to CBI. You may claim information that four specific issues. The October 21, designate marine VHF Channel 05A for
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71370 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules port operations communications in Los 3. The LA/LB Pilots state that the loss. Vessels report, by voice, Angeles and Long Beach, California ports of Los Angeles and Long Beach are information related to position, ports. The effect of this rule is that it among the busiest in the world, with navigation and conditions affecting will foster reliable marine considerable vessel congestion. In this navigation to the Coast Guard, which communications and increase safe type of environment, harbor pilots rely tracks the vessels’ movements. The LA/ vessel transit in the ports. The action upon clear and effective radio LB Safety Committee also recommend will allow the LA/LB Pilots to manage communications with tugs to help the use of either marine VHF Channels vessel traffic in that area more ensure the safe ingress and egress of 01A, 05A, or 63A for intership efficiently and protect the marine large vessels. The LA/LB Pilots note that communications related to port environment by preventing collisions there is only one frequency, marine VHF operations in the Los Angeles and Long and groundings. Channel 77 (156.875 MHz), dedicated to Beach ports. intership communications related to 6. The LA/LB Pilots also note that DATES: Comments must be submitted on port operations. The Commission’s rules authorities responsible for port safety, or before January 18, 2000 and reply provide that Channel 77 ‘‘is limited to including the Coast Guard, the comments are due on or before February communications with pilots regarding California Office of Oil Spill Response 1, 2000. the movement and docking of ships,’’ and Prevention, and the LA/LB Harbor FOR FURTHER INFORMATION CONTACT: and that ‘‘[n]ormal output power must Safety Committee, fully support the James Shaffer of the Commission’s not exceed 1 watt.’’ The LA/LB Pilots request. The Southern California Marine Wireless Telecommunications Bureau at state that marine VHF Channel 77 is Radio Council (SCMRC), which is the (202) 418–0680. frequently congested. They further FCC-designated marine VHF frequency SUPPLEMENTARY INFORMATION: contend that while output power is coordinating committee for this region, 1. This is a summary of the limited to one watt, communications also supports this request. 7. As an initial step to provide some Commission’s Notice of Proposed Rule often carry over from one port to the relief for frequency congestion in Making FCC 99–348, adopted on other and there is interference when more than one ship is maneuvering in communications related to port November 15, 1999, and released on operations in the Los Angeles and Long November 19, 1999. The full text of this or out of port. 4. The LA/LB Pilots note that marine Beach port areas the feasibility of using Notice of Proposed Rule Making is VHF Channels 01A (156.050 MHz), 05A frequency 156.250 MHz for intership available for inspection and copying (156.250 MHz), and 63A (156.175 MHz) communications was investigated in during normal business hours in the are used for communications related to conjunction with the Coast Guard and FCC Reference Center, Room CY A257, port operations in certain Coast Guard- industry. This frequency had not been 445 12th Street, SW, Washington, DC. designated VTS areas. Specifically, the previously assigned, other than in Coast The complete text may be purchased frequencies 156.050 MHz and 156.175 Guard-designated Houston, New from the Commission’s copy contractor, MHz are currently allocated in the Orleans, and Seattle VTS systems International Transcription Service, United States to the Public Safety Pool because of its band edge location and Inc., 1231 20th Street, NW, Washington, in the private land mobile radio the resultant potential harmful DC 20037. services; however, they were made interference with land mobile radio Summary of Notice of Proposed Rule available to maritime radio users for assignments on the adjacent public Making commercial and port operation purposes safety frequency 156.240 MHz. in a portion of the Coast Guard- However, after reviewing assignments in 2. By letter the Los Angeles and Long designated New Orleans VTS system. the Los Angeles and Long Beach area it Beach Port Pilots (jointly, LA/LB Pilots) The frequency 156.250 MHz, which is appears that 156.250 MHz could be request the assignment of an intership currently allocated to maritime mobile utilized without harmful interference to marine VHF channel dedicated to port radio, was made available for port existing radio operations as it is not operations (namely, pilot-tug operations purposes within the Coast assigned for public safety purposes. communications) in the Ports of Los Guard-designated Houston and New Therefore, we believe it is in the public Angeles and Long Beach, California. Orleans VTS systems, and Seattle VTS interest to provide in the Rules for the They note that marine VHF Channels system. The LA/LB Pilots state that their use of frequency 156.250 MHz (marine 01A (156.050 MHz), 05A (156.250 monitoring of these channels detected VHF Channel 05A) in the Los Angeles MHz), and 63A (156.175 MHz) are no users in the area of the Ports of Los and Long Beach port areas to alleviate currently used for U.S. Coast Guard Angeles and Long Beach. the communications congestion related (Coast Guard) designated Vessel Traffic 5. In addition, the Los Angeles/Long to port operations. Thus, we propose to Service (VTS) systems in defined areas Beach Harbor Safety Committee (LA/LB amend § 80.373 of the Commission’s of the United States. The LA/LB Pilots Safety Committee) note that the Coast rules to so provide. Further, we propose recommend that one of these Guard and Marine Exchange of Los to make assignments on Public Safety frequencies be designated for intership Angeles-Long Beach Harbor, Inc., acting Pool frequencies of 156.240 and communications regarding port for the State of California, currently 156.2475 MHz within 100 miles of the operations to improve vessel traffic have a Memorandum of Agreement in geographic center of Los Angeles, safety in the Los Angeles and Long which the Coast Guard agrees to provide defined as 34° 03′ 15′′ north latitude and Beach port area. In this Notice of personnel support for the operation of 118° 14′ 28′′ west longitude, secondary Proposed Rule Making, we propose to an interim Vessel Traffic Information to marine port operations on 156.250 amend part 80 of the Commission’s Service (VTIS). The VTIS system is an MHz. We propose to amend § 90.20 of rules to designate marine VHF Channel advisory communications service to the Commission’s rules to indicate the 05A for port operations communications coordinate vessel movement and aforementioned secondary status. We in Los Angeles and Long Beach, prevent damage to or loss of vessels, seek comment on these proposals. California ports. We believe that this bridges or other structures, and to 8. Accordingly, effective upon the action will foster reliable marine protect these waters and associated adoption date of this Notice of Proposed communications and increase safe natural resources from environmental Rule Making, no applications for public vessel transit in the ports. harm resulting from such damage or safety pool frequencies of 156.240 and
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156.2475 MHz within 100 miles of the radius of Point Fermin, California.’’ comments on diskette. These diskettes geographic center of Los Angeles will be Additionally, we are proposing to should be submitted to: Public Safety accepted for filing during the pendency amend § 90.20(c) of the Commission’s and Private Wireless Division, Wireless of the Notice of Proposed Rule Making. rules to indicate that assignments on Telecommunications Bureau, 445 12th Any applications received on or after public safety pool frequencies of Street, SW, Washington, DC 20554. this date will be returned as 156.240 and 156.2475 MHz within 100 Such a submission should be on a 3.5 unacceptable for filing. miles of the geographic center of Los inch diskette formatted in an IBM 9. We note that currently there are no Angeles are secondary to marine port compatible format using WordPerfect private coast stations authorized to operations on 156.250 MHz. 5.1 for Windows or compatible software. operate on marine VHF Channel 05A Procedural Matters The diskette should be accompanied by within the Los Angeles and Long Beach a cover letter and should be submitted area. We propose not to authorize future 12. Ex Parte Presentations. This in ‘‘read only’’ mode. The diskette private coast stations on this channel if Notice of Proposed Rule Making is a should be clearly labeled with the we ultimately designate marine VHF permit-but-disclose notice and comment commenter’s name, proceeding Channel 05A for port operations. The rule making proceeding. Ex parte (including the docket number in this Marine Exchange of Los Angeles-Long presentations are permitted, provided case, type of pleading (comment or Beach Harbor, Inc., which operates the they are disclosed as provided in reply comment), date of submission, VTIS for the ports of Los Angeles and Commission Rules. and the name of the electronic file on Long Beach, describes its area of 13. Pleading Dates. Pursuant to the diskette. The label should also responsibility as within a 25-nautical Sections 1.415 and 1.419 of the include the following phrase: ‘‘Disk mile radius of Point Fermin. We Commission’s rules, interested parties Copy—Not an Original.’’ Each diskette propose to designate this area as the may file comments on or before January should contain only one party’s 18, 2000, and reply comments on or radio protection area for port operations pleadings, preferably in a single before February 1, 2000. Comments may on 156.250 MHz. We do not believe that electronic file. In addition, commenters be filed using the Commission’s such an approach would adversely must send diskette copies to the Electronic Comment Filing System affect private coast operations. In this Commission’s copy contractor, (ECFS) or by filing paper copies. See connection, Wireless International Transcription Service, Electronic Filing of Documents in Telecommunications Bureau staff would Inc., 1231 20th Street, NW, Washington, Rulemaking Proceedings, 63 FR 24121 assist future applicants in finding DC 20037. suitable alternative channels to Channel (1998). 05A. We seek comment on this 14. Comments filed through the ECFS Initial Regulatory Flexibility Act proposal. can be sent as an electronic file via the Analyses 10. Finally, we propose to amend Internet to
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71372 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules in the Notice of Proposed Rule Making, I. Need for and Objectives of the Beach harbor areas. We believe that this as set forth in Proposed rules. Proposed Rule flexible approach allows the LA/LB 20. IT IS FURTHER ORDERED that The purpose of this Notice is to Pilots to manage vessel traffic in the Los the Commission’s Office of Public determine whether it is in the public Angeles and Long Beach harbor areas Affairs, Reference Operations Division, interest, convenience, and necessity to more efficiently and protect the marine environment by preventing vessel SHALL SEND a copy of this Notice of amend our rules to allow frequency collisions and groundings. Currently Proposed Rule Making, including the 156.250 MHz (marine VHF Channel under the rules frequency 156.250 MHz Initial Regulatory Flexibility Analyses, 05A) to be used for communications related to port operations in the Los is currently allocated to maritime to the Chief Counsel for Advocacy of the mobile and was made available for port Small Business Administration. Angeles and Long Beach harbor areas. These proposed actions should protect operations purposes within the Coast 21. IT IS FURTHER ORDERED that the marine environment and increase Guard designated Houston and New effective upon the release date of this the safety and efficiency of navigation Orleans, and Seattle Vessel Traffic Notice of Proposed Rule Making, no and movement of ship by allowing the Service (VTS) systems. We seek applications will be accepted for filing LA/LB Pilots to manage vessel traffic in comments on whether the proposed for the public safety frequencies of that area more efficiently. amendment are sufficient to alleviate 156.240 and 156.2475 MHz within 100 the communications congestion related miles of the geographic center of Los II. Legal Basis: to port operations in the Los Angeles Angeles, defined as 34° 03′ 15′′ north Authority for issuance of this Notice and Long Beach harbor areas. This latitude and 118° 14′ 28′′ west of Proposed Rule Making is contained in decision benefits small entities and longitude. This freeze will continue Sections 4(i) and 303(r) of the seeks to ensure reliable marine until the Commission makes an Communications Act of 1934, as communications, increase safe vessel announcement that such applications amended, 47 U.S.C. 154(i) and 303(r). transit to protect U.S. waters and associated natural resources from acceptance will resume. III. Description and Estimate of the environmental harm, and increase port Number of Small Entities to Which Rule Initial Regulatory Flexibility Analysis efficiency thereby promoting growth Will Apply within the shipping community. As required by section 603 of the The proposed amendments will affect 2 Regulatory Flexibility Act, the small businesses in the marine radio VI. Federal Rules Which Overlap, Commission has prepared an Initial services that use a marine VHF radio. Duplicate or Conflict With These Rules Regulatory Flexibility Analysis (IRFA) Neither the Commission nor the SBA None. of the expected significant economic has developed a definition of small List of Subjects impact on small entities by the policies entities applicable to marine radio and rules proposed in the Amendment services that use a marine VHF radio. 47 CFR Part 0 of parts 0, 80, and 90 of the Therefore, the applicable definition of Administrative practice and Commission’s rules to Make the small entity is the definition under the procedure. Frequency 156.250 MHz Available for SBA rules applicable to radiotelephone Port Operations Purposes in Los Angeles (wireless) companies. This provides that 47 CFR Part 80 and Long Beach, CA Ports. Written a small entity is a radiotelephone Communications equipment, marine public comments are requested on the company employing no more than 1,500 safety. IRFA. Comments must be identified as persons. According to the Bureau of the responses to the IRFA and must be filed Census, only twelve radiotelephone 47 CFR Part 90 by the deadlines for comments on the firms out of a total of 1,178 such firms Communications equipment. Amendment of parts 0, 80, and 90 of the which operated during 1992 had 1,000 Federal Communications Commission. Commission’s rules to Make the or more employees. Therefore, even if Magalie Roman Salas, Frequency 156.250 MHz Available for all twelve of these firms were Secretary. Port Operations Purposes in Los Angeles companies that used a marine VHF and Long Beach, CA Ports, provided in radio, nearly all such companies were Proposed Rules paragraph 11 of the item. The small businesses under the SBA’s Title 47 of the Code of Federal Commission will send a copy of the definition. We invite comment on Regulations, parts 0, 80 and 90, are Amendment of parts 0, 80, and 90 of the whether this is the correct definition to proposed to be amended as follows: Commission’s rules to Make the use in this context. PART 0ÐCOMMISSION Frequency 156.250 MHz Available for IV. Description of Projected Reporting, ORGANIZATION Port Operations Purposes in Los Angeles Recordkeeping, and Other Compliance and Long Beach, CA Ports, including Requirements 1. The authority citation for part 0 this IRFA, to the Chief Counsel for There are no reporting, recordkeeping continues to read as follows: Advocacy of the Small Business and other compliance requirements Authority: Secs. 5, 48 Stat. 1068, as Administration. See 5 U.S.C. 603(a). In proposed. amended; 47 U.S.C. 155. addition, the Amendment of parts 0, 80, and 90 of the Commission’s rules to V. Significant Alternatives to Proposed 2. Section 0.331 is amended by Make the Frequency 156.250 MHz Rules Which Minimize Significant adding new paragraph (d)(3) to read as Available for Port Operations Purposes Economic Impact on Small Entities and follows: in Los Angeles and Long Beach, CA Accomplish Stated Objectives § 0.331 Authority delegated. Ports and IRFA (or summaries thereof) The proposed rules would make * * * * * will be published in the Federal frequency 156.250 MHz (marine VHF (d) * * * Register. See id. Channel 05A) available for intership (3) Designate by footnote to frequency communications related to port table in § 80.373(f) of this chapter 2 5 U.S.C. 603. operations in the Los Angeles and Long marine VHF frequencies are available
VerDate 15-DEC-99 20:32 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71373 for intership port operations § 80.373 Private communications PART 90ÐPRIVATE LAND MOBILE communications in defined port areas. frequencies. RADIO SERVICES * * * * * PART 80ÐSTATIONS IN THE 2 156.250 MHz is available for port 5. The authority citation for part 90 MARITIME SERVICES operations communications use only within continues to read as follows: the U.S. Coast Guard designated VTS radio Authority: Secs. 4, 251–2, 303, 309 and 3. The authority citation for part 80 protection areas of New Orleans and Houston 322, 48 Stat. 1066, 1082, as amended; 47 continues to read as follows: described in § 80.383. 156.250 MHz is U.S.C. 154, 251–2, 303, 309 and 322 unless otherwise noted. Authority: Secs. 4, 303, 307 (e), 309 and available for intership port operations 322, 48 Stat. 1066, 1082, as amended; 47 communications used only within the area of 6. Section 90.20 is amended by U.S.C. 154, 303, 307 (e), 309 and 322 unless Los Angeles and Long Beach harbors, within revising the table in paragraph (c) (3) otherwise noted. Interpret or apply 48 Stat. a 25-nautical mile radius of Point Fermin, and by adding paragraph (d)(79) to read 1064–1068, 1081–1105, as amended; 47 California. as follows: U.S.C. 151–155, 301–609; 3 UST 3450, 3 UST * * * * * § 90.20 Public Safety Pool. 4726, 12 UST 2377. * * * * * 4. In § 80.373 (f), footnote 2 to the (c) * * * table is amended as follows: (3) * * *
PUBLIC SAFETY POOL FREQUENCY TABLE
Frequency or band Class of station(s) Limitations Coordinator
******* 156.240 ...... do ...... 43, 79 ...... PH 156.2475 ...... do ...... 43, 44, 79 ...... PH *******
* * * * * DATES: Submit comments on or before Synopsis of the Sixth NPRM (d) * * * January 21, 2000; submit reply 1. The LMDS allocation consists of (79) This frequency will be secondary comments on or before February 11, two primary blocks of spectrum: an A to marine port operations within 100 2000. block consisting of 850 MHz at 27.5 ° miles of Los Angeles (coordinates 34 GHz, 150 MHz at 29 GHz, and 150 MHz ′ ′′ ° ′ ′′ ADDRESSES: Send comments and reply 03 15 north latitude and 118 14 28 at 31 GHz; and a B block consisting of west longitude). comments to the Office of the Secretary, Federal Communications Commission, 150 MHz at 31 GHz. The LMDS * * * * * allocation is unusual in both the size of 445 12th St SW, Washington, DC 20554. [FR Doc. 99–32840 Filed 12–20–99; 8:45 am] the allocation and the extent to which See Supplementary Information for BILLING CODE 6712±01±P the spectrum is unencumbered. information about electronic filing. 2. When the Commission adopted FOR FURTHER INFORMATION CONTACT: final LMDS rules in 1997, it assumed FEDERAL COMMUNICATIONS Stacy Jordan or John Spencer, 202–418– that the LMDS spectrum allocation COMMISSION 1310. provided a rare opportunity for facilities-based providers of local 47 CFR Part 101 SUPPLEMENTARY INFORMATION: This is a exchange services, multi-channel video summary of the Commission’s Sixth [CC Docket No. 92±297; FCC 99±379] programming distribution (MVPD) Notice of Proposed Rule Making (Sixth services, broadband data services, or all Local Multipoint Distribution Service NPRM) in CC Docket No. 92–297 of the above. In order to foster (including the associated Initial competition, the Commission imposed AGENCY: Federal Communications Regulatory Flexibility Analysis), FCC in 47 CFR 101.1003 a short-term Commission 99–379, adopted December 1, 1999, and ownership eligibility rule prohibiting ACTION: Notice of proposed rule making. released December 13, 1999. The incumbent local exchange carriers complete text of the Sixth NPRM and (LECs) or cable companies from having SUMMARY: The Commission’s rules for Initial Regulatory Flexibility Analysis is an attributable interest in an LMDS A- the Local Multipoint Distribution available on the Commission’s Internet block license that overlaps with ten Service (LMDS) prohibit an incumbent site, at www.fcc.gov. It is also available percent or more of the population in local exchange carrier (LEC) or for inspection and copying during their service areas. This decision was incumbent cable company, or any entity based on four considerations: the most normal business hours in the FCC with an attributable interest in these likely uses for LMDS; the then-current incumbents, from having an attributable Reference Information Center, Courtyard market structure for local exchange interest in an A-block LMDS license Level, 445 12th Street, SW, Washington, services and MVPD services, and whose geographic service area DC, and may be purchased from the whether the incumbent operators in significantly overlaps the incumbent’s Commission’s copy contractor, these markets would have the incentive service area. This LMDS eligibility rule International Transcription Services, to attempt to forestall competition in will sunset on June 30, 2000, unless the Inc., CY–B400, 445 12th Street SW, their respective markets; whether an Commission extends it. This document Washington, DC. Comments may be sent eligibility restriction would be the best seeks comment on whether to allow the as an electronic file via the Internet to means to promote competition; and restriction to sunset, or to extend the http://www.fcc.gov/e-file/ecfs.html, or whether efficiencies would be lost if the restriction. by e-mail to [email protected]. LMDS spectrum were operated by
VerDate 15-DEC-99 17:45 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71374 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules providers other than the incumbent to LMDS licensees may not exist if standard remains the appropriate one cable operators and local exchange consumers are unwilling to pay for evaluating whether we should carriers. substantially higher prices for the extend the restriction, or whether a 3. The first LMDS products are just advantages of broadband. Early cable different standard is more appropriate. now becoming available in the United broadband services have experienced 10. We therefore seek comment States, and LMDS remains a nascent low penetration rates, which may generally on the standard that we market whose evolution is uncertain. indicate a reluctance of residential should apply in making this decision, as Our research suggests that in the near consumers to pay a high subscriber fee well as on alternative standards. For term, LMDS may be used primarily to for high-speed Internet access. However, example, our analysis in the LMDS provide high-speed data and Internet these early figures may underestimate Report and Order 1 suggests that the true services to small and medium-sized the actual residential market for high- harm to competition may lie not in the businesses rather than to provide speed data and Internet access. incumbent local exchange carriers’ or services, especially MVPD services, to 7. Deployment of LMDS systems cable companies’ power in their single-family residences. Possible other could be delayed or hampered by lack respective markets, but in the services include: video conferencing, of building access. LMDS licensees are incumbents’ incentive and ability to tele-medicine, distance learning, closed- encountering difficulties negotiating foreclose LMDS as a source of circuit applications, and backhaul or roof right-of-way agreements and competition in their own or related backbone applications. An industry overcoming inside-wiring issues. markets. Thus, we could extend the segment aiming to provide service akin Another possible source of delay is the sunset of the eligibility rule upon a to typical landline service (including lack of equipment for the 150 MHz finding that the incumbent local lifeline telephone service with directory LMDS B block and the upper 300 MHz exchange carriers and cable companies assistance) has yet to emerge. CLEC of the LMDS A block. The A-and B- possess the incentive and ability to holders of LMDS licenses plan to block allocations are unique to the U.S. purchase the LMDS block to prevent bundle local exchange services with The lack of international frequency entry of a competitor. Alternatively, we high-speed data and Internet access harmonization and the potential seek comment on whether we should services. interference between the A and B blocks use the test adopted in the 39 GHz 4. A number of factors may affect the have been blamed for increased Report and Order.2 There, we ‘‘inquired development and deployment of these equipment development time and costs. whether open eligibility poses a markets and the types of services offered Once production commences, the significant likelihood of substantial using the LMDS spectrum. The shorter production runs on specialized competitive harm in specific markets, characteristics of LMDS spectrum and equipment may frustrate the attainment and, if so, whether eligibility equipment help determine the uses to of scale economies. restrictions are an effective way to which it will be put. Due to propagation 8. Finally, several competing address that harm.’’ We seek comment limitations, LMDS will likely be used technologies are capable of delivering on whether we should require that this not as a stand-alone network, but as a broadband services. Most residential test be met before extending the LMDS ‘‘roof-top’’ means to complement or and small business consumers access eligibility restriction. Finally, we seek extend other existing networks. the Internet via the ILEC and relatively comment on the sufficiency of case-by- Compared to fiber, LMDS’s lower cost slow modems. The residential market is case review of license transfers and and shorter deployment time make it an beginning to see high-speed services via assignments to safeguard against anti- effective means of reaching the last coaxial cable, ILEC xDSL, and satellite. competitive acquisition of LMDS mile. At the end of that last mile are The rules for LMDS, MMDS, 24 GHz, licenses if the eligibility rule is allowed likely to be small and medium-sized and 39 GHz allow point-to-point and to sunset. businesses in urban and suburban areas, point-to-multipoint services, and these 11. We seek comment on the likely as the propagation characteristics of licensees appear to be targeting the same course of LMDS market development, LMDS favor taller buildings. populations, small and medium-sized particularly LMDS licensees’ and 5. While multiple dwelling units may businesses. These frequencies, however, equipment manufacturers’ current be served by LMDS in three to five vary somewhat in their propagation expectations for LMDS and the markets years, there is a significant question characteristics, distance limitations, and most likely to be targeted by the whether the cost of the customer spectrum allocations. licensees. More specifically, we seek premises equipment (CPE) will forestall 9. The Sixth NPRM seeks comment comment on the characteristics, a business case for single-family homes broadly on the question whether the technical and otherwise, of the services for many years. Estimates for the cost of LMDS restriction should be allowed to most likely to be provided over LMDS. the CPE range from $5,000 to $7,000. sunset on June 30, 2000, or should be We seek comment on whether LMDS The radio frequency hazard potential of extended. The rule provides that the will be used to provide typical landline a microwave service like LMDS may restriction will terminate unless we service in some geographic areas and to always require professional installation, ‘‘extend its applicability based on a what consumer groups. We seek precluding cost-saving consumer determination that incumbent LECs or comment on whether LMDS licensees installation. The subscribers would also incumbent cable companies continue to expect to use LMDS to deliver MVPD have to generate enough revenue to have substantial market power in the services to single-dwelling residential establish a hub from which their remote provision of local telephony or cable customers and/or multi-dwelling would receive a signal. The costs to television services.’’ Consistent with our residential customers in any geographic establish a hub range from $300,000 to findings that incumbent LECs and cable areas. Further, we seek comment on the $400,000, which could become television providers continue to hold characteristics of the consumers to prohibitive given that the range for dominant positions in the local which these services will be directed. LMDS is limited to one-to-three miles. telephony and MVPD services markets, Finally, we seek comment on what 6. Service affordability is another this standard would suggest that we broadband applications, if any, are issue for the residential market. A extend the applicability of the eligibility residential market demand for restriction. We have significant 1 62 FR 23148, Apr. 29, 1997. broadband services at prices profitable questions, however, about whether this 2 63 FR 3075, Jan. 21, 1998.
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We also plan to evaluate whether license holder over alternative comment on these concerns and on we should extend the eligibility frequencies; and whether the limitations whether the Commission should extend restriction to avert the possibility of and the cost of LMDS will hamper the the eligibility restriction to allow the incumbent LECs and cable companies ability of LMDS to provide effective market more time to reveal how LMDS acquiring LMDS to forestall new competition for services provided by and competing media will be marketed facilities-based competition for either the incumbent LECs or cable and deployed. broadband services. The net benefits of operators. We seek comment on the 18. Finally, we note that uncertainty extending the eligibility restriction will limitations (capacity, rain fade, and line in the market impacts bond and stock depend on a number of factors, of sight) of these other wireless services market activity. The uncertainty including whether the LMDS A block relative to LMDS. We seek comment on surrounding LMDS may spill over into can serve as a facilities-based medium the extent to which the time-to-market the capital markets and impede the for broadband services, and whether leads of the 24 MHz and 39 MHz efforts of LMDS licensees to raise debt this spectrum is unique in both its size licensees yield competitive advantages and equity capital. We seek comment on and extent to which it is unencumbered. in high-speed data and Internet access the effect of extending, or not extending, We seek comment on whether the net that could handicap LMDS licensees. the eligibility restriction on LMDS benefits of extending the eligibility Given the similarities between LMDS licensees’ access to capital. While restriction may be greater than the net and 24 GHz and 39 GHz spectrum, we extending the eligibility restriction benefits of permitting the incumbents to seek comment on the implications of the might encourage investment, lifting the acquire the LMDS A block. lack of eligibility restrictions at the restriction could have a similar effect: 13. We seek comment on the extent latter two frequencies. that is, large investors currently and robustness of residential consumer 16. We seek comment on whether the prohibited from doing so might acquire demand for broadband services. We broadband offerings by ILECs and significant stakes in LMDS licensees, invite comment on the extent the cost incumbent cable operators justifies stimulating investment therein. We seek and line-of-sight limitations of LMDS extending the restriction to either ILECs comment on both scenarios. We also might hamper the ability of LMDS to or incumbent cable companies, or both. seek comment on the concerns of small provide effective competition to either We seek comment on the likelihood that entities on the various issues discussed the ILECs’ or the cable operators’ LMDS, if used for broadband, will above. broadband means of access into the provide effective competition against Summary of Initial Regulatory home or very small businesses. We seek incumbent LECs’ and cable operators’ comment on whether technological broadband offerings. Specifically, we Flexibility Analysis advances and increasing deployment invite comments on the incumbent 19. As required by the Regulatory will improve equipment range and LECs’ and cable operators’ most likely Flexibility Act (RFA),3 the Commission lower equipment costs. We also seek footprints for broadband services. Cable has prepared an Initial Regulatory comment on the extent to which operators’ current coverage areas do not Flexibility Analysis (IRFA) of the affordability enhancing innovations like lend themselves to providing broadband possible economic impact on small equipment leasing may emerge as an access to businesses. We invite entities by the policies and rules alternative to outright equipment comment on the present reach of cable suggested in this Sixth NPRM. Written purchase, particularly for CPE. networks and the ease with which these public comments are requested on the 14. We seek comment on whether the networks could be extended to reach IRFA. Comments should be identified as capability of LMDS to provide high- business subscribers. In addition, we responses to the IRFA, and must be filed speed data and Internet seek comment on whether the ILECs are by the deadlines for comments on the telecommunications would give likely to provide xDSL services to a Sixth NPRM provided above. The incumbents a strategic incentive to large segment of residential or business Commission will send a copy of the acquire LMDS spectrum to forestall the customers. We seek comment on Sixth NPRM, including this IRFA, to the use of LMDS as a means of access for whether the equipment cost and Chief Counsel for Advocacy of the Small another facilities-based provider of deployment cost of LMDS relative to Business Administration (SBA). broadband services, and whether we ILECs’ T–1 leased lines or xDSL will 20. Need for and Objectives of the should retain the LMDS eligibility disadvantage LMDS in the market. To Proposed Rule: In this Sixth NPRM, the restriction for at least some period in the extent LMDS and a T–1 line are Commission seeks comment on whether order to prevent such a result. With substitutes, the falling prices for T–1 to allow the eligibility restriction for the respect to cable, if the cable industry leased lines may diminish the Local Multipoint Distribution Service primarily serves residential areas and profitability of LMDS service. (LMDS) set out in 47 CFR 101.1003(a) to likely LMDS service will be to small- 17. We seek comment on the sunset as scheduled, or to extend the and medium-sized businesses, we seek significance of uncertainty in the market restriction. As discussed in detail above, comment on whether we should restrict for the eligibility restriction. There are various policy reasons might dictate incumbent cable companies’ use of the uncertainties regarding how LMDS action for or against the sunset. LMDS spectrum to serve business needs equipment will continue to evolve; how 21. Legal Basis: See Authority section, for high-speed data and Internet access. fast LMDS equipment costs will fall; below. 15. We invite comment about the how much difficulty licensees will 22. Description and Estimate of the extent to which LMDS, MMDS, 24 GHz, encounter negotiating roof right-of-way Number of Small Entities to Which the 39 GHz, and other media that might agreements, interconnection offer consumers broadband access are agreements, and other necessary 3 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has substitutable. We seek comment on the negotiations to provide services; and been amended by the Contract with America Advancement Act, Pub. L. 104–121, 110 Stat. 847 degree to which LMDS, MMDS, 24 GHz, how the domestic LMDS market will (1996) (CWAAA). Title II of the CWAAA is the 39 GHz, and other frequencies could be develop. These uncertainties may have Small Business Regulatory Enforcement Fairness used to offer consumers similar services led firms to hold off investments until Act of 1996 (SBREFA).
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Actions Taken May Apply: The RFA providers, covered SMR providers, and therefore included small incumbent directs agencies to provide a description resellers. It seems certain that some of LECs in this RFA analysis, although we of and, where feasible, an estimate of those 3,497 telephone service firms may emphasize that this RFA action has no the number of small entities that may be not qualify as small entities or small effect on FCC analyses and affected by the action taken. The RFA incumbent LECs because they are not determinations in other, non-RFA generally defines the term ‘‘small ‘‘independently owned and operated.’’ contexts. entity’’ as having the same meaning as For example, a PCS provider that is 27. Wireline Carriers and Service the terms ‘‘small business,’’ ‘‘small affiliated with an interexchange carrier Providers (SIC 4813). The Census organization,’’ and ‘‘small governmental having more than 1,500 employees Bureau reports that there were 2,321 jurisdiction.’’ 4 In addition, the term would not meet the definition of a small telephone communications companies ‘‘small business’’ has the same meaning business. It seems reasonable to other than radiotelephone companies in as the term ‘‘small business concern’’ conclude, therefore, that fewer than operation for at least one year at the end under the Small Business Act.5 A small 3,497 telephone service firms are small of 1992.11 All but 26 of the 2,321 non- business concern is one that: (1) Is entity telephone service firms or small radiotelephone companies listed by the independently owned and operated; (2) incumbent LECs that may be affected by Census Bureau were reported to have Is not dominant in its field of operation; the actions taken in this Second Report fewer than 1,000 employees. Thus, even and (3) Satisfies any additional criteria and Order. if all 26 of those companies had more established by the Small Business 25. The most reliable source of than 1,500 employees, there would still 6 Administration (SBA). Below, we current information regarding the total be 2,295 non-radiotelephone companies further describe and estimate the numbers of common carrier and related that might qualify as small entities or number of small business concerns that providers nationwide, including the small incumbent LECs. Although it may be affected by the actions taken in numbers of commercial wireless seems certain that some of these carriers this Sixth NPRM. entities, appears to be data the are not independently owned and 23. The SBA has defined a small Commission publishes annually in its operated, we are unable at this time to business for Standard Industrial Carrier Locator report, derived from estimate with greater precision the Classification (SIC) categories 4812 filings made in connection with the number of wireline carriers and service (Radiotelephone Communications) and Telecommunications Relay Service providers that would qualify as small 4813 (Telephone Communications, (TRS).9 business concerns under SBA’s Except Radiotelephone) to be small According to data in the most definition. Consequently, we estimate entities when they have no more than recent report, there are 3,604 interstate that there are fewer than 2,295 small 1,500 employees.7 We first discuss the carriers. These include, inter alia, local entity telephone communications number of small telecommunications exchange carriers, wireline carriers and entities falling within these SIC service providers, interexchange companies other than radiotelephone categories, then attempt to refine further carriers, competitive access providers, companies that may be affected by the those estimates to correspond with the operator service providers, pay actions taken in this Sixth NPRM. categories of telecommunications telephone operators, providers of 28. Local Exchange Carriers. Neither companies that are commonly used telephone toll service, providers of the Commission nor SBA has developed under our rules, and that may be telephone exchange service, and a definition of small LECs. The closest affected by this Sixth NPRM. resellers. applicable definition for these carrier- 24. Total Number of 26. We have included small types under SBA rules is for telephone Telecommunications Entities Affected. incumbent local exchange carriers communications companies other than The Census Bureau reports that, at the (LECs) in this RFA analysis. As noted radiotelephone (wireless) companies.12 end of 1992, there were 3,497 firms above, a ‘‘small business’’ under the The most reliable source of information engaged in providing telephone RFA is one that, inter alia, meets the regarding the number of these carriers services, as defined therein, for at least pertinent small business size standard nationwide of which we are aware one year.8 This number contains a (e.g., a telephone communications appears to be the data that we collect variety of different categories of entities, business having 1,500 or fewer annually in connection with the TRS. including local exchange carriers, employees), and ‘‘is not dominant in its According to our most recent data, there interexchange carriers, competitive field of operation.’’ The SBA’s Office of are 1,410 LECs. Although it seems access providers, cellular carriers, Advocacy contends that, for RFA certain that some of these carriers are mobile service carriers, operator service purposes, small incumbent LECs are not not independently owned and operated, providers, pay telephone operators, PCS dominant in their field of operation or have more than 1,500 employees, we because any such dominance is not are unable at this time to estimate with 4 5 U.S.C. 601(6). ‘‘national’’ in scope.10 We have greater precision the number of these 5 U.S.C. 601(3) (incorporating by reference the carriers that would qualify as small definition of ‘‘small business concern’’ in 15 U.S.C. 9 Carrier Locator: Interstate Service Providers, Fig. business concerns under SBA’s 632). Pursuant to the RFA, the statutory definition 1 (Jan. 1999) (Carrier Locator). See also 47 CFR of a small business applies ‘‘unless an agency, after definition. Consequently, we estimate 64.601-.608. that there are fewer than 1,410 small consultation with the Office of Advocacy of the 10 Letter from Jere W. Glover, Chief Counsel for Small Business Administration and after Advocacy, SBA, to William E. Kennard, Chairman, entity LECs or small incumbent LECs opportunity for public comment, establishes one or FCC (May 27, 1999). The Small Business Act that may be affected by the actions taken more definitions of such term which are contains a definition of ‘‘small business concern,’’ in this Sixth NPRM. appropriate to the activities of the agency and which the RFA incorporates into its own definition publishes such definition(s) in the Federal of ‘‘small business.’’ See 15 U.S.C. 632(a) (Small 29. A-Block LMDS Providers. The total Register.’’ 5 U.S.C. 601(3). Business Act); 5 U.S.C. 601(3) (RFA). SBA number of A-block LMDS licenses is 6 Small Business Act, 15 U.S.C. 632. regulations interpret ‘‘small business concern’’ to limited to 493, one for each Basic 7 13 CFR 121.201. include the concept of dominance on a national 8 1992 Census of Transportation, basis. 13 CFR 121.102(b). Since 1996, out of an Communications, and Utilities: Establishment and abundance of caution, the Commission has Act of 1996, CC Docket No. 96–98, First Report and Firm Size, Bureau of the Census, U.S. Dept. of included small incumbent LECs in its regulatory Order, 11 FCC Rcd 15499, 16144–45 (1996). Commerce, at Firm Size 1–123 (1995) (1992 flexibility analyses. Implementation of the Local 11 1992 Census, supra, at Firm Size 1–123. Census). Competition Provisions of the Telecommunications 12 13 CFR 121.210, SIC Code 4813.
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Trading Area.13 The Commission has $250,000,000.’’ 17 The Commission has this Sixth NPRM and IRFA will be held auctions for all 493 licenses, in determined that there are 66 million published in the Federal Register. which it defined ‘‘very small business’’ subscribers in the United States. List of Subjects in 47 CFR Part 101 (average gross revenues for the three Therefore, we found that an operator preceding years of not more than $15 serving fewer than 660,000 subscribers Communications, local multipoint million), ‘‘small business’’ (more than shall be deemed a small operator, if its distribution service. $15 million but not more than $40 annual revenues, when combined with Federal Communications Commission. million), and ‘‘entrepreneur’’ (more than the total annual revenues of all of its Magalie Roman Salas, $40 but not more than $75 million) affiliates, do not exceed $250 million in Secretary. bidders.14 There have been 99 winning the aggregate.18 Based on available data, [FR Doc. 99–33005 Filed 12–20–99; 8:45 am] bidders that qualified in these categories we find that the number of cable in these auctions, all of which may be operators serving 660,000 subscribers or BILLING CODE 6712±01±P affected by the actions taken in this less totals 1,450. We do not request nor Sixth NPRM. do we collect information concerning 30. Cable Services or Systems. The whether cable system operators are DEPARTMENT OF TRANSPORTATION SBA has developed a definition of small affiliated with entities whose gross National Highway Traffic Safety entities for cable and other pay annual revenues exceed $250 million, Administration television services, which includes all and thus are unable at this time to such companies generating $11 million estimate with greater precision the 49 CFR Part 571 or less in revenue annually.15 This number of cable system operators that definition includes cable systems would qualify as small cable operators [Docket No. 99±6550] operators, closed circuit television under the definition in the RIN 2127±AH16 services, direct broadcast satellite Communications Act. It should be services, multipoint distribution further noted that recent industry Federal Motor Vehicle Safety systems, satellite master antenna estimates project that there will be a Standards: Heavy Vehicle Antilock systems and subscription television total of 66 million subscribers. Brake System (ABS) Performance services. According to the Census 33. Description of Projected Requirement Bureau data from 1992, there were 1,788 Reporting, Recordkeeping and Other AGENCY: National Highway Traffic total cable and other pay television Compliance Requirements: In this Sixth Safety Administration (NHTSA), services and 1,423 had less than $11 NPRM we seek comment on whether to Department of Transportation (DOT). million in revenue. allow the existing LMDS eligibility ACTION: Notice of proposed rulemaking. 31. The Commission has developed restriction to sunset. These actions its own definition of a small cable impose no reporting, recordkeeping or SUMMARY: On March 10, 1995, NHTSA system operator for the purposes of rate other compliance requirements. published a final rule amending the regulation. Under the Commission’s 34. Steps Taken to Minimize hydraulic and air brake standards to rules, a ‘‘small cable company’’ is one Significant Economic Impact on Small require medium and heavy vehicles to serving fewer than 400,000 subscribers Entities, and Significant Alternatives be equipped with antilock brake nationwide.16 Based on our most recent Considered: This Sixth NPRM is a broad systems (ABS) to improve the information, we estimate that there were inquiry into whether there continues to directional stability and control of these 1,439 cable operators that qualified as be a need for an LMDS ownership vehicles during braking. We small cable system operators at the end restriction. It seeks comment on the supplemented the ABS requirements for of 1995. Since then, some of those present and likely future nature of the truck tractors with a braking-in-a-curve companies may have grown to serve marketplace for various services that performance test on a low-coefficient of over 400,000 subscribers, and others may be offered using LMDS spectrum, friction surface, using a full brake may have been involved in transactions the costs and benefits of a restriction, application, in both the unloaded that caused them to be combined with and appropriate criteria for evaluating (bobtail) condition and with the tractor other cable operators. Consequently, we whether to extend the restriction. It also loaded to its gross vehicle weight rating estimate that there are fewer than 1,439 seeks the views of small businesses on (GVWR) using an unbraked control small entity cable system operators. the various issues raised. trailer. The braking-in-a-curve test was 32. The Communications Act also 35. Federal Rules That May Overlap, not applied to single-unit trucks or contains a definition of a small cable Duplicate, or Conflict with the Proposed buses or to air-braked trailers because system operator, which is ‘‘a cable Rules: There are no federal rules that we had performed only limited testing operator that, directly or through an overlap, duplicate or conflict with 47 of ABS-equipped single-unit vehicles. affiliate, serves in the aggregate fewer CFR 101.1003(a). We stated that we would continue than 1 percent of all subscribers in the 36. Report to Congress: The research on dynamic performance tests United States and is not affiliated with Commission will send a copy of this for single-unit trucks, buses, and any entity or entities whose gross Sixth NPRM, including this IRFA, in a trailers, and would consider applying annual revenues in the aggregate exceed report to Congress pursuant to the Small performance test requirements to these Business Regulatory Enforcement vehicles in the future. 13 47 CFR 101.1005, 101.1007. 19 The agency is now proposing to apply 14 Fairness Act of 1996. In addition, the 47 CFR 101.1107(a)-(c), 101.1112. the braking-in-a-curve dynamic 15 13 CFR 121.201, SIC 4841. Commission will send a copy of this 16 47 CFR 76.901(e). The Commission developed Sixth NPRM, including this IRFA, to the performance test requirement to single- this definition based on its determination that a Chief Counsel for Advocacy of the Small unit trucks and buses that are required small cable system operator is one with annual Business Administration. Summaries of to be equipped with antilock braking revenues of $100 million or less. Implementation of systems. After issuing the March 1995 Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on 17 47 U.S.C. 543(m)(2). final rule, we tested several ABS- Reconsideration, 10 FCC Rcd 7393 (1995), 60 FR 18 47 U.S.C. 76.1403(b). equipped single-unit trucks and buses 10,534 (Feb. 27, 1995). 19 See 5 U.S.C. 801(a)(1)(A). equipped with both hydraulic and air
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71378 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules brakes. We tentatively conclude that the B. Regulatory Flexibility Act Hydraulic and electric brake systems), test results confirm that the braking-in- C. Federalism and 121, Air brake systems, to require a-curve performance test requirement is D. National Environmental Policy Act all air-braked and hydraulic-braked practicable for those vehicles. Adopting E. Paperwork Reduction Act vehicles with GVWRs over 10,000 lbs. to F. Unfunded Mandates this requirement would complement the G. Civil Justice Reform be equipped with ABS to improve the ABS equipment requirements and IX. Comments lateral stability and control of these stopping distance requirements. Taken vehicles during braking. The NPRM also together, these requirements would I. Background proposed that the ABS requirement be improve the ability of the affected On December 18, 1991, Congress supplemented by a braking-in-a-curve vehicles to stop in a stable and passed the Intermodal Surface test on a low coefficient of friction controllable manner. Transportation Efficiency Act (ISTEA or surface using a full brake application. DATES: Comment closing date: You Act), Pub. L. 102–240. Section 4012 of We published a final rule requiring should submit your comments early the Act directed the Secretary of ABS on hydraulic and air-braked enough to ensure that Docket Transportation to initiate rulemaking for medium and heavy vehicles on March Management receives them not later improving the braking performance of 10, 1995 (60 FR 13216) (hereinafter than February 22, 2000. new commercial motor vehicles, i.e., referred to as the stability and control final rule). The ABS requirements ADDRESSES: You should mention the those with GVWRs of over 26,000 docket number of this document in your pounds (lbs.), including truck tractors, included a braking-in-a-curve comments and submit them in writing trailers, and dollies. The Act directed performance test on a low-coefficient of to: Docket Management, Room PL–401, that in that rulemaking, the agency friction surface for truck tractors only. 400 Seventh Street, SW, Washington, examine antilock brake systems (ABS), The test includes a full brake DC, 20590. means of improving brake compatibility, application in both the unloaded You may call Docket Management at and methods of ensuring the (bobtail) configuration and with the 202–366–9324. You may visit the effectiveness of brake timing. tractor loaded to its GVWR, the latter Docket from 10 a.m. to 5 p.m., Monday In response to that congressional using an unbraked control trailer. The braking-in-a-curve test was not through Friday. mandate, we published an advance notice of proposed rulemaking applied to single-unit trucks, buses, or FOR FURTHER INFORMATION CONTACT: air-braked trailers at that time. Our For non-legal issues, you may call Mr. (ANPRM) on June 8, 1992 announcing our interest in proposing improvements Motor Vehicle Safety Research Advisory Jeff Woods, Safety Standards Engineer, Committee’s ABS Task Force had Office of Crash Avoidance Standards, in the directional stability and control of heavy vehicles during braking (57 FR developed the braking-in-a-curve test Vehicle Dynamics Division at (202) procedure only for truck tractors. Since 366–2720, and fax him at (202) 493– 24212). That notice requested comments on such issues as the occurrence of loss- neither the agency nor the Task Force 2739. had included single-unit vehicles in the For legal issues, you may call: Mr. of-control crashes; the availability and performance of systems to improve test program up to that time, we decided Otto Matheke, Attorney-Advisor, Office that, in view of the limited available of the Chief Counsel at (202) 366–2992, directional stability and control; anticipated performance requirements, data with respect to such vehicles and and fax him at (202) 366–3820. the concerns expressed by the American You may send mail to both of these test procedures, and equipment requirements; diagnostic equipment to Automobile Manufacturers Association officials at National Highway Traffic and other commenters about this Safety Administration, 400 Seventh St., ensure in-use functioning of the systems; and anticipated costs of such dynamic performance test, we would SW, Washington, DC, 20590. apply the braking-in-a-curve test to SUPPLEMENTARY INFORMATION: equipment. The notice also requested comments on whether to include truck tractors only. We stated, however, I. Background vehicles with GVWRs between 10,000 that we would continue research on II. Single-Unit Truck & Bus ABS Performance and 26,000 lbs. in the rulemaking dynamic performance tests for single- Testing unit vehicles and would consider III. Proposed Braking-in-a-Curve Test for action. NHTSA received comments in applying performance test requirements Single-Unit Trucks and Buses 1 response to the ANPRM from heavy to those vehicles at a future time (see A. Air-braked Trailers Not Included section II below for a discussion of the B. Testing in the Loaded/GVWR vehicle manufacturers and users, brake Conditions manufacturers, safety advocacy groups, testing of single unit trucks and buses C. Road Test Geometry trade associations, state entities and that gave rise to this rulemaking action). D. Test Surface individuals. Most agreed that we should II. Single-Unit Truck and Bus ABS E. Test Speed take action to improve the stability and Performance Testing F. Type of Brake Application control of heavy vehicles during braking G. Number of Test Stops NHTSA conducted ABS testing of to reduce the number of loss-of-control H. Required Performance single-unit trucks and buses in 1996 and crashes. Commenters also addressed the I. Lightly-Loaded Test Weight 1997 at our Vehicle Research and Test J. Loaded Test Weight application of potential rulemaking to K. Initial Brake Temperature certain vehicles, test procedures, 1 The agency published two companion final L. Transmission Position warning and diagnostic systems, an rules on the same day, one to reinstate stopping M. Test Sequence implementation schedule for the distance requirements for air-braked medium and N. Special Drive Considerations requirements, and the costs of the heavy vehicles (60 FR 13286) and another to IV. Intermediate and Final Stage implement stopping distance requirements for hardware. hydraulic-braked medium and heavy vehicles (60 Manufacturers We next published a notice of V. Benefits FR 13297). The cost/benefit information used for VI. Costs proposed rulemaking (NPRM) on the three final rules was based on NHTSA’s Final September 28, 1993 (58 FR 50738) to Economic Assessment, Final Rules, FMVSS Nos. VII. Compliance Date 105 & 121, Stability and Control During Braking VIII. Rulemaking Analyses and Notices amend Federal Motor Vehicle Safety Requirements and Reinstatement of Stopping A. EO 12866 and DOT Regulatory Policies Standard (Standard) Nos. 105, Distance Requirements for Medium and Heavy and Procedures Hydraulic brake systems (now titled Vehicles, published in February, 1995.
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Center (VRTC) in East Liberty, OH 2. that the control trailer used for truck determined by making passes through Five air-braked straight trucks and two tractor road tests have a ballast center of the lane at a constant speed and hydraulic-braked buses, all equipped gravity height not more than 24 inches increasing or decreasing the speed with ABS, were used in the tests to aid above the flat bed surface of the control slightly on each successive pass to in determining if the braking-in-a-curve trailer. The 32-inch load height for determine the maximum speed at which performance test for tractors could also single unit trucks is eight inches higher the vehicle would remain within the be applied to single-unit vehicles. The than for truck tractors to account for the lane. Once this speed was determined, vehicles were subjected to all the height from the tractor’s frame rails to two or three additional passes were requirements of Standards No. 105 and the top of the control trailer, due to the made to verify that the speed No. 121, including the braking-in-a- fifth wheel coupling arrangement. For determined was the maximum speed at curve performance tests. two of the vehicles, however, we which the vehicle would remain in the The braking-in-a-curve tests were conducted additional tests in the fully lane. Similarly, the maximum brake- conducted by first finding the maximum loaded condition with the load elevated through speed was determined by drive-through speed, then determining to the maximum height specified by the making successive stops, increasing the the maximum brake-through speed. manufacturer in their final-stage speed gradually each time, to find the Maximum drive-through speed is manufacturer’s guidelines. These two maximum speed at which the vehicle defined in Standard No. 121 as the tests with elevated center of gravity would stay in the lane. For these stops, fastest constant speed that a vehicle can loadings were conducted to give some the brake was applied as rapidly as be driven through at least 200 feet of indication of the effect center of gravity possible to a full pressure application or curve arc length without departing the height has on braking performance in full travel condition and held until the lane. Maximum brake-through speed is the braking-in-a-curve test. end of the stop. defined as the fastest speed at which a The two school buses were equipped The results of the testing at VRTC full brake application can be made with ABS systems that met the ABS confirmed that the braking-in-a-curve while the vehicle is in the curve, equipment requirements of Standard test is practicable, repeatable, and safe without the vehicle departing the lane. No. 105 that became effective on March for single unit vehicles. Six of the seven Determination of the maximum brake- 1, 1999. Since they were complete vehicles tested met the performance through speed provided data on the vehicles, no load frame or ballast was requirements now in effect for tractors, potential margin of compliance or non- added for tests in the unloaded i.e., they stayed in the lane in at least compliance for the test vehicles. More condition. However, the test three out of four stops when subjected than four stops for the braking-in-a- instrumentation and driver added to maximum braking at 75 percent of the curve test were performed during the approximately 250 pounds to the maximum drive-through speed. In fact, loaded and unloaded tests. unloaded vehicle weight. In addition, these six vehicles remained in the lane The straight trucks were chassis-cabs all fuel tanks and fluid reservoirs were during all four stops at 75 percent of the without bodies or equipment that would filled to normal capacity. The loaded drive-through speed, all with a large normally be installed by a second-stage tests on the two school buses were margin of compliance. manufacturer. The vehicles were conducted by placing sand bags on the The two trucks for which elevated equipped with ABS systems that met floor and seats of each bus such that the center-of-gravity ballast height the equipment requirements of Standard total vehicle weight was equal to its comparison tests were conducted No. 121. In order to simulate the GVWR with the axle load in proportion showed that the increased height did unloaded condition of completed with the vehicle’s GAWR. not have much effect on the vehicle’s vehicles, a 2,500 lb load frame was The braking-in-a-curve tests were performance compared with the lower, installed on the chassis cabs. The load conducted on an asphalt surface that 32-inch ballast center-of-gravity height frame, which is used to secure ballast to was coated with Jennite, a driveway testing. The test driver commented that the vehicle for testing in the loaded sealer, and wetted using a water truck. this test condition caused an unsettling condition, includes a built-in roll bar to A 12-foot-wide lane was marked with feeling during the testing in the protect the test driver in the event of the center of the lane having a 500-foot vehicle’s roll stability. However, to rollover during the tests. The radius of curvature. The lane was observers watching the testing, there instrumentation for collecting the test marked with traffic cones on both sides were no indications that the vehicles data, and the test driver, added another spaced at 20-foot intervals. The surface were nearing rollover, such as lifting of estimated 250 pounds to the unloaded had a cross slope of one percent and an inside tire. vehicle test weight. Tests were approximately zero longitudinal slope. We note that the one vehicle that did not meet the 75 percent of drive-through conducted with all fuel tanks and fluid The peak coefficient of friction (PFC) of speed requirements was equipped with reservoirs filled to normal capacity. the surface during the time of the testing To test the straight trucks in the ranged from 0.34 to 0.41. The effect of heavy duty axles with GAWR ratings of loaded condition, we added steel and/ the cross slope was such that the test 20,000 pounds for the steer axle and or concrete weights to the load frame so condition was considered to be worst 30,000 pounds for the single drive axle. that the total weight of the vehicles was case, since all road testing may not be Paragraph S3(b) of Standard No. 121 in accordance with their GVWRs and able to be conducted on a completely provides that any vehicle with an axle the axle loads were in proportion with level road surface due to variability and that has a GAWR of 29,000 pounds or more is excluded from Standard No. their GAWRs. For most of the vehicles, water run-off design requirements. The 121. Therefore, this particular vehicle the loads were situated so that the effect of the lower PFC would also be would not need to comply with the centers of gravity of the loads were 32 considered a worst-case test condition. In conducting the tests, the driver was braking-in-a-curve test. If a inches above the frame. This provided instructed to begin the test in the center manufacturer were to produce this a ballast height which corresponded to of the lane and to steer as necessary to vehicle to comply voluntarily with the specification in Standard No. 121 keep the vehicle within the lane. If any Standard No. 121, regardless of the 2 DOT HS 808941, Single Unit Truck and Bus cones were hit, the vehicle was exclusion for axles over 29,000 pounds, ABS Braking-In-A-Curve Performance Testing, considered to have gone out of the lane. additional ABS development would February 1999. The maximum drive-through speed was probably be necessary. We note also that
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Proposed Braking-in-a-Curve Test maximum brake-through to maximum may not always be possible. However, for Single-Unit Trucks and Buses drive-through test requirement: (a) Four minor variations in the test surface are Based on the tests conducted at vehicles had lower margins of not expected to have a major effect on VRTC, NHTSA proposes a braking-in-a- compliance in the lightly-loaded tests the performance of vehicles in the curve test for single-unit trucks and than in the loaded tests; (b) two vehicles buses, similar to the stability and had the same margin of compliance in braking-in-a-curve test, since that test control performance test in effect for air- both the loaded and lightly-loaded tests; has no stopping distance requirements. braked tractors. We propose slight and (c) one vehicle had a higher margin We have also determined that specifying modifications, however, to allow for the of compliance in the lightly-loaded test PFC test surfaces is more appropriate for differences between tractors and single- than in the loaded test. These results both high and low-friction surface unit vehicles and to accommodate indicate that in general, the lightly- testing compared to the older method of vehicles with hydraulic braking loaded test condition is the most severe specifying skid numbers. This is systems. Specifics of the proposed test test. We note, however, that the margin especially true for ABS-equipped are provided in the following of compliance was generally high for vehicles which, during maximum subsections. most of the vehicles tested. The intent braking, are prevented from sustained of testing vehicles in both the lightly- wheel lockup. The testing conducted at A. Air-Braked Trailers Not Included loaded and GVWR conditions was to VRTC confirmed that this is the case for NHTSA is not proposing at this time simulate the possible braking conditions the medium and heavy single-unit to apply performance test requirements and maneuvers likely to be encountered vehicles tested and that specifying a to air-braked trailers. We have not by vehicles operated on public roads, PFC of 0.5 is appropriate for the conducted testing of trailers since the while minimizing the number of tests braking-in-a-curve test. March 1995 final rules, but may resume that would have to be conducted to E. Test Speed research concerning trailer dynamic certify compliance. Deleting the loaded- performance tests at a later date. to-GVWR test condition would NHTSA proposes a test speed of 75 eliminate the range of test conditions percent of the maximum drive-through B. Testing in the Loaded/GVWR speed or 30 mph, whichever is lower, Conditions resulting in a single, lightly-loaded test. Although we are not proposing to for the braking-in-a-curve test for single NHTSA proposes that the braking-in- eliminate testing at GVWR, we welcome unit trucks and buses. a-curve test be conducted in both the comments on this issue. The requirement for testing tractors at lightly-loaded vehicle condition and the lower value of either 30 mph or 75 with the vehicle loaded to GVWR. There C. Road Test Geometry percent of the maximum drive-through are several reasons why we are NHTSA proposes the same road test speed resulted from the need to have proposing testing in both loading geometry now in effect for tractors, sufficient vehicle speed to adequately conditions. First, this would be namely a 12-foot-wide lane with a 500- evaluate the performance of an ABS- consistent with the test procedure foot radius measured at the center of the equipped braking system. The test speed currently in place for tractors. Second, lane. We consider this geometry to be needed to be limited, however, to testing in the fully-loaded and empty representative of an exit ramp with a ensure that the test procedure could be conditions was specified in the stability moderately sharp curve, a type of road safely conducted. In addition, by and control final rule in order to fully that all vehicles could be expected to conducting the maximum drive-through evaluate the vehicle’s braking encounter at some time. One speed determination before the braking- performance at two extreme loading consideration in the use of this test in-a-curve test, the effects of slight conditions. The intent was to determine geometry for single-unit vehicles is that variability in test surface friction would the minimum number of test conditions the wheelbases of such vehicles can be be minimized since the drive-through that would provide a thorough longer than for tractors or of the control speed would be measured for each evaluation of a vehicle’s braking system. trailer kingpin-to-axle length. Since combination of test vehicle and test Third, we determined that these two most heavy vehicles are equipped with surface just prior to conducting the loading conditions, evaluated in the a non-steering rear axle(s), the path of braking tests. single braking-in-a-curve maneuver, the rear axle of a single-unit truck All of the single-unit trucks and buses provide a sufficient range of test during a slow-speed turning maneuver tested at VRTC had maximum drive- conditions while still providing a follows a smaller radius than the wheels through speeds in both the empty and minimum level of performance testing. on the front steer axle. The tests loaded conditions ranging between 32 The agency is aware of a discussion conducted at VRTC, which included and 37 mph. This range represents the in the SAE Truck and Bus Vehicle testing vehicles with wheelbases maximum constant speed that the Deceleration and Stability ranging from 148 inches through 311 vehicle can be driven through 200 feet Subcommittee that braking-in-a-curve inches, did not indicate any problems of curve arc (for a 500-foot radius curve) testing of medium and heavy vehicles is with the inside wheels on the rear without the driver’s losing control and only needed in the lightly-loaded axle(s) running off the inside of the the vehicle’s departing the lane. None of condition. The discussion, which took curve and departing the lane. We the vehicles was able to negotiate the place at the 1995 SAE Truck and Bus believe, therefore, that the 500-foot curve at 40 mph, which would be the Exposition in Winston-Salem, N.C., radius curve is large enough to avoid upper limit of the drive-through speed centered around testing performed by that problem during testing of single- determination required for a braking member organizations of the unit vehicles. strategy specified as the lower of 30
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Performance test driver applied the brakes to is a rigorous test of ABS performance. requirements for the first effectiveness minimize test complexity. This may also The testing at VRTC also indicated stop for school buses with GVWRs of slightly increase the application time that the test speeds were not so high as over 10,000 lbs. and the second and needed compared to a mechanical brake to pose an unreasonable risk to the test third effectiveness stops for all vehicles pedal actuator. drivers or vehicles. When the vehicles with GVWRs of over 10,000 lbs. do not NHTSA is not proposing to specify did lose control during the include specifications for maximum the brake pedal application rate for determination of the maximum drive- brake pedal force during these tests. For medium and heavy vehicles equipped through speed, the test drivers were able the five fade and recovery stops that with hydraulic brakes to include a to regain control in a short time and apply to vehicles with GVWRs of over reference to maximum pedal travel, as is bring the vehicle to a safe stop. The test 10,000 lbs., the maximum permissible specified for air-braked vehicles. The vehicles were equipped with a roll bar pedal force is 150 lbs. during the first brake pedals in hydraulic braking in the event of vehicle rollover during four of these stops. The water recovery systems do not typically reach their testing. However, no rollovers occurred test requirements also include a 150-lbs. physical limit of travel during ‘‘hard’’ or nor were there any indications of near- maximum pedal force requirement ‘‘panic’’ stops. Therefore, we believe rollover, although as noted above, the during the first four stops. These tests that specifying such a brake application testing with high-center-of-gravity do not require that the maximum pedal rate strategy for hydraulic-braked loadings did result in an unsettling force be used nor do they specify an vehicles would be inappropriate. feeling for the test driver. application rate. The spike stops required for vehicles with GVWRs of G. Number of Test Stops F. Type of Brake Application. less than 10,000 lbs. include a NHTSA proposes a brake pedal force NHTSA proposes that in 4 specification for a 200-lb. brake pedal consecutive stops, the required of 150 pounds that is to be achieved application within 0.08 seconds, and is within 0.2 seconds from the initial performance must be achieved in at representative of a maximum braking least 3 of those stops. application of force to the brake control condition such as a ‘‘panic’’ stop. In the stability and control final rule, and maintained for the duration of the However, this high level of pedal force we required that tractors comply with stop. may make it necessary to use a the braking-in-a-curve test requirements We stated in the stability and control mechanical actuator to achieve and during 3 consecutive stops. In response final rule that the braking-in-a-curve test maintain the 200-lb. force. Since the evaluates vehicle stability and control purpose of the proposed braking-in-a- to several petitions for reconsideration, during worst case braking applications curve test for medium and heavy we amended that requirement in the in an aggressive or ‘‘hard’’ stop. In that vehicles is to evaluate the stability and December 13, 1995 final rule to include scenario, full brake applications are control during a ‘‘hard’’ stop, rather one additional stop in which more readily repeatable than ‘‘driver than specifically a ‘‘panic’’ stop, we compliance is not required. Thus, the best effort’’ brake applications. A full tentatively conclude that a pedal force requirement now is that tractors must treadle brake application for air-braked of 150 lbs. is sufficient to perform the comply with the braking-in-a-curve test tractors is defined in Standard No. 121 braking-in-a-curve evaluation, without requirements in 3 out of 4 consecutive as the output pressure measured at any necessitating specialized test stops. This allows for minor variability of the treadle valve output circuits equipment. In addition, since the in the performance of the test driver. reaching 85 psi within 0.2 seconds after proposed test surface has a PFC of 0.5, Earlier testing of ABS-equipped the application is initiated, or, as which represents a slippery road tractors showed that the ABS provided amended in the December 1995 final surface, we tentatively conclude that the consistent performance in maintaining rule, one in which maximum treadle 150 lbs. of pedal force is sufficient to stability and control during the braking- travel is achieved within 0.2 seconds cause instability and loss of control in in-a-curve test. Although one vehicle after the application is initiated. Since many medium or heavy vehicles that are could not comply with the braking-in-a- the actuation of air brakes in single-unit not equipped with ABS. curve test during the VRTC testing of vehicles is similar to that used in The agency considers the proposed ABS-equipped straight trucks and buses, tractors, we consider this same 0.2 seconds for achieving the 150-lbs. the vehicles that did stay in the lane approach to be valid for single-unit brake pedal force to be sufficiently rapid during the test were able to do so vehicles as well. The tests at VRTC to represent a hard stop in a medium or consistently. We believe, therefore, that confirmed that the minor differences in heavy vehicle equipped with hydraulic it is appropriate to include that same the service braking systems between brakes, and practicable from the number of test stops for straight trucks tractors and the single-unit vehicles standpoint of conducting performance and buses as we now require for tested were not found to have an effect tests on these type vehicles. While the tractors, namely that during 4 on the ability of achieving the 85 psi spike stop requirements for vehicles consecutive stops, the required application within 0.2 seconds as under 10,000 lbs. GVWR include performance must be met in at least 3 measured at the treadle valve. We are achieving the pedal application force of those stops (see H below). aware that, because of the wide variety within 0.08 seconds, the heavier brake H. Required Performance of single-unit vehicles, there may be components typically used in medium vehicles that would not be able to and heavy vehicles equipped with NHTSA proposes to require that the achieve this application rate. In those hydraulic brakes may not be able to be test vehicle remain within a 12-foot- cases, achieving maximum treadle travel actuated as rapidly as in light vehicles. wide lane during the braking-in-a-curve within 0.2 seconds would be considered Also, the 0.08 second application rate test.
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We believe that prescribing a 12-foot- A January 6, 1997 petition for relatively low center of gravity loading wide lane during the braking-in-a-curve rulemaking submitted by the Truck that is used to evaluate the braking test is an appropriate performance Manufacturers Association (TMA) to performance of loaded tractors during measure for single-unit trucks and amend Standard No. 121 included, the braking-in-a-curve test and buses. The lane width of 12 feet is among other things, a request for an minimizes the risk of vehicle rollover representative of a typical travel lane on additional weight allowance for a during the test. This loading condition a typical U. S. hard-surface road. rollbar of up to 1,000 pounds for the also provides a uniform test condition Therefore, we tentatively conclude that straight line stopping distance tests for for tractors so that results will be it is appropriate to require that vehicle tractors, trucks, and buses in the lightly- repeatable from one test to another. control within a lane of that width be loaded condition. The rollbar is The loading of straight trucks during maintainable by a driver during hard intended to provide driver protection in the braking-in-a-curve tests conducted braking. the event of a rollover that could occur at VRTC included a load frame and while testing heavy vehicles in limit- I. Lightly-Loaded Test Weight performance maneuvers. [The rollbar ballast with a combined center of NHTSA proposes that the braking-in- portion of the TMA petition was gravity height of 32 inches above the a-curve test in the lightly-loaded granted. In a notice published in the frame rail of the chassis cab. This condition be conducted at the curb Federal Register on February 3, 1999 we loading scheme was selected to weight of the vehicle plus up to 1,500 proposed allowing the use of a rollbar adequately evaluate the braking pounds, including the driver, in compliance testing (64 FR 5259).] We performance of the trucks while instrumentation, and roll bar. believe that in order to provide adequate minimizing the risk of rollover. The As discussed above, the single-unit protection for test drivers, the same purpose of the braking-in-a-curve test is trucks tested at VRTC were chassis-cabs provision for a rollbar should be to evaluate the vehicle’s yaw stability which had not been completed by the permitted for the braking-in-a-curve test and the driver’s ability to maintain installation of a body or other for single-unit vehicles. Therefore, we steering control, not to evaluate the equipment. In order to provide some propose that the braking-in-a-curve test vehicle’s roll stability. Therefore, a additional weight to the chassis-cabs to in the lightly-loaded condition include reasonable loading scheme with respect better simulate an unloaded completed the unloaded vehicle weight plus up to to load center of gravity height is vehicle, a 2,500 pound load frame was 1,500 pounds for driver, needed to ensure the safety of the test bolted directly to the frame rails of each instrumentation, and a rollbar. The procedure. test vehicle. This load frame was also 1,500 lb figure is based on the existing As in the case with the unloaded used to secure ballast for tests definition of ‘‘lightly-loaded vehicle single-unit truck and bus vehicle tests, conducted in the loaded condition. As weight’’ for vehicles with GVWRs of we do not conduct compliance testing noted above, we are aware of the over 10,000 lbs. and the 1,000 lbs. for on incomplete vehicles in the loaded discussion in the trucking industry, a rollbar. That term is defined in S4 of condition. Since there are many through the SAE Truck and Bus Vehicle Standard No. 105 as the unloaded configurations of bodies and equipment Deceleration and Stability vehicle weight plus up to 500 lbs., Subcommittee, as to what suitable used in the completion of single-unit including driver and instrumentation. trucks, including flatbeds, tankers, van weight should be used for a load frame This weight provision need not be for testing incomplete vehicles. We do bodies, dump bodies, rollbacks, mixers, included for tests in the fully-loaded etc., and other configurations of vehicles not propose that any weight figure be condition since the weight of these specified in the stability and control not based on typical chassis-cabs, such items would be included as part of the as step vans, motor homes, and certain requirements for Standard Nos. 105 and load. 121. We are aware of the wide variety fire trucks, we believe that it would not of bodies and equipment that are J. Loaded Test Weight be possible to specify a loading scheme installed on chassis-cabs and the NHTSA proposes to use the existing that would be applicable to all single- variability in the weight of that definitions of ‘‘loaded test weight’’ in unit trucks and buses. We are aware of equipment. Selection of one weight for Standard Nos. 105 and 121 for the efforts by the SAE Truck and Bus a load frame may be appropriate for one braking-in-a-curve tests for single-unit Vehicle Deceleration and Stability weight class of vehicle, but not for trucks and buses. Subcommittee to revise Recommended another. Thus, unlike the vehicles we The existing definitions, which are Practice (RP) J1626, Braking, Stability, tested at VRTC, we do not conduct used for straight-line stopping distance and Control Performance Test compliance testing on incomplete tests required for loaded single-unit Procedures for Air-Brake Equipped vehicles. For the purposes of trucks and buses, specify that the Trucks, to incorporate loading compliance testing, we will obtain vehicle be loaded to its GVWR in requirements which can be used for completed vehicles and expect to test proportion to each GAWR. An exception testing incomplete chassis-cabs. them at their curb weight, plus an is provided in Standard No. 105 for However, we do not expect that this RP allowance for test and safety equipment, cases in which an axle weight in the will address testing of completed single- as discussed below. unloaded condition already exceeds its unit vehicles or incomplete/completed The VRTC tests of buses in the proportional GAWR with the vehicle vehicles manufactured on other types of unloaded configuration were performed loaded to GVWR. In such cases, the chassis. For many types of vehicles, we on completed vehicles, so no additional vehicle is loaded only over the other will need to develop suitable loading weight, other than the driver and axle(s) until the GVWR is reached. schemes on a case-by-case basis, instrumentation, was added for the The loading requirements for tractors depending on the vehicle type. For unloaded tests. The tests were in Standard No. 121, applicable to both example, a passenger bus could be conducted with the buses at curb weight straight line stopping distance and loaded using sand bags or other heavy with full fuel tanks. The combined braking-in-a-curve tests, provide that the objects placed in all passenger seating weight of the test driver and center of gravity height of the ballast positions and on the floor or in cargo instrumentation was approximately 250 shall be less than 24 inches above the areas to achieve GVWR loading in pounds. fifth wheel of the tractor. This is a proportion to the vehicle’s GAWRs.
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K. Initial Brake Temperature vehicle stability during the braking-in-a- center of gravity of the completed NHTSA proposes an initial brake curve test could be checked early in the vehicle within a specified envelope. temperature between 150 and 200 test sequence. In the final rule of In cases for which pass-through degrees F. December 13, 1995, we amended the certification was not available, such as In the September 1993 NPRM, we test sequence by placing both braking- vehicles built in one stage, the proposed using a higher initial brake in-a-curve tests immediately after the manufacturer could use engineering temperature range of 250 to 300 degrees burnish for several reasons: (a) to allow analysis, actual testing, or computer F. The intent was to reduce the amount test track wetting to be accomplished simulations to certify their vehicles. of time needed to conduct the road tests more efficiently; (b) to minimize ABS Moreover, a manufacturer need not by reducing the amount of time that performance variability that might occur conduct such testing or analysis itself, brakes would need to cool between after tires are subjected to high-speed but could base its certification on the stops. In general, comments on the stopping distance tests on a high services of independent engineers and proposed increased temperature range coefficient of friction surface; and (c) to testing laboratories, or could join stated that the increased temperatures minimize vehicle transfers for those together through trade associations to would necessitate design changes in the manufacturers that use a different test sponsor testing or analysis. Finally, braking system by requiring more site for ABS testing. The same sequence manufacturers could rely on testing and aggressive linings, and that this is being proposed in this notice. In analysis by third parties, such as brake increased initial temperature range addition, the loaded test is proposed to manufacturers, who typically perform would not be consistent with testing be conducted prior to the unloaded test, extensive analyses and tests of their that had been conducted in the past since the vehicle would already be products. Based on these various using the lower initial temperature fully-loaded immediately following the options available to vehicle range. These negative aspects of the brake burnish. manufacturers, we do not believe that proposed temperature range outweighed the proposed performance requirements N. Special Drive Considerations the small benefits in reduced testing pose any significant certification time, so we retained the 150 to 200 We propose that single-unit trucks burdens for final stage manufacturers or degree initial brake temperature criteria. and buses being tested in the braking-in- other small manufacturers. For those reasons, we believe that this a-curve test under Standard No. 105 be Another concern was that the pass- through certification from an initial temperature range is also subjected to the same road test incomplete vehicle manufacturer could appropriate for testing of single-unit provisions as are currently specified for have design limitations that are so trucks and buses for the braking-in-a- trucks and buses in subsection S6.1 of design restrictive that final stage curve test. Standard No. 121. manufacturers would not be able to L. Transmission Position Paragraph S6.1.11 specifies that readily adhere to them. As stated above, vehicles with interlocking axles or front however, the testing at VRTC showed NHTSA proposes that the braking-in- wheel drive systems which are engaged a-curve test for single-unit trucks and that varying the load height on the and disengaged by the driver be tested trucks being tested did not have an buses be conducted either with the with such systems disengaged. As in the vehicle’s transmission placed in a appreciable effect on the results of the case of the transmission, the driveline braking-in-a-curve test. Therefore, based neutral position or with the clutch pedal effects of a front wheel drive or interaxle depressed. This technique minimizes on the testing performed to date, we are locking system on the performance of the effects of engine and driveline not aware of any significant additional the vehicle in the braking-in-a-curve test retardation, which is necessary in order requirements that would be necessary as should be minimized to the extent to solely evaluate the performance of the a result of implementing the braking-in- possible. Since the road test conditions braking system without undue driveline a-curve test for single-unit trucks and in Standard No. 105 do not include this influences. Although the effects of buses that would result in the pass- provision, we propose the same engine and driveline retardation can through certification becoming unduly provision under Standard No. 105 as affect the stability of medium and heavy restrictive for final stage manufacturers. under Standard No. 121. We invite vehicles when operated on low comments on this issue. V. Benefits coefficient of friction road surfaces, this is not the primary purpose of the IV. Intermediate and Final Stage NHTSA published a detailed estimate braking-in-a-curve test. The proposed Manufacturers of the costs and benefits of equipping test condition also helps to ensure test medium and heavy vehicles with ABS repeatability and reproducibility. In the NPRM of September 28, 1993 in the February 1995 Final Economic and the stability and control final rule Assessment (FEA) (see footnote 1 M. Test Sequence of March 10, 1995, we discussed the above). This FEA provided estimates for NHTSA proposes that the braking-in- issue of certification to Standard Nos. the reduction in fatal, injury-producing, a-curve test for air-braked single-unit 105 and 121 for vehicles manufactured and property-damage-only (PDO) trucks and buses be conducted in two or more stages. One concern was crashes by equipping medium and immediately after the burnish procedure that final stage manufacturers would not heavy vehicles with ABS and as indicated in Table I of Standard No. be able to conduct the road testing for implementing/reimplementing straight 121, with the loaded tests followed by each type of vehicle they manufacture. line stopping distance requirements. It the unloaded tests. We further propose We stated that in many cases the also provided a detailed analysis of the that the braking-in-a-curve test for incomplete vehicle manufacturer could projected costs to consumers and hydraulic-braked single-unit trucks and pass through certification to the final vehicle manufacturers to meet the ABS buses be conducted immediately after stage manufacturer if the final stage requirements. The projected annual the post-burnish brake adjustment in manufacturer adhered to specifications benefits of ABS were summarized for all S7.4.2.2, with the loaded tests followed provided by the incomplete vehicle medium and heavy vehicles as follows: by the unloaded tests. manufacturer, for example, by not 1. 29,103 crashes prevented per year. We originally selected this test exceeding the GAWRs, not altering any 2. 38,227 fewer vehicle involvements sequence for air-braked tractors so that brake component, and keeping the in PDO crashes.
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3. 15,900 to 27,413 vehicle occupant The FEA also included the costs to therefore, that the twelve manufacturers injuries prevented per year. vehicle manufacturers to comply with would need to conduct 60 compliance 4. 320 to 506 vehicle occupant the ABS requirements and the stopping tests each, for a total of 720 tests, in the fatalities prevented per year. distance requirements in the companion first year that the braking-in-a-curve test 5. $457,780,795 to $552,769,946 of final rule. Although specific costs were would become effective, at a cost of property damage prevented. not identified for conducting the $1,080,00 (720 × $1,500). This assumes Table 6 on page V–12 of the FEA braking-in-a-curve test for tractors, the that compliance testing for the stopping provides a breakdown of the estimated costs to vehicle manufacturers distance requirements would have benefits of ABS for each vehicle type (excluding the cost for the ABS already been conducted. The cost per including combination vehicles, bobtail equipment which would be passed on to air-braked vehicle is estimated to be tractors, single-unit trucks, and buses. the consumer) for all medium and heavy about $18 ($1,080,000 ÷ 60,900). In the That table also shows the reduced vehicles to comply with the new later years, it is estimated that 30 fatalities, injuries, and PDO crash stopping distance requirements were compliance tests would be required damage to other vehicles involved in estimated as follows: annually, for a total cost of $360,000 (12 crashes with these medium and heavy × × Air-braked vehicles—Total cost of $11.71 30 $1,000). The cost per air-braked vehicles. The breakdown did not million, including $6.0 million for vehicle in the later years would be about differentiate between single-unit trucks compliance testing costs and $5.71 million $6 ($360,000 ÷ 60,900). and buses equipped with air versus related to vehicle modifications necessary to Hydraulic-braked single-unit vehicles: hydraulic braking systems. In general, improve vehicle stopping distance As shown in Table 13 of the FEA, an the table indicates that for single-unit performance. For the estimated 208,500 air- estimated 194,400 single-unit vehicles trucks and buses equipped with ABS, braked vehicles produced each year, the total would be affected annually. Assuming between 16 and 34 truck and bus estimated cost per vehicle for the first year that the timing of the braking-in-a-curve occupant fatalities will be prevented after the final rules was $56. For the remaining years after the first year, the test is such that all of the affected each year, and between 79 and 117 estimated cost per vehicle was $37. vehicles would have this test fatalities among occupants of other Hydraulic-braked vehicles—Total cost of requirement included in a complete vehicles will be prevented each year. $1.0 million, all for compliance testing. compliance test to all of the The potential benefits of applying the During the first year after the final rules, an requirements in Standard No. 105, the braking-in-a-curve performance test to estimated 194,400 vehicles would be affected $1,000 per test cost is used. The single-unit trucks and buses, compared for a cost per vehicle estimated at $5. In the estimates in the FEA were that 10 with the benefits of solely requiring the years following the first year, the cost per vehicle manufacturers would need to vehicle was estimated at $2 per vehicle. ABS equipment portions in the conduct 20 compliance tests each, for a respective safety standards, were not The first-year costs are higher because total of 200 compliance tests, at an differentiated in the FEA nor for the the additional road test requirements annual cost of $200,000 (200 × $1,000). purposes of this rulemaking action. The imposed by the control and stability The cost per vehicle is then estimated full benefits projected in the FEA are final rule and the stopping distance at about $1 ($200,000 ÷ 194,400). This based on having both the equipment final rule would require compliance cost per vehicle would be the same in requirements and performance tests to testing of all affected vehicles that are the later years. ensure that ABS installed on medium already in production, while in the later Implementing the braking-in-a-curve and heavy vehicles performs with a years, only new vehicle designs or performance test for single-unit vehicles maximum level of safety. The benefits vehicles with modifications to their with either hydraulic or air brakes is not projected in the FEA reflect the braking systems would need to be expected to result in any increases in installation of antilock brake systems tested. Complete compliance tests for vehicle equipment or manufacturing that were in use and on the road at the both hydraulic-and air-braked vehicles costs, since these vehicles are already time of the analysis. We have since were estimated to cost $5,000 per required to be equipped with ABS. As conducted ABS braking-in-a-curve tests, vehicle per test. long as the antilock braking systems that on six single-unit vehicles—four straight NHTSA provides the following are being installed on affected vehicles trucks and two buses—that are now estimates for the cost of implementing perform as they are supposed to, that is, required to have ABS installed. All the braking-in-a-curve test for single- preventing wheel lockup under a variety these vehicles passed the performance unit trucks and buses. A stand-alone of road and load conditions, then these requirements with a large margin of braking-in-a-curve test is estimated to vehicles should be able to comply with compliance. While we project no cost $1500, and the incremental cost to the braking-in-a-curve test without additional benefits by requiring these incorporate the braking-in-a-curve test additional development or equipment performance tests, they will help assure into a complete Standard No. 105 or 121 costs to the vehicle manufacturer. Thus that minimum levels of safety are compliance test is estimated at $1,000. all costs associated with requiring the maintained. For air-braked single-unit vehicles: As braking-in-a-curve test are limited to the shown in Table 13 of the FEA, an cost of vehicle manufacturers VI. Costs estimated 53,900 single-unit trucks and performing road tests and do not In the February 1995 FEA, NHTSA 7,000 buses would be affected annually. include equipment costs. provided an extensive evaluation of the For all air-braked vehicles, including estimated costs to vehicle manufacturers tractors, the FEA estimated that twelve VII. Compliance Date and consumers associated with medium and heavy vehicle NHTSA proposes that the compliance requiring ABS on medium and heavy manufacturers would need to conduct date for the braking-in-a-curve test vehicles. The majority of costs to 100 compliance tests each, for a total of requirements, for both air and consumers were the increased purchase 1200 compliance tests. If only single- hydraulic-braked single unit trucks and price of vehicles equipped with ABS, unit trucks and buses are to be tested, buses, be two years after publication of in-service costs to perform maintenance there are fewer numbers of these the final rule in the Federal Register. and repairs to the ABS, and lost revenue vehicles produced compared to tractors, Due to the operating conditions of these and increased fuel consumption due to but there are more vehicle types that trucks, which often call for specialized the extra weight of the ABS equipment. would need to be tested. We estimated, designs, manufacturers produce a large
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71385 number of different truck Regulatory Flexibility Act, 5 U.S.C. 601, E. Paperwork Reduction Act configurations. The proposal would et seq. I hereby certify that this notice In accordance with the Paperwork provide sufficient leadtime to ensure of proposed rulemaking would not have Reduction Act of 1980, Pub L. 96–511, that the manufacturers can test a a significant impact on a substantial NHTSA states that there are no relatively large number of vehicle types number of small entities. information collection requirements and configurations. At the same time, it The following is our statement associated with this rulemaking action. would also ensure that this important providing the factual basis for this F. Unfunded Mandates Reform Act check of vehicle stability is certification (5 U.S.C. 605(b)). The implemented in a timely manner to amendments proposed in this action The Unfunded Mandates Reform Act ensure the safe operation of these would primarily affect manufacturers of of 1995 (Pub L. 104–4) requires agencies vehicles. Optional early compliance medium and heavy vehicles, including to prepare a written assessment of the would be permitted on and after the single-unit trucks and buses. The Small costs, benefits, and other effects of date of publication of the final rule in Business Administration (SBA) proposed or final rules that include a the Federal Register. regulation at 13 CFR part 121 defines a Federal mandate likely to result in the VIII. Rulemaking Analyses and Notices small business as a business entity that expenditure by state, local, or tribal operates primarily within the United governments, in the aggregate, or by the A. Executive Order 12866 and DOT States (13 CFR 121.105(a)). private sector, of more than $100 Regulatory Policies and Procedures SBA’s size standards are organized million annually. This proposed rule This document has not been reviewed according to Standard Industrial does not meet the definition of a Federal under Executive Order 12866, Classification (SIC) codes. SIC code No. mandate because, if adopted, annual Regulatory Planning and Review. 3711, Motor Vehicles and Passenger Car expenditures by the stated entities will We have analyzed the impact of this Bodies, prescribes a small business size not exceed the $100 million threshold. rulemaking and have determined that it standard of 1,000 or fewer employees. G. Civil Justice Reform is not ‘‘significant’’ within the meaning SIC code No. 3714, Motor Vehicle Parts The amendments proposed in this of DOT’s regulatory policies and and Accessories, prescribes a small procedures. This action proposes to rulemaking action would not have any business size standard of 750 or fewer retroactive effect. Under 49 U.S.C. amend the air and hydraulic brake employees. standards applicable to medium and 30103(b), whenever a Federal motor The amendments proposed in this heavy vehicles to provide for a braking- vehicle safety standard is in effect, a rulemaking add an additional test in-a-curve test for single-unit trucks and state or political subdivision of a state procedure to the air and hydraulic brake buses to enhance the stability and may prescribe or continue in effect a standards, applicable only to medium control of those vehicles. As discussed standard applicable to the same aspect and heavy single-unit trucks and buses. in Section VII above, we estimate that of performance of a motor vehicle only These amendments do not apply to the total cost of the braking-in-a-curve if that standard is identical to the trailers. The amendments, if adopted, test for manufacturers of single-unit Federal standard. However, the United would impose minimal testing costs to vehicles equipped with air brakes States government, a state or political manufacturers of the affected vehicles, would be approximately $1,080,000 the subdivision of a state may prescribe a most if not all of which would not first year, for a per-vehicle cost about standard for a motor vehicle or motor qualify as small businesses under SBA $18. In the later years, we estimate that vehicle equipment obtained for its own guidelines. We estimate that the the per-vehicle cost would be use that imposes a higher performance proposed amendments, if adopted, approximately $6, for a total cost of requirement than that required by the would result in minimal, if any, about $360,000. For hydraulic-braked Federal standard. Section 30161 of Title additional costs to small businesses or single-unit vehicles, we estimate the 49, U.S. Code sets forth a procedure for consumers. Accordingly, there would be annual cost to manufacturers of the judicial review of final rules no significant impact on small braking-in-a-curve test to be about establishing, amending or revoking businesses, small organizations, or small $200,000, for a per-vehicle cost of about Federal motor vehicle safety standards. units by these amendments. For those $1. We estimate that this cost would be A petition for reconsideration or other reasons, the agency has not prepared a the same in the later years. administrative proceeding is not preliminary regulatory flexibility As discussed above, NHTSA required before parties may file suit in analysis. evaluated in detail the costs and court. benefits of equipping medium and C. Executive Order No. 12612, IX. Comments heavy vehicles with ABS. We believe Federalism that the full array of costs and benefits How Do I Prepare and Submit discussed in the FEA will not be fully NHTSA has analyzed this rulemaking Comments? attained until 10 years or more since it action in accordance with the principles Your comments must be written and will take that long until all existing non- of E.O. 12612 and has determined that in English. To ensure that your ABS medium and heavy vehicles have this rule does not have sufficient comments are correctly filed in the been replaced by newer vehicles federalism implications to warrant Docket, please include the docket equipped with ABS. Accordingly, we preparation of a Federalism Assessment. number of this document in your believe that the projected figures in the D. National Environmental Policy Act comments. FEA are still valid and on that basis, we Your comments must not be more have concluded that preparation of NHTSA has analyzed this rulemaking than 15 pages long. (49 CFR 553.21). We another full regulatory evaluation is not action for the purposes of the National established this limit to encourage you warranted. Environmental Policy Act and has to write your primary comments in a determined that implementation of this concise fashion. However, you may B. Regulatory Flexibility Act rulemaking action would not have any attach necessary additional documents NHTSA has considered the effects of significant impact on the quality of the to your comments. There is no limit on this rulemaking action under the human environment. the length of the attachments.
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Please submit two copies of your Department of Transportation (http:// 200 feet of a 500-foot radius curve arc comments, including the attachments, dms.dot.gov/). without leaving the 12-foot lane. to Docket Management at the address • On that page, click on ‘‘search.’’ * * * * * given above under ADDRESSES. • On the next page (http:// S5.1 Service brake systems. Each How Can I Be Sure That My Comments dms.dot.gov/search/), type in the four- vehicle must be equipped with a service Were Received? digit docket number shown at the brake system acting on all wheels. Wear beginning of this document. Example: If of the service brake must be If you wish Docket Management to the docket number were ‘‘NHTSA– compensated for by means of a system notify you upon its receipt of your 1998–1234,’’ you would type ‘‘1234.’’ of automatic adjustment. Each passenger comments, enclose a self-addressed, After typing the docket number, click on car and each multipurpose passenger stamped postcard in the envelope ‘‘search.’’ vehicle, truck, and bus with a GVWR of containing your comments. Upon • On the next page, which contains 10,000 pounds or less must be capable receiving your comments, Docket docket summary information for the of meeting the requirements of S5.1.1 Management will return the postcard by docket you selected, click on the desired through S5.1.6 under the conditions mail. comments. prescribed in S6, when tested according How Do I Submit Confidential Business • You may download the comments. to the procedures and in the sequence Information? However, since the comments are set forth in S7. Each school bus with a imaged documents, instead of word GVWR greater than 10,000 pounds must If you wish to submit any information processing documents, the downloaded be capable of meeting the requirements under a claim of confidentiality, you comments are not word searchable. of S5.1.1 through S5.1.5, and S5.1.7 should submit three copies of your Please note that even after the under the conditions specified in S6, complete submission, including the comment closing date, we will continue when tested according to the procedures information you claim to be confidential to file relevant information in the and in the sequence set forth in S7. Each business information, to the Chief Docket as it becomes available. Further, multipurpose passenger vehicle, truck Counsel, NHTSA, at the address given some people may submit late comments. and bus (other than a school bus) with above under FOR FURTHER INFORMATION Accordingly, we recommend that you a GVWR greater than 10,000 pounds CONTACT. In addition, you should periodically check the Docket for new must be capable of meeting the submit two copies, from which you material. requirements of S5.1.1, S5.1.2, S5.1.3, have deleted the claimed confidential and S5.1.7 under the conditions business information, to Docket List of Subjects in 49 CFR Part 571 specified in S6, when tested according Management at the address given above Imports, Incorporation by reference, to the procedures and in the sequence under ADDRESSES. When you send a Motor vehicle safety, Motor vehicles, set forth in S7. Except as noted in comment containing information Rubber and rubber products, Tires. S5.1.1.2 and S5.1.1.4, if a vehicle is claimed to be confidential business incapable of attaining a speed specified information, you should include a cover In consideration of the foregoing, 49 in S5.1.1, S5.1.2, S5.1.3, or S5.1.6, its letter setting forth the information CFR part 571 would be amended as service brakes must be capable of specified in our confidential business follows: stopping the vehicle from the multiple information regulation. (49 CFR part PART 571ÐFEDERAL MOTOR of 5 mph that is 4 to 8 mph less than 512.) VEHICLE SAFETY STANDARDS the speed attainable in 2 miles, within Will the Agency Consider Late distances that do not exceed the Comments? 1. The authority citation for part 571 corresponding distances specified in would continue to read as follows: Table II. If a vehicle is incapable of We will consider all comments that attaining a speed specified in S5.1.4 in Docket Management receives before the Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at the time or distance interval set forth, it close of business on the comment 49 CFR 1.50. must be tested at the highest speed closing date indicated above under attainable in the time or distance DATES. To the extent possible, we will 2. Section 571.105 would be amended interval specified. by adding definitions of ‘‘Full brake also consider comments that Docket * * * * * application’’ and ‘‘Maximum drive- Management receives after that date. If S5.1.7 Stability and control during through speed’’ to S4; by revising S5.1, Docket Management receives a comment braking. When stopped four consecutive S6.9.2 the introductory text of S7, S7.5, too late for us to consider it in times under the conditions specified in and Table I; and by adding S5.1.7 and developing a final rule (assuming that S6, each vehicle with a GVWR greater S6.14, to read as follows: one is issued), we will consider that than 10,000 pounds and manufactured comment as an informal suggestion for § 571.105 Standard No. 1059, Hydraulic on or after (COMPLIANCE DATE, if future rulemaking action. brake and electric systems. adopted) must stop from 30 mph or 75 How Can I Read the Comments * * * * * percent of the maximum drive-through Submitted by Other People? S4 Definitions. speed, whichever is less, at least three times within the 12-foot lane, without * * * * * You may read the comments received any part of the vehicle leaving the by Docket Management at the address Full brake application means a brake roadway. Stop the vehicle with the given above under ADDRESSES. The application in which the force on the vehicle: hours of the Docket are indicated above brake pedal reaches 150 pounds within (a) Loaded to its GVWR, and in the same location. 0.2 seconds from the point of (b) At its unloaded weight, plus up to You may also see the comments on application of force to the brake control. 500 pounds (including driver and the Internet. To read the comments on * * * * * instrumentation), or at the the Internet, take the following steps: Maximum drive-through speed means manufacturer’s option, at its unloaded • Go to the Docket Management the highest possible constant speed at weight plus up to 500 pounds System (DMS) Web page of the which the vehicle can be driven through (including driver and instrumentation)
VerDate 15-DEC-99 17:45 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71387 and plus not more than an additional interlocking axle system or a front distance that does not exceed the 1000 pounds for a roll bar structure on wheel drive system that is engaged and corresponding distance specified in the vehicle. disengaged by the driver is tested with Table II. When the transmission selector * * * * * the system disengaged. is required to be in neutral for a S6.9.2 (a) For vehicles with GVWRs * * * * * deceleration, a stop or snub must be greater than 10,000 pounds, road tests S7. Test procedure and sequence. obtained by the following procedures: are conducted on a 12-foot-wide, level Each vehicle must be capable of meeting (a) Exceed the test speed by 4 to 8 roadway, having a peak friction all the applicable requirements of S5 mph; coefficient of 0.9 when measured using when tested according to the procedures (b) Close the throttle and coast in gear an American Society for Testing and and in sequence set forth below, to approximately 2 mph above the test Materials (ASTM) E 1136 standard without replacing any brake system part speed; reference test tire, in accordance with or making any adjustments to the brake (c) Shift to neutral; and ASTM Method E 1337–90, at a speed of system other than as permitted in the (d) When the test speed is reached, 40 mph, without water delivery. burnish and reburnish procedures and apply the service brakes. in S7.9 and S7.10. For vehicles only Burnish stops are conducted on any * * * * * surface. The parking brake test surface having to meet the requirements of S5.1.1, S5.1.2, S5.1.3, and S5.1.7 in S7.5 (a) Stability and control during is clean, dry, smooth, Portland cement braking (vehicles with GVWRs greater concrete. section S5.1, the applicable test procedures and sequence are S7.1, S7.2, than 10,000 pounds). Make four stops in (b) For vehicles with GVWRs greater S7.4, S7.5, S7.9, S7.10, S7.11 and S7.18. the loaded condition specified in than 10,000 pounds, stability and However, at the option of the S5.1.7(a) and then four stops in the control during braking tests are manufacturer, the following test unloaded condition specified in conducted on a 500-foot-radius curved procedure and sequence may be S5.1.7(b). Use a full brake application roadway with a wet level surface having conducted: S7.1, S7.2, S7.3, S7.4, S7.5, for the duration of the stop, with the a peak friction coefficient of 0.5 when S7.6, S7.7, S7.8, S7.9, S7.10, S7.11, and clutch pedal depressed or the measured on a straight or curved section S7.18. The choice of this option must transmission selector control in the of the curved roadway using an not be construed as adding to the neutral position, for the duration of each American Society for Testing and requirements specified in S5.1.2 and stop. Materials (ASTM) E1136 standard S5.1.3. Automatic adjusters must remain (b) Service brake system—second reference tire, in accordance with ASTM activated at all times. A vehicle shall be effectiveness test. Repeat S7.3. Then (for Method E1337–90, at a speed of 40 mph, deemed to comply with the stopping passenger cars and other vehicles with with water delivery. distance requirements of S5.1 if at least GVWRs of 10,000 pounds or less) make * * * * * one of the stops at each speed and load four stops from 80 mph if the speed S6.14 Special drive conditions. A specified in each of S7.3, S7.5, S7.8, attainable in 2 miles is not less than 84 vehicle with a GVWR greater than S7.9, S7.10, S7.15 and S7.17 (check mph. 10,000 pounds equipped with an stops) is made within a stopping * * * * *
TABLE IÐBRAKE TEST PROCEDURE SEQUENCE AND REQUIREMENTS
Test load Sequence Test procedure Requirements Light GVWR
1. Instrumentation check ...... S7.2 2. First (preburnish) effectiveness test ...... X S7.3 S5.1.1.1 3. Burnish procedure ...... X S7.4 4. Braking-in-a-curve test ...... X X S7.5(a) S5.1.7 5. Second effectiveness test ...... X S7.5(b) S5.1.1.2 6. First reburnish ...... X S7.6 7. Parking brake ...... X X S7.7 S5.2 8. Third effectiveness (lightly loaded vehicle) ...... X ...... S7.8 S5.1.1.3 9. Partial failure ...... X X S7.9 S5.1.2 10. Inoperative brake power and power assist units ...... X S7.10 S5.1.3 11. First fade and recovery ...... X S7.11 S5.1.4 12. Second reburnish ...... X S7.12 13. Second fade and recovery ...... X S7.13 S5.1.4 14. Third reburnish ...... X S7.14 15. Fourth effectiveness ...... X S7.15 S5.1.1.4 16. Water recovery ...... X S7.16 S5.1.5 17. Spike stops ...... X S7.17 S5.1.6 18. Final inspection ...... S7.18 S5.6 19. Moving barrier test ...... X S7.19 S5.2.2.3
* * * * * § 571.121 Standard No. 121; Air brake S5.3.4, and S5.3.6, when tested without systems. 3. Section 571.121 would be amended adjustments other than those specified by revising S5.3, S5.3.6, S5.3.6.2 * * * * * in this standard. The service brake S5.3 Service brakes—road tests. The introductory text and paragraph (a), system on each bus and truck other than service brake system on each truck S6.1.15, and Table I to read as follows: a truck tractor must, under the tractor must, under the conditions of S6, conditions of S6, meet the requirements meet the requirements of S5.3.1, S5.3.3,
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 71388 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules of S5.3.1, S5.3.3, and S5.3.4 when tested (a) With the vehicle at gross vehicle DEPARTMENT OF COMMERCE without adjustments other than those weight rating (GVWR), stop the vehicle specified in this standard. The service from 30 mph using the service brake, for National Oceanic and Atmospheric brake system on each bus and truck a single-unit vehicle or for a truck Administration other than a truck tractor manufactured tractor with a loaded unbraked control 50 CFR Part 622 on or after [Compliance date to be trailer; inserted] must, under the conditions of (b) With the vehicle at unloaded [Docket No. 991112303±9303±01; I.D. S6, meet the requirements of S5.3.1, 100499A] S5.3.3, S5.3.4, and S5.3.6, when tested weight plus up to 1,500 lbs, stop the RIN 0648±AM01 without adjustments other than those vehicle from 30 mph using the service specified in this standard. The service brake, for a truck tractor or a single-unit vehicle; Fisheries of the Caribbean, Gulf of brake system on each trailer must, under Mexico, and South Atlantic; Coastal the conditions of S6, meet the 3. Manual adjustment of the service Migratory Pelagic Resources of the requirements of S5.3.3, S5.3.4, and brakes allowed for truck tractors and Gulf of Mexico and South Atlantic; S5.3.5 when tested without adjustments single-unit vehicles within the limits 1999±2000 Catch Specifications for other than those specified in this recommended by the vehicle Gulf Group King and Spanish Mackerel standard. However, a heavy hauler manufacturer. trailer and the truck and trailer portions AGENCY: National Marine Fisheries 4. Other stops with vehicle at GVWR: of an auto transporter need not meet the Service (NMFS), National Oceanic and requirements of S5.3. (a) 60 mph service brake stops on a Atmospheric Administration (NOAA), * * * * * peak friction coefficient surface of 0.9, Commerce. S5.3.6 Stability and control during for a truck tractor with a loaded ACTION: Proposed rule; request for braking—trucks and buses. When unbraked control trailer, or for a single- comments. stopped four consecutive times for each unit vehicle; SUMMARY: In accordance with the combination of weight, speed, and road (b) 60 mph emergency brake stops on framework procedure for adjusting conditions specified in S5.3.6.1 and a peak friction coefficient of 0.9, for a management measures of the Fishery S5.3.6.2, each truck tractor must stop at single-unit vehicle. Truck tractors are Management Plan for the Coastal least three times within the 12-foot lane, not required to be tested in the loaded Migratory Pelagic Resources of the Gulf without any part of the vehicle leaving condition. of Mexico and South Atlantic (FMP), the roadway. When stopped four 5. Parking brake test with the vehicle NMFS proposes to increase the total consecutive times for each combination loaded to GVWR. allowable catch (TAC) and the bag limit of weight, speed, and road conditions for Gulf group Spanish mackerel and to specified in S5.3.6.1 and S5.3.6.2, each 6. Manual adjustment of the service brakes allowed for truck tractors and establish a new fishing season for the bus and truck other than a truck tractor Gulf group king mackerel gillnet fishery. single-unit vehicles, within the limits manufactured on or after [Compliance The intended effects of this rule are to recommended by the vehicle date to be inserted], must stop at least enhance the economic and social three times within the 12-foot lane, manufacturer. benefits from the Gulf group king and without any part of the vehicle leaving 7. Other stops with the vehicle at Spanish mackerel fisheries while the roadway. unloaded weight plus up to 1500 lbs: maintaining healthy stocks. * * * * * (a) 60 mph service brake stops on a DATES: Written comments must be S5.3.6.2 Stop the vehicle, with the peak friction coefficient surface of 0.9, received at the appropriate address or vehicle: for a truck tractor or for a single-unit fax number, (see ADDRESSES), no later (a) Loaded to its GVWR so that the vehicle; than 5:00 p.m., eastern standard time, load on each axle measured at the tire- on January 20, 2000. (b) 60 mph emergency brake stops on ground interface is most nearly ADDRESSES: Written comments on the proportional to the axles’ respective a peak friction coefficient of 0.9, for a proposed rule must be sent to Steve GAWRs, without exceeding the GAWR truck tractor or for a single-unit vehicle. Branstetter, Southeast Regional Office, of any axle, and 8. Parking brake test with the vehicle NMFS, 9721 Executive Center Drive N., (b) * * * at unloaded weight plus up to 500 lbs. St. Petersburg, FL 33702. Comments * * * * * 9. Final inspection of service brake also may be sent via fax to 727–570– S6.1.15 Initial brake temperature. system for condition of adjustment. 5583. Comments will not be accepted if Unless otherwise specified, the initial submitted via e-mail or Internet. ° * * * * * Requests for copies of the brake temperature is not less than 150 F Issued on December 14, 1999. and not more than 200°F. The environmental assessment and temperature of each brake is measured Stephen R. Kratzke, regulatory impact review (RIR) by a single plug-type thermocouple Acting Associate Administrator for Safety supporting this action should be sent to installed in the center of the lining Performance Standards. the Gulf of Mexico Fishery Management surface of the most heavily loaded shoe [FR Doc. 99–32889 Filed 12–20–99; 8:45 am] Council, 3018 U.S. Highway North, or pad as shown in Figure 2. The BILLING CODE 4910±59±P Suite 1000, Tampa, FL, 33619–2266, thermocouple is outside any center PHONE: 813–228–2815, FAX: 813-225- groove. 7015. * * * * * FOR FURTHER INFORMATION CONTACT: Steve Branstetter, 727–570–5305. TABLE IÐSTOPPING SEQUENCE SUPPLEMENTARY INFORMATION: The 1. Burnish. fisheries for coastal migratory pelagic 2. Stops on a peak friction coefficient resources are regulated under the FMP. surface of 0.5: The FMP was prepared jointly by the
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Gulf of Mexico and South Atlantic then counted against the commercial Increase TAC for Spanish Mackerel Fishery Management Councils and was quota. This leads to situations where the The Council recommends an increase approved by NMFS and implemented fish are counted twice: once as a in the TAC for Gulf group Spanish by regulations at 50 CFR part 622. recreational catch, and once as a mackerel from 7.0 to 9.1 million lb (3.2 In accordance with the framework commercial sale. This double counting to 4.1 million kg). This TAC would be procedures of the FMP, the Gulf of of fish contributes to an ‘‘artificial’’ at the lower end of the acceptable Mexico Fishery Management Council overrun of the commercial quotas. biological catch range of 9.1 to 17.2 (Council) made recommendations for Elimination of this double counting million lb (4.1 to 7.8 million kg), and changes in certain management should foster a more accurate depiction within the confidence intervals measures, in a regulatory amendment of fishing mortality, thus providing for 1999–2000 catch specifications, to established (7.1 to 9.7 million lb (3.2 to more accurate stock assessments. For 4.4 million kg)) for maximum the Regional Administrator, Southeast these reasons, the RA has determined Region, NMFS (RA). The recommended sustainable yield. Landings in this that the Council’s proposed fishery have been below the established changes are within the scope of the reinstatement of the 2–fish bag limit on management measures that may be TAC since the 1989/1990 fishing season. Gulf group king mackerel for the captain Since the 1995/1996 fishing year, adjusted under the framework and crew of for-hire vessels is contrary procedure, as specified in 50 CFR landings have averaged about 2.5 to the goals and objectives of the FMP million lb (1.1 million kg) while TAC 622.48. and to the requirements of the Bag Limit for Captain and Crew of remained at 7.0 million lb (3.2 million Magnuson-Stevens Fishery For-Hire Vessels kg). The stock is not overfished or NMFS recently published a final rule Conservation and Management Act. undergoing overfishing, and the Council (64 FR 45457, August 20, 1999) Consistent with the FMP framework intends to enhance the social and establishing a zero-fish bag limit of Gulf provisions, the proposed 2–fish bag economic benefits from the fishery by group king mackerel for captain and limit for this fishery is not proposed in providing optimal utilization of this crew of for-hire vessels (i.e., charter this rule. The RA has notified the resource. A 9.1 million-lb (4.1 million- vessels and headboats). In the 1999/ Council of his action and reasons kg) TAC would provide a 3.913 million- 2000 catch specifications that this rule therefore. lb (1.775 million-kg) allocation to proposes to implement, the Council Fishing Season Changes for the Gillnet recreational fishing and a 5.187 million- proposes to restore the 2–fish-per- Fishery lb (2.353 million-kg) allocation to person-per-day bag limit for this commercial fishing. segment of the fishery, concluding that The Council recommends the Increase the Recreational Bag Limit for the management goals to rebuild this establishment of a new opening date for Spanish Mackerel stock can be achieved without this the gillnet fishery for Gulf group king restriction. Nevertheless, NMFS mackerel of 6:00 a.m. eastern standard The Council proposes to increase the continues to believe that a zero-fish bag time on the Tuesday following the bag limit for Gulf group Spanish limit of Gulf group king mackerel for the Martin Luther King, Jr. holiday, with the mackerel from 7 fish off Texas and 10 captain and crew of for-hire vessels is following weekend open as long as the fish for all other states to 15 fish per necessary for the adequate conservation quota has not been taken. All person per day for the entire exclusive and management of this overfished subsequent weekends and holidays economic zone (EEZ) in the Gulf resource. The rationale for its belief is would be closed. Weekend and holiday (Florida through Texas) with the change set forth in the preamble to the final rule closures, would be from 6:00 a.m. to be effective January 1, 2000. The (64 FR 45457, August 20, 1999) to Saturday to 6:00 a.m. Monday eastern recreational fishery has not met its implement the 1998/1999 catch standard time (or Tuesday if Monday is allocation in recent years under the specifications. Two independent a holiday). During these closures, a more restrictive bag limits. Thus, based sampling programs indicate that on a person aboard a vessel using or on the healthy status of the stock and per-trip basis the per-angler catch possessing a gillnet with a stretched- the proposed increase in TAC, the exceeds the allowable bag limit unless mesh size of 4.75 inches (12.1 cm) or Council intends to provide greater social the captain and crew are included as larger in the Florida west coast subzone and economic benefits from the optimal anglers. The recreational fishery has would not be able to fish for or possess utilization of this resource. consistently overrun its allocation since Gulf group king mackerel. Classification the 1986/87 fishing year, and the catch attributable to the captain and crew The Council proposes this new This proposed rule has been contributes to this problem. NMFS fishing season because the gillnet determined to be significant for anticipates that a zero-fish bag limit for fishery has the capability of harvesting purposes of E.O. 12866. captains and crew will reduce total large amounts of king mackerel in a The Chief Counsel for Regulation of charterboat landings by as much as 17 short timeframe; thus it is imperative to the Department of Commerce has percent. Fifty to sixty-five percent of the be able to implement a closure on short certified to the Chief Counsel for total recreational landings are from notice. The fishery in southern Florida Advocacy of the Small Business charterboats, thus the total reduction in normally is conducted during the month Administration that this proposed rule, recreational catch could be as high as of January. By delaying the opening of if adopted, would not have a significant 10–12 percent. Additionally, the season until after the 3-day weekend economic impact on a substantial enforcement of a daily bag limit for associated with the Martin Luther King number of small entities. This captain and crew of for-hire vessels is holiday and by closing all weekends certification is based largely on the difficult where those vessels and crews after the first weekend to gillnet fishing, findings in the RIR. The factual basis for make multiple trips within a day. NMFS the Council intends to reduce the the certification is summarized as also believes that a 0–fish bag limit for possibility of the fishery exceeding its follows: Gulf group king mackerel for captain allocation because fishing is occurring Based on Small Business and crew on for-hire vessels will reduce during a period when a closure notice Administration definitions found in in-season recreational sales, which are cannot be published. Section 601(3) of the Regulatory
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Flexibility Act, there are 1,440 small also is closed during all subsequent DEPARTMENT OF COMMERCE business entities permitted for weekends and observed Federal commercial coastal migratory pelagics holidays, except for the first weekend National Oceanic and Atmospheric fishing, and an additional 1,113 for-hire following the Martin Luther King Jr. Administration (charterboat and headboat) small holiday which will remain open to the business entities have permits. A gillnet fishery provided a notification of 50 CFR Part 679 majority of the commercial small closure of that fishery has not been filed [Docket No. 991210329±9329±01; I.D. business entities will receive under § 622.43(a). Weekend closures are 102699B] insignificant positive benefits from the effective from 6:00 a.m. Saturday to 6:00 RIN 0648±AM63 actions. The actions will not affect a.m. Monday. Holiday closures are significantly for-hire small businesses. effective from 6:00 a.m. on the observed Fisheries of the Exclusive Economic The only action affecting commercial Federal holiday to 6:00 a.m. the Zone Off Alaska; Bering Sea and revenues is the proposal to change the following day. All times are eastern Aleutian Islands Area; Amendment 58 start date for the gillnet fishery. This standard time. During these closures, a to Revise the Chinook Salmon Savings change is expected to result in a slight person aboard a vessel using or Areas increase in exvessel prices because the possessing a gillnet with a stretched- commercial catches will be spread more mesh size of 4.75 inches (12.1 cm) or AGENCY: National Marine Fisheries evenly over the year. None of the larger in the Florida west coast subzone Service (NMFS), National Oceanic and proposed actions would lead to may not fish for or possess Gulf group Atmospheric Administration (NOAA), increased compliance costs, so there are king mackerel. Commerce. no differential small versus large entity 3.In § 622.39, paragraph (c)(1)(iv) is ACTION: Proposed rule, request for impacts. In addition, there are no revised to read as follows: comments. expected capital costs of compliance, and there are no additional § 622.39 Bag and possession limits. SUMMARY: NMFS proposes regulations to requirements for bookkeeping or record * * * * * implement Amendment 58 to the keeping. Since the expected economic (c) * * * Fishery Management Plan for the Groundfish Fishery in the Bering Sea impacts are small and positive, there is (1) * * * no expectation that any of the small and Aleutian Islands Area (BSAI) (FMP) (iv) Gulf migratory group Spanish and associated recommendations from business entities comprising the mackerel—15. universe will cease business if the the North Pacific Fishery Management actions are implemented. * * * * * Council (Council). Amendment 58 As a result, a regulatory flexibility 4. In § 622.42, paragraph (c)(2)(i) is would establish a framework to allow analysis was not prepared. Copies of the revised to read as follows: NMFS to reduce the annual trawl RIR are available (see ADDRESSES). bycatch limit for chinook salmon and it § 622.42 Quotas. would revise the Chinook Salmon List of Subjects in 50 CFR Part 622 * * * * * Savings Area (CHSSA) in the BSAI. This Fisheries, Fishing, Puerto Rico, (c) * * * action is necessary to reduce chinook Reporting and recordkeeping (2) * * * salmon bycatch and is intended to requirements, Virgin Islands. (i) Gulf migratory group. The quota for further the conservation and management objectives of the FMP. Dated: December 15, 1999. the Gulf migratory group of Spanish DATES: Andrew A. Rosenberg, mackerel is 5.187 million lb (2.353 Comments on the proposed rule million kg). must be received no later than February Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service. * * * * * 4, 2000. ADDRESSES: Comments may be sent to For the reasons set out in the 5. In § 622.44, paragraph Sue Salveson, Assistant Regional preamble, 50 CFR part 622 is proposed (a)(2)(ii)(A)(1) is revised to read as Administrator, Sustainable Fisheries to be amended as follows: follows: Division, Alaska Region, NMFS, P.O. PART 622ÐFISHERIES OF THE § 622.44 Commercial trip limits. Box 21668, Juneau, AK 99802–1668, CARIBBEAN, GULF, AND SOUTH * * * * * Attn: Lori Gravel, or delivered to the th ATLANTIC (a) * * * Federal Building, 709 West 9 Street, Juneau, AK. NMFS will not accept (2) * * * 1. The authority citation for part 622 comments submitted by e-mail or the continues to read as follows: (ii) * * * Internet. Copies of Amendment 58 and (A) * * * Authority: 16 U.S.C. 1801 et seq. the Environmental Assessment/ (1) In the Florida west coast subzone, Regulatory Impact Review/Initial 2. In § 622.34, paragraph (m) is added king mackerel in or from the EEZ may Regulatory Flexibility Analysis (EA/ to read as follows: be possessed on board or landed from a RIR/IRFA) prepared for this action may § 622.34 Gulf EEZ seasonal and/or area vessel for which a commercial permit be obtained from the same address or by closures. with a gillnet endorsement has been calling the Alaska Region, NMFS, at * * * * * issued, as required under 907–586–7228. (m) Closures of the Gulf group king § 622.4(a)(2)(ii), in amounts not FOR FURTHER INFORMATION CONTACT: mackerel gillnet fishery. The gillnet exceeding 25,000 lb (11,340 kg) per day, Shane Capron, 907–586–7228 or fishery for Gulf group king mackerel in provided the gillnet fishery for Gulf [email protected] or from the EEZ is closed each fishing group king mackerel is not closed under SUPPLEMENTARY INFORMATION: NMFS year from July 1 until 6:00 a.m. on the § 622.34(m) or § 622.43(a). manages the groundfish fisheries in the day after the Martin Luther King Jr. * * * * * BSAI under the FMP. Regulations Federal holiday, which is the third [FR Doc. 99–32923 Filed 12-20-99; 8:45 am] appearing at 50 CFR part 679 issued Monday in January. The gillnet fishery BILLING CODE 3510±22±F under authority of the Magnuson-
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Stevens Fishery Conservation and bycatch reduction schedule that in lower levels of the mortality of Management Act (Magnuson-Stevens reduced the allowable level each year bycatch’’ (section 303(b)(10)). Act) implement the FMP. General from 65,000 chinook salmon in 1981 to To comply with these provisions of regulations governing U.S. fisheries 16,500 chinook salmon in 1986. the Magnuson-Stevens Act, the Council appear at 50 CFR part 600. The Council Domestic vessels began fishing in the emphasized the need for additional prepared the FMP under authority of the mid-1980s and bycatch numbers bycatch management measures during Magnuson-Stevens Act. The Council remained below 40,000 fish until 1993. the 1997 call for proposals to reduce prepared Amendment 58 to the FMP From 1994 to 1998, most of the chinook bycatch and bycatch rates. At its primarily to reduce bycatch of chinook salmon bycatch was within the area meeting in September 1997, the Council salmon by trawl fisheries in the BSAI. designated as the CHSSA. During this initiated development of an analysis to NMFS published a notice of availability same period, the bycatch limit of 48,000 investigate lowering the chinook salmon for this amendment in the Federal chinook salmon was exceeded four bycatch limit in the BSAI. This Register at 64 FR 60157 on November 4, times, with a high of about 60,000 proposal, submitted by the Yukon River 1999, soliciting public comments on chinook salmon intercepted in 1998. Drainage Fisheries Association, this amendment through January 3, Since 1996, when the CHSSA became identified the current bycatch trigger of 2000. Public comments that are received effective, a PSC limit of 48,000 chinook 48,000 chinook salmon as too high to on that request for comments or in salmon has been in place between reduce chinook salmon bycatch response to this notice of proposed January 1 and April 15 for vessels using effectively. Additionally, bycatch of rulemaking on or before January 3, 2000, trawl gear, with no restrictions on the chinook salmon after April 15 does not will be considered in the approval/ amount of chinook salmon bycatch in apply toward the PSC limit that triggers disapproval decision. Comments the subsequent months. a closure. received after that date, but before the Concern over chinook salmon bycatch At its meeting in February 1999, the end of the comment period for this in the groundfish trawl fisheries exists Council considered this information and proposed rule, will not be considered in because incidental harvests reduce the the analysis prepared by its staff and by the approval-disapproval decision of the amount of chinook salmon available for staff from the Alaska Department of Fish amendment, but will be considered in escapement and subsistence in and Game in support of this action and context of this proposed rule. The commercial and recreational fisheries. adopted Amendment 58 to the BSAI preamble of the final rule will contain Between 50 and 90 percent of the FMP to reduce chinook salmon bycatch a summary of the comments received, chinook salmon bycatch in the BSAI is in the BSAI. The Council considered both on Amendment 58 and on the estimated to originate in Western Alaska five alternatives and recommended the proposed rule. Copies of Amendment 58 river systems. Minimum escapement combination of FMP and regulatory are available upon request (see goals for the Yukon River, Kuskokwim amendments that would: (1) Reduce the ADDRESSES). River, and portions of Bristol Bay are chinook salmon bycatch limit from Background being met through careful management 48,000 to 29,000 chinook salmon over a 4-year period, (2) implement year-round Trawl fisheries in the BSAI, of directed fisheries by time, area, and gear restrictions. In addition, chinook accounting of chinook salmon bycatch particularly the midwater pollock for the pollock fishery, beginning on fishery, incidentally catch chinook salmon is one of the major food items of Native communities in Western and January 1 of each year, (3) revise the salmon, which is why Amendment 58 boundaries defined by the CHSSA, and removes the PSC limit. Salmon are Interior Alaska and plays an important (4) set new CHSSA closure dates. prohibited species in the BSAI role in supporting the indigenous groundfish fisheries. They cannot be cultures and mixed, subsistence-cash Elements of the Proposed Rule retained and must be returned to the sea socioeconomic systems of these peoples. Chinook Salmon Savings Areas as soon as possible with a minimum of Finally, commercial and recreational injury after they have been counted by chinook salmon fishing provides a Currently, the CHSSA encompasses a NMFS certified observer. However, the primary source of income for Western three non-contiguous areas of the BSAI mortality rate for salmon caught in trawl Alaska communities. comprising nine geographic blocks, each fisheries is 100 percent as salmon The Magnuson-Stevens Act defined by 1/2° latitude by 1° longitude. cannot survive interception by trawl emphasizes the importance of These blocks are closed to all vessels gear. Final regulations published on minimizing bycatch in achieving using trawl gear through 1200 hours November 29, 1995 (60 FR 61215), sustainable fisheries. National standard Alaska local time (A.l.t.) April 15 once effective January 1996, established 9 mandates that conservation and an annual PSC limit of 48,000 chinook annual prohibited species catch (PSC) management measures, to the extent salmon is reached. Monitoring of limits for chinook salmon and specific practicable, (1) minimize bycatch and incidental catches in the trawl fisheries seasonal no trawling zones in the (2) to the extent bycatch cannot be begins on January 1. If closed, the CHSSA that are triggered when the avoided, minimize the mortality of such CHSSA reopens 1200 hours A.l.t. April limits are reached. These existing bycatch. In addition, section 303 of the 15 for the remainder of the year, regulations prohibit trawling in the Magnuson-Stevens Act was amended in regardless of the amount of chinook CHSSA through April 15 of each year 1996 to add bycatch reduction salmon bycatch. once the bycatch limit of 48,000 incentives as a discretionary provision Analysis of 1994–1997 observer data chinook salmon, as specified in the of fishery management plans. This indicated that the current boundaries of FMP, is reached. provision states that any fishery the CHSSA could be modified slightly Chinook salmon bycatch in trawl management plan may ‘‘include, to incorporate new regions of relatively fisheries reached a high in 1980, when consistent with the other provisions of high chinook bycatch. High rates of foreign trawl vessels intercepted this Act, conservation and management bycatch were found in the vicinity of approximately 115,000 chinook salmon. measures that provide harvest the Pribilof Islands. However, bycatch Following Federal action to reduce incentives for participants within each within specific areas and years was not bycatch in the trawl fisheries, the gear group to employ fishing practices found to be consistent. Alternatively, foreign fleet was constrained by a that result in lower levels of bycatch or the two-block component of the current
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CHSSA, in the Pribilof Islands, has had a total of about 36,000 chinook salmon are exempt from the chinook salmon low bycatch rates of chinook salmon taken as bycatch). PSC limit and any trawling prohibitions since its inception in 1996. Hence, these In the event the chinook salmon limit that might result from attainment of a two blocks would be removed from the is triggered before April 15, the CHSSA PSC limit. Chinook salmon bycaught in CHSSA. Additionally, the new area near would close immediately. The closure non-pollock fisheries also would not be Unimak Island, which showed would be removed on April 15 (before counted toward the cap under the consistently high bycatch rates of the beginning of the second pollock preferred alternative, which reduces the chinook salmon, would be included in season), but would be reinitiated on potential for behavior of non-pollock the revised CHSSA. September 1 and continue through the fisheries to adversely impact (small) end of the year. If the limit were reached pollock operations. NMFS considered Progressive Reduction of the Chinook after April 15, but before September 1, the alternative of maintaining the status Salmon Bycatch Limit then the CHSSA would close on quo. Although maintaining the status This action would prohibit directed September 1. The date, September 1, quo might minimize impacts on small fishing for pollock by vessels using was selected because analysis indicates entities, it would not achieve the trawl gear within the CHSSA when that bycatch increases in the fall. If the objectives of this action. NMFS determines that the bycatch limit limit were reached after September 1, for chinook salmon has been attained the CHSSA would close immediately List of Subjects in 50 CFR Part 679 for each year according to the following and not reopen until the following year Alaska, Fisheries, Reporting and schedule: on January 1. recordkeeping requirements. Classification Dated: December 15, 1999. This action has been determined to be Andrew A. Rosenberg, Deputy Assistant Administrator for Fisheries, Year Chinook Salmon Limit not significant under E.O. 12866. NMFS has prepared an IRFA that National Marine Fisheries Service. 2000 41,000 describes the economic impact this For the reasons set out in the 2001 37,000 proposed rule, if adopted, would have preamble, 50 CFR part 679 is proposed 2002 33,000 on small entities. A copy of this analysis to be amended as follows: 2003 and after 29,000 is available from NMFS (see ADDRESSES). PART 679ÐFISHERIES OF THE Accounting for the PSC limit would The proposed action would apply to EXCLUSIVE ECONOMIC ZONE OFF begin on January 1 and continue the 138 fishing vessels in the pollock ALASKA throughout the fishing year. Non- fishery. In 1997, 34 factory trawlers and 1. The authority citation for part 679 pollock fisheries, which account for 106 catcher vessels participated in the continues to read as follows: about 10 percent of the trawl chinook pollock fishery harvesting about 1.15 salmon bycatch, would be exempt from million mt of pollock, an ex-vessel value Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq. the closure of the CHSSA, and any of about $227 million. Under the chinook salmon bycatch in those proposed rule, if a chinook salmon PSC 2. In § 679.2, the definition for fisheries would not be counted toward limit were attained, all vessels would be Chinook Salmon Savings Area of the the PSC limit. prohibited from directed fishing for BSAI is revised to read as follows: Historically, the Pacific cod trawl pollock within the CHSSA, and the * * * * * fishery is the only non-pollock fishery proposed regulations could affect all Chinook Salmon Savings Area of the that intercepts a significant amount of 138 vessels, including CDQ vessels. BSAI (see § 679.21(e)(7)(viii)). chinook salmon. This fishery has However, the available pollock TAC * * * * * accounted for a consistent amount of would not be reduced; only the location 3. In § 679.7, paragraph (d)(9) is bycatch, ranging from 5,000 to 7,000 of the catch would be restricted. revised to read as follows: chinook salmon per year, while the Therefore, this action should not § 679.7 Prohibitions. pollock fishery bycatch of chinook prevent these vessels’ ability to harvest * * * * * salmon has ranged from approximately the entire amount, although pollock (d) * * * 40,000 to 60,000 chinook salmon per catch rates could decrease as a direct (9) For the operator of an eligible year. The Council recommended the result of a CHSSA closure. During the vessel listed on an approved CDP, use exemption of the Pacific cod fishery summer months when chinook salmon trawl gear to harvest pollock CDQ in the because the Pacific cod fishery has bycatch has been historically very low, Chinook Salmon Savings Area between exhibited consistent and relatively low the CHSSA would be open for directed January 1 and April 15, and between bycatch of chinook salmon (about 10 fishing even if the PSC limit has been September 1 and December 31, after the percent of the annual bycatch). The previously attained. NMFS is not aware CDQ group’s chinook salmon PSQ is pollock fishery has intercepted about 90 of any Federal regulations that duplicate attained. percent of the annual chinook salmon this proposed rule. No new reporting, * * * * * bycatch and has also shown greater recordkeeping, or compliance 4. In § 679.21, paragraphs (e)(1)(vii) flexibility in reducing its bycatch of requirements are imposed by this rule. and (e)(7)(viii) are revised to read as chinook salmon by altering its fishing NMFS designed this rule to minimize follows: patterns. For these reasons, the Council impacts on small entities. The rule determined that a PSC limit would be would specifically target the pollock § 679.21 Prohibited species bycatch most effective if applied in a relative fishery, which is composed primarily of management. amount to the pollock fishery only. The large entities and which historically has * * * * * Council assumed that a bycatch limit of been responsible for the vast majority of (e) * * * 29,000 chinook salmon for the pollock chinook salmon bycatch in the BSAI. (1) * * * fishery would be in addition to about All other fisheries in the BSAI, many of (vii) Chinook salmon. The trawl 7,000 chinook salmon intercepted which have a higher number and closures identified in paragraph annually by the Pacific cod fishery (for percentage of small entity participation, (e)(7)(viii) of this section will take effect
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[FR Doc. 99–32926 Filed 12–20–99; 8:45 am] BILLING CODE 3510±22±F
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DEPARTMENT OF COMMERCE Washington, D.C. 20503 (ATTN: NOAA the fish buyers deduct the fee from the Desk Officer). ex-vessel value of all IC pollock before National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: paying the net ex-vessel value of the fish Administration Michael L. Grable, 301-713–2390, fax to the fish sellers. 301-713-1306, e-mail The fee is six-tenths (0.6) of one cent 50 CFR Part 679 [email protected]. for each pound, round-weight, of all IC pollock that fish sellers land. The AFA [Docket No. 991210331±9331±01; I.D. SUPPLEMENTARY INFORMATION: 102899B] provides that fee payment and Background collection shall begin on or after January RIN 0648-AN34 The President signed the AFA into 1, 2000. Although the loan’s scheduled Fisheries of the Exclusive Economic law on October 20, 1998, as part of the maturity is 30 years, the AFA also Zone off Alaska; Inshore Fee System Omnibus Appropriations Bill for fiscal provides that fee payment and for Repayment of the Loan to year 1999 (Pub. L. 105-277). The AFA collection ‘‘shall * * * continue without Harvesters of Pollock from the required the Federal Government to pay, interruption until such loan is fully repaid * * *’’ (section 207(b)(2)). Directed Fishing Allowance Allocated not later than December 31, 1998, $90 Whether the loan is repaid before, at, or to the Inshore Component under million to the owners of nine large after its scheduled maturity depends on Section 206(b)(1) of the American catcher processors harvesting OC when fee payment begins, the rate at Fisheries Act (AFA) pollock. In return, eight of these vessels which loan principal bears interest, had to stop all commercial fishing in the annually determined total allowable AGENCY: National Marine Fisheries EEZ immediately and be scrapped by pollock catches after December 31, Service (NMFS), National Oceanic and December 31, 2000. Although the ninth 1999, and IC pollock allocations after Atmospheric Administration (NOAA), vessel did not have to be scrapped, it December 31, 2004. NMFS has not Commerce. also had to stop all commercial fishing ACTION: Proposed rule. finally determined the rate at which the in the EEZ immediately and the owner loan’s principal bears interest. The other had to certify that neither the owner nor SUMMARY: variables controlling the time required NMFS proposes regulations to anyone who purchased the vessel from implement an inshore fee system for all to fully repay the loan are not presently the owner intended to use the vessel determinable. pollock harvested under the inshore outside the EEZ to harvest any fish that component (IC) of the Bering Sea/ Several assumptions are, also occur within the EEZ. consequently, necessary to project the Aleutian Islands (BS/AI) directed Before December 31, 1998, NMFS fishing allowance under the AFA. The time required to fully repay the loan. paid the required amount to the owners The first assumption involves the time AFA authorized a $75 million loan to of these vessels. In accordance with the reduce fishing capacity for offshore at which fee payment begins. For AFA, NMFS paid $15 million of this projection purposes, NMFS assumes component (OC) pollock and the amount from an AFA appropriation and inshore fee system as the means of that fee payment begins on January 1, the remaining $75 million from the 2000. The second assumption involves repaying the loan. The proceeds of the proceeds of a fishing capacity reduction loan partly paid the cost of removing the rate at which the principal of the loan under sections 1111 and 1112 of loan bears interest. NMFS believes this nine OC catcher-processors (which the Title XI of the Merchant Marine Act, AFA specified) from all commercial rate will be either 7.09 percent or 7.81 1936 (46 U.S.C. App. 1279f and g) (Title percent per annum. For projection fishing in the U.S. exclusive economic XI). The AFA requires the loan to be zone (EEZ). The intent of this rule is to purposes, NMFS assumes the higher of repaid by fees under section these two rates. The third assumption implement the inshore fee system that 312(d)(2)(C) of the Magnuson-Stevens the AFA requires. involves the annual total allowable Fishery Conservation and Management catch of pollock after December 31, DATES: Comments must be received at Act (16 U.S.C. 1861a(d)(2)(C)) 1999, which may vary from year to year. the appropriate address or facsimile (Magnuson-Stevens Act). For projection purposes, NMFS assumes number (see ADDRESSES) no later than Upon payment of the $90 million, that the average annual total allowable January 5, 2000. NMFS revoked all nine vessels’ catch of pollock after December 31, ADDRESSES: Copies of the domestic fishing permits, one owner 1999, will be the same as the average Environmental Assessment, Regulatory provided the certificate required for the annual total allowable catch of pollock Impact Review, and Initial Regulatory ninth vessel, and the other owners over the 14-year period from the Flexibility Analysis (EA/RIR/IRFA) may began preparing for scrapping the beginning of 1985 through end of 1998 be obtained from Michael L. Grable, remaining eight vessels. All eight (2.769 billion pounds or 1.256 million Chief, Financial Services Division, vessels are presently undergoing metric tons). The fourth assumption National Marine Fisheries Service, 1315 scrapping at a scrapping facility in San involves IC pollock allocations after East-West Highway, Silver Spring, MD Francisco, CA. Scrapping is scheduled December 31, 2004. This depends on 20910-3282. Written comments should to be completed before December 31, whether the North Pacific Fishery be sent to Michael L. Grable at the above 2000. Management Council maintains IC address. Comments also may be sent, Under the AFA and section pollock allocations after December 31, via facsimile, to 301-713-1306. NMFS 312(d)(2)(C) of the Magnuson-Stevens 2004, at the same level as IC pollock will not accept comments sent by e-mail Act, all vessel owners harvesting IC allocations, under the AFA, from or the Internet. Comments involving the pollock (fish sellers) are required to pay January 1, 1999, to December 31, 2004 reporting burden estimates or any other the fee and all fish processors making (i.e., 42 percent of total allowable catch). aspects of the collection of information the first ex-vessel purchase of IC pollock For the purposes of this projection, requirements contained in this proposed (fish buyers) are required to collect the NMFS assumes that IC pollock rule should be sent to both Michael L. fee and account for and forward the fee allocations after December 31, 2004, Grable and to the Office of Information revenue to NMFS for the purpose of will be the same as IC pollock and Regulatory Affairs, Office of repaying the loan. The fish sellers pay, allocations from January 1, 1999, to Management and Budget (OMB), and the fish buyers collect, the fee when December 31, 2004. Under these four
VerDate 15-DEC-99 15:05 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 E:\FR\FM\21DEP1.XXX pfrm03 PsN: 21DEP1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71397 assumptions, the loan will be repaid in NMFS has not yet adopted and interest would continue to accrue on an 21 years (i.e., 9 years less than the promulgated the framework rule, unreduced $75 million principal scheduled maturity). Actual conditions however, NMFS must now separately balance) and prolong the time required different than those NMFS assumes for provide for payment and collection of for fish sellers to repay the loan. The the purpose of this projection may, the IC pollock fee by proposing to add AFA requires that the fee system remain however, cause loan repayment to occur a temporary subpart G to 50 CFR part in effect until the loan is fully repaid. sooner or later than here projected. 679 (subpart G). NMFS has drawn most The EA/RIR/IRFA further discusses Future total allowable catches may be of the procedural provisions of the these alternatives and their economic the biggest determinate of the time proposed subpart G from the proposed impact on IC pollock fish sellers and actually required to repay this loan. framework rule. After a framework rule fish buyers. Accordingly, this rule proposes that is adopted and promulgated, NMFS will Notwithstanding any other provision fee payment and collection begin on the revoke subpart G and concurrently of law, no person is required to respond seventh calendar day after the date that provide, by a program implementation to nor shall a person be subject to a a final fee rule is published in the rule under the framework rule, for the penalty for failure to comply with a FEDERAL REGISTER and continue continuing payment and collection of collection of information subject to the without interruption until the loan is the IC pollock fee. PRA requirements unless that collection fully repaid (without regard to whether Classification of information displays a currently valid this is a period longer or shorter than OMB Control Number. the loan’s scheduled maturity of 30 The Assistant Administrator for This proposed rule contains years). Fisheries, NMFS, determined that this collection of information requirements The fixed interest rate at which the proposed rule is consistent with the subject to the PRA that have been AFA, the Magnuson-Stevens Act, Title loan accrues interest is two percent of approved by OMB under OMB Control XI, and other applicable laws. the principal amount of the loan No. 0648-0376. This PRA approval This proposed rule has been outstanding plus such additional occurred in connection with proposal of percent as the Secretary of Commerce is determined to be not significant for the framework rule for implementing obligated to pay as the interest cost of purposes of E.O. 12866. section 312(b)-(e) of the Magnuson- borrowing from the United States NMFS prepared an Initial Regulatory Stevens Act, including a collection of Treasury the funds from which NMFS Flexibility Analysis (IRFA) describing information burden for fee payment, made the loan. On December 30, 1998, the impact of the action in the proposed collection, disbursement, accounting, NMFS disbursed all $75 million of the rule on small entities. In summary, the and reporting under section 312(d)(2)(C) loan’s original principal amount. IRFA states that this proposed rule of the Magnuson-Stevens Act. The AFA Interest has been accruing since that would apply to about 100 fish sellers provides that payment and collection of date. NMFS is still determining the (all of whom are small entities) and the IC pollock fee shall be in accordance interest rate that the statutory formula about eight fish buyers (none of whom requires (which, as noted, will probably are small entities). The IRFA indicates with 312(d)(2)(C) of the Magnuson- be either 7.09 percent or 7.81 percent that the average annual fee expense for Stevens Act. per annum). NMFS will apply all fee each fish seller will likely be about The estimated response times for this receipts, first, to the payment of accrued $60,000. Recordkeeping and reporting collection of information are: 10 interest and, second, to the reduction of requirements would fall primarily on minutes per fishing trip to maintain loan principal. the fish buyers, who collect the fee. The records on transactions, 2 hours per fish Section 312(b)-(e) of the Magnuson- estimated annual compliance cost to buyer’s monthly report, 4 hours per fish Stevens Act provides for fishing fish buyers is about $5,568 per fish buyer’s annual report, and 2 hours per capacity reduction programs (which buyer. Several minimal recordkeeping fish buyer’s or fish seller’s report about may be funded by loans under sections and reporting requirements also apply fish sellers who refuse to pay, or fish 1111 and 1112 of Title XI). Although the to fish sellers. A fish seller must report buyers who refuse to collect, the fee. IC pollock loan is authorized by the to NMFS if a fish buyer refuses to These estimated response times AFA rather than by section 312(b)-(e) of collect the fee. The estimated include the time needed for reviewing the Magnuson-Stevens Act, the AFA compliance cost, should a fish buyer’s instructions, searching existing data specifies that the IC pollock loan is refusal to collect the fee require a fish sources, gathering and maintaining the repayable under section 312(d)(2)(C) of seller to report, is about $25 per report. data needed, and completing and the Magnuson-Stevens Act. NMFS has In specific and limited circumstances revising the collection of information. already proposed a framework rule for when a fish seller becomes a de facto Public comment is sought regarding implementing section 312(b)-(e) of the fish buyer for recordkeeping and whether this proposed collection of Magnuson-Stevens Act (64 FR 6854, reporting requirements, the estimated information is necessary for the proper February 11, 1999). The proposed compliance cost is the same as a fish performance of the function of the framework rule would establish detailed buyer’s compliance cost. The Paperwork agency, including: whether the provisions for paying, collecting, Reduction Act (PRA) discussion further information has practical utility; the disbursing, accounting for, and details these costs. This proposed rule accuracy of the burden estimate; ways to reporting about fees repaying fishing does not duplicate or conflict with any enhance the quality, utility, and clarity capacity reduction loans. other Federal rules of which NMFS is of the information to be collected; and NMFS had hoped to implement the aware. NMFS considered two ways to minimize the burden of the fishing capacity reduction framework alternatives that might have lessened collection of information, including the rule before NMFS had to provide for the economic impact on small entities. use of automated collection techniques payment and collection of the IC These alternatives were not collecting or other forms of information pollock fee. NMFS intended to provide the fee and delaying fee collection. Not technology. for payment and collection of the IC collecting the fee would both cost the Send comments regarding this burden pollock fee by making the loan subject Nation $75 million and violate the AFA. estimate or any other aspect of this to the framework rule provisions about Delaying fee collection would increase collection of information, including fee payment and collection. Because the ultimate cost to fish sellers (because suggestions for reducing this burden, to
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NMFS (see ADDRESSES) and to OMB (see § 679.60 Definitions. accrue at a fixed rate equal to 2 percent ADDRESSES). In addition to the definitions in the of the principal amount of the loan Magnuson-Stevens Act and in § 679.1 of outstanding plus such additional List of Subjects in 50 CFR Part 679 this title, the terms used in this subpart percent as the Secretary of Commerce Alaska, Fisheries, Reporting and have the following meanings: shall be obligated to pay as the interest recordkeeping requirements. American Fisheries Act (AFA) means cost of borrowing from the United States Dated: December 15, 1999. Title II of Pub. L. 105-277. Treasury the funds with which to make Andrew A. Rosenberg, Borrower means (individually and the loan. Interest shall be simple interest Deputy Assistant Administrator for Fisheries, collectively) all persons who, after and shall accrue on the basis of a 365- National Marine Fisheries Service. January 1, 2000, harvest fee fish from day year. (d) Repayment. The fee shall be the For the reasons set out in the the IC directed fishing allowance. exclusive source of loan repayment. The preamble, 50 CFR part 679 is proposed Delivery value means the gross ex- fee shall be payable on all fee fish, to be amended as follows: vessel value of all fee fish at fish delivery. without interruption, until such a time PART 679±-FISHERIES OF THE Deposit principal means all collected as all loan principal and accrued EXCLUSIVE ECONOMIC ZONE OFF fee revenue that a fish buyer deposits in interest is fully repaid. ALASKA a segregated deposit account maintained (e) Application of fee receipts. NMFS in a federally chartered national bank shall apply all fee receipts it receives, 1. The authority citation for 50 CFR for the sole purpose of aggregating first, to payment of the loan’s accrued part 679 continues to read as follows: collected fee revenue before sending the interest and, second, to reduction of the AUTHORITY: 16 U.S.C. 773 et seq., 1801 fee revenue to NMFS for repaying the loan’s principal balance. et seq., and 3631 et seq. loan. (f) Obligation. The borrower shall Fee means the six-tenths (0.6) of one repay the loan in accordance with the 2. In § 679.1, a paragraph (k) is added cent that fish buyers deduct (under the AFA and this subpart. to read as follows: inshore fee system provided for in § 679.62 Fee payment and collection. § 679.1 Purpose and scope. section 207(b) of the AFA) from the gross ex-vessel value of each pound of (a) Payment and collection. (1) The * * * * * full fee is due and payable at the time (k) This part also governs payment round weight fee fish harvested from the IC directed fishing allowance. of fish delivery. Each fish buyer shall and collection of the loan, under the collect the fee at the time of fish American Fisheries Act (AFA), the Fee fish means all pollock harvested from the IC directed fishing allowance delivery by deducting the fee from the Magnuson-Stevens Act, and Title XI of delivery value before paying (or, as the the Merchant Marine Act, 1936, made to until such time as the loan’s principal and interest are fully repaid. case may be, promising later to pay) the all persons who harvest pollock from net delivery value. Each fish seller shall the directed fishing allowance allocated Fish buyer means the first ex-vessel fish buyer who, in an arm’s-length pay the fee at the time of fish delivery to the inshore component under section by receiving from the fish buyer the net 206(b)(1) of the AFA. transaction, purchases fee fish from a fish seller. delivery value (or, as the case may be, 3. A subpart G is added to read as the fish buyer’s promise later to pay the follows: Fish delivery means the point at which a fish buyer first takes title to, or net delivery value) rather than the PART 679±-FISHERIES OF THE possession of, fee fish from a fish seller. delivery value. Regardless of when the EXCLUSIVE ECONOMIC ZONE OFF Fish seller means the harvester who fish buyer pays the net delivery value, ALASKA catches and, in an arm’s-length the fish buyer shall collect the fee at the transaction, first sells fee fish to a fish time of fish delivery; (2)(i) Each fish seller shall be deemed, Subpart G±-Inshore Fee System for buyer. for the purpose of the fee collection, Repayment of the Loan to Harvesters IC directed fishing allowance means deposit, disbursement, and accounting of Pollock from the Directed Fishing the directed fishing allowance allocated requirements of this subpart, to be both Allowance Allocated to the Inshore to the inshore component under section the fish seller and the fish buyer (and all Component under Section 206(b)(1) of 206(b)(1) of the AFA. requirements and penalties under this the AFA Loan means the loan authorized by section 207(a) of the AFA. subpart applicable to both a fish seller Net delivery value means the delivery and a fish buyer shall equally apply to Sec. the fish seller) each time that the fish 679.60 Definitions. value minus the fee. 679.61 Loan. Subaccount means the Inshore seller sells fee fish to: 679.62 Fee payment and collection. Component Pollock Subaccount of the (A) Any fish buyer whose place of 679.63 Fee collection deposits, Fishing Capacity Reduction Fund in the business is not located in the United disbursements, records, and reports. U.S. Treasury for the deposit of all States, who does not take delivery, title, 679.64 Late charges. funds involving the loan. or possession of the fee fish in the 679.65 Enforcement. United States, who is not otherwise 679.66 Prohibitions and penalties. § 679.61 Loan. subject to this subpart, or to whom or (a) Principal amount. The loan’s against whom NMFS cannot otherwise Subpart GÐInshore Fee System for principal amount is $75,000,000 apply or enforce this subpart, Repayment of the Loan to Harvesters (seventy five million dollars). (B) Any fish buyer who is a general of Pollock from the Directed Fishing (b) Disbursement. NMFS disbursed, in food-service wholesaler or supplier, a Allowance Allocated to the Inshore accordance with section 207(d)(1) of the restaurant, a retailer, a consumer, some Component under Section 206(b)(1) of AFA, the loan’s full principal amount other type of end-user, or some other the AFA on December 30, 1998. fish buyer not engaged in the business (c) Interest. Interest shall, from the of buying fish from fish sellers for the Authority: Pub. L. 105-277, 16 U.S.C. 1801, date NMFS disbursed the loan until the purpose of reselling the fish (either with et seq. date the borrower fully repays the loan, or without processing the fish), or
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(C) Any other fish buyer who the fish NMFS in writing of the full particulars, (d) Records maintenance. Each fish seller has good reason to believe is a fish including: buyer shall maintain, in a secure and buyer not subject to this subpart or to (i) The fish buyer’s and fish seller’s orderly manner for a period of at least whom or against whom NMFS cannot name, address, and telephone number, 3 years from the date of each transaction otherwise apply or enforce this subpart, (ii) The name of the fishing vessel involved, at least the following (ii) In each such case the fish seller from which the fish seller made or information: shall, with respect to the fee fish attempted to make fish delivery and the (1) For all deliveries of fee fish that involved in each such case, discharge, date of doing so, the fish buyer buys from each fish seller: in addition to the fee payment (iii) The quantity and delivery value (i) The date the delivery is made, requirements of this subpart, all the fee of fee fish the fish seller delivered or (ii) The seller’s identity, collection, deposit, disbursement, attempted to deliver, (iii) The round weight of fee fish accounting, recordkeeping, and (iv) Whether the fish buyer deducted delivered, (iv) The identity of the fishing vessel reporting requirements that this subpart the fee over the fish seller’s protest or that delivers the fee fish, otherwise imposes on the fish buyer, refused to buy the fee fish, and (v) The delivery value, and the fish seller shall be subject to all (v) The fish seller’s reason (if known) the penalties this subpart provides for a (vi) The net delivery value, for refusing to pay the fee in accordance (vii) The identity of the payor to fish buyer’s failure to discharge such with this subpart. requirements; whom the net delivery value is paid, if (b) Notification. (1) Before the time § 679.63 Fee collection deposits, other than the fish seller, that the fee first becomes effective, disbursements, records, and reports. (viii) The date the net delivery value NMFS will send an appropriate fee (a) Deposit accounts. Each fish buyer is paid, and (ix) The total fee amount collected; payment and collection notification to that this subpart requires to collect a fee (2) For all fee collection deposits to each affected fish seller and fish buyer shall maintain a segregated account at a and disbursements from the deposit of whom NMFS has knowledge. federally chartered national bank for the account: (2) When NMFS determines that the sole purpose of depositing collected fee (i) The dates and amounts of deposits, loan is fully repaid, NMFS will publish revenue and disbursing the fee revenue (ii) The dates and amounts of a FEDERAL REGISTER notice that the directly to NMFS in accordance with disbursements to the subaccount’s fee is no longer in effect and should no paragraph (c) of this section. lockbox account, and longer be either paid or collected. NMFS (b) Fee collection deposits. At the end (iii) The dates and amounts of will then also send notification to each of each business week, each fish buyer disbursements to the fish buyer or other affected fish seller and fish buyer of shall deposit, in the deposit account parties of interest earned on deposits. whom NMFS has knowledge; established under paragraph (a) of this (e) Annual report. On December 31, (c) Failure to pay or collect. (1) If a section, all fee revenue, not previously 2000, and on each December 31 fish buyer refuses to collect the fee in deposited, that the fish buyer has thereafter until the loan is fully repaid, the amount and manner that this collected through a date not more than each fish buyer shall submit to NMFS a subpart requires, the fish seller shall 2 calendar days before the date of report, on or in the form NMFS then advise the fish buyer of the fish deposit. Neither the deposit account nor specifies, containing the following seller’s fee payment obligation and of the principal amount of deposits in the information for the preceding year for the fish buyer’s fee collection obligation. account may be pledged, assigned, or all fee fish each fish buyer purchases If the fish buyer still refuses to properly used for any purpose other than from fish sellers: collect the fee, the fish seller, within the aggregating collected fee revenue for (1) Total round weight bought; next seven calendar days, shall forward disbursement to the subaccount in (2) Total delivery value paid; the fee to NMFS. The fish seller at the accordance with paragraph (c) of this (3) Total fee amount collected; same time shall also advise NMFS in section. The fish buyer is entitled, at (4) Total fee collection amounts writing of the full particulars, including: any time, to withdraw deposit interest deposited by month; (i) The fish buyer’s and fish seller’s (if any), but never deposit principal, (5) Dates and amounts of monthly name, address, and telephone number, from the deposit account for the fish disbursements to the subaccount (ii) The name of the fishing vessel buyer’s own use and purposes. lockbox; from which the fish seller made fish (c) Deposit principal disbursement. (6) Total amount of interest earned on delivery and the date of doing so, On the last business day of each month, deposits and disbursed to the fish buyer (iii) The quantity and delivery value the fish buyer shall disburse to NMFS or other parties; and of fee fish that the fish seller delivered, the full amount of deposit principal (7) Depository account balance at and then in the deposit account. The fish year-end. (iv) The fish buyer’s reason (if known) buyer shall do this by check made (f) State records. If landing records for refusing to collect the fee in payable to ‘‘NOAA Inshore Component that a state requires from fish sellers accordance with this subpart; Pollock Loan Subaccount.’’ The fish contain some or all of the data that this (2) If a fish seller refuses to pay the buyer shall mail each such check to the section requires and confidentiality fee in the amount and manner that this subaccount lockbox account that NMFS does not prevent NMFS’ access to the subpart requires, the fish buyer shall establishes for the receipt of the records maintained for the state, then then advise the fish seller of the fish disbursements of deposit principal. fish buyers can use such records to meet buyer’s collection obligation and of the Each disbursement shall be appropriate portions of this section’s fish seller’s payment obligation. If the accompanied by the fish buyer’s recordkeeping requirements. If, fish seller still refuses to pay the fee, the settlement sheet completed in the however, state confidentiality fish buyer shall then either deduct the manner and form that NMFS specifies. provisions make such records fee from the delivery value over the fish NMFS will specify the subaccount’s unavailable to NMFS, then fish buyers seller’s protest or refuse to buy the fee lockbox account and the manner and shall maintain separate records for fish. The fish buyer shall also, within form of settlement sheet by means of the NMFS that meet the requirements of the next seven calendar days, advise notification in § 679.62(b)(1). this section.
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(g) Audits. NMFS or its agents may shall be one and one-half (1.5) percent and/or disbursement records or make audit, in whatever manner NMFS per month for the total amount of the fee full, timely, and proper reports of such believes reasonably necessary for the not paid, collected, deposited, and/or information to NMFS–-all as this duly diligent administration of the loan, disbursed when due to be paid, subpart requires; the books and records of the fish buyers collected, deposited, and/or disbursed. (4) Fail to advise NMFS of any fish and the fish sellers in order to ensure The full late charge shall apply to the seller’s refusal to pay, or of any fish proper fee payment, collection, deposit, fee for each month or portion of a month disbursement, accounting, that the fee remains unpaid, buyer’s refusal to collect, any fee due recordkeeping, and reporting. Fish uncollected, undeposited, and/or and payable under this subpart; buyers and fish sellers shall make all undisbursed. (5) Refuse to allow NMFS or agents records of all transactions involving fee that NMFS designates to review and § 679.65 Enforcement. fish catches, fish deliveries, and fee audit at reasonable times all books and payments, collections, deposits, NMFS shall institute an action at law records reasonably pertinent to fee disbursements, accounting, against each fish seller and/or fish buyer payment, collection, deposit, recordkeeping, and reporting available responsible for non-payment, non- disbursement, and accounting under collection, non-deposit, and/or non- to NMFS or its agents at reasonable this subpart or otherwise interfere with, disbursement of the fee in accordance times and places and promptly provide hinder, or delay NMFS or it agents in all requested information reasonably with this subpart to enforce the collection from such fish seller and/or the course of their activities under this related to these records that such fish subpart; sellers and buyers may otherwise fish buyer of any fee (including lawfully provide. Trip tickets (or similar penalties and all costs of collection) due (6) Make false statements to NMFS, accounting records establishing the and owing the United States on account any of the NMFS’ employees, or any of round weight pounds of fee fish that of the loan that such fish seller and/or NMFS’ agents about any of the matters each fish buyer buys from each fish fish buyer should have, but did not, pay, in this subpart; seller each time that each fish buyer collect, deposit, and/or disburse in (7) Obstruct, prevent, or unreasonably does so) are essential audit accordance with this subpart. All such delay or attempt to obstruct, prevent, or documentation. loan recoveries shall be applied to unreasonably delay any audit or (h) Confidentiality of records. NMFS reduce the unpaid balance of the loan. investigation NMFS or its agents and its auditing agents shall maintain § 679.66 Prohibitions and penalties. conduct, or attempt to conduct, in the confidentiality of all data to which NMFS has access under this section and (a) The following activities are connection with any of the matters in shall neither release the data nor allow prohibited, and it is unlawful for this subpart; and/or the data’s use for any purpose other anyone to: (8) Otherwise materially interfere than the purpose of this subpart; (1) Avoid, decrease, interfere with, with the efficient and effective provided, however, that NMFS may hinder, or delay payment or collection repayment of the loan. aggregate such data so as to preclude of (or otherwise fail to fully and properly pay or collect) any fee due and (b) Anyone who violates one or more their identification with any fish buyer of the prohibitions of paragraph (a) of or any fish seller and use them in the payable under this subpart or convert this section is subject to the full range aggregate for other purposes. (or otherwise use for any purpose other (i) Refunds. When NMFS determines than the purpose this subpart intends) of penalties the Magnuson-Stevens Act that the loan is fully repaid, NMFS will any paid or collected fee; and 15 CFR part 904 provide (including, refund any excess fee receipts, on a last- (2) Fail to fully and properly deposit but not limited to: civil penalties, in/first-out basis, to the fish buyers. Fish on time the full amount of all fee sanctions, forfeitures, and punishment buyers shall return the refunds, on a revenue collected under this subpart for criminal offenses) and to the full last-in/first-out basis, to the fish sellers into a deposit account and disburse the penalties and punishments otherwise who paid the amounts refunded. full amount of all deposit principal to provided by any other applicable law of the subaccount’s lockbox account—all the United States. § 679.64 Late charges. as this subpart requires; [FR Doc. 99–33068 Filed 12–20–99; 8:45 am] The late charge for fee payment, (3) Fail to maintain full, timely, and collection, deposit, and/or disbursement proper fee payment, collection, deposit, BILLING CODE 3510±22±F
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Notices Federal Register Vol. 64, No. 244
Tuesday, December 21, 1999
This section of the FEDERAL REGISTER Executive Director, National Drought In addition to your own views and contains documents other than rules or Policy Commission, U.S. Department of thoughts regarding a national drought proposed rules that are applicable to the Agriculture, 1400 Independence policy, as you review the draft vision public. Notices of hearings and investigations, Avenue, SW, Room 6701–S, STOP 0501, and guiding principles, the Commission committee meetings, agency decisions and Washington, DC 20250–0501. would be interested in your thoughts rulings, delegations of authority, filing of petitions and applications and agency FOR FURTHER INFORMATION CONTACT: regarding the following questions: statements of organization and functions are Leona Dittus (202) 720–3168; FAX (202) 1. What is the best means for examples of documents appearing in this 720–9688; internet informing the public of Federal section. [email protected]. assistance for drought planning and SUPPLEMENTARY INFORMATION: The mitigation? purpose of the Commission is to provide 2. What type of information do you DEPARTMENT OF AGRICULTURE advice and recommendations to the need for responding to the drought? President and Congress on the creation 3. What needs do you or your Farm Service Agency of an integrated, coordinated Federal organization presently have with respect to addressing drought conditions? National Drought Policy Commission policy, designed to prepare for and respond to serious drought emergencies. 4. What do you see as the Federal role AGENCY: Farm Service Agency, USDA. Tasks for the Commission include with respect to drought preparedness? Drought response? Should Federal ACTION: Notice of Commission meetings. developing recommendations that will: (a) Better integrate Federal laws and emergency assistance be contingent on SUMMARY: The National Drought Policy programs with ongoing State, local, and advance preparedness? Commission (Commission) will tribal programs; (b) improve public 5. Are there any ways you feel that the continue discussion on its draft report awareness of the need for drought Federal government could better of the Commission findings. They will mitigation, prevention, and response; coordinate with State, regional, tribal, also discuss the status of Commission and (c) determine whether all Federal and local governments in mitigating or activities and other committee business. drought preparation and response responding to droughts? This notice announces three meetings programs should be consolidated under 6. What lessons have you or your being held via teleconferencing on one existing Federal agency, and, if so, organization learned from past drought January 5, January 19, and February 2, identify the agency. experiences that would be beneficial in 2000. Below is a draft vision statement and the creation of a national drought DATES: The Commission will conduct set of principles to guide the policy? three meetings via teleconferencing: (1) Commission. Signed at Washington, D.C., on December January 5, 2000, from 1 p.m. to 3 p.m.; 16, 1999. Draft Vision Statement (2) January 19, 2000, from 2 p.m. to 4 Keith Kelly, p.m.; (3) February 2, 2000, from 1 p.m. Our vision is of a well-informed, Administrator, Farm Service Agency. involved U.S. citizenry and its to 3 p.m. in the Mezzanine Conference [FR Doc. 99–33097 Filed 12–16–99; 8:45 am] governments prepared for and capable Room, Federal Emergency Management BILLING CODE 3410±05±P Agency, 500 C Street, SW, Washington, of lessening the impacts of drought— DC. All times noted are Eastern consistently and timely—in the new Standard Time. Members of the public millennium. DEPARTMENT OF AGRICULTURE in the Washington, DC area may attend This vision is based on the following the meetings in person at the above principles: Federal Crop Insurance Corporation address. All meetings are open to the Consideration of all affected entities public; however, teleconference lines and related issues, including legal, Request for Public Comment on are limited. Please call Leona Dittus at economic, geographic, climate, Information Collections Related to 202–720–3168 if you are interested in religious, and cultural differences; Pilot and Private Crop Insurance participating in the call and to obtain fairness and equity; and environmental Policies the dial-in number. Seating is limited concerns; Comprehensive, long-term strategies AGENCY: Federal Crop Insurance and is available on a first-come, first- that emphasize drought planning and Corporation, USDA. served basis. ACTION: Persons with disabilities who require measures to reduce the impacts of Notice. accommodations to attend or participate drought; Federal role focused on appropriate SUMMARY: In accordance with the in this meeting should contact Leona coordination, technical assistance, Paperwork Reduction Act of 1995 (44 Dittus, on 202–720–3168, or Federal education, and incentives while at all U.S.C., chapter 35), this notice Relay Service at 1–800–877–8339, and times respecting the rights and announces Federal Crop Insurance [email protected], by COB responsibilities of Federal, State, and Corporation’s (FCIC) public comment December 30, 1999. local governments, and tribal period on the information collection COMMENTS: The public is invited to sovereignty; requests (ICRs) associated with new respond and/or to submit additional Self-reliance and self-determination; crop insurance programs (pilot and comments, concerns, and issues for Lessons learned from past drought private crop insurance policies) consideration by the Commission. experiences; administered by Federal Crop Insurance ADDRESSES: Comments and statements Shared drought-related expertise and Corporation (FCIC). FCIC is soliciting should be sent to Leona Dittus, knowledge across international borders. comments on pilot and private crop
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71402 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices insurance policies in selected states and Adjusted Gross Revenue (AGR): and Hidalgo County, Texas for the 2000 counties concerning its information Androscoggin, Cumberland, Kennebec, through 2002 crop years. collections. FCIC is also soliciting and York counties, Maine; Barnstable, Canola/rapeseed (RA): Bannock, comments on the crop history survey Berkshire, Bristol, Dukes, Essex, Benewah, Bingham, Blaine, Bonner, which collects information needed to Franklin, Hampden, Hampshire, Bonneville, Boundary, Caribou, Cassia, determine the feasibility of developing Middlesex, Nantucket, Norfolk, Clearwater, Fremont, Gooding, Idaho, crop insurance programs. Plymouth, Suffolk, and Worchester Jefferson, Jerome, Kootenai, Latah, DATES: Written comments on this notice counties, Massachusetts; Belknap, Lewis, Lincoln, Madison, Minidoka, will be accepted until close of business Cheshire, Hillsborough, Merrimack, Nez Perce, Oneida, Power, Teton, and February 22, 2000. Rockingham, Strafford, and Sullivan Twin Falls counties in Idaho; and counties, New Hampshire; Allegan, Barnes, Benson, Bottineau, Burke, ADDRESSES: Interested persons are Berrien, Kent, Ottawa, and Van Buren Burleigh, Cavalier, Divide, Eddy, Foster, invited to submit written comments to counties, Michigan; and Alachua, Grand Forks, Griggs, Kidder, McHenry, Timothy Hoffmann, Director, Product Gilchrist, Levy, Marion, Sumter, and McLean, Mountrail, Nelson, Pembina, Development Division, Federal Crop Suwannee counties, Florida effective for Pierce, Ramsey, Renville, Rolette, Insurance Corporation, United States the 1999 through 2001 insurance years. Sheridan, Stutsman, Towner, Walsh, Department of Agriculture, 9435 Holmes Avocado (APH): Dade County, Ward, Wells, and Williams counties in Road, Kansas City, MO 64131. Florida, effective for the 1999 through North Dakota. Comments may also be sent via the 2001 crop years. Cherries: San Joaquin County, Internet to Avocado/Mango Tree: Dade County, California; Lake County, Montana; Hood [email protected]. A Florida, effective for the 1998 through River and Wasco counties, Oregon; and copy of each response will be available 2001 crop years. Benton, Chelan, Douglas, Franklin, and for public inspection and copying from Yakima counties, Washington, for the 7:00 a.m. to 4:30 p.m., CST, Monday Barley (IP): In the specified number of counties in the following states; Idaho- 1999 through 2001 crop years. through Friday, except holidays, at the Chile Peppers: Cochise County, above address. 43, Minnesota-74, Montana-108, North Dakota-53, Oregon-30, South Dakota-28, Arizona; and Luna and Hidalgo FOR FURTHER INFORMATION CONTACT: and Washington-38. counties, New Mexico for the 2000 Nancy Conway, Insurance Management Barley, Feed (RA): Ada, Adams, through 2002 crop years. Citrus, Dollar (CA): Fresno and Tulare Specialist, Research and Development, Bannock, Bear Lake, Benewah, counties, California for the 2001 through Product Development Division, Federal Bingham, Blaine, Boise, Bonner, 2003 crop years. Crop Insurance Corporation, at the Bonneville, Boundary, Butte, Camas, Clams, Cultivated: Brevard, Dixie, Kansas City, MO address listed above, Canyon, Caribou, Cassia, Clark, Indian River, and Levy counties, telephone (816) 926–7743. Clearwater, Custer, Elmore, Franklin, Florida; Barnstable, Bristol, Dukes, SUPPLEMENTARY INFORMATION: Fremont, Gem, Gooding, Idaho, Nantucket, and Plymouth counties, Title: New Crop Insurance Programs Jefferson, Jerome, Kootenai, Latah, Massachusetts; and Charleston County, (pilot and private crop insurance Lemhi, Lewis, Lincoln, Madison, South Carolina; Accomack and policies). Minidoka, Nez Perce, Oneida, Owyhee, Northampton counties, Virginia for the Payette, Power, Shoshone, Teton, Twin Abstract: The Secretary of 2000 through the 2002 crop years. Agriculture’s goal is to expand the crop Falls, and Valley counties in Idaho; and Corn (GRIP): All counties in Illinois insurance safety net to as many Adams, Barnes, Benson, Billings, except Alexander, Cook, Du Page, agricultural crops and commodities as Bottineau, Billings, Bowman, Burke, Hardin, Johnson, Pope, Pulaski, and possible. In keeping with these goals, Burleigh, Cass, Cavalier, Dickey, Divide, Union; all counties in Indiana except FCIC is currently offering new crop Dunn, Eddy, Emmons, Foster, Golden Brown, Crawford, Dearborn, Floyd, insurance policies (pilot and private Valley, Grand Forks, Grant, Griggs, Monroe, Ohio, Perry, and Switzerland; crop insurance policies). Pilot programs Hettinger, Kidder, La Moure, Logan, and all counties in Iowa. are generally approved for a 3 year McHenry, McIntosh, McKenzie, Corn (RA): All counties in Illinois, period and then analyzed to determine McLean, Mercer, Morton, Mountrail, Indiana, Iowa, North Dakota, Minnesota whether or not to extend the program. Nelson, Oliver, Pierce, Ramsey, Ranson, except Cook, Lake, and Ramsey Private products are approved by the Renville, Richland, Rolette, Sargent, counties, and South Dakota except FCIC board of directors (board) and are Sheridan, Sioux, Slope, Stark, Steele, Jackson, and Shannon counties. in force until the program is withdrawn Stuteman, Towner, Traill, Walsh, Ward, Cotton (CRC): In the specified number by the company or canceled by the Wells, and Williams counties in North of counties in the following states; board. The following is a list of pilot Dakota. Alabama-60, Arizona-9, Arkansas-31, and private crop insurance policies Beans, Fresh Market: Dade County, California-12, Florida-24, Georgia-97, along with the state and counties where Florida; Hyde and Tyrrell counties in Kansas-13, Louisiana-25, Mississippi- they are offered. In the future, a decision North Carolina; Accomack and 66, Missouri-7, New Mexico-11, North may be made to implement these Northhampton counties in Virginia Carolina-53, Oklahoma-35, South program(s) into additional areas. The effective for the years 2000 through Carolina-41, Tennessee-25, Texas-163, Crop History Survey may be used by 2002. and Virginia-11. FCIC to request information from Cabbage: Rabun County, Georgia; Crambe: Bottineau, Golden Valley, insureds prior to the implementation of Monroe, Orleans, and Ontario counties, Grant, Hettinger, Renville, Stark, and the pilot or private crop insurance New York; Pasquotank County, North Ward counties in North Dakota for the policies or to expand these programs if Carolina; Schuylkill County, 1999 through 2001 crop years. this information is not otherwise Pennsylvania; and Carroll County, Cucumber: Gratiot and St. Joseph available. Also, producers requesting Virginia for the 1999 through 2001 crop counties, Michigan; Columbus, Duplin, crop insurance are required to complete years; and in Colquitt County, Georgia; Franklin, Greene, Robeson counties, specific forms dependent on the crops Flagler, Putnam, and St. Johns counties, North Carolina; Clarendon County, to be insured. Florida; Horry County, South Carolina; South Carolina; and Frio, Medina,
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Uvalde counties, Texas for the 2000 Renville, Sioux, Slope, Stark, and Clearwater, Custer, Elmore, Franklin, through 2002 crop year. Williams counties; and all counties in Fremont, Gem, Gooding, Idaho, Grain Sorghum (CRC): In the specified South Dakota except Bennett, Butte, Jefferson, Jerome, Kootenai, Latah, number of counties in the following Corson, Custer, Dewey, Fall River, Lemhi, Lewis, Lincoln, Madison, states: Alabama-34, Arkansas-49, Haakon, Harding, Jackson, Jones, Minidoka, Nez Perce, Oneida, Owyhee, California-5, Colorado-18, Florida-5, Lawrence, Lyman, Meade, Mellette, Payette, Power, Teton, Twin Falls, Georgia-79, Illinois-62, Indiana-17, Pennington, Perkins, Shannon, Stanley, Valley, and Washington counties in Iowa-32, Kansas-105, Kentucky-21, and Zieback counties. Idaho; 84 counties in Minnesota; all Louisiana-34, Maryland-5, Michigan-3, Squash, Winter: Colbert and Jackson counties in North Dakota; and 66 Minnesota-1, Mississippi-49, Missouri- counties, Alabama; Hartford County in counties in South Dakota. 92, Nebraska-75, New Mexico-10, North Connecticut; Berkshire, Bristol, Wild Rice: Lassen, Modoc, Shasta, Carolina-81, North Dakota-1, Ohio-7, Franklin, Hampden, and Hampshire and Sutter counties in California; and Oklahoma-71, South Carolina-21, South counties in Massachusetts; Atlantic, Aitkin, Beltrami, Clearwater, Lake of the Dakota-59, Tennessee-35, Texas-202, Cumberland, Gloucester, and Salem Woods, Pennington, and East Polk Virginia-79, and Wisconsin-2. counties in New Jersey; and Monroe counties in Minnesota, for the 1999 Grain Sorghum (IP): 201 specified Orange, Orleans, and Suffolk counties in through 2001 crop years. counties in Texas. New York; and Bucks and Lancaster Crop History Survey: Surveys are Mint: Starke and Pulaski counties, counties in Pennsylvania for the 1999 necessary in certain situations before a Indiana; Flathead county, Montana; through 2001 crop years. decision can be made to develop or Grant and Yakima counties, Strawberries: Fresno, Merced, Santa implement crop insurance coverage Washington; Dane, Marquette, Jefferson, Barbara, and Ventura counties in under a pilot program. Information is and Walworth counties, Wisconsin, California; Hillsborough and Manatee needed to determine the feasibility of effective for the 2000 through 2002 crop counties in Florida; Livingston and developing crop insurance programs. years. Tangipahoa counties in Louisiana; and This information is used to develop Mustard: All counties in North Dakota Brunswick, Buncombe, Columbus, premium rates and insurance prices and for the 1999 through 2001 crop years. Cumberland, Duplin, Guilford, other actuarial design components. Pecan Revenue: Dougherty, Lee, and Haywood, Henderson, Johnston, New Actual historic acreage and yield data Mitchell Counties, Georgia; Culberson, Hanover, Pender, Robeson, and Wake from growers is often the only source of El Paso, and Pecos Counties, Texas; and counties in North Carolina for the 2000 this kind of information. Dona Ana County, New Mexico, through 2002 crop years. The agency seeks public comment effective for the 1998 through 2000 crop Sunflowers, (RA): All counties in regarding the following: (a) whether the years. North Dakota. proposed collection of information is Rangeland (GRP): Big Horn, Blaine, Sweetpotato: Baldwin County, necessary for the proper performance of Carter, Custer, Fallon, Glacier, Phillips, Alabama; Merced County in California; the functions of the agency, including Powder River, Roosevelt, Rosebud, Avoyelles, Morehouse and West Carroll whether the information has practical Sheridan, and Valley counties, Parishes in Louisiana; Columbus and utility; (b) the accuracy of the agency’s Montana, effective for the 1999 through Johnston Counties in North Carolina; estimate of the burden of the proposed 2001 crop years. Horry County in South Carolina collection of information; (c) ways to Rice (CRC): In the specified number of effective for the 1998 through 2000 crop enhance the quality, utility, and clarity counties in the following states: years. of the information to be collected; and Arkansas-43, California-13, Florida-3, Watermelon: Geneva County, (d) ways to minimize the burden of the Louisiana-30, Mississippi-27, Missouri- Alabama; Sussex County in Delaware; collection of information on 7, Oklahoma-1, Tennessee-1, and Texas- Alachua, Jackson, and Manatee counties respondents, including through the use 23. in Florida; Crisp, Tift, Turner, and of automated collection techniques or Soybeans (GRIP): All counties in Worth counties in Georgia; Wicomico other forms of information gathering Illinois except Cook, Du Page, Hardin, county in Maryland; Chowan and technology. Johnson, and Pope: all counties in Sampson counties in North Carolina; Burden Statement: FCIC has Indiana except Brown, Crawford, and Duval, Frio, and Hidalgo counties estimated an information collection Dearborn, Floyd, Lawrence, Monroe, in Texas, effective for the 1999 through burden for its forms that includes the Ohio, Orange, Perry, and Switzerland; 2001 crop years. time to complete the form and for the and all counties in Iowa effective for the Wheat (CRC): In the specified number representative to explain the benefits of 1999 and subsequent crop years. of counties in the following states: the program to the producer. Various Soybeans (IP): In the specified Alabama-58, Arizona-11, Arkansas-53, activities of the loss adjuster (e.g., number of counties in the following California-34, Colorado-38, Georgia-128, measuring acreage and making states: Arkansas-42; Illinois-102; Idaho-42, Illinois-102, Indiana-92, Iowa- appraisals) was also considered in the Indiana-92; Maryland-22; North 66, Kansas-105, Kentucky-75, Louisiana- burden estimates. Carolina-89; and Adair, Audubon, Cass, 41, Michigan-80, Minnesota-84, Total Burden: The total burden is Dallas, Guthrie and Shelby counties in Mississippi-77, Missouri-96, Montana- estimated at 49,782 hours. Iowa. 54, Nebraska-82, New Mexico-15, North Purpose of Information Collected: The Soybeans (RA): All counties in Carolina-82, North Dakota-53, Ohio-76, crop insurance program is the principal Illinois, Indiana, and Iowa; all counties Oklahoma-77, Oregon-30, South risk management tool used by producers in Minnesota except Carlton, Cass, Carolina-45, South Dakota-66, of farm products. The Act requires the Cook, Hubbard, Itasca, Lake, St. Louis, Tennessee-67, Texas-206, Utah-23, crop insurance program to operate on an and Wadena counties; all counties in Virginia-76, Washington-29, Wisconsin- actuarially sound basis. To meet these North Dakota except Adams, Billings, 55, and Wyoming-16. goals, existing crop programs must be Bowman, Burke, Divide, Dunn, Wheat (RA): Ada, Adams, Bannock, improved and expanded, new crop Emmons, Golden Valley, Grants, Bear Lake, Benewah, Bingham, Blaine, products developed, and new insurance Hettinger, Logan, McHenry, McIntosh, Bonner, Bonneville, Boundary, Butte, concepts studied for possible McKenzie, Mercer, Morton, Oliver, Camas, Canyon, Caribou, Cassia, Clark, implementation. Meeting these goals
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.005 pfrm03 PsN: 21DEN1 71404 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices requires the collection of a wide range (percent of interest), and other insurance provider, and changing the of information that is used in part to information by unit for each crop to be amount of insurance coverage are establish insurance coverage, premiums, insured. The reports include plant instances when forms would have to be payments, indemnities and allow for inventory and container reports for completed again. Other forms are other program and administrative nursery crops, planting records for some completed annually, such as forms used operations; as well as to create an crops, and tonnage reports for raisins. to collect crop acreage data, production information data base used to support These reports are used to determine data used to establish the insurance continued development and premium and liability and must be guarantee, and administrative forms improvements in crop insurance submitted on or before the final acreage such as the assignment of indemnity products and which meet the goal of a reporting date specified in the policy. and certain coverage options. Acreage sound insurance program. The various Claim Forms notify an insurance report forms must be completed every categories of forms, the nature of the provider of a loss due to an insurable crop year and include such information information collected, and the purpose cause. Appraisal worksheets for each as acres, type, practice, APH yields, for the information are described below. individual crop are used in the field by share insured, etc. This information is Sales documents provide the the loss adjuster to determine the used to establish the guarantee. More information required to issue a crop production to be counted in establishing than one crop may be reported on one insurance policy, such as the insured’s the loss. Other forms in this category are name, address, social security number, form, and producers may need to various inspection, appraisal, complete more than one form per year. crop(s) to be insured, dollar amount of production records, and claim for insurance or price election and level of Some acreage reports may need to be indemnity documents. The claim for revised, which will require an coverage selected by the producer, crop indemnity form summarizes condition reports for perennial crops, additional report to be submitted during information determined by the loss the crop year. Notice of damage and assignment or transfer of indemnity, adjuster and is required to compute the power of attorney, or other information claim forms are completed by crop year, amount of an indemnity. The adjuster crop, and unit when a crop has been affecting policy benefits. will determine from observation, Yield Reports establish an individual damaged or destroyed. FCIC estimated appraisals, and measurements, the producer’s actual production and yield the proportion of insureds who amount of harvested and unharvested history and provide the basis for complete each form in a given year, production, primary and secondary calculating the insured’s production recognizing that some insureds (when applicable) causes of loss, guarantee. The production guarantee is complete the forms more than once in number of units (when applicable), the simple average of a minimum of four any given year and some of the forms number of planted and harvested acres yearly yields up to a maximum of ten are not filled out by every producer and any other information necessary to yields. every year. determine the amount of loss. Option forms allow a producer to Recordkeeping Requirements: FCIC modify the insurance coverage Survey Form is sometimes necessary requires records to be kept for three contained in the provisions in the crop to collect information about a crop prior years, but all records required by FCIC insurance policy. An option may to a pilot program being developed or are retained as part of a normal business provide additional or limit the insurable before a pilot program is extended to practice. Therefore, FCIC is not causes of loss, provide different other areas. estimating additional burden related to methods of determining losses, or Frequency of Reporting: Some sales provide different types of unit division forms are completed only when a recordkeeping. to increase a producer’s protection, etc. producer applies for crop insurance, Forms and Current OMB Docket Producers select a coverage on the e.g., the application and most coverage Numbers: The following list of FCIC option form. options. Canceling and reinstating forms may be used for the above crops. Acreage reports indicate the location, insurance coverage, transferring This list has been compiled by grouping number of acres, dates planted, share insurance coverage to a different the forms in numerical order.
Current OMB Form number Form title number
FCI±5 ...... Request for Actuarial Change ...... 0563±0053 FCI±5±A ...... Request for Actuarial Change ...... 0563±0053 FCI±5±B ...... Request for Actuarial Change ...... 0563±0053 FCI±6 ...... Statement of Facts ...... 0563±0053 FCI±12 ...... Crop Insurance Application ...... 0563±0053 FCI±12±A ...... Contract Changes ...... 0563±0053 FCI±12 AGR ...... Adjusted Gross Revenue Application ...... 0563± FCI±12±P ...... Pre-Acceptance Perennial Crop Inspection Report ...... 0563±0053 FCI±12±P (Cherries) ...... Pre-Acceptance Perennial Crop Inspection Report ...... 0563± FCI±12±PAW (Alm/Cit/Fig/FrP/Pru/StF/ Pre-Acceptance Inspection Report (Almond/Citrus/Fig/Fresh Plum/Prune/Stonefruit/ 0563± Wal). Walnut Addendum Worksheet). FCI±12±PAW (Cherries) ...... Producer's Pre-Acceptance Worksheet ...... 0563± FCI±12±PAW (Perennial Crops) ...... Producer's Pre-Acceptance Worksheet ...... 0563±0053 FCI±19 ...... Crop Insurance Acreage Report ...... 0563±0053 FCI±19±A (APH) ...... Production and Yield Report ...... 0563±0053 FCI±19±A (APH) (Review Form) ...... Actual Production History Review Report ...... 0563±0053 FCI±19±A (APH±BPW) ...... Block Production Worksheet ...... 0563±0053 FCI±19±A (APH±USW) ...... Unit Summary Worksheet ...... 0563±0053 FCI±20 ...... Application for Assignment of Indemnity ...... 0563±0053 FCI±21 ...... Transfer of Right to Indemnity ...... 0563±0053 FCI±73 ...... Certification Form ...... 0563±0053
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Current OMB Form number Form title number
FCI±74 ...... Production Worksheet ...... 0563± FCI±74 (Cont. Sheet) ...... Production Worksheet, Continuation SheetÐHarvested Production ...... 0563±0053 FCI±74 AGR ...... AGR Claim for Indemnity Worksheet ...... 0563± FCI±74 Clams ...... Clam Production Worksheet/Claim Form ...... 0563± FCI±74±A (Florida Avocado) ...... Florida Avocado Appraisal Worksheet ...... 0563± FCI±74±A (Beans, Fr. Market) ...... Fresh Market Beans Appraisal Worksheet ...... 0563± FCI±74±A (Cabbage) ...... Cabbage Appraisal Worksheet ...... 0563± FCI±74±A (Canola/rapeseed) ...... Canola and Rapeseed Appraisal Worksheet ...... 0563± FCI±74±A (Cherries) ...... Cherry Appraisal Worksheet ...... 0563± FCI±74±A (Chile Pepper) ...... Chile Pepper Appraisal Worksheet ...... 0563± FCI±74±A (AZ/CA Citrus) ...... Citrus Appraisal Worksheet ...... 0563±0053 FCI±74±A (Clams) ...... Clam Appraisal Worksheet ...... 0563± FCI±74±A (CN/GS/SIL) ...... Weight Method Appraisal WorksheetÐ(Corn, Popcorn, Hybrid Seed Corn, Grain 0563±0053 Sorghum, and Silage). FCI±74±A (Cotton) ...... Appraisal WorksheetÐCotton ...... 0563±0053 FCI±74±A (Crambe) ...... Crambe Appraisal Worksheet ...... 0563± FCI±74±A (Cucumbers) ...... Cucumber Appraisal Worksheet ...... 0563± FCI±74±A (Florida Fruit Trees) ...... Florida Fruit Tree Worksheet ...... 0563± FCI±74±A (Florida Fruit Trees) (Continu- Florida Fruit Tree Worksheet ...... 0563± ation Sheet). FCI±74±A Mint (Winter Coverage Option) Mint Appraisal Worksheet (Winter Coverage Option) ...... 0563± FCI±74±A (Mustard) ...... Mustard Appraisal Worksheet ...... 0563± FCI±74±A (Pecan) ...... Pecan Appraisal Worksheet ...... 0563± FCI±74±A (Random Path) ...... Random Path Worksheet ...... 0563± FCI±74±A (Small Grains) ...... Small Grains Appraisal Worksheet (Wheat-Barley-Rye-Rice-Cultivated Wild Rice) .... 0563±0053 FCI±74±A (Soybeans) ...... Soybeans Appraisal Worksheet ...... 0563± FCI±74±A (Winter Squash) ...... Appraisal Worksheet Winter Squash (Mature Stage) ...... 0563 FCI±74±A (Strawberries) ...... Strawberry Appraisal Worksheet ...... 0563± FCI±74±A (Sunflowers) ...... Appraisal Worksheet Sunflowers ...... 0563± FCI±74±A (Sweetpotato) ...... Appraisal Worksheet Sweetpotato ...... 0563± FCI±74±A (Watermelon) ...... Watermelon Appraisal Worksheet ...... 0563± FCI±74±B (CN&GS) ...... Stand Reduction Appraisal Worksheet (Corn and Grain Sorghum) ...... 0563±0053 FCI±74±B (Cotton) ...... Appraisal Worksheet Cotton ...... 0563±0053 FCI±74±B (Cucumbers) ...... Cucumber Stand Reduction and Hail Damage Worksheet ...... 0563± FCI±74±B Mint (Ministill) ...... Mint Appraisal Worksheet (Ministill) ...... 0563± FCI±74±B (Pecan) ...... Summary of Harvested Pecan Production ...... 0563± FCI±74±B (Strawberry) ...... Strawberries Summary of Harvested Production ...... 0563± FCI±74±C (Avocados) ...... Summary of Harvested Avocado Production Worksheet ...... 0563± FCI±74±C (CN&GS) ...... Hail Damage Appraisal Worksheet (Corn & Grain Sorghum) ...... 0563±0053 FCI±74±C (Cucumber) ...... Cucumber Appraisal Worksheet ...... 0563± FCI±74±D (Cucumber) ...... Summary of Harvested Production ...... 0563± FCI±74 T±P±C ...... Production Worksheet ...... 0563± FCI±74 T±P±C (Cont. Sheet) ...... Production Worksheet (Continuation SheetÐHarvested Production) ...... 0563±0053 FCI±74 T±P±C AUP (QAW) ...... AUP Cotton Quality Adjustment Worksheet ...... 0563±0053 FCI±78 ...... Request To Exclude Hail And Fire ...... 0563±0053 FCI±480 ...... Request for Policy Cancellation and Transfer of Experience Data ...... 0563±0053 FCI±532 ...... Power of Attorney ...... 0563±0053 FCI±549 ...... High-Risk Land Exclusion Option ...... 0563±0053 FCI±552 ...... Self-Certification Replant Worksheet ...... 0563±0053 FCI±553 ...... Unit Division Option ...... 0563±0053 FCI±568 ...... Pick Record for Perennial Crops ...... 0563±0053 FCI±575 ...... Social Security Number (SSN) and Employer Identification (EIN) Reporting Form ..... 0563±0053 FCI±576 ...... Disclaimer ...... 0563±0053 FCI±587 ...... Request to Waive Administrative Fees for Catastrophic Crop Coverage ...... 0563±0053 FCI±598 ...... Cabbage Pilot Crop Insurance Provisions Disclaimer ...... 0563± FCI±599 ...... Underwriting Report/Pre-acceptance Inspection/Self-certification Worksheet ...... 0563± FCI±820 ...... Crop History Survey ...... 0563± FCI±821 AGR ...... Annual Farm Report ...... 0563± FCI±822 AGR ...... Inventory and Accounts Receivable Report ...... 0563± FCI±823 AGR ...... Agricultural Commodity Profile ...... 0563± FCI±824 AGR ...... Animal Inventory/Accounting Worksheet ...... 0563±
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.007 pfrm03 PsN: 21DEN1 71406 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices
Signed in Washington, D.C., on December reasons for the Forest Service to manage SUMMARY: The U.S. Department of 15, 1999. a bark beetle epidemic. The guiding Agriculture, Forest Service, Tahoe Robert J. Prchal, legal framework compels the Forest National Forest, will prepare an Deputy Administrator, Insurance Services, Service to: Environmental Impact Statement (EIS) Federal Crop Insurance Corporation. • Prevent an epidemic from spreading for proposed timber salvage, wildlife [FR Doc. 99–32954 Filed 12–20–99; 8:45 am] to adjacent lands where possible, habitat improvement, and non-native BILLING CODE 3410±FA±P • Maintain healthy and aesthetically and invasive plant control projects pleasing stands of trees in the ski area, within the 2,600-acre National Forest • Restrict insect outbreaks in timber System land portion of the Pendola Fire DEPARTMENT OF AGRICULTURE management, recreation, and scenic Restoration Project analysis area located just north of Bullards Bar Reservoir and Forest Service areas, • Sustain the growing stock of timber, west of the town of Camptonville, California, near the Pendola Ranch. The Bark Beetle Analysis Environmental • Protect the wildlife and plant project area is located within all or Impact Statement Medicine Bow-Routt species that depend on mature spruce portions of T18N, R07E; T18N; R08E; National Forests, Hahns Peak/Bears forest, and • Maintain watershed health. T19N, R07E; and T19N, R08E MDB&M. Ears Ranger District, Routt County, CO The agency invites comments and DATES: Public Scoping began with a ACTION: Notice of intent to prepare an suggestions on the scope of the analysis. environmental impact statement. mailing to people who expressed an In addition, the agency gives notice of interest in the Routt Divide Blowdown. the full environmental analysis and SUMMARY: The U.S. Department of South Fork Salvage Analysis, and Upper decision-making process that will occur Agriculture, Forest Service, and Elk River Access Analyses, land owners on the proposal so that interested and Medicine Bow-Routt National Forests within the Forest Service boundaries affected people are aware of how they will prepare an Environmental Impact adjacent to the analysis area, and State, may participate and contribute to the Statement (EIS). The EIS will assess and County, and local officials. There will final decision. disclose the environmental effects of an be a 45-day public comment period DATES: Comments should be made in imminent bark beetle analysis. The area following the publication of this notice. writing and postmarked by January 7, of the analysis is the Hahns Peak/Bears On January 6, 1999, Forest Service 2000. Ranger District and the portion of the specialists will host an open house for ADDRESSES: Written comments Parks Ranger District East of the the public to discuss the Bark Beetle concerning the project should be Continental Divide to the boundary of Analysis from 4:00 pm until 7:00 pm at directed to U.S.F.S., Tahoe National the Medicine Bow-Routt National the Forest Service Office, 925 Weiss Dr., Forest, Downieville Ranger District, Forest. Steamboat Springs, CO 80487. ATTN: Dennis Stevens, 15924 Highway Over the next few months the A Draft Environmental Impact 49, Camptonville, CA 95922. Medicine Bow-Routt National Forests Statement (DEIS) will be prepared and will be developing a proposed action FOR FURTHER INFORMATION CONTACT: available after the scoping comment Jeane Masquelier, District Ranger, or and making decisions on how to period. After a 45-day comment period respond to a bark beetle epidemic. The Dennis Stevens, Project Manager, from the date of this notice, a Final Downieville Ranger District, public is strongly encouraged to Environmental Impact Statement (FEIS) participate in this process. Camptonville, CA 95922 at (530) 288– will be prepared and available for the 3231. An epidemic will cause significant Bark Beetle Analysis. changes to the forest landscape, SUPPLEMENTARY INFORMATION: On ADDRESSES: recreation experience, watershed Mail comment letters to and October 16, 1999, the Pendola wildfire conditions, and wildlife habitat— request further information from: Andy started just north of Bullards Bar changes that many people will not Cadenhead, Interdisciplinary Team Reservoir. Before being controlled, the consider positive. Spruce and pine trees Leader, Medicine Bow-Routt National fire consumed over 4,565 acres of land on private lands throughout Routt, Forest, 925 Weiss Dr., Steamboat on the northeast side of the reservoir, Moffatt, and Grand counties will be at Springs, CO 80487, (970) 870–2220. with approximately 2,600 of these acres risk, including trees in urban areas. Responsible official: Jerry E. Schmidt, being National Forest System lands. The Forest Service has been working Forest Supervisor, Medicine Bow-Routt These 2,600 acres of National Forest since late spring to define the problems National Forests, 2468 Jackson Street, System lands are being analyzed for an epidemic will present. Along with Laramie, WY 82070. projects within the Pendola Fire key members of the community, Forest Jerry Schmidt, Restoration analysis area. The analysis Service officials visited the Dixie Forest Supervisor. area incorporates land within the Upper National Forest in Utah to see how they [FR Doc. 99–32980 Filed 12–20–99; 8:45 am] Mill Creek, Lower Mill Creek, Bridger were managing their current bark beetle BILLING CODE 3410±6M±M Creek, North Yuba Arm of Bullards Bar epidemic. A community task force was Reservoir, and the Willow Creek Arm of developing that continues to meet Bullards Bar Reservoir watersheds, all of regulatory. Field surveys have been DEPARTMENT OF AGRICULTURE which drain into the North Yuba River, conducted on National Forest System on which Bullards Bar Reservoir is lands to estimate the potential effects of Forest Service situated. Located west of Camptonville, bark beetles on various resources. California, and north of and Pendola Fire Restoration Project, Extensive beetle population surveys immediately adjacent to the reservoir at Tahoe National Forest, Yuba County, have also been completed. around 2,000 to 2,500 feet in elevation, The U.S. Forest Service has a CA the area is dominated by mixed conifer responsibility to manage National AGENCY: Forest Service, USDA. and hardwood forest, of which over 70 Forests for the public good. Various percent burned with moderate to high ACTION: Notice; intent to prepare an laws, regulations and policies frame the intensity, leaving scattered live tress, Environmental Impact Statement. purpose of National Forests and provide small patches of live trees, and many
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.007 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71407 areas that completely burned. The industries, politicians, school boards, 95959, will document the decision and remaining 30 percent burned with a county supervisors, and environmental reasons for the decision in the Record of lower intensity, leaving partially burned groups. A public meeting is scheduled Decision. or lightly underburned areas. This loss for January 6, 2000, at the Downieville Dated: December 13, 1999. of vegetation has resulted in large areas District Ranger Station office, in Steven T. Eubanks, of exposed soils, large amounts or new Camptonville, CA, from 2 pm until 5 Forest Supervisor. fuels, and the loss of standing timber. pm. The fire also affected other important The draft EIS is expected to be filed [FR Doc. 99–32953 Filed 12–20–99; 8:45 am] resources, such as wildlife habitat, with the Environmental Protection BILLING CODE 3410±11±M visual quality, historic and prehistoric Agency and be available for public review in February, 2000. The comment sites, fisheries, sensitive plant and DEPARTMENT OF AGRICULTURE animal species, and water quality. period on the draft Environmental In preparing the Environmental Impact Statement will be 45 days from Rural Utilities Service Impact Statement, the Forest Service the date the Environmental Protection will identify and analyze a range of Agency publishes the notice of Information Collection Activity; alternatives that address the issues availability in the Federal Register. Comment Request developed for this area. One of the The Forest Service believes, at this alternatives will be no treatment. An early stage, it is very important to give AGENCY: Rural Utilities Service, USDA. ecological approach will be used to reviewers notice of several court rulings ACTION: Notice and request for achieve multiple-use management of the related to public participation in the comments. environmental review process. First, Pendola Fire area. It also means that the SUMMARY: reviewers of draft Environmental Impact In accordance with the needs of people and environmental Paperwork Reduction Act of 1995 (44 values will be blended in such a way Statements must structure their participation in the environmental U.S.C. Chapter 35, as amended), the that this area’s desired condition would Rural Utilities Service (RUS) invites represent a diverse healthy, productive, review of the proposal so that it is meaningful and alerts an agency to the comments on this information and sustainable ecosystem. collection for which RUS intends to Public participation will be important reviewer’s position and contentions. Vermont Yankee Nuclear Power Corp. v. request approval from the Office of during the analysis, especially during Management and Budget (OMB). the review of the draft Environmental NRDC, 435 U.S. 519, 553 (1978). Also, DATES: Impact Statement. The Forest Service is environmental objections that could be Comments on this notice must be seeking information, comments, and raised at the draft Environmental Impact received by February 22, 2000. assistance from Federal, State, and local Statement stage but that are not raised FOR FURTHER INFORMATION CONTACT: F. agencies and other individuals or until after completion of the final Lamont Heppe, Jr., Program organizations who may be interested in Environmental Impact Statement may Development & Regulatory Analysis, or affected by the proposed action. We be waived or dismissed by the courts. Rural Utilities Service, USDA, 1400 have already initiated consultation with City of Angoon v. Hodel, 803 F.2d 1016, Independence Ave., SW., STOP 1522, the United States Fish and Wildlife 1022 (9th Cir. 1986) and Wisconsin Room 4034 South Building, Service for the bald eagle and the Heritages, Inc. v. Harris, 490 F. Supp. Washington, DC 20250–1522. California red-legged frog. This input 1334, 1338 (E.D. Wis. 1980). Because of Telephone: (202) 720–0736. FAX: (202) will be used in preparation of the draft these court rulings, it is very important 720–4120. that those interested in this proposed Environmental Impact Statement. The SUPPLEMENTARY INFORMATION: scoping process includes: action participate by the close of the 45- 1. Identifying potential issues. day comment period so that substantive Title: Certification of Authority. 2. Identifying issues to be analyzed in comments and objections are made OMB Control Number: 0572–0074. depth. available to the Forest Service at a time Type of Request: Extension of 3 Eliminating insignificant issues or when it can meaningfully consider them currently approved information those which have been covered by a and respond to them in the final collection. relevant previous environmental Environmental Impact Statement. Abstract: The Rural Utilities Service analysis. To assist the Forest Service in (RUS) manages loan programs in 4. Exploring additional alternatives. identifying and considering issues and accordance with the Rural 5. Identifying potential environmental concerns of the proposed action, Electrification Act of 1936, as amended effects of the proposed action and comments on the draft Environmental (7 U.S.C. 901 et seq.) (RE Act). A major alternatives (i.e., direct, indirect, and Impact Statement should be as specific factor in managing loan programs is cumulative effects and connected as possible. It is also helpful if controlling the advance of funds. One actions). comments refer to specific pages or reason to control funds is so that the 6. Determining potential cooperating chapters of the draft Environmental actual borrowers get their money. The agencies and task assignments. Impact Statement or the merits of the use of RUS Form 675 allows this control Comments from other Federal, State, alternatives formulated and discussed in to be achieved by providing a list of and local agencies, organizations, and the statement. Reviewers may wish to authorized signatures against which individuals who may be interested in, or refer to the Council on Environmental signatures requesting funds are affected by, the decision are encouraged Quality Regulations for implementing compared. RUS Form 675 provides an to identify other significant issues. the procedural provisions of the effective control against the Public participation will be solicited National Environmental Policy Act at 40 unauthorized release of funds by through mailing letters to mining claim CFR 1503.3 in addressing these points. providing a list of authorized signatures. owners, private land owners, and The final Environmental Impact OMB Circular A–123, Management special use permitees within the Statement is expected to be available by Accountability and Control, states that Downieville Ranger District boundaries; April, 2000. The responsible official, the information should be maintained on a posting information in local towns; and Forest Supervisor of the Tahoe National current basis and that cash should be mailing letters to local timber Forest, 631 Coyote St., Nevada City, CA protected from unauthorized use. This
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.008 pfrm03 PsN: 21DEN1 71408 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices form allows borrowers to keep RUS up- U.S.C. Chapter 35, as amended), the Estimate Total Annual Burden on to-date of any changes in signature Rural Utilities Service (RUS) invites Respondents: 213. authority and controls the release of comments on this information Copies of this information collection funds only to authorized borrower collection for which RUS intends to can be obtained from Bob Turner, representatives. request approval from the Office of Program Development and Regulatory Estimate of Burden: Public reporting Management and Budget (OMB). Analysis, at (202) 720–0696. burden for this collection of information DATES: Comments on this notice must be Comments are invited on (a) whether is estimated to average 0.1 of an hour received by February 22, 2000. the collection of information is necessary for the proper performance of per response. FOR FURTHER INFORMATION CONTACT: F. the functions of the agency, including Respondents: Small businesses and Lamont Heppe, Jr., Program whether the information will have organizations. Development & Regulatory Analysis, Estimated Number of Respondents: practical utility; (b) the accuracy of the Rural Utilities Service, USDA, 1400 450. agency’s estimate of burden including Independence Ave., SW., STOP 1522, Estimated Number of Responses per the validity of the methodology and Room 4034 South Building, Respondent: 1. assumption used; (c) ways to enhance Washington, D.C. 20250–1522. Estimated Total Annual Burden on the quality, utility and clarity of the Telephone: (202) 720–0736. FAX: (202) Respondents: 45. information to be collected; and (d) 720–4120. Copies of this information collection, ways to minimize the burden of the and related form and instructions, can SUPPLEMENTARY INFORMATION: collection of information on those who be obtained from Bob Turner, Program are to respond, including through the Development and Regulatory Analysis, Title: Request for Release of Lien and/ use of appropriate automated, at (202) 720–0696. or Approval of Sale. electronic, mechanical, or other OMB Control Number: 0572–0041. Comments are invited on (a) whether technological collection techniques on Type of Request: Reinstatement the collection of information is other forms of information technology. without change of previously approved necessary for the proper performance of Comments may be sent to F. Lamont information collection. the functions of the agency, including Heppe, Jr., Director, Program Abstract: The Rural Utilities Service whether the information will have Development and Regulatory Analysis, (RUS) makes mortgage loans and loan practical utility; (b) the accuracy of the Rural Utilities Service, U.S. Department guarantees to electric and agency’s estimate of burden including of Agriculture, 1400 Independence Ave., telecommunications systems to provide the validity of the methodology and SW., Stop 1522, Room 4034 South and improve electric and assumption used; (c) ways to enhance Building, Washington, D.C. 20250–1522. the quality, utility, and clarity of the telecommunications service in rural All responses to this notice will be information to be collected; and, (d) areas pursuant to the Rural summarized and included in the request ways to minimize the burden of the Electrification Act of 1936, as amended for OMB approval. All comments will collection of information on (7 U.S.C. 901 et seq.) (RE Act). All also become a matter of public record. respondents, including the use of current and future capital assets of RUS borrowers are ordinarily mortgaged or Dated: December 14, 1999. automated collection techniques or Christopher McLean, other forms of information technology. pledged to the Federal Government as Acting Administrator, Rural Utilities Service. Comments may be sent to F. Lamont security for RUS loans. Assets include Heppe, Jr., Director, Program tangible and intangible utility plant, [FR Doc. 99–33057 Filed 12–20–99; 8:45 am] Development and Regulatory Analysis, non-utility property, construction in BILLING CODE 3410±15±P Rural Utilities Service, U.S. Department progress, and materials, supplies, and of Agriculture, 1400 Independence Ave., equipment normally used in a DEPARTMENT OF AGRICULTURE SW., Stop 1522, Room 4034 South telecommunications system. The RE Act and the various security instruments, Building, Washington, DC 20250–1522. Rural Utilities Service All responses to this notice will be e.g., the RUS mortgage, limit the rights summarized and included in the request of a RUS borrower to dispose of its Alabama Electric Cooperative; Notice for OMB approval. All comments will capital assets. of Availability of an Environmental The RUS Form 793, Request for also become a matter of public record. Assessment Release of Lien and/or Approval of Sale, Dated: December 14, 1999. allows the telecommunications program AGENCY: Rural Utilities Service, USDA. Christopher A. McLean, borrower to seek agency permission to ACTION: Notice of Availability of an Acting Administrator, Rural Utilities Service. sell some of its assets. The form collects Environmental Assessment. [FR Doc. 99–33056 Filed 12–20–99; 8:45 am] detailed information regarding the BILLING CODE 3410±15±P proposed sale of a portion of the SUMMARY: Notice is hereby given that borrower’s system. RUS the Rural Utilities Service (RUS) is telecommunications borrowers fill out issuing an environmental assessment DEPARTMENT OF AGRICULTURE the form to request RUS approval in with respect to the potential order to sell capital assets. environmental impacts related to the Rural Utilities Service Estimate of Burden: Public reporting construction and operation of a 496 burden for this collection of information megawatt combined cycle electric Information Collection Activity; is estimated to average 2.84 hours per generation plant and associated Comment Request response. facilities. RUS may provide financing AGENCY: Rural Utilities Service, USDA. Respondents: Small businesses or assistance to Alabama Electric Cooperative for the project. ACTION: Notice and request for organizations. comments. Estimated Number of Respondents: FOR FURTHER INFORMATION CONTACT: Bob 75. Quigel, Rural Utilities Service, SUMMARY: In accordance with the Estimated Number of Responses per Engineering and Environmental Staff, Paperwork Reduction Act of 1995 (44 Respondent: 1. Stop 1571, 1400 Independence Avenue,
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SW, Washington, DC 20250–1571, environmental review procedures as Forms Clearance Officer, (202) 482– telephone: (202) 720–0468. Information prescribed by RUS’ Environmental 3272, Department of Commerce, Room is also available from Phillip Burgess, Policies and Procedures, 7 CFR Part 5027, 14th and Constitution Avenue, Alabama Electric Cooperative, Highway 1794. NW, Washington, DC 20230. Email 29 North, Andalusia, Alabama 36420– Dated: December 15, 1999. [email protected]. Written comments and 0550, telephone (334) 427–3309. Mark S. Plank, SUPPLEMENTARY INFORMATION: The recommendations for the proposed Acting Director, Engineering and information collection should be sent to project consists of the construction of a Environmental Staff. 496 megawatt combined cycle electric David Rostker, OMB Desk Officer, Room [FR Doc. 99–33055 Filed 12–20–99; 8:45 am] 10202, New Executive Office Building, generation plant in Covington County, BILLING CODE 3410±15±P Alabama. The preferred site for the Washington, DC 20503 within 30 days plant is adjacent to Alabama Electric of the publication of this notice in the Cooperative’s McWilliams electric Federal Register. DEPARTMENT OF COMMERCE generating plant located in Gantt, Dated: December 16, 1999. Alabama. Associated with the plant will Submission for OMB Review: Linda Engelmeier, be approximately 18.6 miles of 230 Comment Request Department Forms Clearance Officer, Office kilovolt transmission line from the of the Chief Information Officer. proposed plant to Opp, Alabama, and DOC has submitted to the Office of [FR Doc. 99–33074 Filed 12–20–99; 8:45 am] approximately 60 miles of natural gas Management and Budget (OMB) for BILLING CODE 3510±FP±P pipeline from the proposed plant to clearance the following proposal for Flomaton, Alabama. The natural gas collection of information under the pipeline to be constructed and owned provisions of the Paperwork Reduction DEPARTMENT OF COMMERCE by Southeast Alabama Gas District, will Act of 1995, Public Law 104–13. traverse Covington, Conecuh, and Bureau: International Trade Census Bureau Escambia Counties, all of which are in Administration. Evaluation of the Census 2000 Alabama. Alternative sites for the plant Title: Participation Agreement and Partnership Program location were considered near Alabama Trade Mission Application. Electric Cooperative’s Lowman Plant at Agency Form Number: ITA–4008P. ACTION: Proposed collection; comment Leroy in Washington County, Alabama, OMB Number: 0625–0147. request. and at a site in Damascus/Teddy area in Type of Request: Regular Submission. Escambia County, Alabama. Three Burden: 2,792 hours. SUMMARY: The Department of electric transmission line routes and Number of Respondents: 7,500. Commerce, as part of its continuing three natural gas pipeline routes were Avg. Hours Per Response: 20 effort to reduce paperwork and considered. minutes–70 minutes. respondent burden, invites the general Alabama Electric Cooperative Needs and Uses: The ITA–4008P, public and other Federal agencies to prepared an environmental report for ‘‘Participation Agreement,’’ is the take this opportunity to comment on RUS, which describes the project and vehicle by which individual firms agree proposed and/or continuing information assesses its potential environmental to participate in any of ITA’s trade collections, as required by the impacts. RUS has conducted an promotion program, and record their Paperwork Reduction Act of 1995, independent evaluation of the required participation fee to the U.S. Public Law 104–13 (44 U.S.C. environmental report, assisted in its Department of Commerce (DOC). 3506(c)(2)(A)). completion, and accepted it as the Together with the relevant ITA–4008P– DATES: Written comments must be agency’s environmental assessment. No A, ‘‘Conditions of Participation,’’ it submitted on or before February 22, significant impacts are expected as a forms a contract between the individual 2000. result of the construction and operation firm and the DOC. The ITA–4008P–1, ADDRESSES: Direct all written comments of the project. ‘‘Trade Mission Application,’’ is used to to Linda Engelmeier, Departmental The environmental assessment can be solicit information from firms seeking to Forms Clearance Officer, Department of reviewed at the Andalusia Public participate in DOC overseas trade Commerce, Room 5027, 14th and Library, South Three Notch Street, missions covered by the Statement of Constitution Avenue, NW, Washington, Andalusia, Alabama; the White Smith Policy Governing Overseas Trade DC 20230 (or via the Internet at Memorial Library, 213 College Ave., Missions of the Department of [email protected]). Jackson, Alabama; the Brewton Public Commerce issued by Secretary Daley on FOR FURTHER INFORMATION CONTACT: Library, 206 Jackson Street, Brewton, March 3, 1997. Trade Mission Requests for additional information or Alabama; the headquarters of Alabama participants will be required to copies of the information collection Electric Cooperative at the address complete the Forms ITA–4008P, ITA– instrument(s) and instructions should provided above, or the headquarters of 4008P–1, and ITA–4008P–A. Other DOC be directed to Sherri Norris, Bureau of RUS, at the address provided above. trade event participants will complete the Census, Room BH–120–2, Questions and comments should be Forms ITA–4008P and ITA–4008P–A. Washington, DC 20233; (301) 457–8081. sent to RUS at the address provided. Affected Public: Businesses or other SUPPLEMENTARY INFORMATION: RUS will accept questions and for profit, not-for-profit institutions. comments on the environmental Frequency: On occasion. I. Abstract assessment for at least 35 days from the Respondent’s Obligation: Required to The Census 2000 Partnership Program date of publication of this notice. obtain or retain a benefit, voluntary. works to establish partnerships with Any final action by RUS related to the OMB Desk Officer: David Rostker, state, local and tribal governments; proposed project will be subject to, and (202) 395–7340. private industry; local governments and contingent upon, compliance with all Copies of the above information community groups. The goal is to relevant Federal environmental laws collection can be obtained by calling or increase the awareness of the census and regulations and completion of writing Linda Engelmeier, Department and to increase response rates,
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.221 pfrm03 PsN: 21DEN1 71410 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices especially among historically Legal Authority: Title 13, United be directed to Sherri Norris, Bureau of undercounted populations. States Code, Sections 141 and 193. the Census, Room BH–120–2, The program has both a national and Washington, DC 20233; (301) 457–8081. IV. Request for Comments a regional focus. On the national level, SUPPLEMENTARY INFORMATION: the program is designed to implement Comments are invited on: (a) Whether promotional activities that may be the proposed collection of information I. Abstract sponsored and/or supported by is necessary for the proper performance The Census in Schools Program national/umbrella government and of the functions of the agency, including provides teachers with interactive, nongovernmental organizations. In whether the information shall have engaging, and colorful lesson plans that addition, the Census Bureau will practical utility; (b) the accuracy of the meet national and state curriculum partner with Fortune 500 companies to agency’s estimate of the burden standards and that: help students promote the importance of the census (including hours and cost) of the understand the importance and benefits through the services and products they proposed collection of information; (c) of the census; promote awareness and provide. ways to enhance the quality, utility, and encourage greater participation in the The regional partnership program clarity of the information to be census; and strive to increase the reflects the Census Bureau’s belief that collected; and (d) ways to minimize the mailback response rate for the census. the foundation for broad-based burden of the collection of information Census in Schools materials have participation in the census must be built on respondents, including through the been made available to schools at the community level. Its primary use of automated collection techniques nationwide. This includes a Spring 1999 purpose is to establish partnerships or other forms of information mailing to all teachers in the 40 percent with state, local, and tribal technology. of the nation’s schools in the hardest to governments; community organizations; Comments submitted in response to enumerate areas, and a Fall 1999 businesses and the media. this notice will be summarized and/or mailing to the principals and selected The partnership program is a means included in the request for OMB school officials in the remaining 60 to encourage mail response by those approval of this information collection; percent of schools. people who are not persuaded by direct they also will become a matter of public For the evaluation, a contractor will mail, advertising or other methods. It record. be hired to conduct the data collection. complements these other methods by Dated: December 16, 1999. Self-administered mail questionnaires spreading information about the census, Linda Engelmeier, will be sent to a sample of teachers and by assuring people that it is okay to Departmental Forms Clearance Officer, Office principals in the United States. The participate and by providing help if of the Chief Information Officer. questionnaire will ask the teachers and needed. [FR Doc. 99–33071 Filed 12–20–99; 8:45 am] principals about their involvement in For the evaluation, a contractor will Census in Schools, about the materials be hired to conduct the data collection. they may have received, and about their Self-administered mail questionnaires DEPARTMENT OF COMMERCE recommendations for improving the will be sent to a sample of Census 2000 Program. The results will be used to partners. The questionnaire will ask the Census Bureau evaluate the program, for 2010 planning partners about the activities performed purposes and to improve future census for the Census 2000 Partnership Evaluation of the Census 2000 Census operations. Program, about the materials they in Schools Program II. Method of Collection received, and about their ACTION: Proposed collection; comment recommendations for improving the request. Mailed self-administered Program. The results will be used to questionnaire with appropriate follow- evaluate the program, for 2010 planning SUMMARY: The Department of up reminders. purposes and to improve future census Commerce, as part of its continuing III. Data operations. effort to reduce paperwork and respondent burden, invites the general OMB Number: Not available. II. Method of Collection public and other Federal agencies to Form Number: Forthcoming. Mailed self-administered take this opportunity to comment on Type of Review: Regular Submission. questionnaire with appropriate follow- proposed and/or continuing information Affected Public: Individuals, K–12 up reminders. collections, as required by the school teachers and principals in the United States. III. Data Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. Estimated Number of Respondents: OMB Number: Not available. 3506(c)(2)(A)). 4,000. Form Number: Forthcoming. Estimated Time Per Response: 10 DATES: Written comments must be Type of Review: Regular Submission. minutes. submitted on or before February 22, Affected Public: Individuals, Estimated Total Annual Burden 2000. representatives of the Census 2000 Hours: 667. partnership organizations. ADDRESSES: Direct all written comments Estimated Total Annual Cost: There is Estimated Number of Respondents: to Linda Engelmeier, Departmental no cost to the respondent other than the 10,000. Forms Clearance Officer, Department of time taken to complete the survey. Estimated Time Per Response: 15 Commerce, Room 5027, 14th and Respondent’s Obligation: Voluntary. minutes. Constitution Avenue, NW, Washington, Legal Authority: Title 13, United Estimated Total Annual Burden DC 20230 (or via the Internet at States Code, Sections 141 and 193. Hours: 2,500. [email protected]). Estimated Total Annual Cost: There is FOR FURTHER INFORMATION CONTACT: IV. Request for Comments no cost to the respondent other than the Requests for additional information or Comments are invited on: (a) Whether time taken to complete the survey. copies of the information collection the proposed collection of information Respondent’s Obligation: Voluntary. instrument(s) and instructions should is necessary for the proper performance
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.129 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71411 of the functions of the agency, including cutting tools that are produced by Agreements Act (‘‘URAA’’). In addition, whether the information shall have Makita Corporation Incorporated and unless otherwise indicated, all practical utility; (b) the accuracy of the that are also exported by Makita references to regulation are to the agency’s estimate of the burden Corporation Incorporated. The final Department’s regulations at 19 CFR Part (including hours and cost) of the results are listed below in the section 351 (1998). proposed collection of information; (c) ‘‘Final Results of Review.’’ Scope of Review ways to enhance the quality, utility, and EFFECTIVE DATE: December 21, 1999. clarity of the information to be FOR FURTHER INFORMATION CONTACT: Imports covered by this review are collected; and (d) ways to minimize the Brian Ledgerwood at (202) 482–3836 or shipments of PECTs from Japan. PECTs burden of the collection of information Brian Smith at (202) 482–1766, Import may be assembled or unassembled, and on respondents, including through the Administration, International Trade corded or cordless. use of automated collection techniques Administration, U.S. Department of The term ‘‘electric’’ encompasses or other forms of information Commerce, 14th Street and Constitution electro-mechanical devices, including technology. Avenue, N.W., Washington, D.C. 20230. tools with electronic variable speed Comments submitted in response to features. The term ‘‘assembled’’ this notice will be summarized and/or SUPPLEMENTARY INFORMATION: includes unfinished or incomplete included in the request for OMB Background articles, which have the essential approval of this information collection; characteristics of the finished or they also will become a matter of public On August 10, 1999, the U.S. complete tool. The term ‘‘unassembled’’ record. Department of Commerce (‘‘the Department’’) published in the Federal means components which, when taken Dated: December 16, 1999. Register preliminary results of the as a whole, can be converted into the Linda Engelmeier, 1997–1998 administrative review of the finished or unfinished or incomplete Departmental Forms Clearance Officer, Office antidumping duty order on professional tool through simple assembly operations of the Chief Information Officer. electric cutting tools (‘‘PECTs’’) from (e.g., kits). [FR Doc. 99–33072 Filed 12–20–99; 8:45 am] Japan (64 FR 43346) (‘‘preliminary PECTs have blades or other cutting BILLING CODE 3510±07±P results’’) and its preliminary intent to devices used for cutting wood, metal, revoke the antidumping duty order, in and other materials. PECTs include part, with respect to PECTs that are chop saws, circular saws, jig saws, DEPARTMENT OF COMMERCE produced by Makita Corporation reciprocating saws, miter saws, portable Incorporated and that are also exported International Trade Administration bank saws, cut-off machines, shears, by Makita Corporation Incorporated nibblers, planers, routers, joiners, [A±588±823] (‘‘Makita Japan’’). The period of review jointers, metal cutting saws, and similar (‘‘POR’’) for this administrative review cutting tools. Professional Electric Cutting Tools is July 1, 1997, through June 30, 1998. The products subject to this order From Japan: Final Results of the Fifth The petitioner, Black & Decker (U.S.) Antidumping Duty Administrative include all hand-held PECTs and certain Inc. (‘‘Black & Decker’’), and respondent bench-top, hand-operated PECTs. Hand- Review and Revocation of the Makita Japan (along with Makita Japan’s Antidumping Duty Order, in Part operated tools are designed so that only affiliated selling agent in the United the functional or moving part is held AGENCY: Import Administration, States, Makita U.S.A. Inc. (‘‘Makita and moved by hand while in use, the International Trade Administration, USA’’)), requested a hearing in this case whole being designed to rest on a table U.S. Department of Commerce. on September 9, 1999. The petitioner top, bench, or other surface. Bench-top and Makita Japan/Makita USA (hereafter tools are small stationary tools that can SUMMARY: On August 10, 1999, the U.S. collectively referenced as ‘‘Makita’’) be mounted or placed on a table or Department of Commerce published in submitted case briefs and rebuttal briefs bench. These are generally the Federal Register the preliminary on September 10, 1999 and September distinguishable from other stationary results of the fifth administrative review 17, 1999, respectively. On October 8, tools by size and ease of movement. of the antidumping duty order on 1999, based on the petitioner’s and professional electric cutting tools from Makita’s timely requests, the The scope of the PECTs order Japan (64 FR 43346). This review covers Department conducted a public hearing. includes only the following bench-top, Makita Corporation Incorporated, a Also, based on the petitioner’s timely hand-operated tools: cut-off saws; PVC manufacturer and exporter of the subject request, the Department conducted a saws; chop saws; cut-off machines, merchandise to the United States. The non-public hearing in which counsel for currently classifiable under subheading period of review is July 1, 1997, through the interested parties discussed 8461 of the Harmonized Tariff Schedule June 30, 1998. proprietary information protected under of the United States (‘‘HTSUS’’); all We gave interested parties an an administrative protective order types of miter saws, including slide opportunity to comment on our (‘‘APO’’). compound miter saws and compound preliminary results. Our analysis of the The Department has now completed miter saws, currently classifiable under comments received as well as our this administrative review, in subheading 8465 of the HTSUS; and discussion of the issues related to accordance with section 751(a) of the portable band saws with detachable revocation of the antidumping duty Act. bases, also currently classifiable under order are described below in the subheading 8465 of the HTSUS. ‘‘Revocation’’ and ‘‘Interested Party Applicable Statute and Regulations This order does not include: Comments’’ sections of this notice. After Unless otherwise indicated, all professional sanding/grinding tools; review of the comments, we have not citations to the statute are references to professional electric drilling/fastening changed the preliminary results, the provisions effective January 1, 1995, tools; lawn and garden tools; heat guns; including the determination to revoke the effective date of the amendments paint and wallpaper strippers; and the antidumping duty order, in part, made to the Tariff Act of 1930 (‘‘the chain saws, currently classifiable under with respect to professional electric Act’’) by the Uruguay Round subheading 8508 of the HTSUS.
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Parts or components of PECTs when subject merchandise is sold in the company in question has sold subject they are imported as kits, or as United States through an affiliated merchandise at not less than NV for a accessories imported together with importer. In this case Makita Japan sold period of at least three consecutive covered tools, are included within the to the United States through an importer years; (2) it is not likely that the scope of this order. (i.e., Makita USA) that is affiliated company will in the future sell the ‘‘Corded’’ and ‘‘cordless’’ PECTs are within the meaning of section 751(a)(4) subject merchandise at less than NV; included within the scope of this order. of the Act. and (3) the company has agreed to ‘‘Corded’’ PECTs, which are driven by Section 351.213(j)(2) of the immediate reinstatement of the order if electric current passed through a power Department’s regulations provides that the Department concludes that the cord, are, for purposes of this order, for transition orders (i.e., orders in effect company, subsequent to the revocation, defined as power tools which have at on January 1, 1995), the Department will sold subject merchandise at less than least five of the following seven conduct duty absorption reviews, if NV. See 19 CFR 351.222(b)(2); see, e.g., characteristics: requested, for administrative reviews Final Results of Antidumping Duty 1. The predominate use of ball, initiated in 1996 or 1998. Because the Administrative Review and needle, or roller bearings (i.e., a majority order underlying this review was issued Determination Not To Revoke Order in or greater number of the bearings in the prior to January 1, 1995, and this review Part: Pure Magnesium from Canada, 64 tool are ball, needle, or roller bearings); was initiated in 1998, a duty absorption FR 12977, 12978 (March 16, 1999) 2. Helical, spiral bevel, or worm determination in this segment of the (‘‘Pure Magnesium from Canada’’). gearing; proceeding is appropriate. As we have In our preliminary results, we found 3. Rubber (or some equivalent found that there is no dumping margin that Makita met the requirements for material which meets UL’s for Makita with respect to its U.S. sales, revocation (see preliminary results, 64 specifications S or SJ) jacketed power we have also found that there is no duty FR 43351, 43352). supply cord with a length of 8 feet or absorption for purposes of the final The petitioner argues that revocation more; results (see Final Results of is not appropriate because it is likely 4. Power supply cord with a separate Antidumping Duty Administrative that Makita will resume selling subject cord protector; Review: Certain Hot-Rolled Lead and merchandise below NV if the order is 5. Externally accessible motor Bismuth Carbon Steel Products from revoked. In general, the petitioner brushes; Germany, 64 FR 43146 (August 9, argues that Makita has avoided dumping 6. The predominate use of heat treated 1999).). margins in the past by drastically transmission parts (i.e., a majority or reducing its import volumes, and that Normal Value Comparisons greater number of the transmission parts Makita’s pricing practices and loss in in the tool are heat treated); and We made normal value (‘‘NV’’) market share indicate that Makita is not 7. The presence of more than one coil comparisons to constructed export price able to compete effectively in the U.S. per slot armature. based on the same methodology used in market without lowering prices. If only six of the above seven the preliminary results (see preliminary Additionally, the petitioner argues that characteristics are applicable to a results at 43348–43350, and Preliminary Makita could easily expand its particular ‘‘corded’’ tool, then that tool Results Calculation Memorandum to the production capacity in Japan in order to must have at least four of the six File dated August 3, 1999). begin selling at below NV in the future. characteristics to be considered a Determination to Revoke Order in Part Furthermore, the petitioner argues that ‘‘corded’’ PECT. market demand in Japan is declining, ‘‘Cordless’’ PECTs, for the purposes of The Department ‘‘may revoke, in thereby increasing Makita’s dependance this order, consist of those cordless whole or in part,’’ an antidumping duty on the U.S. market. electric power tools having a voltage order upon completion of a review In response, Makita argues that its greater than 7.2 volts and a battery under section 751 of the Act. While sales have in fact been in commercial recharge time of one hour or less. Congress has not specified the quantities, and that the record clearly PECTs are currently classifiable under procedures that the Department must indicates that it is not likely that Makita the following subheadings of the follow in revoking an order, the will sell at below NV in the future if the HTSUS: 8508.20.00.20, 8508.20.00.70, Department has developed a procedure order is revoked. Makita argues that it 8508.20.00.90, 8461.50.00.20, for revocation that is described in 19 has experienced a drastic change in 8465.91.00.35, 85.80.00.55, CFR 351.222. This regulation requires, circumstance as a result of the building 8508.80.00.65 and 8508.80.00.90. inter alia, that a company requesting of its U.S. manufacturing facility, where Although the HTSUS subheading is revocation must submit the following: a majority of Makita’s electric cutting provided for convenience and customs (1) A certification that the company has tools for the U.S. market are now purposes, the written description of the sold the subject merchandise at not less produced. Thus, Makita stresses, most merchandise under review is than NV in the current review period of its production of ‘‘subject dispositive. and that the company will not sell at merchandise’’ occurs in the United less than NV in the future; (2) a States, and consequently such products Duty Absorption certification that the company sold the are no longer subject to the antidumping On September 24, 1998, the petitioner subject merchandise in each of the three duty order. Makita notes that it has requested that the Department years forming the basis of the request in made and continues to make substantial determine whether antidumping duties commercial quantities; and (3) an investment in the U.S. facility, and that had been absorbed during the POR. agreement to reinstatement of the order maintaining the U.S. facility is Section 751(a)(4) of the Act provides for if the Department concludes that the consistent with the company’s objective the Department, if requested, to company, subsequent to the revocation, of producing in close proximity to its determine during an administrative sold subject merchandise at less than customers. Furthermore, Makita states review initiated two or four years after NV. (See 19 CFR 351.222(e)(1).) Upon that, while it has additional capacity in the publication of the order, whether receipt of such a request, the its U.S. production facility, it has antidumping duties have been absorbed Department may revoke an order, in limited remaining production capacity by a foreign producer or exporter, if the part, if it concludes that: (1) The in its facilities in Japan. As such, Makita
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.223 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71413 claims that it is not likely that Makita merchandise to the United States. With application of the antidumping duty would ever shift production of its power respect to products produced in Japan order to Makita is no longer necessary tools back to Japan. (i.e., specialty PECTs), Makita has to offset dumping. First, with regard to With regard to the market conditions maintained consistent, significant levels capacity utilization, the record and pricing levels, Makita argues that it of export sales levels to hundreds of establishes that Makita Japan has very has no need to sell at below NV, because U.S. customers since 1995 (see August limited remaining capacity in its the U.S. electric power tool market in 2 Revocation Memorandum at Japanese facilities, while it has general and electric cutting tool market Attachment 2, Makita’s October 26, additional remaining capacity at Makita in particular are healthy, stable, and 1998, section C response at Appendix Corporation of America (‘‘MCA’’). growing, and the Japanese electric C–2, and ‘‘Commercial Quantities’’ Makita has made significant power tool market is also relatively section below). Based on these facts investments in its U.S. facility, and all stable. Makita further argues that it is (confirmed at verification) and our evidence in the record indicates that able to charge premium prices because review of Makita Japan’s sales practices, MCA intends to produce PECTs in the of its reputation for quality. Thus, we find that we can reasonably United States for the long-term. The Makita contends, it can make sales in conclude that the de minimis margins majority of the PECTs sold by Makita the U.S. market, even when its prices calculated for Makita are reflective of USA are now being produced in the are higher than its competitors’ prices. the company’s normal commercial United States. Moreover, as confirmed Upon review of the three criteria experience and provide a reasonable at verification, Makita has never shifted outlined at section 351.222(b) of the basis for our decision on revocation. See production of any tool from MCA back Department’s regulations, the comments August 2 Revocation Memorandum at to Japan. Additionally, Makita Japan is of the parties, and all of the evidence in 10–11; and Pure Magnesium from currently producing only specialty the record, we have determined that the Canada 64 FR 12977, 12979 (March 16, PECTs for export to the U.S. market, and Department’s requirements for 1999) (where the Department found that Makita Japan’s existing production in revocation have been met. Based on the because sales and volume figures were Japan is primarily geared toward final results in this review and the final so small, both in absolute terms and in production for the home market. results of the two preceding reviews, comparison with the period of Furthermore, the record indicates that Makita has demonstrated three investigation (‘‘POI’’), it could not Makita Japan produces specialty PECTs consecutive years of sales at not less conclude that the reviews were to order and thus maintains low than NV. Furthermore, we find that reflective of what the company’s normal inventories of subject merchandise, Makita’s aggregate sales to the United commercial experience would be another fact suggesting that Makita States have been made in commercial without the discipline of an would be less likely to dump subject quantities during each of those years. antidumping duty order). merchandise. Finally, based on our review of the Additionally, after consideration of Second, with respect to specialty tools record and the comments of the parties, the various comments that were (imports from Makita Japan), Makita has we continue to find that it is not likely submitted in response to the consistently priced its products higher that Makita will sell at below NV in the preliminary results, the Department than its competition in the United future for the reasons set forth in the continues to find that because Makita is States. Thus, the record indicates that August 2, 1999, Revocation not likely to sell subject merchandise in Makita has not needed to lower prices Memorandum (see Memorandum the United States below NV in the of its Japan-produced tools in order to Regarding Revocation of the future, the continued application of the remain competitive or to maintain a Antidumping Duty Order on antidumping duty order is no longer consistent level of sales (i.e., quantity). Professional Electric Cutting Tools from necessary to offset dumping. As we Although Makita has lost U.S. market Japan dated August 2, 1999 (hereafter stated in Brass Sheet and Strip from share in recent years, it has maintained ‘‘August 2 Revocation Memorandum’’). Germany, Final Results of Antidumping consistent annual sales in significant Although, Makita’s sales to the United Administrative Review and quantities. States have decreased substantially Determination to Revoke in Part, 61 FR Third, the record indicates that the since the imposition of the antidumping 49727, 49730 (September 23, 1996), electric power tool industry, including order, its exports of subject merchandise ‘‘[i]n prior cases where revocation was PECTs, in the United States and around to the United States, in particular under consideration and the likelihood the world is stable and/or growing (see specialty PECTs, remain significant and of resumption of dumped sales was at August 2 Revocation Memorandum at reflect Makita’s normal commercial issue, the Department has considered, in 14–15). Based on our review of the practice. Further, while Makita has addition to the respondent’s prices and record data, we found that this price maintained consistent export volumes margins in the preceding periods, such stability characteristic of the electric of its ‘‘specialty’’ PECTs, Makita other factors as conditions and trends in power tool industry mitigates against transferred production of the remaining the domestic and home market the possibility of future dumping, as subject merchandise (i.e., non-specialty industries, currency movements, and compared to other industries where PECTs) to the United States. Makita the ability of the foreign entity to market prices are volatile (see the made a substantial investment in a U.S. compete in the U.S. marketplace Department’s July 9, 1999, verification manufacturing facility, and without LTFV sales.’’ See also Brass report at 34–39; the Department’s July subsequently shifted production of Sheet and Strip from Canada: 13, 1999, verification report at 13–15; subject merchandise to that facility. Preliminary Results of Antidumping the August 2 Revocation Memorandum Additionally, the record indicates that Duty Administrative Review and Notice at 14–15). the U.S. production facility now of Intent to Revoke Order in Part, 63 FR Therefore, for the reasons discussed manufactures comparable volumes of 6519, 6523 (February 9, 1998). above and in our August 2 Revocation non-specialty merchandise to those Based upon the relevant factors in this Memorandum at 11–15, we find that previously manufactured by Makita case, we find that it is not likely that Makita Japan qualifies for revocation of Japan. This significant change in Makita will sell at less than NV if the the order on PECTs which it produces business practice explains the decrease order is revoked with respect to Makita and exports to the United States under in Makita’s exports of subject and, therefore, the continued 19 CFR 351.222(e)(1)(ii).
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We note that in response to the articulated in the regulations at section sales of subject merchandise in decision by a WTO Panel, the 351.412. Professional Electric Cutting Tools commercial quantities (see Department revised its revocation from Japan Final Results of the ‘‘Commercial Quantities’’ section below Administrative Review, 63 FR 54441 at 54444 regulation. See United States—Anti- (October 9, 1998) (Comment 2) for detailed discussion) in each of the Dumping Duty on Dynamic Random three years of de minimis margins. Access Memory Semiconductors of One Accordingly, we have applied the Finally, we find that it is not likely that Megabit or Above From Korea, WTO methodology articulated in the Makita will in the future sell the subject Doc. WT/DS99/R (January 29, 1999). regulations at section 351.412. merchandise at less than NV (see The new regulation replaces the ‘‘not Comment 2: Criteria for Revocation Set ‘‘Likelihood of Future Dumping’’ section likely’’ standard with a requirement that Forth in the Department’s Regulations below for detailed discussion), and that ‘‘[t]he continued application of the the continued application of the Makita argues that it has met the antidumping duty order is no longer antidumping duty order is no longer criteria for revocation set forth in the necessary to offset dumping’’ now necessary to offset dumping. Therefore, Department’s regulations. Specifically, codified at 19 CFR 351.222(b). While the Department is revoking the order Makita states that: (1) It has made sales this regulation was not yet in effect for with respect to PECTs from Japan that of subject merchandise for three purposes of this review, and thus does are produced by Makita Japan and that consecutive years (i.e., three PORs) at de not apply to this case, we determine, as are also exported by Makita Japan. minimis antidumping duty margins; (2) discussed above and in the comments it agrees to reinstatement of the Commercial Quantities outlined below, that continuation of the antidumping duty order (should Comment 1: Standard for Determining order with respect to Makita is no longer dumping of subject merchandise Whether Sales are Made in Commercial necessary to offset dumping. resume) and has provided the requisite Quantities Interested Party Comments certifications set forth in the Department’s regulations (see The petitioner states that Makita has General preliminary results, ‘‘Intent To Revoke’’ not met the threshold requirement of Comment 1: The Department’s Grant of section, 63 FR at 43350 (August 10, demonstrating that sales of subject Constructed Export Price Offset 1999)); (3) it has made sales of subject merchandise were made in commercial quantities during the three PORs under Makita argues that the Department’s merchandise in commercial quantities review (i.e., 3rd Administrative Review: grant of a constructed export price (see ‘‘Commercial Quantities’’ section 7/1/95–6/30/96, 4th Administrative (‘‘CEP’’) offset is in accordance with the below for further discussion); and (4) Review: 7/1/96–6/30/97, and 5th law. Makita notes that because the there is no likelihood that Makita will Administrative Review: 7/1/97–6/30/ petitioner stipulated to dismissal of its in the future sell the subject 98—hereafter ‘‘3rd AR,’’ ‘‘4th AR,’’ and judicial challenge to the Department’s merchandise at less than NV (see ‘‘5th AR’’). The petitioner argues that grant of the CEP offset in the prior ‘‘Likelihood of Future Dumping’’ section Makita’s sales during the three years fourth antidumping duty administrative below for further discussion). Therefore, under review are not representative of review, it may be assumed that the based on its fulfilment of the criteria its normal commercial behavior, as is petitioner is no longer interested in outlined above, Makita argues that the demonstrated by the disparity between pursuing the CEP offset issue for Department should revoke the order pre-order and post-order subject purposes of the current proceeding. with respect to PECTs that are produced In response, the petitioner asserted by Makita Japan and that are also merchandise sales volumes. The that, although it stipulated to dismissal exported by Makita Japan. petitioner asserts that the Department is of prior litigation on this issue, it The petitioner argues that Makita has applying an incorrect standard by reserves its right to appeal the issue if not met the criteria for revocation set ignoring the disparity in pre-order and and when it is finally resolved. forth in the Department’s regulations. post-order sales volumes and is setting Department’s Position: We agree with Specifically, the petitioner states that: bad policy by finding sales in Makita that the Department’s (1) Makita’s sales of subject commercial quantities under the facts of calculation of a de minimis margin, in merchandise have not been in this case. Specifically, the petitioner particular the grant of a CEP offset as commercial quantities; and (2) Makita states that, consistent with prior part of the level of trade (‘‘LOT’’) has not presented any compelling determinations on revocation, the analysis, is in accordance with the U.S. argument demonstrating that it is not Department must consider both absolute antidumping law. As we explained in likely to dump subject merchandise in and relative current sales volumes (i.e., the final results for the previous fourth the future. post-order) in comparison to antidumping duty administrative Department’s Position: We agree with respondent’s sales volumes prior to the review: Makita that it has met the Department’s order, because sales volumes criteria for revocation set forth in its subsequent to the order are meaningless The Department is continuing its practice, regulations. Specifically, Makita has met without a pre-order benchmark. Thus, articulated in section 351.412(c) of its the following requirements: (1) Makita regulations, of making LOT comparisons for the petitioner claims that the CEP sales on the basis of the CEP after has made sales of subject merchandise Department erred in its preliminary adjustments provided for in section 772(d) of for three consecutive years (i.e., three results by considering sales volume only the statute. As stated in Certain Stainless PORs) at de minimis dumping margins; in absolute terms for determining Steel Wire Rods from France: Final Results of (2) Makita agrees to reinstatement of the whether sales were made in commercial Antidumping Duty Administrative Review, 63 antidumping duty order (should quantities. FR 30185 (June 3, 1998), we recognize that dumping of subject merchandise The petitioner argues that the the Department’s practice has been criticized resume) and has provided the requisite Department’s case history on by the CIT in Borden, Inc. v. United States. certifications set forth in the commercial quantities determinations in However, the decision in Borden, Inc. v. United States, is not final, and we believe our Department’s regulations (see the context of revocation has focused on practice to be in full compliance with the preliminary results; ‘‘Intent To Revoke’’ absolute and relative sales volumes statute and the regulations. Thus, we will section, 63 FR at 43350). In addition, we between the pre- and post-order periods. continue to apply the methodology have determined that Makita has made To support its argument, the petitioner
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.225 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71415 cites to cases where the respondent had Part, and Rescission of Review in Part, and reflect significant, consistent sales zero or very few sales in absolute terms 64 FR 45228, 45230 (August 19, 1999) volumes. In addition, Makita argues that and the Department found that it did (hereafter ‘‘Corrosion-Resistant Carbon its current sales volumes continue to not meet the commercial quantities Steel Flat Products from Canada’’) exhibit substantially the same range of threshold (see, e.g., Pure Magnesium (where the Department found that sales specialty PECTs that were exported in from Canada, 64 FR 12978 (March 16, were not in commercial quantities when 1992, prior to the imposition of the 1999), and Certain Corrosion-Resistant the respondent’s sales volumes for the antidumping duty order, and that Carbon Steel Flat Products and Certain current POR were only 0.173 percent of nothing has changed in regard to its Cut-to-Length Carbon Steel Plate from the POI sales volumes); and Pure specialty PECT exports. Canada: Final Results of Antidumping Magnesium from Canada, 64 FR 12977, Furthermore, Makita argues that it is Duty Administrative Review and 12982 (March 16, 1999) (where the not necessary to rely on pre-order sales Determination to Revoke in Part, 64 FR volume of subject merchandise sales volumes in this case in order to 2173, 2175 (January 13, 1999) (hereafter sold in each year under review was less ascertain Makita’s normal commercial ‘‘Corrosion-Resistant Steel from than 0.5 percent of the volume sold practice, emphasizing that the Canada’’). The petitioner also cites to a prior to the imposition of the order). Department cannot ignore the fact that case where respondent had 35, 45, and Thus, the petitioner claims that because Makita has established a permanent U.S. 70 percent of its pre-order relative sales the volume of Makita’s subject production facility that now volumes during the three consecutive merchandise sales sold in each year manufactures the majority of Makita’s PORs without dumping and the under review was one percent or less PECT production for the U.S. market. Department concluded that these sales than the volume sold prior to the Thus, Makita asserts, the subject volumes met the commercial quantities imposition of the order, the Department merchandise that was previously threshold (i.e., Silicon Metal from cannot reasonably conclude that the produced in Makita’s facility in Japan Brazil: Preliminary Results, Intent to consecutive de minimis margins are (pre-order) is now being manufactured Revoke in Part, Partial Rescission of reflective of Makita’s normal in the United States. As a consequence Antidumping Duty Administrative commercial experience in this case. of this substantial and permanent Review, and Extension of Time Limits, Additionally, the petitioner argues that change in the company’s business 64 FR 43161, 43162 (August 9, 1999) the Department cannot declare an practice, which occurred in 1993, (hereafter ‘‘Silicon Metal from Brazil’’)). amount to be ‘‘significant’’ (i.e., current Makita stresses that pre-order export The petitioner states that although sales volume) without having some levels cannot properly represent current Makita had more than a few sales in comparison or benchmark to provide commercial activity. absolute terms, Makita’s sales history is context; in other words, ‘‘significant’’ Makita further notes that because it has permanently shifted the production not analogous to Silicon Metal from must be relative to some defensible of its high-sales-volume, ‘‘non- Brazil case cited above. Therefore, as a benchmark (See Shakeproof Assembly specialty’’ PECTs from Makita Japan to matter of policy, as a matter of Components v. United States, Slip Op. its U.S. production facility (i.e., MCA)), consistency, and due to the importance 99–70 at 6 (CIT July 29, 1999) and it is unlikely that Makita will ever again of the comparative standard used in Taiwan Semiconductor Industry Ass’n achieve 1992 pre-order sales quantities determining normal commercial v. United States, Slip Op. 99–57 at 18 of PECTs that are produced in Japan. activities, the petitioner maintains that (CIT June 30, 1999).) Additionally, the petitioner maintains Thus, Makita argues that if the Makita’s sales volumes cannot be that Makita’s current sales activity (post- Department were to apply the considered satisfactory. order) does not reflect the company’s petitioner’s suggested requirement for The petitioner disagrees with the normal commercial activity (pre-order), commercial quantities, Makita could Department’s finding in the preliminary because Makita’s recent exports to the never obtain a revocation of the order. results that, ‘‘[a]lthough Makita’s sales United States consist only of low-sales- In effect, Makita argues, no company to the United States have decreased volume, ‘‘specialty’’ PECT models (i.e., that shifts its production to the United substantially since the imposition of the not high-sales-volume, non-specialty States would ever be able to seek antidumping order, its exports to the PECT models), which are sold at revocation. Makita further argues that United States remain significant. * * * relatively high prices. The petitioner the Department has considerable Thus regardless of the decrease in argues that Makita’s pre-order subject discretion in determining whether sales shipments during the course of this merchandise exports represented a full were made in commercial quantities proceeding, * * * Makita is currently range of PECT models sold in significant and that the Department’s preliminary selling in commercial quantities.’’ (See quantities, rather than just ‘‘specialty’’ finding in this case was in fact August 2 Revocation Memorandum at PECT models. Thus, the petitioner consistent with another recent decision 10.) Specifically, the petitioner claims argues that Makita’s post-order issued by the Department. Citing Notice that sales volume during the POI must ‘‘specialty’’ PECT sales are not reflective of Preliminary Results of Antidumping be considered when ascertaining of the company’s normal pre-order Administrative Review and Intent to whether the company’s current sales commercial activity. The petitioner Revoke Order in Brass Sheet and Strip reflect normal commercial practice, further contends that Makita’s total from the Netherlands, 64 FR 48760, because the POI provides the only time number of PECT sales dropped 48765, (September 8, 1999) (hereafter period for which there is evidence considerably while Makita’s sales of ‘‘Brass Strip from the Netherlands’’), concerning the respondent’s commercial other non-subject power tools (i.e., Makita states that its change in behavior without the discipline of the drills, sanders, and grinders) remained commercial practice is similar to the antidumping duty order. Citing Certain consistent, thus indicating that Makita’s circumstances in that case, where the Corrosion-Resistant Carbon Steel Flat current sales of subject merchandise are respondent acquired a U.S. production Products and Certain Cut-to-Length not reflective of its normal commercial facility and shifted significant Carbon Steel Plate from Canada: activity. production to the United States. Makita Preliminary Results of Antidumping Makita states that its sales from the notes that, in Brass Strip from the Duty Administrative Reviews, Intent to 3rd through the 5th ARs represent Netherlands, the Department Revoke in Part, Intent to Not Revoke in Makita’s normal commercial behavior determined that the respondent’s U.S.
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.227 pfrm03 PsN: 21DEN1 71416 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices sales were made in commercial Finally, in response to the petitioner’s revocation). See also Corrosion- quantities, despite a decline in exports, argument that the Department should Resistant Steel from Canada (although based on the Department’s finding that decide this case in a manner consistent one sale during the POR was the acquisition of the U.S. facility with other revocation cases, Makita insufficient, several thousand sales represented an ‘‘unusual occurrence’’ states that this is precisely what the during another POR was that significantly altered the company’s Department did, i.e., the Department distinguishable); and Brass Strip from commercial practice. Makita further based its decision on Makita’s normal the Netherlands, 64 FR 48760, 48765 argues that, in Brass Strip from the commercial practices. Makita argues (September 8, 1999) (respondent Netherlands, the Department stated that that if the Department could not provided a commercially acceptable it is reasonable to conclude that the consider a significant and long-term explanation of why exports of subject company’s commercial practices were change in business practice (i.e., shifting merchandise had declined). permanently changed when its subject high-volume PECT production to a U.S. In this case, we agree with Makita that merchandise production shifted to its production facility (MCA)), Makita its sales volumes during each of the U.S. facility, thereby making the date of would forever be locked into the order. three years under consideration were the production shift, rather than the pre- According to Makita, any changes in the significant. Unlike in prior cases where order period, the appropriate way Makita did business that resulted in the Department did not revoke because benchmark for measuring whether lower volumes of imports would result the respondent did not meet the basic respondent’s sales during the three in an indefinite continuation of the threshold requirement of sales made in years without dumping were made in order, thereby rendering the revocation commercial quantities, in this case, commercial quantities. provision meaningless for Makita. Makita made thousands of sales during Makita stresses that it is not necessary Department’s Position: We agree with each POR to hundreds of different to consider pre-order sales volumes, if the petitioner that in order to form the customers (see August 2 Revocation the more current data provides the basis for a revocation determination, Memorandum at Attachment 2 and Department with appropriate past margins must be reflective of the Makita’s October 26, 1998 section C information for determining Makita’s company’s normal commercial activity. response at Appendix C–2). Compare normal commercial behavior. Makita See Corrosion-Resistant Steel from Corrosion-Resistant Steel from Canada argues that the Department’s practice Canada. Sales during a POR which, in (sales were not in commercial quantities regarding the determination of the aggregate, are of an abnormally where respondent only had one sale commercial quantities must be applied during the POR); Pure Magnesium from on a case-by-case basis and that there small quantity do not generally provide a reasonable basis for determining that Canada (sales were not in commercial are no set guidelines, commercial quantities where respondent had one standards, or policies setting forth the discipline of the order is no longer necessary to offset dumping. Id.; see sale in two of the relevant years and two precise minimum sales quantities or sales in the other). Thus, this case is permissible percentage changes in those also Pure Magnesium from Canada at 12979 (‘‘These sales and volume figures distinguishable from other cases where quantities that are needed to determine the respondents only had one or two a respondent’s normal commercial are so small, both in absolute terms and in comparison with the period of sales during the relevant PORs. behavior. Makita argues that this case is Moreover, although Makita’s aggregate different from the cases cited by the investigation, that we cannot reasonably conclude that the zero margins subject merchandise PECT sales have petitioner (i.e., Pure Magnesium from decreased since the imposition of the Canada, Corrosion-Resistant Steel from [respondent] received are reflective of the company’s normal commercial antidumping order, that decrease relates Canada, Corrosion-Resistant Carbon to products that Makita now produces Steel Flat Products from Canada, and experience.’’). However, the determination as to whether or not sales in the United States. Makita continues Silicon Metal from Brazil), noting that to export from Japan significant none of the cases cited involved a major volumes are made in commercial quantities is made on a case-by-case quantities of ‘‘specialty’’ PECTs, the shift in production of subject only PECT models not produced in the merchandise. Additionally, Makita basis, based on the unique facts of each proceeding. Neither the statute nor the United States, and these quantities are argues that the petitioner’s citation to significant relative to pre-order (1992) Shakeproof Assembly Components v. regulations prescribes a specific sales of the same models.1 United States and Taiwan standard for determining whether sales have been made in commercial Furthermore, sales during the three Semiconductor Industry Ass’n v. United years in question are reflective of the States is not persuasive because those quantities. For example, we have specifically found in prior cases that company’s normal commercial cases involved decisions by the experience since the establishment of its International Trade Commission although one or two sales is not generally sufficient to meet the production facility in the United States. (‘‘ITC’’), rather than the Department of The record indicates that the U.S. Commerce. threshold, a sales drop-off after the production facility now manufactures Makita also argues that there is a imposition of an antidumping duty volumes of merchandise comparable to sound basis on which to evaluate what order does not necessarily prevent the Department means when it uses the revocation (see, e.g., Pure Magnesium 1 Makita’s history of specialty PECT sales is as term ‘‘significant’’ with respect to From Canada; Final Results of follows: Makita’s 1993 sales of specialty PECTs Makita’s volume of export sales to the Antidumping Duty Administrative were 00.00% of its 1992 sales of specialty PECTs. United States in this review. Review and Determination Not to Makita’s 1994 sales of specialty PECTs were 38.39% Specifically, Makita notes that by Revoke Order in Part 64 FR 50489, of its 1992 sales of specialty PECTs. Makita’s 1995 sales of specialty PECTs were 38.60% of its 1992 defining the relevant universe of subject 50490–Comment 1, 50492–Comment 4 sales of specialty PECTs. Makita’s 1996 sales of merchandise imports as specialty PECTs (September 17, 1999) (hereafter ‘‘Pure specialty PECTs were 47.18% of its 1992 sales of only, then its sales of the 16 specialty Magnesium from Canada 2’’) (where specialty PECTs. Makita’s 1997 sales of specialty PECTs in the post-order period have one or two sales was not consistent with PECTs were 42.17% of its 1992 sales of specialty PECTs. Makita’s 1998 sales of specialty PECTs were unquestionably been consistent and normal commercial practice; also stating 50.86% of its 1992 sales of specialty PECTs. (See significant in relation to pre-order sales that a sales drop-off after imposition of August 2 Revocation Memorandum at Attachment of the same 16 models. the order does not necessarily prevent 2).
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71417 what was previously being of the order provide an appropriate states that in its preliminary results of manufactured by Makita Japan. This benchmark for analyzing sales volumes this AR the Department concluded that significant change in business practice of specialty PECTs—this benchmark is Makita’s main argument supporting provides a logical commercial no longer relevant to sales volumes of revocation is its ‘‘changed explanation for Makita’s relative drop in non-specialty PECTs. As such, we have circumstance’’ in subject merchandise subject merchandise sales. compared Makita’s sales volumes of production (i.e., Makita Japan’s In the preliminary results of Brass specialty PECTs prior to the imposition substantial investment in a U.S. Strip from the Netherlands, we of the order with those in the post-order production facility—MCA—and its evaluated whether the volume of sales period and, as stated above, after PECT/power tool production shift from prior to the order was the proper considering all relevant factors, found Makita Japan to MCA). The petitioner benchmark for measuring whether a the latter to be significant. argues that the Department has been respondent’s sales volumes during the Additionally, as we stated in Pure careful not to conduct a review under three years without dumping were made Magnesium from Canada 2 at 50492, a the guise of a changed circumstances in commercial quantities, where the sales drop-off after imposition of the review and that the Department has respondent acquired a U.S. order does not necessarily prevent always given notice in the Federal manufacturing facility (subsequent to revocation. The Department explained: Register when it does initiate a changed the imposition of the order) and had The Department’s threshold requirement circumstance review (citing Carbon shifted a substantial portion of its does not mean, as NHCI suggests, that the Steel Plate from Korea: Final Results of production of subject merchandise to Department is effectively disqualifying Changed Circumstances Administrative the United States. In Brass Strip from companies from revocation if there is a sales Review and Revocation of Antidumping the Netherlands at 48765–48766, we drop off following the imposition of an Duty Order 51 FR 13042 (April 17, found that this ‘‘unusual occurrence’’ antidumping order. The issue that is 1986); and Certain Dried Heavy Salted provided sufficient reason to re-evaluate analyzed by the Department is the magnitude Codfish from Canada; Initiation and the benchmark. We stated: of the drop-off. In this regard, the Department Preliminary Results of Changed has expressed its intent to revoke an Circumstances Administrative Review; Although both the quantity and number of antidumping duty order even where the sales Consideration of Revocation; and Intent [respondent]’s shipments to the United States drop-off has been substantial so long as the of subject merchandise have decreased since sales used to demonstrate a lack of price to Revoke Antidumping Duty Order 54 the imposition of the antidumping duty discrimination are reflective of the FR 41479 (October 10, 1989)). Therefore, order, we find that the . . . acquisition of company’s normal commercial experience. the petitioner argues that by considering [the U.S. facility] and the subsequent transfer MCA as a factor for revocation, the of in-scope radiator strip production to the Thus, the normal concern that Department is effectively conducting a United States is reflective of the type of accompanies decreased sales (i.e., that a changed circumstances review without ‘‘unusual occurrence’’ contemplated by the low level of sales activity does not proper notice, and is thus violating its Department, in promulgating its regulations, provide a reasonable basis for statutory and regulatory obligations. as an acceptable explanation of why exports determining that the discipline of the Makita states that the Department did of subject merchandise have declined. Prior order is no longer necessary to offset not convert the revocation proceeding to to this acquisition, . . . [respondent] dumping) is not present here because a changed circumstances proceeding. continued to ship in similar quantities to the there is an explanation as to why Makita Makita stresses that the fact that some pre-order period and the subsequent has decreased sales of subject cessation of shipments until 1995 was the of the Department’s preliminary immediate result of the 1991 acquisition. merchandise and current sales levels are findings could also have been used in a Based upon these circumstances, it is significant. Compare with Pure changed circumstances review does not reasonable to conclude that the company’s Magnesium from Canada (where the turn the revocation proceeding into a commercial practices were permanently Department could not reasonably changed circumstances review. Makita changed in 1991, and that 1991, rather than conclude that the zero margins received notes that at no point did the the pre-order period, should be the by respondent were reflective of the Department indicate that its decision to benchmark for measuring whether the company’s normal commercial revoke was based simply on ‘‘changed company’s sales during the three years experience without the discipline of an circumstances.’’ Rather, according to without dumping were made in commercial order). For these reasons, we find that quantities. Makita, the Department considered the we can reasonably conclude that the de establishment of MCA as a relevant Thus, as indicated in Brass Strip from minimis margins calculated for Makita factor regarding Makita’s normal the Netherlands, in order to ascertain a are reflective of the company’s normal business practices and its applicability corporation’s ‘‘normal commercial commercial experience and provide a toward satisfying the commercial practice’’ with respect to shipment reasonable basis for our decision to quantities threshold. volumes, where necessary, we will revoke. See August 2 Revocation Department’s Position: This evaluate the most appropriate Memorandum at 10–11. administrative review has been benchmark. We recognize that in most Comment 2: Consideration of conducted under section 751(a) of the cases, sales of subject merchandise sold ‘‘Changed Circumstances’’ in the Act; it is not a ‘‘changed circumstances’’ prior to the imposition of the order will Context of Revocation review under section 751(b). The provide the most relevant benchmark. The petitioner states that the difference between these two types of However, in unusual instances, such as Department has improperly collapsed proceedings is primarily procedural. A those in this case, flexibility may be its revocation review pursuant to 751(a) section 751(a) review is conducted any warranted in order to properly evaluate of the Act with a changed circumstance time the Department receives a request the company’s normal commercial review pursuant to 751(b) of the Act. for review in the anniversary month. practice. In this instance the record The petitioner purports that the Moreover, the regulations specifically indicates that Makita made the long Department has done this without prior provide that, if certain criteria are met, term, if not permanent, decision to shift notice and therefore does not have the parties may request revocation at the its production of non-specialty PECTs to authority to do so. Citing the time they request an administrative the United States in 1993. Thus, while Department’s August 2 Revocation review under section 751(a) (see 19 CFR the sales levels prior to the imposition Memorandum (at 4–5), the petitioner 351.222(e)). In contrast, a 751(b) review
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.228 pfrm03 PsN: 21DEN1 71418 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices is conducted any time the Department viability is designed for an entirely volumes of subject merchandise in the determines that there are changed different purpose and has little United States at dumped prices. circumstances sufficient to warrant applicability to the determination of The petitioner also argues that Makita review. Revocation can also be commercial quantities in revocation. will resume dumping subject considered in the context of a 751(b) According to Makita, given the many merchandise in the future if the order is review (see 19 CFR 351.222(g)). years (six years at minimum) that revoked because Makita has continued Although changed circumstances may typically intervene between the pre- dumping non-subject tools (i.e., warrant a review under section 751(b), order period and the revocation professional electric sanding-grinding nothing precludes the Department from determination, any fixed, pre- tools (‘‘PESGTs’’)). The petitioner considering facts relating to changed determined percentage would not allow purports that Makita’s normal pattern of circumstances in the context of a section for significant changes in commercial production and trade are presumptively 751(a) review. In fact, the Department practice. Additionally, Makita purports reflected in its non-subject tool sales must consider all facts of record that are that by rejecting home markets where and therefore Makita’s trade in PECTs relevant to an issue under consideration the quantity of sales is less than five will match its trade in PESGTs if the in a section 751(a) review, whether it be percent of the U.S. export quantity, the order is revoked. Based on its analysis an issue related to a margin calculation Department is in no way suggesting that of Makita’s PESGTs sales, the petitioner or to a request for revocation. However, such sales are not made in commercial maintains that Makita has not stopped the character of the review does not quantities. dumping its PESGTs in the U.S. market change simply because some of the facts since the time of the antidumping duty considered relate to changes in the way Department’s Position: We agree with investigation (see pages 7–13 of the a company conducts business. Makita that the five percent test for petitioner’s September 10, 1999, case Makita’s establishment of MCA and home market viability is not relevant to brief).2 In addition, the petitioner states its subsequent transfer of production to the determination of commercial that, based on Makita’s admission, the United States is a relevant fact that quantities in a revocation proceeding. PESGTs are not materially different cannot be ignored in the Department’s The purpose of the viability test is to from PECTs. According to the revocation analysis. Indeed this fact identify the most appropriate market in petitioner’s analysis, Makita has could be characterized as a significant which to determine the NV of the continued dumping its PESGTs at a 46 ‘‘changed circumstance’’ as was stated subject merchandise, which is an issue percent margin during the PORs that are in the preliminary results. This that must be decided very early in the the subject of this revocation inquiry. characterization of the record facts, proceeding. That issue lends itself to a Therefore, the petitioner states that however, does not alter the nature of the rule of general applicability and a continued dumping of non-subject tools proceeding. The petitioner, who has general rule facilitates the requisite provides a clear indication that Makita participated throughout this 751(a) early decision. In contrast, for would likely resume dumping subject review, has been afforded full notice revocation, the issue is whether a merchandise if the antidumping duty and opportunity to provide evidence company’s sales during the three years order were revoked. and comment regarding the issue of in question provide a reasonable and Finally, the petitioner asserts that revocation generally and the impact of reliable basis for determining that Makita has an incentive to resume the shift in production specifically. The continuation of the order with respect to dumping of its low-sales-volume, petitioner, in fact, has commented that company is no longer necessary to specialty PECTs that it has been extensively on these issues. offset dumping. This is a more complex importing into the United States during issue and a threshold matter in the Comment 3: Five Percent Market the pre- and post-order periods. The context of the revocation decision. petitioner states that Makita’s sales of Viability Test and Commercial Thus, a general rule on the level of sales Quantities Determination specialty PECTs have decreased by 50 is inappropriate; it is an issue that can percent since 1992, as a result of The petitioner argues that the only reasonably be decided on a case- increasing its prices on specialty PECTs Department’s commercial quantities by-case basis. in response to the antidumping duty determinations in the context of Likelihood of Future Dumping order. Thus, the petitioner argues that revocation should be consistent with its there is incentive for Makita to resume policy in determining market viability Comment 1: History of Dumping dumping of subject merchandise (i.e., under 19 CFR 351.404(b). The petitioner specialty PECTs). states that the Department’s five percent The petitioner states that Makita’s Makita disagrees, stating that the facts viability standard is an appropriate history of dumping, as evidenced by the alleged by the petitioner do not show benchmark to use because the imposition of the antidumping duty any history of dumping by Makita, but requirement that NV be based on home order, illustrates that Makita has to only show a history of accusations that market (or third country market) sales of dump in order to compete effectively in Makita engages in dumping. Makita a certain quantity and the commercial the U.S. market, and that Makita will states that the petitioner’s allegation is quantities standard are similar. The resume dumping if the Department not supported by any evidence in the petitioner states, based on this revokes the order. The petitioner notes record because the Department has comparison, that sales quantities in the that Makita’s drop in subject found that Makita has not dumped U.S. market that are less than five merchandise sales since the imposition subject merchandise for three years. percent of pre-order sales should not be of the antidumping duty order (i.e., in Makita maintains that its losses in considered representative to calculate terms of total number of models, total market share are not compelling margins for purposes of revocation. number of units, and loss of market Regarding the petitioner’s argument share) has been substantial based on the 2 Note: PESGTs were investigated as subject that the Department’s revocation Department’s preliminary analysis. merchandise during the original less-than-fair-value determinations should be consistent Thus, the petitioner states that revoking investigation of PECTs. However, the ITC determined that there was no material injury to the with its home market viability the order now would provide little U.S. industry for these products. Consequently, no determinations, Makita states that the commercial benefit to Makita unless antidumping duty order was imposed on PESGTs five percent test for home market Makita intends to resume selling higher from Japan.
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.230 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71419 evidence that it is likely to dump if the keep production of either tool category Department will normally determine order is revoked, especially since, in in Japan or the United States. Makita that revocation is warranted. See also Makita’s opinion, increases in the contends that the petitioner’s argument Furfuryl Alcohol From the Republic of petitioner’s U.S. market share have which seeks to compare Makita’s South Africa; Preliminary Results of resulted from predatory pricing pricing and production policies on Antidumping Duty Administrative techniques, which also explain Makita’s PESGTs (non-subject merchandise) and Review and Revocation of Antidumping decreased market share. Makita states PECTs (subject merchandise) in the Duty Order, 64 FR 10983, 10894 (March that its subject merchandise sales context of analyzing the likelihood of 8, 1999); Titanium Sponge from the business is not predicated on a future dumping of the latter, is not Russian Federation: Preliminary Results particular market share in order to founded in Department precedent. of Antidumping Duty Administrative effectively compete in the United States. Thus, Makita states that the petitioner’s Review and Partial Revocation, 63 FR More importantly, Makita points out argument lacks relevant evidence 47474, 47475 (September 8, 1998); and that most of its U.S. PECT sales are not rebutting the Department’s presumption Steel Wire Rope From the Republic of subject merchandise, but are U.S.-MCA- that Makita is not likely to dump in the Korea: Final Results of Antidumping produced PECTs. Therefore, Makita future. Duty Administrative Review and maintains that it does not need to dump Regarding the petitioner’s argument Revocation in Part of Antidumping Duty its sales of subject merchandise (i.e., that Makita is likely to resume dumping Order, 63 FR 17986, 17988 (April 13, low-sales-volume, specialty PECTs) in of specialty PECTs to regain market 1998) (hereafter Steel Rope from Korea). order to maintain its U.S. market share share, Makita states the following: (1) Its Makita has satisfactorily established that because most of its PECTs for the U.S. current sales volumes of specialty it has sold subject merchandise in market are produced at MCA. PECTs are not inconsistent with its commercial quantities at fair value for Further, Makita argues that the historical sales volumes; (2) it does not three consecutive years. Absent petitioner’s assertion that revocation need to lower the price of specialty evidence to the contrary, the will only benefit Makita by facilitating PECTs because of its premium pricing Department presumes that three years of its resumption of dumping is inaccurate. strategy; and (3) it has flexibility in the de minimis or zero margins is indicative Makita states that revocation of the amounts by which it can lower prices of Makita’s future behavior (see August order will have the following benefits: on specialty PECTs (should Makita 2 Revocation Memorandum at 11). (1) Removal of the stigma associated choose to) before dumping occurs. We also disagree with the petitioner’s with being the subject of an Specifically, Makita argues that its sales allegation that Makita’s continued antidumping duty order; (2) resumption of specialty PECTs have always been dumping of non-subject power tools of sales to U.S. customers who will not limited and have fluctuated from year to (including both U.S.-made and purchase tools that are subject to an year. Makita states that the record shows Japanese-made non-subject antidumping duty order; and (3) that it is engaged in premium pricing of merchandise) is probative of future elimination of expenses involved with its specialty PECTs, where it restricts dumping of subject merchandise in this participation in the Department’s the supply of a tool category in order to case. Generally, information regarding administrative reviews. Thus, Makita maintain its higher price quality image, non-subject merchandise is irrelevant to asserts the petitioner has presented no but that there is no evidence on the whether an existing order continues to positive rebuttal evidence which can record showing that Makita intends to be necessary to offset dumping of the overcome the presumption that, if the regain market share through reduced subject merchandise. The information order is revoked, there is no likelihood prices. In addition, Makita states that it provided by the petitioner does not that Makita will resume dumping in the has significant room in which to lower warrant an exception in this case and future. its specialty PECT prices before thus cannot provide a basis for rebutting Regarding the petitioner’s argument dumping occurs and this shows that the presumption established by three that Makita’s continued ‘‘dumping’’ of Makita has not increased prices on consecutive years of sales of the subject non-subject power tools is probative of specialty PECTs simply to avoid merchandise at not less than fair value. future dumping of subject merchandise, dumping. Although the petitioner did not submit Makita contends it is unpersuasive Department’s Position: We disagree its allegation regarding Makita’s pricing because Makita’s sales of non-subject with the petitioner’s contention that of non-subject merchandise in time for merchandise are irrelevant and outside Makita’s history of dumping PECTs, the Department to consider it for the scope of this proceeding. Makita prior to the 3rd AR of this proceeding, purposes of the preliminary results, the argues that a comparison of its subject illustrates that dumping is a necessary Department preliminarily indicated that merchandise sales with its non-subject part of Makita’s competitive position in pricing of non-subject merchandise merchandise sales is nowhere the U.S. PECT market. As a threshold might be a relevant factor in its analysis recognized as a relevant test of any matter, the Department’s revocation and that it may consider the petitioner’s likelihood of future dumping of subject analysis focuses on the three most information for purposes of the final merchandise. Makita purports that the recent review periods. The Department results (see August 2 Revocation petitioner misrepresents Makita’s generally finds that three consecutive Memorandum at page 16). However, as comments regarding the distinctions years of non-dumped sales in discussed above, the Department finds between PESGTs and PECTs. Makita commercial quantities indicates that a that in this case, the information on states that it never claimed that there are company will not dump in the future. sales of non-subject merchandise is no differences between PESGTs and See Corrosion-Resistant Steel from irrelevant for purposes of this final PECTs, but that there is a substantial Canada at 2175 (‘‘in evaluating the issue revocation determination. Therefore, the commonality in components, of likelihood, the Department has Department’s revocation decision in this production machinery, manufacturing considered three years of sales in the case is based only on the facts related processes, and assembly of the two tool United States with no dumping margins, to the subject merchandise sales alone. categories. Thus, Makita states, there are plus an agreement to reinstatement [of] The Department further disagrees no relevant production-related the order, to be indicative of expected with the petitioner’s allegation that distinctions between PESGTs and future behavior.’’). Thus, where there is Makita will resume dumping to regain PECTs that would prompt Makita to no evidence to the contrary, the lost share of the PECT market. Evidence
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.231 pfrm03 PsN: 21DEN1 71420 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices on the record indicates that Makita has for Makita Japan to export subject the data on the record regarding the suffered continued losses in its market merchandise that would, in effect, be Japanese and U.S. PECT markets, the share in the ‘‘electric power tool competing with MCA’s production of existence of Makita’s U.S. production market’’ as a whole (i.e., all electric PECTs. facility, the available or lack of available power tools including subject PECTs— Department’s Position: We agree with production capacity levels in MCA and see Makita’s February 9, 1999, Makita that a stable home market does Makita Japan (i.e., Okazaki plant), submission at Appendix 15). Therefore, not require an absence of market respectively, and Makita’s healthy sales if the petitioner’s rationale (i.e., fluctuations, and that the evidence on history in other world markets, we find dumping maintains market share) is to the record pertaining to the health of the that the sales pattern in the Japanese be considered accurate, one would have Japanese home market does not suggest home market does not suggest that expected Makita to have maintained its that Makita is likely to dump PECTs in Makita is likely to resume dumping of market share in other categories of the U.S. market in the future if the order PECTs in the United States without the electric power tools, which the were revoked. Although the petitioner discipline of the order. petitioner contends Makita has claims that the Japanese power tool Comment 3: PECT Production in Japan continued to dump, while only losing market is in decline, we find that the market share in PECTs. This in fact is record data indicates that the market in Versus the United States not the case, as Makita has lost market Japan is relatively stable (see August 2 The petitioner purports that Makita share in other electric power tool Revocation Memorandum at 14). We do Japan could increase its production categories as well. Thus, it is clear there not conclude that the drop in housing output with relative ease and despite its are other factors that impact a starts in Japan and home market reported capacity utilization figures and competitor’s position in the market (e.g., demand for subject merchandise thereby increase production of PECTs introduction of a new competitor, between fiscal year (‘‘FY’’) 1996 and FY for sale in the U.S. market at dumped innovations, reputation). Therefore, we 1997 indicates a declining or unhealthy prices if the order is revoked. The agree with Makita that its sales of market. Rather, we would expect even a petitioner argues that plant capacity is subject merchandise are not predicated healthy market, especially the electric unrelated to production output because on a particular market share in order to power tool market, to experience both the annual production output at effectively compete in the United States. peaks and troughs in demand. Contrary Makita’s Okazaki plant has increased to the petitioner’s assertion, we have no nearly 100 percent from 1992 through Comment 2: Home Market Demand evidence that suggests that the above 1997, while its capacity utilization has The petitioner states that declining mentioned one-year decline in the remained constant during the same time home market sales and home market Japanese power tool market is a long- period. Furthermore, the petitioner demand (i.e., decline in the Japanese term occurrence. Therefore, based on suggests that the Department has electric power tool market and Japanese the evidence as a whole, we find the ignored its claim regarding the ease with housing starts from 1997–1998), Japanese power tool market to be which an electric power tool coupled with rising demand in the relatively stable. manufacturer can expand production. United States, have increased the In addition, the record supports (See Declaration of Ronald S. Taylor, likelihood that Makita will dump PECTs Makita’s assertion that it is unlikely to Black & Decker February 24, 1999, in the U.S. market in the future. The increase its PECT exports from Japan to submission.) Finally, the petitioner petitioner submits that the evidence in the United States to pre-order levels argues that a manufacturing plant (i.e., the record contradicts the Department’s because most of its tools sold in the U.S. Makita’s Okazaki plant) with easily finding of market stability in Japan. market are now produced in the United modifiable assembly lines does not face Therefore, the petitioner maintains that States by MCA. This conclusion is the same barriers to expansion and with Makita’s declining sales in the particularly evident when reviewing conversion as other complex, more home market, Makita has greater Makita’s production capacities in both capital-intensive facilities with fixed, incentive to direct its PECT sales to the the U.S. and home markets, i.e., Makita dedicated, and expensive equipment. U.S. market. has substantial excess capacity available Thus, the petitioner asserts that Makita’s Makita stresses that although there in the United States and is producing at capacity in Japan can be easily and have been fluctuations in its home full capacity in Japan. (See Comment 3 relatively inexpensively altered, market electric power tool sales and of this section below for further resulting in increased PECT production Japanese housing starts, the petitioner is discussion.) Furthermore, it is unlikely in Japan for sale in the U.S. market at confusing short-term fluctuations in an that Makita Japan will resume its pre- dumped prices if the order is revoked. otherwise relatively stable home market order export levels of subject The petitioner also states that Makita with a permanent decline in demand for merchandise because such exports USA’s consolidated financial statements electric power tools (i.e., from 1992 to would be competing with MCA’s show poor performance for FYs 1997 1997). In addition, Makita states it has production of PECTs, or would require and 1998 3 and Makita’s U.S. production no incentive to increase exports from costly shifts in PECT production back to facility MCA has utilized less than two Japan because most of its tools sold in and restructuring of capacity utilization thirds of its total production capacity. the U.S. market are produced in the in Japan (see the Department’s July 9, The petitioner argues that Makita’s U.S. United States (i.e., MCA), and that its 1999 verification report at 22–23, 34–36; operations are a drain on the Makita focus is to increase production at MCA and July 13, 1999 verification report at corporation and that continued poor rather than increase production in 4–7). Finally, we verified that Makita financial performance of Makita’s U.S. Japan. Moreover, Makita states that it has other viable markets, other than the has many other viable markets, other United States and Japan, wherein 3 The financial statements for Makita USA than the United States and Japan, where Makita Japan can sell its cutting tools (Makita Japan’s affiliated selling agent in the United Makita Japan sells its cutting tools, (see the Department’s July 9, 1999, States) and MCA (Makita’s U.S. production facility) thereby reducing its financial verification report at 36–40). Thus, are consolidated for financial reporting purposes in the United States. The Makita USA/MCA dependance on Japanese exports to the Makita Japan is not dependant on consolidated financial statement is consolidated United States. Furthermore, Makita Japanese exports to the United States for into Makita’s overall corporate financial statement maintains that it would not be practical financial viability. As such, based upon as well.
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.232 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71421 operations will render Makita’s capital Makita argues further that whether or commitment to expand MCA’s role in investments in MCA moot. not it can set up new assembly lines in the U.S. market. Thus, Makita contends In addition, the petitioner states that its Okazaki plant is not relevant to this that the establishment and the downward trend in the yen against segment of the proceeding. Makita states strengthening of MCA is a long-term the U.S. dollar (i.e., depreciation of the that assembly of new lines involves the investment project on which it does not yen against the dollar) suggests that construction of new capacity and not expect an immediate return. production in Japan is and will become the utilization of current capacity. In addition, Makita maintains that more profitable than production in the Makita maintains that in this segment of only when the value of the Japanese yen United States based on its estimation of the proceeding the Department’s focus is decreasing against the U.S. dollar do Makita’s cost of manufacturing in the should be whether Makita has idle currency fluctuations make its Japanese United States verses Makita’s cost of capacity currently available to increase operations more profitable than its manufacturing in Japan. The petitioner the output of subject tools for export. operations in the United States. Makita argues that Makita would have Makita states that evidence on the states that MCA was established, at least increased its profits if Makita would record suggests that no such additional in part, in order to avoid dependancy on have shifted its production back to capacity is available in Japan. exchange rate fluctuations and the risks Japan (see the petitioner’s September 17, Regarding the petitioner’s allegation associated with them. Makita argues 1999, case brief at 18–19 and at Exhibit that the Department has not considered that the time frames (i.e., June 1993 and 6). Finally, the petitioner asserts that the affidavit of Ronald S. Taylor, June 1998) that the petitioner cites in its Makita’s loss in U.S. market share gives regarding the ease with which assembly analysis were periods when the yen was Makita a financial incentive to lines can be added to Makita’s Okazaki weak against the dollar, but that in June concentrate its production of cordless production plant, Makita states that the 1995 and September 1999 when the yen tools (i.e., PECTs) in Japan. Specifically, statements made in the affidavit are not was stronger, Makita’s U.S. operations the petitioner claims that Makita has not applicable to Makita’s business were more profitable. Notwithstanding participated meaningfully in the U.S. practices for the following reasons: (1) these facts, Makita states that it has market for cordless saws, which are Makita’s Okazaki plant does not have never conditioned its long-term strategy currently produced by MCA. Because the floor space to add production; (2) on short-term currency fluctuations, but cordless tools are not affected by voltage substantial increases in capacity in on the premise that Makita is best differences, the petitioner argues that if Japan would include re-opening the served by eliminating the risks the order is revoked Makita will Anjo facility and a reduction in capacity associated with the unpredictability of consolidate its cordless saw production at MCA; and (3) returning production to fluctuating exchange rates and by in Japan in order to take advantage of its Japan would be costly and difficult to moving production from Japan to its economies of scale and production implement. Thus, Makita argues that local markets. experience in Japan. The petitioner transferring production from MCA back Finally, Makita states that the argues further that Makita will have to to Japan is neither easy nor inexpensive, petitioner’s argument that Makita has adopt measures to regain market share and that the affidavit does not fully financial incentive to consolidate its which will include a resumption of address Makita’s commercial situation production of electric power tools in subject merchandise sales at dumped because Makita’s long-range business Japan, particularly cordless PECTs, is prices, particularly in the popular and strategy includes the shifting of based on the petitioner’s incorrect growing cordless PECT market. Thus, production closer to its international assumption that Makita does not already the petitioner asserts that Makita USA’s markets. produce cordless PECTs in the United poor financial performance, favorable Furthermore, Makita argues that States. Makita notes that it has been currency fluctuations, and losses in U.S. Makita USA is on the road to producing cordless PECTs at MCA for market share all give Makita an profitability and that MCA’s operations years, and has never found that incentive to resume dumping in the have been profitable in 1997 and 1998. production would be facilitated or United States should the order be Makita argues that Makita USA’s poor improved if it was shifted back to Japan. revoked. financial performance in FYs 1997 and Makita argues it has not forfeited its Makita asserts that the Department 1998 and MCA’s low capacity share of the U.S. cordless PECT market, correctly concluded that Makita Japan utilization does not support a return of but rather it has taken full advantage of operates at the upper limit of the production to Japan, but rather a the opportunity by establishing efficient maximum volume that can be produced reinforcement of its efforts to increase operations that are close to its customer by its Japanese facility. Makita states production at MCA (noting that Makita base in the U.S. market. Makita states that because it closed down its Anjo, has made a substantial investment in that the petitioner has not presented any Japan production facility and moved a MCA). In addition, if Makita’s only evidence supporting the argument that portion of Anjo’s production capacity business concern was cost of consolidation of cordless tool into the Okazaki plant in 1997, the production, then, Makita states, it production in Japan would be more cost Department must consider the would be far more sensible for it to shift effective. distinctions between Makita’s prior and its production to the People’s Republic Department’s Position. We agree with current production capacities, namely, of China where it already has a Makita that the record indicates an its past capacity when its Okazaki and production facility rather than Japan. intent to maintain and/or increase Anjo plants were open and producing Makita argues that Makita USA’s poor production operations in the United PECTs in comparison to its current financial performance is not unexpected States without increasing production in capacity where only a single plant (i.e., in a situation where a still-expanding Japan. The record indicates that Makita the Okazaki plant) is producing PECTs. U.S. subsidiary (i.e., MCA) is operating has limited unutilized capacity in Japan, Makita argues that when recognizing below its capacity. Makita asserts that but available capacity in the United such significant differences, it is clear MCA is still growing toward its role as States. Makita’s verified submissions that the closing of the Anjo plant the main provider of electric power demonstrate that Makita’s facility in significantly reduced its production tools in the U.S. market and that Okazaki, Japan (Makita’s only remaining capacity and Makita Japan’s ability to Makita’s continued investment in the production facility for PECTs in Japan) expand its capacity. facility indicates Makita’s continued is currently operating at full capacity,
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.233 pfrm03 PsN: 21DEN1 71422 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices and has been doing so since 1991. Two PECTs. Indeed, the Department Makita’s electric power tool markets important facts that were considered in recognizes there could be a number of abroad (see the Department’s July 9, analyzing production capacity at the explanations for Makita USA’s poor 1999, verification report at 22–23 and Okazaki plant are (1) the Okazaki plant financial performance in 1997 and 1998 verification exhibit 6A). (and the Anjo plant when it was open) (e.g., accounting policies, long-term Comment 4: Pricing Practices With has operated with two shifts only since investment strategies, failed business Respect to Subject and Non-Subject 1996, and thus the Okazaki plant’s ventures). There is nothing on the Merchandise capacity utilization figures were based record indicating specifically what the on one production shift prior to 1996; losses are attributable to and, where the The petitioner states that Makita’s and (2) Makita closed down its Anjo U.S. production operation has been inability to undercut its U.S. production facility and moved a portion profitable in 1998, the Department competitors’ prices with respect to of Anjo’s production capacity (i.e., cannot make an assumption that the PECTs it produces in Japan, coupled production equipment including corporation would choose to cease such with its widespread undercutting of armature winding lines, assembly lines, operations in order to increase prices on U.S.-made PECTs and other armature shaft hardening machines) into profitability for a related entity. non-subject tools, indicates the the Okazaki plant in 1997, thereby Additionally, Makita’s statement effectiveness of the order and the bringing the Okazaki plant to its optimal regarding the expected growth of MCA likelihood that Makita would resume production capacity. The addition of a provides a reasonable explanation for dumping if the order were revoked. The production shift explains how Makita’s any losses incurred, i.e., MCA is still petitioner states that if it were not for Okazaki plant was able to increase its growing toward its role as the main the order, Makita’s prices for specialty total annual production nearly 100 provider of electric power tools in the PECTs imported from Japan would be percent from 1992 through 1997, while U.S. market and Makita continues to lower than those of Makita’s its annual capacity utilization remained invest in the facility (see the competitors. Therefore, the petitioner constant. Additionally, we verified that Department’s July 13, 1999, verification argues that by forcing Makita to it would be difficult, if not impossible, report at 9 and verification exhibit 12); maintain high prices, the order has for Makita to add a third shift in its thus it is reasonable to conclude that resulted in Makita’s devastating loss of Okazaki plant (see August 2 Revocation building up MCA is a long-term U.S. market share in PECTs, and that Memorandum at 14). In sum, comparing undertaking and Makita does not expect Makita will have to lower its prices on PECTs as soon as the order is lifted in Makita’s production capacity and total an immediate return on its investment. order to regain its lost market share. annual output when its Okazaki and Additionally, the record supports and Makita states that it has considerable Anjo plants were open and producing we accept Makita’s characterization as room for dropping the price on its electric power tools with one shift each, to the effect of currency fluctuations on subject merchandise sales without with Makita’s current production Makita’s decision to maintain incurring a dumping liability. Makita capacity and annual output at the production of PECTs at MCA (see argues that it has not been forced to Okazaki plant producing electric power Makita’s September 17, 1999, rebuttal maintain higher prices on its Japan- tools with two shifts (see Appendix 4 of brief at 31–33). Given the many factors made specialty PECTs due to the impact Makita’s September 17, 1999, rebuttal that can affect profitability during a time of the order, but has chosen not to lower brief and verification exhibit 13 of the of currency depreciation, we cannot its prices for marketing purposes (i.e., Department’s July 9, 1999 verification determine which operations (i.e., Makita’s marketing strategy entails report), the Department finds that Makita’s Japanese operations or Makita’s producing a higher quality product that Makita Japan’s total annual production U.S. operations) will be more profitable demands higher prices). Thus, Makita output at the Okazaki plant using two as the petitioner suggests. However, a states that higher pricing is the result of production shifts since 1997 is depreciation of the yen does not imply its business strategy rather than the comparable to Makita Japan’s previous that dumping will occur. To the result of the impact to the antidumping total annual production output at the contrary, the Department notes that duty order. Anjo and Okazaki plants using one during a period of a depreciating home In addition, Makita argues that it has production shift in each plant prior to market currency, there is even less not undercut the petitioner’s prices with 1997. In short, from 1992 through 1998, pressure to engage in pricing below NV. respect to its U.S.-produced PECTs, and Makita Japan’s annual production of In this proceeding, there is no evidence that Makita has in fact experienced electric power tools for each shift on the record indicating the likelihood drops in its market share of non-subject, reflected Makita Japan’s optimal of a resumption of dumping due to the U.S.-produced PECTs. Makita states that capacity utilization. Thus, Makita effect of a long-term depreciation of the of the thousands of U.S.-produced PECT Japan’s production with two shifts at yen against the dollar, which by itself sales made every month, the petitioner one plant (i.e., Okazaki plant) is does not indicate a likelihood of sales at has found only 10 PECT models on comparable to Makita Japan’s less than fair value. See Steel Rope from which to base its allegation of price production with one shift at each of the Korea at 17988. Furthermore, Makita undercutting. Makita argues that even if two plants (i.e., Okazaki and Anjo has demonstrated that there are a the petitioner’s allegation were correct, plants). number of long-term business the small number of tool models cited We further note that although Makita advantages in establishing a U.S. would amount to a de minimis margin. USA’s financial statement reports a poor production facility including: (1) In response to the petitioner’s allegation performance for 1997 and 1998, the Makita’s ability to avoid dependancy on that market share is gained through MCA plant operated profitably in 1998 exchange rate fluctuations and the risks undercutting competitors’ prices, (see the Department’s July 13, 1999, associated with them; and (2) Makita’s Makita reasons that if it had undercut its verification report at 10 and 11, and ability to respond to the needs of the competitors’ prices with its U.S.- verification exhibit 12). Moreover, there U.S. market in a more timely fashion. produced PECTs, then it should have is nothing on the record to indicate that Finally, evidence on the record supports increased its share of the U.S. PECT the entire financial loss is directly Makita’s long-term business practice of market rather than lost it (as is the case related to Makita’s U.S. production of moving production from Japan to since 1992). To the contrary, Makita
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.235 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71423 purports that petitioner undercuts Assessment assessment of double antidumping Makita’s prices in every case of which The Department shall determine, and duties. This notice also serves as a final Makita is aware. the Customs Service shall assess, reminder to parties subject to APO of Department’s Position: We disagree antidumping duties on all appropriate their responsibility concerning the with petitioner. Regarding the entries. The Department will issue disposition of proprietary information petitioner’s argument that Makita would appraisement instructions directly to disclosed under APO in accordance undercut U.S. competitors’ prices on the Customs Service. For entries of with 19 CFR 351.105(a). Timely written PECTs if the order were revoked, the subject merchandise that are produced notification or conversion to judicial Department generally finds that three by Makita Japan and that are also protective order is hereby requested. years of no dumping is predictive of exported by Makita Japan, entered, or Failure to comply with the regulations future behavior. (See Corrosion- withdrawn from warehouse, for and terms of the APO is a sanctionable Resistant Steel from Canada, at 2175. consumption during the POR (i.e., July Thus, where there is no evidence to the violation. 1, 1997–June 30, 1998), the Department This determination is issued and contrary, the Department will normally will instruct the Customs Service to determine that continuation of the order published in accordance with sections liquidate entries without regard to 751(a)(1) and 777(i)(1) of the Act. is no longer necessary to offset antidumping duties. The Department dumping. Further, because Makita has will order the suspension of liquidation Dated: December 8, 1999. agreed to reinstatement of the order in ended for all such entries and will Robert S. LaRussa, the event of future dumping, it is instruct the Customs Service to release Assistant Secretary for Import inappropriate to presume that the any cash deposits or bonds with interest Administration. imposition of the order is the only factor if applicable. [FR Doc. 99–32673 Filed 12–20–99; 8:45 am] preventing dumping. Rather, we BILLING CODE 3510±DS±P considered other factors that might Cash Deposit Requirements suggest a likelihood of future dumping The following deposit requirements as discussed in the ‘‘Determination to shall be required for merchandise DEPARTMENT OF COMMERCE Revoke the Order in Part’’ and subject to the order entered, or ‘‘Likelihood of Future Dumping’’ withdrawn from warehouse, for International Trade Administration sections in this notice above. consumption on or after the publication [A±580±810] Regarding the petitioner’s argument date of this final results of the that Makita’s widespread undercutting administrative review, as provided by Certain Welded ASTM A±312 Stainless of prices on U.S.-made PECTs and other section 751(a)(1) of the Act: (1) the cash Steel Pipe From Korea: Extension of tools is indicative of Makita’s behavior deposit rate for Makita Japan will be Time Limits for Preliminary Results of in the absence of an order, the zero, except that for imports of PECTs Antidumping Administrative Review Department reiterates its position that are produced by Makita Japan and AGENCY: Import Administration, enumerated above in Comment 1 of the that are also exported by Makita Japan, ‘‘Likelihood of Future Dumping’’ section International Trade Administration, cash deposits will no longer be required Department of Commerce. of this notice. We disagree with the and the suspension of liquidation will ACTION: Notice of Extension of Time petitioner’s allegation that the pricing of cease for entries made on or after July Limits For Preliminary Results of non-subject merchandise in this case is 1, 1998; (2) if the exporter is not a firm Administrative Review. probative of whether the order covered in this review or the less-than- continues to be necessary to offset fair-value (‘‘LTFV’’) investigation, but EFFECTIVE DATE: December 21, 1999. dumping of subject merchandise. the manufacturer is, the cash deposit FOR FURTHER INFORMATION CONTACT: Final Results of the Review rate will be that established for the most Thomas Gilgunn or Maureen Flannery, recent period for the manufacturer of AD/CVD Enforcement, Import We determine that the following the merchandise; and (3) if neither the Administration, International Trade weighted-average margin for Makita exporter nor the manufacturer is a firm Administration, U.S. Department of exists for the period July 1, 1997, covered in this review or the LTFV Commerce, 14th Street and Constitution through June 30, 1998: investigation, the cash deposit rate will Avenue, NW, Washington DC 20230; Manufacturer/producer/exporter: be 54.5 percent, the ‘‘all others’’ rate telephone: (202) 482–0648 or (202) 482– Makita Corporation Incorporated made effective by the LTFV 3020, respectively. Margin (percent): 0.07 percent (de investigation. These requirements shall minimis) remain in effect until publication of the The Applicable Statute Effective Date of Revocation final results of the next administrative Unless otherwise indicated, all review. citations to the statute are references to This revocation applies to all entries the provisions effective January 1, 1995, of subject merchandise that are Notification to Importers and Interested Parties the effective date of the amendments produced by Makita Japan and that are made to the Tariff Act of 1930 (the Act) also exported by Makita Japan, entered, This notice serves as a final reminder by the Uruguay Round Agreements Act. or withdrawn from warehouse, for to importers of their responsibility In addition, unless otherwise indicated, consumption on or after July 1, 1998. under 19 CFR 351.402(f) to file a all citations to the Departments’s The Department will order the certificate regarding the reimbursement regulations are to the current suspension of liquidation ended for all of antidumping duties prior to regulations, codified at 19 CFR part 351 such entries and will instruct the liquidation of the relevant entries (1999). Customs Service to release any cash during the review period. Failure to deposits or bonds. The Department will comply with this requirement could Background further instruct Customs Service to result in the Secretary’s presumption On December 30, 1998, the refund with interest any cash deposits that reimbursement of antidumping Department of Commerce (the on entries made after June 30, 1998. duties occurred and the subsequent Department) received a request from
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.236 pfrm03 PsN: 21DEN1 71424 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices
Avesta Sheffield Pipe Co.; Damascus Public Law 104–13 (44 U.S.C. The third collection will survey all Tube Division, Damascus-Bishop Tube 3506(c)(2)(A)). users of ‘‘no take areas’’. Respondents Co.; and the United Steelworkers of DATES: Written comments must be will be asked to rate both the America (AFL–CIO/CLC), herein submitted on or before February 22, importance and satisfaction with referred to as ‘‘the domestic industry,’’ 2000. various natural resource attributes and for administrative review of the ADDRESSES: Direct all written comments characteristics (e.g., water clarity, coral antidumping duty order on certain to Linda Engelmeier, Departmental cover, number and diversity of sea life, welded ASTM A–312 stainless steel Forms Clearance Officer, Department of etc.). pipe from Korea. On January 25, 1999, Commerce, Room 5327, 14th and II. Method of Collection the Department published its initiation Constitution Avenue NW, Washington of this administrative review covering DC 20230 (or via Internet at Interviews will generally be used. The the period of December 1, 1997 through [email protected]). user surveys will also include use of a November 30, 1998 (64 FR 3682). FOR FURTHER INFORMATION CONTACT: mailed questionnaire. The dive shop Extension of Time Limits for Requests for additional information or logbook collection is a request to keep Preliminary Results copies of the information collection records. instrument(s) and instructions should III. Data Because of the reasons enumerated in be directed to Dr. Vernon R. Leeworthy, the Memoranda from Joseph A. Spetrini NOS/Special Projects Office, 1305 East OMB Number: None to Robert S. LaRussa, Extension of Time West Highway, SSMC 4, 9th Floor, Silver Limit for the Administrative Review of Spring, Maryland 20910 (301–713–3000, Form Number: None Certain Welded ASTM A–312 Stainless ext. 138) or via Internet at Type of Review: Regular submission Steel Pipe from Korea, dated December [email protected]. Affected public: Individuals, business 13, 1999, it is not practical to complete SUPPLEMENTARY INFORMATION: or other for-profit this review within the time limits mandated by section 751(a)(3)(A) of the I. Abstract Estimated Number of Respondents: 1,070 Act. The purpose of this information Therefore, in accordance with section collection is to add socioeconomic Estimated Time Per Response: 3 hours 751(a)(3)(A) of the Act, the Department monitoring information to the ecological for commercial fishing panels, 10 hours is extending the time limits for the monitoring information in the Florida for dive shops, and 20 minutes for preliminary results to December 20, Keys National Marine Sanctuary sanctuary users. 1999. The final results continue to be (FKNMS). In 1997, regulations became Estimated Total Annual Burden due 120 days after the publication of the effective that created a series of ‘‘no take Hours: 920 preliminary results. zones’’ in the FKNMS. Monitoring programs are used to test the ecological Estimated Total Annual Cost to Dated: December 13, 1999. Public: $0 Joseph A. Spetrini, and socioeconomic impacts of the ‘‘no take zones’’. This year three voluntary Deputy Assistant Secretary for AD/CVD IV. Request for Comments Enforcement III. data collection efforts will be initiated to support the socioeconomic Comments are invited on: (a) Whether [FR Doc. 99–33075 Filed 12–20–99; 8:45 am] monitoring program. the proposed collection of information BILLING CODE 3510±DS±P The first collection involves a set of is necessary for the proper performance four panels on commercial fishing of the functions of the agency, including whether the information shall have DEPARTMENT OF COMMERCE operations, where commercial fishermen will be interviewed to assess practical utility; (b) the accuracy of the National Oceanic and Atmospheric financial performance and assess the agency’s estimate of the burden Administration impacts of Sanctuary regulations. (including hours and cost) of the Information on catch, effort, revenues, proposed collection of information; (c) I.D. 121599C] operating and capital costs will be ways to enhance the quality, utility, and obtained to do financial performance clarity of the information to be Socioeconomic Monitoring Program analysis. Information on socioeconomic collected; and (d) ways to minimize the for the Florida Keys National Marine factors for developing profiles of the burden of the collection of information Sanctuary commercial fishermen such as age, sex, on respondents, including through the education level, household income, use of automated collection techniques AGENCY: National Ocean Service (NOS), marital status, number of family or other forms of information National Oceanic and Atmospheric members, race/ethnicity, percent of technology. Administration (NOAA), Commerce. income derived from fishing, percent of Comments submitted in response to ACTION: Proposed collection; comment income derived from study area, years this notice will be summarized and /or request. of experience in fishing will be gathered included in the request for OMB to compare panels with the general approval of this information collection; SUMMARY: The Department of commercial fishing population. The they also will become a matter of public Commerce, as part of its continuing data would be collected annually. record. effort to reduce paperwork and The second collection will monitor respondent burden, invites the general recreational for-hire operations through Dated: December 10, 1999. public and other Federal agencies to the use of dive logs for estimating use Linda Engelmeier, take this opportunity to comment on in the ‘‘no take areas’’ versus other areas Departmental Forms Clearance Officer, Office proposed and/or continuing information for snorkeling, scuba diving and glass- of Chief Information Officer. collections, as required by the bottom boat rides. Volunteers will [FR Doc. 99–33063 Filed 12–20–99; 8:45 am] Paperwork Reduction Act of 1995, collect the logbooks monthly. BILLING CODE 3510±JE
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DEPARTMENT OF COMMERCE and regional economies and to Estimated Time Per Response: 2 hours consumer’s through either higher prices Estimated Total Annual Burden National Oceanic and Atmospheric for commercial fishing products or Hours: 1,330 Administration lower quantity and quality of Estimated Total Annual Cost to Public: $0 [I.D. 121599D] recreational experiences. In FY 2000, NOAA plans to apply the information IV. Request for Comments National Marine Sanctuaries± collection and analyses to the Channel Comments are invited on: (a) Whether Socioeconomic Impacts of Marine Islands National Marine Sanctuary, the proposed collection of information Reserves which is revising its management plan and will propose the creation of a is necessary for the proper performance AGENCY: National Ocean Service (NOS), marine reserve. of the functions of the agency, including National Oceanic and Atmospheric One set of respondents would be whether the information shall have Administration (NOAA), Commerce. commercial fishermen. Interviews practical utility; (b) the accuracy of the ACTION: Proposed collection; comment would gather information on agency’s estimate of the burden request. socioeconomic factors for developing (including hours and cost) of the profiles of the commercial fishermen proposed collection of information; (c) SUMMARY: The Department of such as age, sex, education level, ways to enhance the quality, utility, and Commerce, as part of its continuing household income, marital status, clarity of the information to be effort to reduce paperwork and number of family members, race/ collected; and (d) ways to minimize the respondent burden, invites the general ethnicity, percent of income derived burden of the collection of information public and other Federal agencies to from fishing, percent of income derived on respondents, including through the take this opportunity to comment on from study area, years of experience in use of automated collection techniques proposed and/or continuing information fishing and years of fishing experience or other forms of information collections, as required by the in the study area. Total catch, effort and technology. Paperwork Reduction Act of 1995, revenue, by major species and by Comments submitted in response to Public Law 104–13 (44 U.S.C. geographical areas, will also be this notice will be summarized and /or 3506(c)(2)(A)). compiled. Information on costs of included in the request for OMB DATES: Written comments must be operation and investment in the approval of this information collection; submitted on or before February 22, fisheries will also be obtained. Detailed they also will become a matter of public 2000. maps will be used in working with record. ADDRESSES: Direct all written comments fishermen to allocate their catch and Dated: December 10, 1999. to Linda Engelmeier, Departmental effort geographically. Linda Engelmeier, Forms Clearance Officer, Department of A second set of respondents would be Departmental Forms Clearance Officer, Office Commerce, Room 5327, 14th and Wholesale Processors. Personal of Chief Information Officer. Constitution Avenue NW, Washington interviews will be conducted with [FR Doc. 99–33064 Filed 12–20–99; 8:45 am] DC 20230 (or via Internet at wholesale processors of commercial BILLING CODE 3510±JE [email protected]). fishing catch to determine the FOR FURTHER INFORMATION CONTACT: disposition of catch (e.g. how much is Requests for additional information or exported out of the local area, how DEPARTMENT OF COMMERCE copies of the information collection much is sold to local retail markets, and instrument(s) and instructions should how much is sold to restaurant markets) National Oceanic and Atmospheric be directed to Dr. Vernon R. Leeworthy, and the price mark-ups at each market Administration NOS/Special Projects Office, 1305 East level. [I.D. 121499D] West Highway, SSMC 4, 9th Floor, Silver The third set of respondents would be Spring, Maryland 20910 (301–713–3000, Recreational For-Hire Businesses. New England Fishery Management ext. 138) or via Internet at Personal interviews would be Council; Public Meetings [email protected]. conducted with for-hire charter and party (head-boats) boat operations that AGENCY: National Marine Fisheries SUPPLEMENTARY INFORMATION: take recreational fishermen, divers, and Service (NMFS), National Oceanic and I. Abstract wildlife viewers to the Channel Islands Atmospheric Administration (NOAA), Commerce. The purpose of this information National Marine Sanctuary. As with ACTION: Notice of public meetings. collection is to give users of National commercial fishing operations, maps will be used to allocate activity by Marine Sanctuaries fair representation SUMMARY: The New England Fishery geographic area. Information on number in the process of creating a marine Management Council (Council) is of passengers (normalized to person- reserve (no-take zone). This will be scheduling a number of public meetings days of activity), operating revenues, accomplished by collecting of its oversight committees in January, cost and profits will be obtained. socioeconomic information and 2000 to consider actions affecting New incorporating the information into a II. Method of Collection England fisheries in the exclusive geographical information system (GIS) Personal interviews. economic zone (EEZ). that will support socioeconomic impact Recommendations from these groups analyses. Socioeconomic Impact III. Data will be brought to the full Council for Analyses attempt to show who might be OMB Number: None formal consideration and action, if impacted by a marine reserve (i.e., who Form Number: None appropriate. benefits and who suffers potential Type of Review: Regular submission DATES: The meetings will be held costs). Impacts are measured not only Affected public: Business or other for- between Wednesday, January 5, and on direct users that would be displaced profit Friday, January 28, 2000. See but also the secondary impacts such as Estimated Number of Respondents: SUPPLEMENTARY INFORMATION for specific income and employment in the local 665 dates and times.
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ADDRESSES: Meetings will be held in extension of the Seastead Site research the Atlantic Scallop FMP (to establish a Warwick, RI, Portland, ME, Danvers, project closed area (proposed rotational area management system). MA and Peabody, MA. See Framework Adjustment 14 to the FMP); Although non-emergency issues not SUPPLEMENTARY INFORMATION for specific and approval of Amendment 10 contained in this agenda may come locations. objectives (comprehensive management before this Council for discussion, those FOR FURTHER INFORMATION CONTACT: Paul strategy, including rotational area issues may not be the subject of formal J. Howard, Executive Director, New management), schedules and a draft Council action during this meeting. England Fishery Management Council; scoping document. Council action will be restricted to those (978) 465–0492. Requests for special Wednesday, January 12, 2000, 9:30 issues specifically listed in this notice accommodations should be addressed to a.m.—Experimental Fisheries and and any issues arising after publication the New England Fishery Management Research Steering Committee of this notice that require emergency Council, 50 Water Street, Mill 2, Location: Sheraton Ferncroft Hotel, 50 action under section 305(c) of the Newburyport, MA 01950–2866; Ferncroft Road, Danvers, MA 01923; Magnuson-Stevens Act, provided the telephone: (978) 465–0492. telephone: (978) 777–2500. public has been notified of the Council’s Development of research priorities for SUPPLEMENTARY INFORMATION: intent to take final action to address the the New England groundfish fishery and emergency. Meeting Dates and Agendas other fisheries that impact the Wednesday, January 5, 2000, 10:00 groundfish resource. Special Accommodations Thursday, January 13, 2000, 9:30 a.m.—Gear Conflict These meetings are accessible to a.m.—Joint Herring Committee and people with physical disabilities. Committee Meeting Atlantic States Fisheries Commission Requests for sign language Location: Radisson Airport Hotel, Herring Section Meeting Location: Holiday Inn by the Bay, 8 interpretation or other auxiliary aids 2081 Post Road, Warwick, RI 02886; should be directed to Paul J. Howard telephone: (401) 739–3000. Spring Street, Portland, ME 04101; ADDRESSES) at least 5 days prior to Discussion and development of telephone: (207) 775–2311. (see the meeting dates. recommendations on whether fishing Committee and Section review and vessels should be required to use a approval of a draft scoping document Dated: December 16, 1999. Vessel Monitoring System (VMS) to that identifies issues to be considered Bruce C. Morehead, reduce the incidence of gear conflicts during the development of a controlled Acting Director, Office of Sustainable between fixed and mobile gear access system in the Atlantic herring Fisheries, National Marine Fisheries Service. fishermen; discussion of methods to fishery; Committee and Section [FR Doc. 99–33067 Filed 12–20–99; 8:45 am] implement a VMS requirement in consideration of the impact of the BILLING CODE 3510±22±F fisheries that are not managed by the partial approval of the Atlantic Herring Council; and discussion of various FMP and discussion of the need for management measures that can be used additional management measures such DEPARTMENT OF COMMERCE to mitigate gear conflicts, such as as, but not limited to, spawning additional marking requirements. closures, effort controls, gear National Oceanic and Atmospheric Thursday, January 6, 2000, 9:30 restrictions, or other measures for the Administration a.m.—Whiting Committee Meeting fishery; Committee and Section Location: Radisson Airport Hotel, discussion of gear use issues in the [I.D. 121499C] 2081 Post Road, Warwick, RI 02886; eastern Gulf of Maine, and possible telephone: (401) 739–3000. development of additional management Pacific Fishery Management Council; Committee development of a scoping measures to address concerns raised by Public Meeting document for a proposed Small Mesh purse seine and mid-water trawl vessels AGENCY: Species Fishery Management Plan that fish in this area. National Marine Fisheries (FMP), which would establish a separate Tuesday, January 18, 2000, 8:30 Service (NMFS), National Oceanic and plan for whiting, red hake, offshore a.m.—Red Crab Committee Meeting Atmospheric Administration (NOAA), hake, and possibly ocean pout. These Location: Sheraton Ferncroft, 50 Commerce. species are currently managed under the Ferncroft Road, Danvers, MA 01923; ACTION: Notice of public meeting. Multispecies FMP. The scoping telephone; (978) 777–2500. document may include options for Discussion of issues to address in the SUMMARY: The Pacific Fishery limiting access and applying a Total scoping process for this new FMP, Management Council’s (Council) Highly Allowable Catch (TAC) to small mesh review of the draft scoping document Migratory Species Plan Development species fisheries, and any other issues and review of the draft control date Team (HMSPDT) will hold a work that the committee identifies. letter to NMFS. There will be a closed session which is open to the public. Monday, January 10, 2000, 10:00 a.m. session at the end of the meeting to DATES: The work session will be held on and Tuesday, January 11, 2000, 8:30 review applications for the Red Crab Monday, January 31, 2000 from 11 a.m. a.m.—Scallop Oversight Committee Advisory Panel. to 5 p.m.; on Tuesday, February 1, from Meeting Friday, January 28, 2000, 9:30 a.m.— 8 a.m. to 5 p.m.; and on Wednesday, Location: Radisson Airport Hotel, Social Sciences Advisory Committee February 2, from 8 a.m. until business 2081 Post Road, Warwick, RI 02886; Meeting for the day is completed. telephone: (401) 739–3000. Location: Holiday Inn, One Newbury Committee approval of Total Street (Rt. 1 North), Peabody, MA ADDRESSES: The work session will be Allowable Catch research set-aside 01960; telephone: (978) 535–4600. held at NMFS Pacific Fisheries mechanism and groundfish management Committee discussion of how it can Environmental Laboratory, 1352 issues relating to Framework implement recommendations on Lighthouse Avenue, Pacific Grove, CA; Adjustment 13 to the Scallop FMP improving social and economic impact (831) 648–8515. (scallop vessel access to groundfish analyses in fishery management plans; Council address: Pacific Fishery closed areas); development of discussion of committee involvement in Management Council, 2130 SW Fifth recommendations concerning the the development of Amendment 10 to Avenue, Suite 224, Portland, OR 97201.
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FOR FURTHER INFORMATION CONTACT: Dan patent applications for compliance with believe the PTO should further amend Waldeck, Pacific Fishery Management the ‘‘written description’’ requirement these revised interim guidelines before Council; (503) 326–6352. of 35 U.S.C. § 112,¶ 1. This revision they are made final, you should include SUPPLEMENTARY INFORMATION: The supersedes the Interim Written the following information in your primary purpose of the work session is Description Guidelines which were comments: (1) The rationale supporting to draft sections of the fishery published contemporaneously in both the proposal, including the management plan and related the Federal Register and Official identification of applicable legal documents for highly migratory species Gazette at 63 FR 32,639 (June 15, 1998) authority; and (2) a description of the fisheries off the West Coast. and 1212 O.G. 15 (July 7, 1998), potential benefits and drawbacks of Although non-emergency issues not respectively. This revision reflects the adopting the proposal. The PTO is contained in the HMSPDT meeting current understanding of the PTO particularly interested in comments agenda may come before the HMSPDT regarding the written description relating to the following topics: (1) The for discussion, those issues may not be requirement of 35 U.S.C. 112, ¶ 1 and accuracy of the methodology, (2) the the subject of formal HMSPDT action is applicable to all technologies. legal analysis in the guidelines, and (3) during these meetings. HMSPDT action DATES: Written comments on the relevant factors to consider in will be restricted to those issues Revised Interim Guidelines will be determining whether the written specifically listed in this notice and any accepted by the PTO until March 22, description requirement is satisfied. issues arising after publication of this 2000. Parties presenting written comments notice that require emergency action ADDRESSES: Written comments should are requested, where possible, to under section 305(c) of the Magnuson- be addressed to Box 8, Commissioner of provide their comments in machine- Stevens Fishery Conservation and Patents and Trademarks, Washington, readable format in addition to a paper Management Act, provided the public DC 20231, marked to the attention of copy. Such submissions may be provided by electronic mail messages has been notified of the HMSPDT’s Stephen Walsh, or to Box Comments, ′′ intent to take final action to address the Assistant Commissioner for Patents, sent over the Internet, or on a 3.5 emergency. Washington, DC 20231, marked to the floppy disk formatted for use in a attention of Linda S. Therkorn. Macintosh, Windows, Windows for Special Accommodations Alternatively, comments may be Workgroups, Windows 95, Windows 98, The meeting is physically accessible submitted to Stephen Walsh via Windows NT, or MS–DOS based to people with disabilities. Requests for facsimile at (703) 305–9373 or by computer. sign language interpretation or other electronic mail addressed to Written comments will be available auxiliary aids should be directed to Mr. ‘‘[email protected]’’ or to Linda for public inspection on or about April John Rhoton at (503) 326–6352 at least Therkorn via facsimile at (703) 305– 19, 2000, in Suite 918, Crystal Park 2, 5 days prior to the meeting date. 8825 or by electronic mail addressed to 2121 Crystal Drive, Arlington, Virginia. ‘‘[email protected].’’ In addition, comments provided in Dated: December 16, 1999. machine readable format will be FOR FURTHER INFORMATION CONTACT: Bruce C. Morehead, available through the PTO’s Website at Acting Director, Office of Sustainable Stephen Walsh by telephone at (703) http://www.uspto.gov. Fisheries, National Marine Fisheries Service. 305–9035, by facsimile at (703) 305– [FR Doc. 99–33066 Filed 12–20–99; 8:45 am] 9373, by mail to his attention addressed Discussion of Public Comments BILLING CODE 3510±22±F to Box 8, Commissioner of Patents and Comments were received from 13 Trademarks, Washington, DC 20231, or individuals and 16 organizations in by electronic mail at response to the Request for Comments DEPARTMENT OF COMMERCE ‘‘[email protected]’; or Linda on the Interim Guidelines for the Therkorn by telephone at (703) 305– Examination of Patent Applications Patent and Trademark Office 8800, by facsimile at (703) 305–8825, by Under the 35 U.S.C. 112, ¶ 1 ‘‘Written [Docket No. 991027288±9288±01] mail addressed to Box Comments, Description’’ Requirement published Assistant Commissioner for Patents, contemporaneously in the Federal RIN 0651±AB10 Washington, DC 20231, or by electronic Register and Official Gazette at 63 FR mail at ‘‘[email protected].’’ Revised Interim Guidelines for 32,639 (June 15, 1998) and 1212 O.G. 15 SUPPLEMENTARY INFORMATION: The PTO Examination of Patent Applications (July 7, 1998), respectively; and the requests comments from any interested Under the 35 U.S.C. § 112, ¶ 1 ``Written Extension of Comment Period and member of the public on the following Description'' Requirement; Request for Notice of Hearing published at 63 FR Revised Interim Guidelines. As of the Comments 50887 (September 23, 1998) and 1214 publication date of this notice, this O.G. 180 (September 29, 1998). The AGENCY: Patent and Trademark Office, revision will be used by PTO personnel written comments and the testimony at Commerce. in their review of patent applications for the public hearing have been carefully ACTION: Notice and request for public compliance with the ‘‘written considered. comments. description’’ requirement of 35 U.S.C. 112, ¶ 1. Because this revision governs Overview of Comments SUMMARY: The Patent and Trademark internal practices, it is exempt from The majority of comments favored Office (PTO) requests comments from notice and comment rulemaking under issuance of written description any interested member of the public on 5 U.S.C. 553(b)(A). guidelines, with revisions. Several the following Revised Interim Written comments should include the major issues arose in the oral testimony Guidelines for Examination of Patent following information: (1) Name and and written comments submitted in Applications Under the 35 U.S.C. 112, affiliation of the individual responding, response to the Interim Guidelines on ¶ 1 ‘‘Written Description’’ Requirement and (2) an indication of whether the the Written Description Requirement (Revised Interim Guidelines). These comments offered represent views of the with respect to the scope of the Revised Interim Guidelines will be used respondent’s organization or are Guidelines, the method of analysis, and by PTO personnel in their review of respondent’s personal views. If you the content of the examples. In view of
VerDate 15-DEC-99 19:52 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm03 PsN: 21DEN1 71428 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices the comments and testimony received, analysis has been adopted. The Revised believed to be fully consistent with the Guidelines have been rewritten in a Interim Guidelines are grounded more binding precedent of the U.S. Supreme technology neutral manner which is broadly than the three cases heavily Court and the U.S. Court of Appeals for broadly applicable to all areas of relied upon in the original Interim the Federal Circuit. Guidelines are technology and to all types of claims Guidelines, and cases dealing with a necessary in this area to promote (original, new, or amended, and variety of arts are relied upon. uniformity and consistency in the product, process, or product-by- (2) Comment: The comments were examination process. The suggestion to process). Furthermore, the examples equally divided with respect to the issue issue Revised Interim Guidelines for a have been removed from the Guidelines of whether the Guidelines should be second round of Notice and Comment and examples addressing a broad range broadly applicable to all technologies or has been adopted. The revision is of technologies will be incorporated into limited to biotechnology, DNA claims, written in a technology neutral manner, examiner training materials. Revised or unpredictable arts. Two of the and the form is sufficiently different Interim Guidelines are being issued for comments urging broad applicability from the previous guidelines that a second round of Notice and Comment stated that the law should be articulated additional public comment is desired. because the form and content of the in a clear and technology neutral (4) Comment: Six comments were in Guidelines are sufficiently different fashion, and several comments urged favor of including process and product- from the previous Guidelines that that examples and training materials by-process claims in the analysis, additional public comment is desired. should illustrate application of the whereas one comment was opposed. The Extension of Comment Period Guidelines in a diverse range of One comment criticized the Guidelines and Notice of Hearing published at 63 technologies. One comment suggested for failing to acknowledge the ‘‘safe FR 50887 (September 23, 1998) and that applications in which written harbor’’ product-by-process type claim 1214 O.G. 180 (September 29, 1998) description problems are likely to arise noted in Fiers v. Revel, 984 F.2d 1164, asked for comments regarding the should be identified generically, rather 25 USPQ2d 1601 (Fed. Cir. 1993), and patentability of Expressed Sequence than requiring a written description Amgen Inc. v. Chugai Pharmaceutical Tags (ESTs). Many comments took this analysis in each application. Response: Co., 927 F.2d 1200, 18 USPQ2d 1016 opportunity to heavily criticize the The suggestion to cover all technologies (Fed. Cir. 1991). One comment observed patentability of ESTs, grounding their and to articulate the law in a clear and that process and product-by-process arguments in fairness and policy issues. technology neutral fashion has been claims tend not to implicate many Many comments also expressed the adopted. While a written description written description issues, and it may be opinion that ESTs lacked the utility, analysis is required in each case, the useful to point out possible enablement enablement, and written description Revised Interim Guidelines clearly deficiencies for such claims. Two necessary to satisfy title 35 of the U.S. specify when a written description issue comments suggested that the Guidelines Code. The Revised Interim Guidelines is most likely to arise, and—for most should distinguish between claims to are not the appropriate vehicle to fully applications—the Revised Interim processes whose patentability depends address the patentability of ESTs. In Guidelines will quickly lead the on the compositions used in them, as view of comments and testimony with examiner to determine that, at least for opposed to those where patentability respect to ESTs and the enablement and original claims, the written description rests in the steps of the process itself. utility requirements, the Office is requirement has been met. The Revised Response: The suggestion to address revising the Utility Guidelines as Interim Guidelines avoid narrowing the process and product-by-process claims published at 60 FR 36263 (July 14, application of the written description has been adopted. Furthermore, the 1995), and will also be revising the requirement to a single art, and the training materials will analyze claims examiner training material with regard examiner training materials will wherein the patentability depends on to both the utility and enablement illustrate application of the revision in the compositions used therein, as well requirements. Comments pertaining to various technologies. as those where the patentability rests in the utility and enablement requirements (3) Comment: While the majority of the process steps themselves. will be addressed in the notice revising comments supported the Interim Enablement issues raised by process and the Utility Guidelines. Responses to the Guidelines, eight comments opposed product-by-process claims are outside comments germane to the written their issuance. Some of those opposing the scope of these Revised Interim description requirement are set forth the guidelines argued that the decision Guidelines. below. in Regents of the University of (5) Comment: While one comment California v. Eli Lilly, 119 F.3d 1559, 43 stated that the Guidelines correctly Responses to Specific Comments USPQ2d 1398 (Fed. Cir. 1997), cert. present the relationship between written (1) Comment: Several comments denied, 523 U.S. 1089 (1998), is a description and enablement, a number criticized the Guidelines for failing to drastic departure from legal precedent of comments dispute that the statute set out a general, systematic and PTO practice. In particular, two actually has a written description examination of the case law on written comments suggested that the Interim requirement distinct from the description. Comments mentioned Vas- Guidelines should be replaced by enablement requirement. One comment Cath, Inc. v. Mahurkar, 935 F.2d 1555, Revised Interim Guidelines, and one requested that the PTO refrain from 19 USPQ2d 1111 (Fed. Cir. 1991), in comment recommended that final issuing any Guidelines in this area until particular as important for summarizing Guidelines be deferred until the U.S. the U.S. Supreme Court rules on the the state of the law as the Federal Court of Appeals for the Federal Circuit Federal Circuit’s present position on Circuit sees it. Other comments or the U.S. Supreme Court hands down written description. Several comments particularly urged a general analysis of decisions that elaborate, construe, urged the PTO to announce that it will case law as it pertains to written modify, or overrule Eli Lilly and/or not follow the court decisions applying description for chemical compounds, decide related issues not dealt with by the separate written description and criticized the fact that the that case. See Comments (5) and (9) for requirement, while others observed that Guidelines relied heavily on only three more opposing comments. Response: the PTO and the practitioners must recent cases. Response: The suggestion This revision is based on the Office’s nevertheless follow the case law. Some to provide a general, systematic legal current understanding of the law and is of these comments urged the PTO to
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Response: A including biotechnology cases. sufficient written description to inform separate written description Response: The Revised Interim a skilled artisan that the applicant was requirement has long been a part of the Guidelines expand the explanation of in possession of the claimed invention U.S. patent law. See, e.g., In re Ruschig, possession by discussing decisions that as a whole at the time the application 379 F.2d 990, 154 USPQ 118 (CCPA offer some guidance as to how was filed. The revision also indicates 1967). The Federal Circuit has possession may be shown. The concepts that compliance with the written recognized the distinct and separable in Pfaff v. Wells Electronics that are description requirement is a question of nature of this requirement. See Vas- pertinent to an analysis of compliance fact which must be resolved on a case- Cath. Although the interpretation of the with the written description by-case basis. While this revision law is always evolving, the PTO is requirement have been incorporated in addresses the analysis of possession obliged to follow the law as currently this revision. At this time, the Federal only in the context of the written interpreted by the court. As noted Circuit has not indicated that reduction description requirement, similar above, the suggestion to limit the to practice is necessary for conception principles apply in determining application of the Revised Interim or written description of a whether an inventor has met his or her Guidelines to certain subject matter has biotechnological invention. The Office burden of demonstrating possession of not been adopted. does not intend to impose a written the claimed invention in an affidavit or (6) Comment: While several of the description requirement that is more declaration submitted under 37 CFR comments stated that the Guideline’s robust than that set forth by the courts. 1.131. (8) Comment: Several comments explanation of the purpose of the Accordingly, the Revised Interim suggested that the Guidelines should written description requirement is Guidelines do not impose a per se address questions of support for claims accurate, a number of comments requirement for reduction to practice in any technology to satisfy the written added or amended by the applicant suggested that the concept of during prosecution (or during an ‘‘possession’’ should be more fully description requirement. However, the Federal Circuit has recognized that in interference). Two comments suggested explained or developed. One comment that the Guidelines should address the urged that the meaning of ‘‘possession some instances an inventor may only be able to establish a conception (and ‘‘omitted element’’ prong of the written of the invention’’ is different for written description requirement. One comment description than enablement, whereas therefore possession) by pointing to a reduction to practice through a indicated the Guidelines should another observed that an ‘‘in possession harmonize chemical and nonchemical of the invention’’ test for compliance successful experiment. See Amgen Inc. v. Chugai Pharmaceutical Co., 927 F.2d case law on when an applicant may with the written description amend to broaden or change a definition requirement does not appear in 35 at 1206, 18 USPQ2d at 1021. In such instances, the alleged conception fails based on an original disclosure. Another U.S.C. 112, and its definition and comment stated that the Guidelines not merely because the field is application are not clearly stated in the should acknowledge that it is proper to unpredictable or because of the general Federal Circuit cases to date. Another amend the claims to excise prior art. uncertainty surrounding experimental comment urged that descriptive Response: The suggestions to address sciences, but because the conception is attributes which provide proof of questions of support for new or incomplete due to factual uncertainty written description should include amended claims and to address the that undermines the specificity of the evidence typically provided to prove a ‘‘omitted element’’ test have been inventor’s idea of the invention. complete and enabling conception. One adopted. comment stated that the meaning of Burroughs Wellcome Co. v. Barr (9) Comment: Several comments ‘‘has invented’’ is unclear and queried if Laboratories Inc., 40 F.3d 1223, 1229, 32 indicated that case law such as In re actual reduction to practice is required. USPQ2d 1915, 1920 (Fed. Cir. 1994). Koller, 613 F.2d 819, 204 USPQ 702 The same comment asked for Reduction to practice in effect provides (CCPA 1980), hold that original claims clarification on what kind of description the only evidence to corroborate constitute their own written description, equates with possession of a claimed conception (and therefore possession) of or that a statement in ipsis verbis is a species. One comment stated that a the invention. Id. sufficient description, and that those question left unanswered in the (7) Comment: Other comments on cases should be adhered to. Three Guidelines is that if one has ‘‘made’’ an ‘‘possession’’ urged that possession is to comments pointed out that the invention, is one necessarily in be evaluated by looking to the claims; Guidelines fail to distinguish between possession of it, or are there some that the possession question is to be original claims and added/amended further criteria? Two comments assessed as set forth in In re Alton, 76 claims, arguing that the original claim observed that physical possession is not F.3d 1168, 1176, 37 USPQ2d 1578, 1584 doctrine should exempt originally filed necessary: one must have complete (Fed. Cir. 1996); and that compliance claims from further requirements. conception of the invention in mind. must be assessed on a case-by-case basis Response: The Revised Interim These comments suggested that the given that the question of compliance Guidelines emphasize that a description possession analysis incorporate the with the written description as filed is presumed to be adequate, Supreme Court’s statements in Pfaff v. requirement is one of fact. One unless or until the examiner introduces Wells Electronics, Inc., 525 U.S. 55, 48 comment stated that the test should be sufficient evidence or technical USPQ2d 1641 (1998) (the word whether the inventor had envisioned reasoning to the contrary. The original ‘‘invention’’ must refer to a concept that the embodiments, not that one of skill claim doctrine continues to be viable, is complete: one can prove that an in the art can now envision the but the court has indicated that every invention is complete and ready for embodiments. Another comment stated claim must be supported by sufficient
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While original converge when lack of enablement conclusions before the analytic method claims have an initial presumption of results from undue breadth of claims. and for distorting or bypassing the descriptive support, the applicant One comment stated that a review of the analysis. The same comment said that should show support for new or application is insufficient to establish some of the examples yield illogical amended claims. See, e.g., Manual of the level of predictability in an art. results. Response: The examples have Patent Examining Procedure (MPEP) Another queried if the review is to be been deleted from the Guidelines, and §§ 714.02 and 2163.06 (7th Ed., July done after a search in the art and the analytical method has been clarified. 1998) (‘‘Applicant should * * * assessment of the art. Another comment (16) Comment: The Guidelines were specifically point out the support for stated that the lack of guidance for heavily criticized in ten comments for any amendments made to the distinguishing between predictable and overemphasizing the importance of the disclosure.’’). unpredictable areas within the field of preamble and for indicating that generic (10) Comment: One comment biotechnology leads to confusion. preamble terms such as ‘‘nucleic acid’’ indicated that written description Response: The Revised Interim would need less descriptive support problems may arise where there is an Guidelines reduce the emphasis on than narrower terms such as ‘‘cDNA.’’ inadequate description or predictability because of the confusion One comment objected to the demonstration of possession of a genus with enablement. Instead, the proposition that one may have an or where there is an improper genus (no Guidelines emphasize the knowledge in adequate written description of a genus common structure and function that is the art and the skill of the practitioner of DNA when one does not disclose linked to the practical utility disclosed considered in the totality of the what gene product the DNA encodes by the specification). Another comment circumstances. With respect to the and what that gene product does. This stated that the Guidelines should comment regarding biotechnology, this comment recommended deletion of the address the informational nature of sliding scale will permit broader claims example bridging F.R. 32640–41 (‘‘a nucleic acid sequences and amino acid as the knowledge and skill in this art gene comprising SEQ ID NO: 1’’) as sequences. One comment urged that ‘‘[a] improve. The Guidelines discuss how inconsistent with the rest of the written description of a genus is the general knowledge in the art may be Guidelines. Response: The Revised sufficient when it is described in relied on as evidence of how much Interim Guidelines clarify that the enough detail that possession is description may be needed in particular examiner must consider the claim as a understood,’’ and that the number of cases. whole and that the preamble may be a species relates more to enablement. (13) Comment: Several comments limitation of the claim. Preamble Response: The Revised Interim criticized the methodology of the language is discussed in the context of Guidelines indicate that the written Guidelines because the analytic steps determining what the claim as a whole description requirement for a claimed set out by the court in In re Moore, 439 encompasses within its scope. However, genus may be satisfied through F.2d 1232, 169 USPQ 236 (CCPA 1971) the Revised Interim Guidelines maintain sufficient description of a representative (first determine what the claims cover, that any term may trigger a need for number of species. The revision does then review the specification for more descriptive support because of not require a particular number of support) were reversed. Response: The usage or context. The revision clarifies species to support a genus, but rather Revised Interim Guidelines restate the that during examination claim terms are requires that the species adequately analytic sequence so it is clearly given their broadest reasonable described be representative of the consistent with In re Moore. The interpretation consistent with the claimed genus. revision also makes it clear that each specification. See In re Morris, 127 F.3d (11) Comment: A comment urged that claim must be separately analyzed and 1048, 44 USPQ2d 1023 (Fed. Cir. 1997). the Guidelines should explicitly state given its broadest reasonable The examples have been removed from that the maturation of the technology interpretation in light of and consistent the text of the revision. will increase the understanding of one with the written description. See, e.g., (17) Comment: Four comments skilled in the art, and ease the In re Morris, 127 F.3d 1048, 1054, 44 objected to the Guidelines’ definitions predictable scope of the claimed USPQ2d 1023, 1027 (Fed. Cir. 1997). for the terms gene, mRNA, and cDNA, invention beyond the exemplified (14) Comment: One comment stating that the art often refers only to embodiments, as recognized in the suggested that the Guidelines should the coding portion of the molecules and applicant’s specification. Response: The provide more instruction on the does not necessarily imply the presence Revised Interim Guidelines emphasize different amount of description needed of regulatory elements or recite specific that in a mature art with a high level of to support an essential feature of an structures. One comment further knowledge and skill, less evidence of invention in contrast to a nonessential indicated that adoption of the PTO’s possession is required. feature. The comment explained that new definition of these terms for (12) Comment: One comment objected contrasting the amount of description purposes of written description to the requirement for an assessment of needed to support a novel or considerations could potentially predictability as a touchstone for nonobvious feature of an invention with destabilize the economic infrastructure written description. The comment the amount of description needed for of the biotechnology community described this inquiry as new and features of an invention that were because innumerable patents have lacking case law support. Several known in the prior art would be helpful. issued claiming such molecules without comments stated that predictability is Response: The Revised Interim regard to the PTO’s new interpretation an inquiry relating to the enablement Guidelines distinguish between novel of claim language. The Guidelines were requirement, but not to the written and old elements in a claim to clarify said to use two inconsistent meanings description requirement. Others that the amount of written support for the term gene that differed in scope commented generally that the needed in an application can vary and confused the distinction between
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.137 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71431 genus and species. Response: The ‘‘consisting essentially of’’ language in disclosure. One comment urged that Revised Interim Guidelines no longer DNA or vector claims should not be there is no guidance provided as to what define the term ‘‘gene.’’ rejected as per se improper under 35 would constitute sufficient identifying (18) Comment: One comment U.S.C. 112, ¶ 2. Two comments stated characteristics, and the Guidelines do indicated that the PTO has the that lacking an art-accepted meaning or not set forth the number of the examples opportunity to emphasize the written a definition in the specification, needed for sufficient written description requirement as an anti- ‘‘having’’ would imply an open claim description. Another comment urged submarine patent device; this comment format; another comment stated that that structure, or function plus partial and another observed that two parties ‘‘having’’ is understood to mean structure, or function plus ‘‘some could obtain claims which would be ‘‘comprising.’’ The term ‘‘consisting characteristics’’ (e.g., 2 or more), is almost identical in scope in hindsight, essentially of’’ was defined by one sufficient to meet the written based on completely different paths to comment as a closed claim format that description requirement. Yet another the claim. Response: In Hyatt v. Boone, is essentially limited to the compound comment urged that uncertainties and 146 F.3d 1348, 1353, 47 USPQ2d 1128, or composition defined explicitly potential problems exist because it is 1131 (Fed. Cir. 1998), the Federal following the transitional phrase, and by unclear how ‘‘relevant’’ or ‘‘sufficient’’ Circuit addressed the submarine patent two other comments as having the identifying characteristics are issue in finding that the appellant’s stated sequence and excluding any established; that it is unclear how parent application lacked written alterations which materially change the functional properties fit into the descriptive support for a later added structure and/or function of the analysis; and that problems exist with claim. When an explicit limitation in a specified sequence. One comment the level of uncertainty when the claim ‘‘is not present in the written opined that ‘‘A DNA consisting complete structure is not disclosed or description whose benefit is sought it essentially of SEQ ID NO: 1’’ would be the structure is not disclosed and only must be shown that a person of ordinary limited to DNAs having the nucleotide a few identifying characteristics are skill would have understood, at the time sequence set forth in SEQ ID NO: 1 plus disclosed. Another comment urged that the patent application was filed, that the minor additions at the 5’— and/or 3’ the methodology is incomplete as to description requires that limitation.’’ Id. —ends of the recited sequence. Another how many identifying characteristics (19) Comment: A comment stated that comment observed that the meaning of are required and what characteristics are the Guidelines give too much emphasis ‘‘consisting essentially of’’ depends on relevant for description of a species. to claim structure, as if the claim is the how the specification defines its usage. This comment applied the same sole source of the written description. Response: During examination, the reasoning to the number of species Another comment had a different view, claim as a whole is given the broadest required for describing a genus. One stating that the Guidelines fail to focus reasonable interpretation consistent comment urged that functional on the invention being claimed, and with the specification. Transitional characteristics in combination with noting that in some circumstances, phrases should be given the same certain objectively defined physical failure to provide the structure of a treatment in all cases. The Revised characteristics can serve to characterize gene, enzyme, etc. should not result in Interim Guidelines set forth legally finding that a claim containing it fails to recognized definitions for transition the compound sufficiently to establish meet the written description language in an endnote. ‘‘Consisting possession, even in less developed arts. requirement. Response: The Office gives essentially of’’ is acceptable transition One comment urged that the ability to a claim its broadest reasonable language in nucleic acid and protein predict structure from function is given interpretation during examination. If the claims. The impact of the transition as a standard for the written description claim taken as a whole requires a language on enablement and practical requirement without any citation to limitation not set forth in the original utility will not be dealt with in this authority. Response: The Revised disclosure it may raise an issue of lack forum. Interim Guidelines do not include of proper written description. As noted (22) Comment: One comment examples within the text. The test for in In re Hiniker Co., 150 F.3d 1362, criticized the use of the taxonomic whether sufficient identifying 1369, 47 USPQ2d 1523, 1529 (Fed. Cir. terms ‘‘genus’’ and ‘‘species.’’ The characteristics have been disclosed is 1998), ‘‘the name of the game is the comment explained that because the not a bright-line test, but rather requires claim.’’ terminology is well established in weighing various factors including the (20) Comment: One comment biology, it should not be applied to level of skill and knowledge in the art, indicated that there was not enough chemical compounds. Two comments and the extent to which relevant emphasis on transitional phrases and described the Guidelines as deficient in identifying characteristics are described. their impact on the adequacy of the analyzing the proper relationship of The revision provides more guidance to written description. Response: As with preamble, transitional phrase and claim the examiners by citing as examples the preamble, the transitional phrase is body for distinguishing genus from cases involving mature arts with a high discussed in the context of the scope of species claims. According to another level of skill and knowledge (e.g., Pfaff the claimed invention as a whole. comment, the Guidelines confuse genus v. Wells Electronics, Fonar Corp. v. (21) Comment: The Extension of and species claims. Response: The General Electric Co., 107 F.3d 1543, Comment Period and Notice of Hearing Revised Interim Guidelines refer to the 1549, 41 USPQ2d 1801, 1805 (Fed. Cir. requested comments as to how the terms ‘‘genus’’ and ‘‘species’’ in their 1997) and Vas-Cath v. Mahurkar), as transition terms ‘‘having’’ and well accepted legal sense as widely used well as cases in emerging technologies ‘‘consisting essentially of’’ should be patent terms of art that are recognized where more description is necessary treated within the context of nucleotide as distinct from their use as taxonomic (e.g., Eli Lilly, Amgen v. Chugai, and and amino acid sequence claims. Two terms. The revision clarifies what is Fiers v. Revel). The test remains whether comments observed that transitional meant by genus and species. one of skill in the art, provided with the phrases in the context of nucleotide and (23) Comment: Several comments disclosure, would recognize that the amino acid sequence claims should found the explanations for the examples applicant was in possession of the have the same treatment as in chemical deficient because they do not clarify claimed subject matter when the cases. Another comment stated that what would constitute a sufficient application was filed.
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(24) Comment: The Extension of CFR 1.801 et seq. is evidence of actual distinction is determined by the Comment Period and Notice of Hearing reduction to practice of the biological transitional phrase and body of the requested comments on how the final material. However, a deposit is not a claim, not the preamble. Another Guidelines should address the deposit substitute for a written description of comment stated that the Guidelines of a biological material made under 37 the claimed invention. The Revised provide inadequate guidance as to the CFR 1.801, and comments on the extent Interim Guidelines also address the number of species required to meet the to which a deposit of biological material issue of when a deposit can be relied written description requirement for a may be relied upon to support the upon to correct minor sequencing genus. One comment urged that a addition or correction of sequence errors. However, addition of sequence relevant factor to consider is whether information. Several comments information based on a deposit is not the claims cover embodiments broader expressed the opinion that deposit of a specifically addressed; these than the essential elements of the compound or biological material can be circumstances create issues yet to be embodiments described in the one means of demonstrating possession resolved by the courts, and will be specification as in Gentry Gallery Inc. v. of a specifically claimed compound that resolved on a case-by-case basis in the Berkline, 134 F.3d 1473, 45 USPQ2d has not otherwise been described in a PTO. See, e.g., In re Fisher, 427 F.2d 1498 (Fed. Cir. 1998). According to this complete manner in the specification. 833, 836, 166 USPQ 18, 21 (CCPA 1970). comment, species rarely, if ever, One comment stated that if a gene were (25) Comment: One comment constitute sufficient support for generic cloned but not sequenced, and the explained that associating taxonomic claims unless accompanied by a general vector in question were deposited, the groupings with gene sequences is a disclosure that is commensurate in dated concept because genes are not sequence is an inherent property of the scope with the claims. Response: The distinguishable as to origin. The generic deposited vector and hence the Revised Interim Guidelines follow term ‘‘mammal gene’’ was said to be description requirement would be Federal Circuit case law which requires meaningless, absent an implied process satisfied if the claim referred to the a representative number of species to limitation that the gene was obtained deposit. One comment urged that the satisfy the written description from a mammal. Response: The description requirement may be requirement for a genus. Written examples have been removed from the description is a question of fact, and satisfied by the inherent properties of a revision. However, the training what constitutes a representative disclosed structure, citing Kennecott materials will permit applicants to use number for a genus is a factual Corp. v. Kyocera Int’l Inc., 835 F.2d taxonomic modifiers such as determination left to a case-by-case 1419, 5 USPQ2d 1194 (Fed. Cir. 1987). ‘‘mammalian’’ because the usage is analysis by the examiner. As for the later addition or correction of ubiquitous in the literature and in (28) Comment: One comment urged information, several comments patents and generally has an accepted that general allegations of indicated that actual possession meaning in the art. ‘‘unpredictability in the art’’ are established through a deposit with a (26) Comment: One comment urged insufficient to support a case against the partial characterization (i.e., to correlate that broad functional claims lacking applicant, and that examiners should be the physical description to the material defining structure should not be granted instructed to weigh applicant’s evidence that has been deposited, such as on the basis of a ‘‘not easily of what the description provides to one molecular weight, partial sequence) generalizable disclosure.’’ A different of skill in the art. Response: The should be sufficient to avoid problems comment stated that functional suggestion to clarify that a general with new matter where the information characteristics can be appropriate in all allegation of ‘‘unpredictability in the added to a disclosure is an inherent arts. Comments differed on art’’ is insufficient to support a rejection characteristic of the compound or hybridization, where some held it is a has been adopted. A disclosure as filed composition. One comment indicated proper defining characteristic, and is prima facie adequate. To support a that correcting a sequence based on another stated it is insufficient. rejection, the PTO has the burden of more accurate sequencing of deposited Response: The Revised Interim showing why the applicant’s evidence is material does not introduce new matter. Guidelines do not establish per se rules insufficient. In any case where lack of One comment stated that present genus- regarding functional language. When written description is found, the PTO species concepts should prevent an used appropriately, functional language should cite documentary evidence in applicant from obtaining an unfair may provide an adequate written support of the finding. Where advantage by depositing a large amount description of the claims invention as documentary evidence is not available, of material and then relying on discussed in the Revised Interim technical reasoning, as distinguished inherency; if a variety of materials are Guidelines. from legal reasoning, may support the deposited in a single host, the (27) Comment: Several comments finding when the technical line of specification must adequately describe indicated that the Guidelines present reasoning relates to fact finding how to isolate the intended molecule(s). inadequate guidance with respect to regarding possession of the invention. Two comments expressly stated ‘‘no analyzing written description support (29) Comment: One comment comment’’ with regard to the issue of for genus claims. One comment stated indicated that rejections based on the adding a substantial amount of sequence that the Guidelines provide inadequate enablement and written description information. One comment opined that criteria for selection of appropriate requirements of 35 U.S.C. 112 should be the date of deposit is not controlling genuses. Another comment stated that made separately, and the rejections with regard to the issue of whether the the Guidelines do not provide adequate should not mix standards. Response: written description requirement is met, guidance to determine whether an Examiners are directed to make separate and a second comment observed that In applicant has presented a properly rejections based on the enablement and re Lundak, 773 F.2d 1216, 227 USPQ 90 formed genus, and suggested that ‘‘a written description requirements of 35 (Fed. Cir. 1985), cannot be limited by genus designation should be strictly tied U.S.C. 112. See, e.g., MPEP § 706.03(c) rule. Response: The Revised Interim to the disclosed properties of the (explaining when it is appropriate to use Guidelines indicate that a deposit of a structures being claimed.’’ Another a particular form paragraph for rejecting claimed biological material in comment stated that the Guidelines claims under 35 U.S.C. 112, ¶1) and accordance with the requirements of 37 should clarify that the genus/species MPEP § 2164 (‘‘limitations must be
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The comment also biotechnological inventions, yet the a ‘‘gene’’ requires elements which are observed that examiners may be ill- PTO continues to take a position that not sufficiently described. However, equipped to deal with evaluating the leads away from what the Commissioner claims to ‘‘a DNA comprising SEQ. ID. sufficiency of applicant’s efforts. espouses. Another comment felt that the NO: 1’’ are unlikely to raise a written Response: The training materials will scope of allowed claims would be description issue. The comments do not provide guidance as to how rejections dependent on the examiner; a potential explain why there is a written for lack of an adequate written applicant would not know what sort of description problem for a claim such as description can be overcome. claims could be obtained based on a ‘‘a DNA comprising SEQ. ID. 1’’ when (31) Comment: One comment stated particular disclosure. One comment SEQ. ID. 1 is an EST, while there is no that the Guidelines should instruct opined that applications filed after problem when SEQ. ID. 1 is a whole examiners to pay due regard to the publication of the Guidelines will gene or a gene promoter. The only scientific and commercial realities of probably be much more detailed and difference seems to be the utility of the each individual invention, such that the longer in length. Response: The Revised DNA fragment. scope of the claims is a fair reflection of Interim Guidelines clarify that a written (35) Comment: One comment asserted the applicant’s contribution to the art. description issue should rarely arise for that the scope and level of Response: The scientific and an original claim because such a claim commercial realities of each invention unpredictability of the structure is so is presumed to have adequate large that the person skilled in the art are considered to the extent that they descriptive support. The burden is on impact analysis of a claimed invention could not envisage sufficient species to the examiner to provide evidence or place the genus in possession of the for compliance with Title 35 of the U.S. reasoning in support of any rejection. inventor at the time of filing, and that Code. The Office is bound to follow the Such an approach would not be it should be a rare disclosure that law and cannot make judgment calls as expected to increase the number of supports EST claims broader than the to what is ‘‘a fair reflection of the appeals, nor should it require specific SEQ. ID, even for claims such applicant’s contribution to the art.’’ exhaustive work for meaningful as ‘‘a DNA comprising the EST of SEQ. (32) Comment: While two comments coverage. The Revised Interim ID. NO: 1.’’ The comment also suggested observed that the Guidelines should not Guidelines are intended to promote that claim language that supports the have a significant impact on patents or uniformity, not diminish it. pending or newly filed applications (33) Comment: One comment introduction of an infinite amount of because they are only Guidelines which indicated it is premature to instruct random sequence would require an are not binding on the Board or examiners in the proposed Guidelines immense number of exemplary species. examiners, three comments were of the since they may change dramatically as Several commentators advanced the opinion that the Guidelines would a result of public comment. Three position that disclosure of only a small impact pending and newly filed cases comments stated that the Guidelines fragment does not convey that the by limiting the scope of patent should not be applied until final inventor was in possession of all of the protection. One comment was of the Guidelines have been approved; two of possible molecules or that the inventor opinion that the Guidelines should have these indicated that the Guidelines was in possession of the fragment no impact on issued cases except should only be applied to applications wherever it occurs. Response: A claim reissues, whereas another expected filed after implementation. One such as ‘‘a DNA comprising the EST of many issued patents to be declared comment suggested preparing separate SEQ. ID. NO: 1’’ or ‘‘a gene comprising invalid (more as a result of Eli Lilly than guidance for currently pending the EST of SEQ. ID. NO: 1’’ will be the Guidelines). Another comment applications. Response: Separate analyzed for compliance with the observed that the Guidelines should not guidance is not required for pending written description requirement by impose significant new burdens on applications and applications filed after determining whether the partial patent applicants in the biotechnology implementation of any final Guidelines; structure in combination with any other arts or give rise to a new ‘‘anti- the Guidelines do not establish new law disclosed relevant identifying patenting’’ posture in the biotechnology or rules or impose any additional characteristics are sufficient to show examination group; however, the PTO requirements on applicants. that a skilled artisan would recognize should not be misled into adapting (34) Comment: One comment that the applicant was in possession of ‘‘customer-friendly’’ examination requested that the PTO address the issue the claimed invention as a whole. The standards that do not subject of open-claim language for EST claims Office does not agree with the comment applications to a thorough and rigorous in the final Guidelines because of their that the scope of such an EST claim is examination. One comment opined that importance to the biotechnology necessarily too large to satisfy the the Guidelines will result in a great industry. Several comments stated that written description requirement. The increase in the number of appeals until permitting open-ended language with PTO has issued numerous patents in the the Federal Circuit makes clear that the respect to an EST claim contradicts the past directed to nucleic acids that use law is quite different, thus delaying written description requirement because open-ended language. Although an commercialization of potentially life the common structural features of the applicant presenting an original claim to improving and life saving inventions. EST do not constitute a ‘‘substantial an EST using open-ended claim According to this comment, universities portion of the genus’’ as required by the language with disclosure of only the and small inventors do not have the Eli Lilly case. According to these EST sequence is not in possession of financial support to provide the commentators, a claim such as ‘‘a DNA any arbitrary specific possible molecule exhaustive kind of work the Guidelines comprising SEQ. ID. NO: 1’’ would lack that contains the EST, the applicant may
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In fact, such a view contain a written description of the The claimed invention as a whole may would appear to preclude open-ended invention. * * * ’’ This requirement is not be adequately described if the language for any other polymer. separate and distinct from the claims require an essential or critical However, such open-ended EST claims enablement requirement.1 The written element which is not adequately may not comply with the utility and description requirement has several described in the specification and scope of enablement requirements of 35 policy objectives. ‘‘[T]he ‘essential goal’ which is not conventional in the art.12 U.S.C. 101 and 112. of the description of the invention This problem may arise where an Revised Interim Guidelines for the requirement is to clearly convey the invention is described solely in terms of Examination of Patent Applications information that an applicant has a method of its making coupled with its Under the 35 U.S.C. § 112, ¶ 1 ‘‘Written invented the subject matter which is function and there is no described or art Description’’ Requirement claimed.’’ 2 Another objective is to put recognized correlation or relationship the public in possession of what the between the structure of the invention These revised interim ‘‘Written applicant claims as the invention. The and its function.13 A lack of adequate Description Guidelines’’ are intended to written description requirement of the written description problem also arises assist Office personnel in the Patent Act promotes the progress of the if the knowledge and level of skill in the examination of patent applications for useful arts by ensuring that patentees art would not permit one skilled in the compliance with the written description adequately describe their inventions in art to immediately envisage the product requirement of 35 U.S.C. 112, ¶ 1. This their patent specifications in exchange claimed from the disclosed process.14 revision is based on the Office’s current for the right to exclude others from B. New or Amended Claims understanding of the law and public practicing the invention for the duration comments received in response to the of the patent’s term.3 The proscription against the PTO’s previous request for public To satisfy the written description introduction of new matter in a patent comments on its Interim Written requirement, a patent specification must 15 Description Guidelines and is believed application serves to prevent an describe the claimed invention in applicant from adding information that to be fully consistent with binding sufficient detail that one skilled in the precedent of the U.S. Supreme Court, as goes beyond the subject matter art can reasonably conclude that the 16 well as the U.S. Court of Appeals for the originally filed. Thus, the written inventor had possession of the claimed description requirement prevents an Federal Circuit and its predecessor invention.4 An applicant shows courts. applicant from claiming subject matter possession of the claimed invention by that was not adequately described in the This revision does not constitute describing the claimed invention with specification as filed. New or amended substantive rulemaking and hence does 5 all of its limitations. Possession may be claims which introduce elements or not have the force and effect of law. It 6 shown by actual reduction to practice, limitations which are not supported by is designed to assist Office personnel in or by showing that the invention was the as-filed disclosure violate the analyzing claimed subject matter for ‘‘ready for patenting’’ such as by the written description requirement.17 compliance with substantive law. disclosure of drawings or other While there is no in haec verba Rejections will be based upon the descriptions of the invention that are requirement, newly added claim substantive law, and it is these sufficiently specific to enable a person limitations must be supported in the rejections which are appealable. skilled in the art to practice the specification through express, implicit, Consequently, any perceived failure by 7 invention. A question as to whether a or inherent disclosure. An amendment Office personnel to follow the Revised specification provides an adequate to correct an obvious error does not Interim Guidelines is neither appealable written description may arise in the constitute new matter where one skilled nor petitionable. context of an original claim which is not in the art would not only recognize the These Revised Interim Guidelines are described sufficiently, a new or existence of the error in the intended to form part of the normal amended claim wherein a claim specification, but also the appropriate examination process. Thus, where limitation has been added or removed, correction.18 Office personnel establish a prima facie or a claim to entitlement of an earlier Under certain circumstances, case of lack of written description for a priority date or effective filing date omission of a limitation can raise an claim, a thorough review of the prior art under 35 U.S.C. 119, 120, or 365(c).8 issue regarding whether the inventor and examination on the merits for Compliance with the written had possession of a broader, more compliance with the other statutory description requirement is a question of generic invention.19 A claim that omits requirements, including those of 35 fact which must be resolved on a case- an element which applicant describes as U.S.C. 101, 102, 103, and 112, is to be by-case basis.9 conducted prior to completing an Office an essential or critical feature of the action which includes a rejection for A. Original Claims invention originally disclosed does not lack of written description. Office comply with the written description There is a strong presumption that an 20 personnel are to rely on this revision of adequate written description of the requirement. the guidelines in the event of any claimed invention is present when the The fundamental factual inquiry is inconsistent treatment of issues application is filed.10 However, the whether the specification conveys with involving the written description issue of a lack of adequate written reasonable clarity to those skilled in the requirement between these Revised description may arise even for an art that, as of the filing date sought, Interim Guidelines and any earlier applicant was in possession of the guidance provided from the Office. 1 See Endnotes at end of this notice. invention as now claimed.21
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II. Methodology for Determining review the claims and the entire that which is new or not conventional.37 Adequacy of Written Description specification, including the specific This is equally true whether the claimed embodiments, figures, and sequence invention is directed to a product or a A. Read and Analyze the Specification listings, to understand what applicant process. Normally a reduction to for Compliance With 35 U.S.C. 112, ¶ 1 has identified as the essential drawings will adequately describe the Office personnel should adhere to the distinguishing characteristics of the claimed invention.38 following procedures when reviewing invention. The analysis of whether the An applicant may also show that an patent applications for compliance with specification complies with the written invention is complete by disclosure of the written description requirement of description requirement requires the sufficiently detailed relevant identifying 35 U.S.C. 112, ¶ 1. The examiner has the examiner to determine the characteristics which provide evidence initial burden, after a thorough reading correspondence between what applicant that applicant was in possession of the and evaluation of the content of the has described as the essential claimed invention,39 i.e., complete or application, of presenting evidence or identifying characteristic features of the partial structure, other physical and/or reasons why a person skilled in the art invention, i.e., what the applicant has chemical properties, functional would not recognize that the written demonstrated possession of, and what characteristics when coupled with a description of the invention provides applicant has claimed. Such a review is known or disclosed correlation between support for the claims. There is a strong conducted from the standpoint of one of function and structure, or some presumption that an adequate written skill in the art at the time the combination of such characteristics.40 description of the claimed invention is application was filed,31 and should What is conventional or well known to present in the specification as filed; 22 include a determination of the field of one skilled in the art need not be however, with respect to newly added the invention and the level of skill and disclosed in detail.41 If a skilled artisan or amended claims, applicant should knowledge in the art. Generally, there is would have understood the inventor to show support in the original disclosure an inverse correlation between the level be in possession of the claimed for the new or amended claims.23 of skill and knowledge in the art and the invention at the time of filing, even if Consequently, rejection of an original specificity of disclosure necessary to every nuance of the claims is not claim for lack of written description satisfy the written description explicitly described in the specification, should be rare. The inquiry into requirement. Information which is well then the adequate description whether the description requirement is known in the art does not have to be requirement is met.42 met is a question of fact that must be described in detail in the (1) For each claim drawn to a single determined on a case-by-case basis.24 specification.32 embodiment or species: 43 (a) Determine whether the application 1. For Each Claim, Determine What the 3. Determine Whether There is describes an actual reduction to practice Claim as a Whole Covers Sufficient Written Description To of the claimed invention. Claim construction is an essential part Inform a Skilled Artisan That Applicant (b) If the application does not describe of the examination process. Each claim Was in Possession of the Claimed an actual reduction to practice, must be separately analyzed and given Invention as a Whole at the Time the determine whether the invention is its broadest reasonable interpretation in Application Was Filed complete as evidenced by a reduction to light of and consistent with the written a. Original claims.—Possession may drawings. description.25 The entire claim must be be shown in any number of ways. (c) If the application does not describe considered, including the preamble Possession may be shown by actual an actual reduction to practice or language 26 and the transitional phrase.27 reduction to practice, by a clear reduction to drawings, determine The claim as a whole, including all depiction of the invention in detailed whether the invention has been set forth limitations found in the preamble,28 the drawings which permit a person skilled in terms of distinguishing identifying transitional phrase, and the body of the in the art to clearly recognize that characteristics as evidenced by other claim, must be sufficiently described in applicant had possession of the claimed descriptions of the invention that are the specification to satisfy the written invention, or by a written description of sufficiently detailed to show that description requirement.29 the invention describing sufficient applicant was in possession of the The examiner should evaluate each relevant identifying characteristics such claimed invention. claim to determine if sufficient that a person skilled in the art would (i) Determine whether the application structures, acts, or functions are recited recognize that the inventor had as filed describes the complete structure to make clear the scope and meaning of possession of the claimed invention.33 (or acts of a process) of the claimed the claim, including the weight to be A specification may show actual invention as a whole. The complete given the preamble.30 The absence of reduction to practice by showing that structure of a species or embodiment definitions or details for well- the inventor constructed an typically satisfies the requirement that established terms or procedures should embodiment or performed a process that the description be set forth ‘‘in such not be the basis of a rejection under 35 met all the limitations of the claim, and full, clear, concise, and exact terms’’ to U.S.C. 112, ¶ 1, for lack of adequate determined that the invention would show possession of the claimed written description. Limitations may work for its intended purpose.34 Actual invention.44 If a complete structure is not, however, be imported into the reduction to practice of a biological disclosed, the written description claims from the specification. material may be shown by specifically requirement is satisfied for that species describing a deposit made in accordance or embodiment, and a rejection under 2. Review the Entire Application to with the requirements of 37 C.F.R. 35 U.S.C. 112, ¶ 1 for lack of written Understand What Applicant Has § 1.801 et seq.35 description must not be made. Described as the Essential Features of An applicant may show possession of (ii) If the application as filed does not the Invention an invention by disclosure of drawings disclose the complete structure (or acts Prior to determining whether the that are sufficiently detailed to show of a process) of the claimed invention as disclosure satisfies the written that applicant was in possession of the a whole, determine whether the description requirement for the claimed claimed invention as a whole.36 The specification discloses other relevant subject matter, the examiner should description need only describe in detail identifying characteristics sufficient to
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Complete Patentability in possession of the claimed invention A ‘‘representative number of species’’ Determination Under All Statutory is not a single, simple factual means that the species which are Requirements and Clearly determination, but rather is a adequately described are representative Communicate Findings, Conclusions conclusion reached by weighing many of the entire genus. Thus, when there is and Their Bases factual considerations. Factors to be substantial variation within the genus, considered in determining whether one must describe a sufficient variety of The above only describes how to there is sufficient evidence of species to reflect the variation within determine whether the written possession include the level of skill and the genus. What constitutes a description requirement of 35 U.S.C. knowledge in the art, partial structure, ‘‘representative number’’ is an inverse 112, ¶ 1 is satisfied. Regardless of the physical and/or chemical properties, function of the skill and knowledge in outcome of that determination, Office functional characteristics alone or the art. Satisfactory disclosure of a personnel must complete the coupled with a known or disclosed ‘‘representative number’’ depends on patentability determination under all correlation between structure and whether one of skill in the art would the relevant statutory provisions of Title function, and the method of making the recognize that the applicant was in 35 of the U.S. Code. claimed invention. Disclosure of any possession of the necessary common Once Office personnel have combination of such identifying attributes or features of the elements concluded analysis of the claimed characteristics that distinguish the possessed by the members of the genus invention under all the statutory claimed invention from other materials in view of the species disclosed. In an provisions, including 35 U.S.C. 101, and would lead one of skill in the art unpredictable art, adequate written 112, 102, and 103, they should review to the conclusion that the applicant was description of a genus which embraces all the proposed rejections and their in possession of the claimed species is widely variant species cannot be bases to confirm their correctness. Only sufficient. Patents and printed achieved by disclosing only one species then should any rejection be imposed in publications in the art should be relied within the genus.50 Description of a an Office action. The Office action upon to determine whether an art is representative number of species does should clearly communicate the mature and what the level of knowledge not require the description to be of such findings, conclusions, and reasons and skill is in the art. In most specificity that it would provide which support them. When possible, the technologies which are mature, and individual support for each species that Office action should offer helpful wherein the knowledge and level of the genus embraces.51 If a representative suggestions on how to overcome skill in the art is high, a written number of adequately described species rejections. are not disclosed for a genus, the claim description question should not be A. For Each Claim Lacking Written to that genus must be rejected as lacking raised for original claims even if the Description Support, Reject the Claim adequate written description under 35 specification discloses only a method of Under Section 112, ¶ 1, for Lack of U.S.C. 112, ¶ 1. making the invention and the function Adequate Written Description of the invention.46 In contrast, in b. New claims, amended claims, or emerging and unpredictable claims asserting entitlement to the A description as filed is presumed to technologies, more evidence is required benefit of an earlier priority date or be adequate, unless or until sufficient to show possession. For example, filing date under 35 U.S.C. §§ 119, 120, evidence or reasoning to the contrary disclosure of only a method of making or 365(c).—The examiner has the initial has been presented by the examiner to the invention and the function may not burden of presenting evidence or rebut the presumption.59 The examiner, be sufficient to support a product claim reasoning to explain why persons therefore, must have a reasonable basis other than a product-by-process claim.47 skilled in the art would not recognize in to challenge the adequacy of the written Furthermore, disclosure of partial the original disclosure a description of description. The examiner has the structure without additional the invention defined by the claims.52 initial burden of presenting by a characterization of the product may not However, when filing an amendment an preponderance of evidence why a be sufficient to evidence possession of applicant should show support in the person skilled in the art would not the claimed invention.48 original disclosure for new or amended recognize in an applicant’s disclosure a Any claim to a species that does not claims.53 To comply with the written description of the invention defined by meet the test described under at least description requirement of 35 U.S.C. the claims.60 In rejecting a claim, the one of (a), (b), or (c) must be rejected as 112, ¶ 1, or to be entitled to an earlier examiner must set forth express findings lacking adequate written description priority date or filing date under 35 of fact regarding the above analysis under 35 U.S.C. 112, ¶ 1. U.S.C. 119, 120, or 365(c), each claim which support the lack of written (2) For each claim drawn to a genus: limitation must be expressly,54 description conclusion. These findings The written description requirement implicitly,55 or inherently 56 supported should: for a claimed genus may be satisfied in the originally filed disclosure.57 (1) identify the claim limitation at through sufficient description of a Furthermore, each claim must include issue; and representative number of species by all elements which applicant has (2) establish a prima facie case by actual reduction practice (see (1)(a), described as essential.58 providing reasons why a person skilled above), reduction to drawings (see If the originally filed disclosure does in the art at the time the application was (1)(b), above), or by disclosure of not provide support for each claim filed would not have recognized that the relevant identifying characteristics, i.e., limitation, or if an element which inventor was in possession of the structure or other physical and/or applicant describes as essential or invention as claimed in view of the chemical properties, by functional critical is not claimed, a new or disclosure of the application as filed. A characteristics coupled with a known or amended claim must be rejected under general allegation of ‘‘unpredictability
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.144 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71437 in the art’’ is not a sufficient reason to In addition, early opinions suggest the re Ziegler, 992 F.2d 1197, 1200, 26 USPQ2d support a rejection for lack of adequate Patent and Trademark Office was unwilling 1600, 1603 (Fed. Cir. 1993)), or whether a written description. to find written descriptive support when the specification provides support for a claim When appropriate, suggest only description was found in the claims; corresponding to a count in an interference amendments to the claims which can be however, this viewpoint was rejected. See In (see, e.g., Fields v. Conover, 443 F.2d 1386, re Koller, 613 F.2d 819, 204 USPQ 702 (CCPA 170 USPQ 276 (CCPA 1970)). supported by the application’s written 1980) (original claims constitute their own 9. Vas-Cath, Inc. v. Mahurkar, 935 F.2d at description, being mindful of the description); In re Gardner, 475 F.2d 1389, 1563, 19 USPQ2d at 1116 (Fed. Cir. 1991). prohibition against the addition of new 177 USPQ 396 (CCPA 1973) (accord); In re 10. In re Wertheim, 541 F.2d at 262, 191 matter in the claims or description.61 Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA USPQ at 96. 1976) (accord). It is now well accepted that 11. See endnote 4. B. Upon Reply By Applicant, Again a satisfactory description may be in the 12. For example, consider the claim ‘‘A Determine the Patentability of the claims or any other portion of the originally gene comprising SEQ ID NO: 1.’’ A Claimed Invention, Including Whether filed specification. determination of what the claim as a whole the Written Description Requirement is These early opinions did not address the covers may result in a conclusion that Satisfied by Reperforming the Analysis quality or specificity of particularity that was specific structures such as a promoter, a Described Above in View of the Whole required in the description, i.e., how much coding region, or other elements are Record description is enough. included. Although all genes encompassed 5. Lockwood v. American Airlines, Inc., by this claim share the characteristic of Upon reply by applicant, before 107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 comprising SEQ ID NO: 1, there may be repeating any rejection under 35 U.S.C. (Fed. Cir. 1997). insufficient description of those specific 112, ¶ 1 for lack of written description, 6. An application specification may show structures (e.g., promoters, enhancers, coding review the basis for the rejection in view actual reduction to practice by describing regions, and other regulatory elements) of the record as a whole, including testing of the claimed invention or, in the which are also included. amendments, arguments, and any case of biological materials, by specifically 13. A biomolecule sequence described only describing a deposit made in accordance by a functional characteristic, without any evidence submitted by applicant. If the with 37 CFR 1.801 et seq. 37 CFR 1.804, known or disclosed correlation between that whole record now demonstrates that the 1.809. See also Deposit of Biological function and the structure of the sequence, written description requirement is Materials for Patent Purposes, Final Rule, 54 normally is not a sufficient identifying satisfied, do not repeat the rejection in FR 34,864 (August 22, 1989) (‘‘The characteristic for written description the next Office action. If the record still requirement for a specific identification is purposes, even when accompanied by a does not demonstrate that written consistent with the description requirement method of obtaining the claimed sequence. description is adequate to support the of the first paragraph of 35 U.S.C. 112, and For example, even though a genetic code claim(s), repeat the rejection under 35 to provide an antecedent basis for the table would correlate a known amino acid U.S.C. 112, ¶ 1, fully respond to biological material which either has been or sequence with a genus of coding nucleic will be deposited before the patent is acids, the same table cannot predict the applicant’s rebuttal arguments, and granted.’’ Id. at 34876. ‘‘[T]he description native, naturally occurring nucleic acid properly treat any further showings must be sufficient to permit verification that sequence of a naturally occurring mRNA or submitted by applicant in the reply. the deposited biological material is in fact its corresponding cDNA. Cf. In re Bell, 991 Any affidavits, including those relevant that disclosed. Once the patent issues, the F.2d 781, 26 USPQ2d 1529 (Fed. Cir. 1993), to the 112, ¶ 1, written description description must be sufficient to aid in the and In re Deuel, 51 F.3d 1552, 34 USPQ2d requirement,62 must be thoroughly resolution of questions of infringement.’’ Id. 1210 (Fed. Cir. 1995) (holding that a process analyzed and discussed in the next at 34,880.). Such a deposit is not a substitute could not render the product of that process Office action. for a written description of the claimed obvious under 35 U.S.C. 103). The Federal invention. The written description of the Circuit has pointed out that under United ENDNOTES deposited material needs to be as complete States law, a description that does not render as possible because the examination for a claimed invention obvious cannot 1. See, e.g., Vas-Cath, Inc. v. Mahurkar, patentability proceeds solely on the basis of sufficiently describe the invention for the 935 F.2d 1555, 1560, 19 USPQ2d 1111, 1114 the written description. See, e.g., In re purposes of the written description (Fed. Cir. 1991). Lundak, 773 F.2d 1216, 227 USPQ 90 (Fed. requirement of 35 U.S.C. 112. Eli Lilly, 119 2. In re Barker, 559 F.2d 588, 592 n.4, 194 Cir. 1985). See also 54 FR at 34,880 (‘‘As a F.3d at 1567, 43 USPQ2d at 1405. The fact USPQ 470, 473 n.4 (CCPA 1977). 3. See Regents of the University of general rule, the more information that is that a great deal more than just a process is California v. Eli Lilly, 119 F.3d 1559, 1566, provided about a particular deposited necessary to render a product invention 43 USPQ2d 1398, 1404 (Fed. Cir. 1997), cert. biological material, the better the examiner obvious means that a great deal more than denied, 523 U.S. 1089 (1998). will be able to compare the identity and just a process is necessary to provide written 4. See, e.g., Vas-Cath, Inc. v. Mahurkar, characteristics of the deposited biological description for a product invention. 935 F.2d at 1563, 19 USPQ2d at 1116. Much material with the prior art.’’). Compare Fonar Corp. v. General Electric of the written description case law addresses 7. Pfaff v. Wells Electronics, Inc., 525 U.S. Co., 107 F.3d 1543, 1549, 41 USPQ2d 1801, ll whether the specification as originally filed 55, , 119 S.Ct. 304, 312, 48 USPQ2d 1805 (Fed. Cir. 1997) (‘‘As a general rule, supports claims not originally in the 1641, 1647 (1998). where software constitutes part of a best application. The issue raised in the cases is 8. A description requirement issue can mode of carrying out an invention, most often phrased as whether the original arise for original claims (see, e.g., Eli Lilly, description of such a best mode is satisfied application provides ‘‘adequate support’’ for 119 F.3d 1559, 43 USPQ2d 1398) as well as by a disclosure of the functions of the the claims at issue or whether the material new or amended claims. Most typically, the software. This is because, normally, writing added to the specification incorporates ‘‘new issue will arise in the context of determining code for such software is within the skill of matter’’ in violation of 35 U.S.C. § 132. The whether new or amended claims are the art, not requiring undue experimentation, ‘‘written description’’ question similarly supported by the description of the invention once its functions have been disclosed * * *. arises in the interference context, where the in the application as filed (see, e.g., In re Thus, flow charts or source code listings are issue is whether the specification of one Wright, 866 F.2d 422, 9 USPQ2d 1649 (Fed. not a requirement for adequately disclosing party to the interference can support the Cir. 1989)), whether a claimed invention is the functions of software.’’). newly added claims corresponding to the entitled to the benefit of an earlier priority 14. See, e.g., Fujikawa v. Wattanasin, 93 count at issue, i.e., whether that party can date or effective filing date under 35 U.S.C. F.3d 1559, 1571, 39 USPQ2d 1895, 1905 ‘‘make the claim’’ corresponding to the 119, 120, or 365(c) (see, e.g., Tronzo v. (Fed. Cir. 1996) (a ‘‘laundry list’’ disclosure interference count. E.g., see Martin v. Mayer, Biomet, Inc., 156 F.3d 1154, 47 USPQ2d 1829 of every possible moiety does not constitute 823 F.2d 500, 502, 3 USPQ2d 1333, 1335 (Fed. Cir. 1998); Fiers v. Revel, 984 F.2d a written description of every species in a (Fed. Cir. 1987). 1164, 25 USPQ2d 1601 (Fed. Cir. 1993); In genus because it would not ‘‘reasonably
VerDate 15-DEC-99 20:32 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71438 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices lead’’ those skilled in the art to any particular Johnson Worldwide Associates Inc. v. Zebco depends on the nature of the invention and species); In re Ruschig, 379 F.2d 990, 995, Corp., 175 F.3d 985, 993, 50 USPQ2d 1607, the amount of knowledge imparted to those 154 USPQ 118, 122–23 (CCPA 1967) (‘‘If n- 1613 (Fed. Cir. 1999) (In Gentry Gallery, the skilled in the art by the disclosure). propylamine had been used in making the ‘‘court’s determination that the patent 25. See, e.g., In re Morris, 127 F.3d 1048, compound instead of n-butylamine, the disclosure did not support a broad meaning 1053–54, 44 USPQ2d 1023, 1027 (Fed. Cir. compound of claim 13 would have resulted. for the disputed claim terms was premised 1997). Appellants submit to us, as they did to the on clear statements in the written description 26. ‘‘Preamble language’’ is that language board, an imaginary specific example that described the location of a claim in a claim appearing before the transitional patterned on specific example 6 by which the element—the ‘control means’—as ‘the only phase, e.g., before ‘‘comprising,’’ ‘‘consisting above butyl compound is made so that we possible location’ and that variations were essentially of,’’ or ‘‘consisting of.’’ can see what a simple change would have ‘outside the stated purpose of the invention.’ 27. The transitional term ‘‘comprising’’ resulted in a specific supporting disclosure Gentry Gallery, 134 F.3d at 1479, 45 USPQ2d (and other comparable terms, e.g., being present in the present specification. at 1503. Gentry Gallery, then, considers the ‘‘containing,’’ ‘‘including,’’ and ‘‘having’’) is The trouble is that there is no such situation where the patent’s disclosure makes ‘‘open-ended—it covers the expressly recited disclosure, easy though it is to imagine it.’’). crystal clear that a particular (i.e., narrow) subject matter, alone or in combination with 15. 35 U.S.C. 132 and 251. See also In re understanding of a claim term is an ‘essential unrecited subject matter. See, e.g., Ex parte Rasmussen, 650 F.2d 1212, 1214, 211 USPQ element of [the inventor’s] invention.’ ’’); Davis, 80 USPQ 448, 450 (Bd. App. 1948) 323, 326 (CCPA 1981). See Manual of Patent Tronzo v. Biomet, Inc., 156 F.3d 1154, 1159, (‘‘comprising’’ leaves the ‘‘claim open for the Examining Procedure (MPEP) §§ 2163.06– 47 USPQ2d 1829, 1833 (Fed. Cir. 1998) inclusion of unspecified ingredients even in 2163.07 (7th Ed., July 1998) for a more (claims to generic cup shape were not major amounts’’), quoted with approval in entitled to filing date of parent application detailed discussion of the written description Moleculon Research Corp v. CBS, Inc., 793 requirement and its relationship to new which disclosed ‘‘conical cup’’ in view of the F.2d 1261, 1271, 229 USPQ 805, 812 (Fed. matter. disclosure of the parent application stating Cir. 1986). ‘‘By using the term ‘consisting 16. The claims as filed in the original the advantages and importance of the conical essentially of, ’ the drafter signals that the specification are part of the disclosure and shape.). invention necessarily includes the listed therefore, if an application as originally filed 20. See Gentry Gallery, 134 F.3d at 1480, ingredients and is open to unlisted contains a claim disclosing material not 45 USPQ2d at 1503; In re Sus, 306 F.2d 494, ingredients that do not materially affect the found in the remainder of the specification, 134 USPQ 301 (CCPA 1962) (‘‘[O]ne skilled basic and novel properties of the invention. the applicant may amend the specification to in this art would not be taught by the written A ‘consisting essentially of ’ claim occupies include the claimed subject matter. In re description of the invention in the a middle ground between closed claims that Benno, 768 F.2d 1340, 226 USPQ 683 (Fed. specification that any ‘aryl or substituted aryl Cir. 1985). radical’ would be suitable for the purposes of are written in a ‘consisting of ’ format and 17. See, e.g., In re Lukach, 442 F.2d 967, the invention but rather that only certain aryl fully open claims that are drafted in a 169 USPQ 795 (CCPA 1971) (subgenus range radicals and certain specifically substituted ‘comprising’ format.’’ PPG Industries v. was not supported by generic disclosure and aryl radicals [i.e., aryl azides] would be Guardian Industries, 156 F.3d 1351, 1354, 48 specific example within the subgenus range); suitable for such purposes.’’). A claim which USPQ2d 1351, 1353–54 (Fed. Cir. 1998). For In re Smith, 458 F.2d 1389, 1395, 173 USPQ omits matter disclosed to be essential to the search and examination purposes, absent a 679, 683 (CCPA 1972) (a subgenus is not invention as described in the specification or clear indication in the specification of what necessarily described by a genus in other statements of record may also be the basic and novel characteristics actually encompassing it and a species upon which it subject to rejection under 35 U.S.C. § 112, ¶ 1 are, ‘consisting essentially of ’ will be reads). as not enabling, or under 35 U.S.C. 112, ¶ 2. construed as equivalent to ‘‘comprising.’’ 18. In re Oda, 443 F.2d 1200, 170 USPQ See In re Mayhew, 527 F.2d 1229, 188 USPQ See, e.g., PPG, 156 F.3d at 1355, 48 USPQ at 260 (CCPA 1971). With respect to the 356 (CCPA 1976); In re Venezia, 530 F.2d 1355 (‘‘PPG could have defined the scope of correction of sequencing errors in 956, 189 USPQ 149 (CCPA 1976); and In re the phrase ‘consisting essentially of ’ for applications disclosing nucleic acid and/or Collier, 397 F.2d 1003, 158 USPQ 266 (CCPA purposes of its patent by making clear in its amino acid sequences, it is well know that 1968). See also Reiffin v. Microsoft Corp., 48 specification what it regarded as constituting sequencing errors are a common problem in USPQ2d 1274, 1277 (N.D. Cal. 1998) and a material change in the basic and novel molecular biology. See, e.g., Richterich, MPEP § 2172.01. characteristics of the invention.’’). Peter, ‘‘Estimation of Errors in ‘Raw’ DNA 21. See, e.g., Vas-Cath, Inc., 935 F.2d at 28. See Pac-Tec Inc. v. Amerace Corp., 903 Sequences: A Validation Study,’’ Genome 1563–64, 19 USPQ2d at 1117. F.2d 796, 801, 14 USPQ2d 1871, 1876 (Fed. Research, 8:251–259 (1998). If an application 22. Wertheim, 541 F.2d at 262, 191 USPQ Cir. 1990) (determining that preamble as filed includes sequence information and at 96. language that constitutes a structural references a deposit of the sequenced 23. See MPEP §§ 714.02 and 2163.06 limitation is actually part of the claimed material made in accordance with the (‘‘Applicant should * * * specifically point invention). requirements of 37 CFR 1.801 et seq., out the support for any amendments made to 29. An applicant shows possession of the corrections of minor errors in the sequence the disclosure.’’); and MPEP § 2163.04 (‘‘If claimed invention by describing the claimed may be possible based on the argument that applicant amends the claims and points out invention with all of its essential novel one of skill in the art would have where and/or how the originally filed elements. Lockwood, 107 F.3d at 1572, 41 resequenced the deposited material and disclosure supports the amendment(s), and USPQ2d at 1966. would have immediately recognized the the examiner finds that the disclosure does 30. See, e.g., Bell Communications minor error. Deposits made after the filing not reasonably convey that the inventor had Research, Inc. v. Vitalink Communications date can only be relied upon to provide possession of the subject matter of the Corp., 55 F.3d 615, 620, 34 USPQ2d 1816, support for the correction of sequence amendment at the time of the filing of the 1820 (Fed. Cir. 1995) (‘‘[A] claim preamble information if applicant submits a statement application, the examiner has the initial has the import that the claim as a whole in compliance with 37 CFR 1.804 stating that burden of presenting evidence or reasoning suggests for it.’’); Corning Glass Works v. the biological material which is deposited is to explain why persons skilled in the art Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, a biological material specifically defined in would not recognize in the disclosure a 1257, 9 USPQ2d 1962, 1966 (Fed. Cir. 1989) the application as filed. description of the invention defined by the (The determination of whether preamble 19. See, e.g., Gentry Gallery, Inc. v. claims.’’). recitations are structural limitations can be Berkline Corp., 134 F.3d 1473, 45 USPQ2d 24. See In re Smith, 458 F.2d 1389, 1395, resolved only on review of the entirety of the 1498 (Fed. Cir. 1998) (claims to a section sofa 173 USPQ 679, 683 (CCPA 1972) (‘‘Precisely application ‘‘to gain an understanding of comprising, inter alia, a console and a how close [to the claimed invention] the what the inventors actually invented and control means were held invalid for failing to description must come to comply with § 112 intended to encompass by the claim.’’). satisfy the written description requirement must be left to case-by-case development.’’); 31. See, e.g., Wang Labs. v. Toshiba Corp., where the claims were broadened by In re Wertheim, 541 F.2d at 262, 191 USPQ 993 F.2d 858, 865, 26 USPQ2d 1767, 1774 removing the location of the control means.); at 96 (inquiry is primarily factual and (Fed. Cir. 1993).
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32. See, e.g., Hybritech Inc. v. Monoclonal nuclease. Similarly, isolation of an mRNA 43. A claim which is limited to a single Antibodies, Inc., 802 F.2d 1367, 1379–80, 231 and its expression to produce the protein of disclosed embodiment or species is analyzed USPQ 81, 90 (Fed. Cir. 1986). interest is strong evidence of possession of an as a claim drawn to a single embodiment or 33. Pfaff v. Wells Electronics, Inc., 119 mRNA for the protein. species, whereas a claim which encompasses S.Ct. at 311, 48 USPQ2d at 1646 (‘‘The word Examples of identifying characteristics two or more embodiments or species within ‘invention’ must refer to a concept that is include a sequence, structure, binding the scope of the claim is analyzed as a claim complete, rather than merely one that is affinity, binding specificity, molecular drawn to a genus. See also MPEP § 806.04(e). ‘substantially complete.’ It is true that weight, and length. Although structural 44. 35 U.S.C. 112, ¶ 1. Cf. Fields v. reduction to practice ordinarily provides the formulas provide a convenient method of Conover, 443 F.2d 1386, 1392, 170 USPQ best evidence that an invention is complete. demonstrating possession of specific 276, 280 (CCPA 1971) (finding a lack of But just because reduction to practice is molecules, other identifying characteristics written description because the specification sufficient evidence of completion, it does not or combinations of characteristics may lacked the ‘‘full, clear, concise, and exact follow that proof of reduction to practice is demonstrate the requisite possession. For written description’’ which is necessary to necessary in every case. Indeed, both the example, unique cleavage by particular support the claimed invention). facts of the Telephone Cases and the facts of enzymes, isoelectric points of fragments, 45. For example, if the art has established this case demonstrate that one can prove that detailed restriction enzyme maps, a a strong correlation between structure and an invention is complete and ready for comparison of enzymatic activities, or function, one skilled in the art would be able patenting before it has actually been reduced antibody cross-reactivity may be sufficient to to predict with a reasonable degree of to practice.’’). show possession of the claimed invention to confidence the structure of the claimed 34. Cooper v. Goldfarb, 154 F.3d 1321, one of skill in the art. See Lockwood, 107 invention from a recitation of its function. 1327, 47 USPQ2d 1896, 1901 (Fed. Cir. F.3d at 1572, 41 USPQ2d at 1966 (‘‘written Thus, the written description requirement 1998). See also UMC Elecs. Co. v. United description’’ requirement may be satisfied by may be satisfied through disclosure of States, 816 F.2d 647, 652, 2 USPQ2d 1465, using ‘‘such descriptive means as words, function and minimal structure when there is 1468 (Fed. Cir. 1987) (‘‘[T]here cannot be a structures, figures, diagrams, formulas, etc., a well-established correlation between reduction to practice of the invention * * * that fully set forth the claimed invention’’). structure and function. In contrast, without without a physical embodiment which However, a definition by function alone such a correlation, the capability to recognize includes all limitations of the claim.’’); Estee ‘‘does not suffice’’ to sufficiently describe a or understand the structure from the mere Lauder Inc. v. L’Oreal S.A., 129 F.3d 588, coding sequence ‘‘because it is only an recitation of function and minimal structure 593, 44 USPQ2d 1610, 1614 (Fed. Cir. 1997) indication of what the gene does, rather than is highly unlikely. In this latter case, (‘‘[A] reduction to practice does not occur what it is.’’ Eli Lilly, 119 F.3 at 1568, 43 disclosure of function alone is little more until the inventor has determined that the USPQ2d at 1406. See also Fiers, 984 F.2d at than a wish for possession; it does not satisfy 1169–71, 25 USPQ2d at 1605–06 (discussing invention will work for its intended the written description requirement. See Eli Amgen Inc. v. Chugai Pharmaceutical Co., purpose.’’); Mahurkar v. C.R. Bard Inc., 79 Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406 927 F.2d 1200, 18 USPQ2d 1016 (Fed. Cir. F.3d 1572, 1578, 38 USPQ2d 1288, 1291 (written description requirement not satisfied 1991)). (Fed. Cir. 1996) (determining that the by merely providing ‘‘a result that one might 40. If a claim limitation invokes 35 U.S.C. invention will work for its intended purpose achieve if one made that invention’’) ; In re § 112, ¶ 6, it must be interpreted to cover the may require testing depending on the corresponding structure, materials, or acts in Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, character of the invention and the problem it the specification and ‘‘equivalents thereof.’’ 372–73 (Fed. Cir. 1984) (affirming a rejection solves). See 35 U.S.C. 112, ¶ 6. See also B. Braun for lack of written description because the 35. 37 CFR §§ 1.804, 1.809. See also Medical, Inc. v. Abbott Lab., 124 F.3d 1419, specification does ‘‘little more than outline endnote 6. 1424, 43 USPQ2d 1896, 1899 (Fed. Cir. goals appellants hope the claimed invention 36. See, e.g., Vas-Cath, 935 F.2d at 1565, 1997). If the written description fails to set achieves and the problems the invention will 19 USPQ2d at 1118 (‘‘drawings alone may forth the supporting structure, material or hopefully ameliorate’’). Compare Fonar, 107 provide a ‘written description’ of an acts corresponding to the means-(or step-) F.3d at 1549, 41 USPQ2d at 1805 (disclosure invention as required by § 112’’); In re plus-function, the claim may not meet the of software function adequate in that art). Wolfensperger, 302 F.2d 950, 133 USPQ 537 requirement of 35 U.S.C. 112, ¶ 1. A means- 46. See, e.g., In re Hayes Microcomputer (CCPA 1962) (the drawings of applicant’s (or step-) plus-function claim limitation Products Inc. Patent Litigation, 982 F.2d specification provided sufficient written satisfies 35 U.S.C. 112, ¶ 1 if: (1) The written 1527, 1534–35, 25 USPQ2d 1241, 1246 (Fed. descriptive support for the claim limitation at description links or associates particular Cir. 1992) (‘‘One skilled in the art would issue); Autogiro Co. of America v. United structure, materials, or acts to the function know how to program a microprocessor to States, 384 F.2d 391, 398, 155 USPQ 697, 703 recited in a means-(or step-) plus-function perform the necessary steps described in the (Ct. Cl. 1967) (‘‘[I]n those instances where a claim limitation; or (2) it is clear based on the specification. Thus, an inventor is not visual representation can flesh out words, facts of the application that one skilled in the required to describe every detail of his drawings may be used in the same manner art would have known what structure, invention. An applicant’s disclosure and with the same limitations as the materials, or acts perform the function obligation varies according to the art to specification.’’). recited in a means-(or step-) plus-function which the invention pertains. Disclosing a 37. See Hybritech v. Monoclonal limitation. In considering whether there is 35 microprocessor capable of performing certain Antibodies, 802 F.2d at 1384, 231 USPQ at U.S.C. § 112, ¶ 1 support for the claim functions is sufficient to satisfy the 94; Fonar Corp. v. General Electric Co., 107 limitation, the examiner must consider not requirement of section 112, first paragraph, F.3d at 1549, 41 USPQ2d at 1805 (source only the original disclosure contained in the when one skilled in the relevant art would code description not required). summary and detailed description of the understand what is intended and know how 38. This is especially true for the invention portions of the specification, but to carry it out.’’) mechanical and electrical arts. See, e.g. , Pfaff also the original claims, abstract, and 47. See, e.g. , Fiers v. Revel, 984 F.2d at v. Wells Electronics, 119 S.Ct. at 312, 48 drawings. See the Interim Supplemental 1169, 25 USPQ2d at 1605; Amgen Inc. v. USPQ2d at 1647. Examination Guidelines for Determining the Chugai Pharmaceutical Co., 927 F.2d 1200, 39. For example, the presence of a Applicability of 35 U.S.C. 112 ¶ 6, 64 FR 1206, 18 USPQ2d 1016, 1021 (Fed. Cir. restriction enzyme map of a gene may be 41392 (July 30, 1999). 1991). Where the process has actually been relevant to a statement that the gene has been 41. See Hybritech Inc. v. Monoclonal used to produce the product, the written isolated. One skilled in the art may be able Antibodies, Inc., 802 F.2d at 1384, 231 USPQ description requirement for a product-by- to determine when the gene disclosed is the at 94. process claim is clearly satisfied; however, same as or different from a gene isolated by 42. See, e.g., Vas-Cath, 935 F.2d at 1563, the requirement may not be satisfied where another by comparing the restriction enzyme 19 USPQ2d at 1116; Martin v. Johnson, 454 it is not clear that the acts set forth in the map. In contrast, evidence that the gene F.2d 746, 751, 172 USPQ 391, 395 (CCPA specification can be performed, or that the could be digested with a nuclease would not 1972) (stating ‘‘the description need not be in product is produced by that process. normally represent a relevant characteristic ipsis verbis [i.e., ‘‘in the same words’] to be 48. See, e.g., Amgen Inc. v. Chugai since any gene would be digested with a sufficient’’). Pharmaceutical Co., 927 F.2d 1200, 1206, 18
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USPQ2d 1016, 1021 (Fed. Cir. 1991)(‘‘A gene and therefore meets description requirement SUMMARY: The Patent and Trademark is a chemical compound, albeit a complex of 35 U.S.C. 112.). Office (PTO) requests comments from one, and it is well established in our law that 55. See, e.g., In re Robins, 429 F.2d 452, any interested member of the public on conception of a chemical compound requires 456–57, 166 USPQ 552, 555 (CCPA 1970) the following Revised Utility that the inventor be able to define it so as to (‘‘[W]here no explicit description of a generic Examination Guidelines. The PTO is distinguish it from other materials, and to invention is to be found in the specification describe how to obtain it. Conception does * * * mention of representative compounds publishing a revised version of not occur unless one has a mental picture of may provide an implicit description upon guidelines to be used by Office the structure of the chemical, or is able to which to base generic claim language.’’); In personnel in their review of patent define it by its method of preparation, its re Smith, 458 F.2d 1389, 1395, 173 USPQ applications for compliance with the physical or chemical properties, or whatever 679, 683 (CCPA 1972)(a subgenus is not utility requirement based on comments characteristics sufficiently distinguish it. It is necessarily implicitly described by a genus received in response to the Request for not sufficient to define it solely by its encompassing it and a species upon which it Comments on Interim Guidelines for principal biological property, e.g., encoding reads). Examination of Patent Applications. human erythropoietin, because an alleged 56. See, e.g., In re Robertson, 169 F.3d 743, conception having no more specificity than Under the 35 U.S.C. 112, ¶ 1 ‘‘Written 745, 49 USPQ2d 1949, 1950–51 (Fed. Cir. Description’’ Requirement; Extension of that is simply a wish to know the identity of 1999)(‘‘To establish inherency, the extrinsic any material with that biological property. evidence ‘must make clear that the missing Comment Period and Notice of Hearing. We hold that when an inventor is unable to descriptive matter is necessarily present in 63 FR 50887 (September 23, 1998). envision the detailed constitution of a gene the thing described in the reference, and that These Revised Utility Guidelines will be so as to distinguish it from other materials, it would be so recognized by persons of used by PTO personnel in their review as well as a method for obtaining it, ordinary skill. Inherency, however, may not of patent applications for compliance conception has not been achieved until be established by probabilities or with the ‘‘utility’’ requirement of 35 reduction to practice has occurred, i.e., until possibilities. The mere fact that a certain U.S.C. 101. This revision supersedes the after the gene has been isolated.’’)(citations thing may result from a given set of omitted). In such instances the alleged Utility Examination Guidelines that circumstances is not sufficient.’ ’’) (citations were published at 60 FR 36263 (1995) conception fails not merely because the field omitted). is unpredictable or because of the general 57. When an explicit limitation in a claim and at 1177 O.G. 146 (1995). uncertainty surrounding experimental ‘‘is not present in the written description DATES: Written comments on the sciences, but because the conception is whose benefit is sought it must be shown that Revised Utility Examination Guidelines incomplete due to factual uncertainty that a person of ordinary skill would have will be accepted by the PTO until March undermines the specificity of the inventor’s understood, at the time the patent 22, 2000. idea of the invention. Burroughs Wellcome application was filed, that the description Co. v. Barr Laboratories Inc., 40 F.3d 1223, ADDRESSES: Written comments should requires that limitation.’’ Hyatt v. Boone , 146 be addressed to Box 8, Commissioner of 1229, 32 USPQ2d 1915, 1920 (Fed. Cir. F.3d 1348, 1353, 47 USPQ2d 1128, 1131 1994). Reduction to practice in effect (Fed. Cir. 1998). Patents and Trademarks, Washington, provides the only evidence to corroborate 58. See, e.g., Johnson Worldwide DC 20231, marked to the attention of conception (and therefore possession) of the Associates Inc. v. Zebco Corp., 175 F.3d at Mark Nagumo, or to Box Comments, invention. Id. 993, 50 USPQ2d at 1613; Gentry Gallery, Inc. Assistant Commissioner for Patents, 49. See Eli Lilly, 119 F.3d at 1568, 43 v. Berkline Corp., 134 F.3d at 1479, 45 Washington, DC 20231, marked to the USPQ2d at 1406. USPQ2d at 1503; Tronzo v. Biomet, Inc., 156 attention of Linda S. Therkorn. 50. See, e.g., Eli Lilly. F.3d at 1159, 47 USPQ2d at 1833; and Reiffin Alternatively, comments may be 51. For example, in the genetics arts, it is v. Microsoft Corp., 48 USPQ2d at 1277. unnecessary for an applicant to provide submitted to Mark Nagumo via facsimile 59. See, e.g., In re Marzocchi, 439 F.2d 220, at (703) 305–9373 or by electronic mail enough different species that the disclosure 224, 169 USPQ 367, 370 (CCPA 1971). will permit one of skill to determine the 60. Wertheim, 541 F.2d at 262, 191 USPQ addressed to nucleic acid or amino acid sequence of at 96. ‘‘[email protected]’’; or to Linda another species from the application alone. 61. See In re Rasmussen, 650 F.2d at 1214, Therkorn via facsimile at (703) 305– The stochastic nature of gene evolution 211 USPQ at 326. 8825 or by electronic mail addressed to would make such a predictability nearly 62. See In re Alton, 76 F.3d 1168, 1176, 37 ‘‘[email protected].’’ impossible. Thus, the Federal Circuit could USPQ2d 1578, 1584 (Fed. Cir. 1996). FOR FURTHER INFORMATION CONTACT: not have intended that representative number Dated: December 16, 1999. requires predictability of sequences. Mark Nagumo by telephone at (703) 52. See Wertheim, 541 F.2d at 263, 191 Q. Todd Dickinson, 305–8666, by facsimile at (703) 305– USPQ at 97 (‘‘[T]he PTO has the initial Assistant Secretary of Commerce and 9373, by electronic mail burden of presenting evidence or reasons Commissioner of Patents and Trademarks. ‘‘[email protected],’’ or by mail why persons skilled in the art would not [FR Doc. 99–33053 Filed 12–20–99; 8:45 am] marked to his attention addressed to the recognize in the disclosure a description of BILLING CODE 3510±16±P Commissioner of Patents and the invention defined by the claims.’’). See Trademarks, Box 8, Washington, DC also MPEP § 2163.05. 20231; or Linda Therkorn by telephone 53. See MPEP §§ 714.02 and 2163.06 DEPARTMENT OF COMMERCE at (703) 305–9323, by facsimile at (703) (‘‘Applicant should * * * specifically point 305–8825, by electronic mail at ‘‘linda. out the support for any amendments made to Patent and Trademark Office the disclosure.’’). [email protected],’’ or by mail marked 54. See, e.g., In re Wright, 866 F.2d 422, [Docket No. 991027289±9289±01] to her attention addressed to Box 425, 9 USPQ2d 1649, 1651 (Fed. Cir. Comments, Assistant Commissioner of 1989)(Original specification for method of RIN 0651±AB09 Patents and Trademarks, Washington, forming images using photosensitive DC 20231. microcapsules which describes removal of Revised Utility Examination SUPPLEMENTARY INFORMATION: The PTO microcapsules from surface and warns that Guidelines; Request for Comments requests comments from any interested capsules not be disturbed prior to formation of image, unequivocally teaches absence of AGENCY: Patent and Trademark Office, member of the public on the following permanently fixed microcapsules and Commerce. Revised Utility Examination Guidelines. As of the publication date of this notice, supports amended language of claims ACTION: Notice and request for public this revision will be used by PTO requiring that microcapsules be ‘‘not comments. permanently fixed’’ to underlying surface, personnel in their review of patent
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USPQ 689, 695 (1966) (requiring ordinary skill in the art would 553(b)(A). disclosure of ‘‘specific utility,’’ and of immediately appreciate why the Written comments should include the ‘‘substantial utility,’’ ‘‘where specific invention is useful based on the following information: (1) Name and benefit exists in currently available characteristics of the invention (e.g., affiliation of the individual responding, form’’); accord, In re Ziegler, 992 F.2d properties or applications of a product and (2) an indication of whether the 1197, 1201, 26 USPQ2d 1600, 1603 or process). comments offered represent views of the (Fed. Cir. 1996) (requiring that a specific (b) If the applicant has asserted that respondent’s organization or are and substantial or practical utility for the claimed invention is useful for any respondent’s personal views. the invention be disclosed as a particular practical purpose (i.e., it has Parties presenting written comments condition of meeting the practical utility a ‘‘specific and substantial utility’’) and are requested, where possible, to requirement of § 101). Consequently, a the assertion would be considered provide their comments in machine- number of changes have been made to credible by a person of ordinary skill in readable format in addition to a paper the Utility Examination Guidelines to the art, do not impose a rejection based copy. Such submissions may be clarify the position of the Patent and on lack of utility. provided by electronic mail messages (1) A claimed invention must have a ′′ Trademark Office. Updated training sent over the Internet, or on a 3.5 material will be developed in the specific and substantial utility. This floppy disk formatted for use in a examination corps to address requirement excludes ‘‘throw-away,’’ Macintosh, Windows, Windows for technology-specific issues. ‘‘insubstantial,’’ or ‘‘nonspecific’’ Workgroups, Windows 95, Windows 98, utilities, such as the use of a complex Windows NT, or MS–DOS based II. Guidelines for Examination of invention as landfill, as a way of computer. Applications for Compliance With the satisfying the utility requirement of 35 Written comments will be available Utility Requirement U.S.C. 101. for public inspection on or about April (2) Credibility is assessed from the A. Introduction 19, 2000, in Suite 918, Crystal Park 2, perspective of one of ordinary skill in 2121 Crystal Drive, Arlington, Virginia. The following guidelines establish the the art in view of the disclosure and any In addition, comments provided in policies and procedures to be followed other evidence of record (e.g., test data, machine readable format will be by Office personnel in the evaluation of affidavits or declarations from experts in available through the PTO’s Website at any patent application for compliance the art, patents or printed publications) http://www.uspto.gov. with the utility requirements of 35 that is probative of the applicant’s U.S.C. 101 and 112. These guidelines assertions. An applicant need only I. Discussion of Public Comments have been promulgated to assist Office provide one credible assertion of Comments received by the Office in personnel in their review of specific and substantial utility for each response to the request for public applications for compliance with the claimed invention to satisfy the utility comment on the Interim Written utility requirement. The guidelines do requirement. Description Guidelines regarding the not alter the substantive requirements of (c) If no assertion of specific and patentability of expressed sequence tags 35 U.S.C. 101 and 112, nor are they substantial utility for the claimed (ESTs) suggested the need for revision designed to obviate the examiner’s invention made by the applicant is or clarification of the final Utility review of applications for compliance credible, and the claimed invention Examination Guidelines as published at with all other statutory requirements for does not have a well-established utility, 60 FR 36263 (1995) and 1177 O.G. 146 patentability. reject the claim(s) under section 101 on (1995). All comments have been the grounds that the invention as carefully considered. Many comments B. Examination Guidelines for the claimed lacks utility. Also reject the stated that sufficient patentable utility Utility Requirement claims under § 112, first paragraph, on has not been shown when the sole Office personnel are to adhere to the the basis that the disclosure fails to disclosed use of an EST is to identify following procedures when reviewing teach how to use the invention as other nucleic acids whose utility was patent applications for compliance with claimed. The section 112, first not known, and the function of the the ‘‘useful invention’’ (‘‘utility’’) paragraph, rejection imposed in corresponding gene is not known. requirement of 35 U.S.C. 101 and 112, conjunction with a section 101 rejection Moreover, several comments opined first paragraph. should incorporate by reference the that ESTs are genomic research tools 1. Read the claims and the supporting grounds of the corresponding section that should be available for written description. 101 rejection. unencumbered research to advance the (a) Determine what the applicant has (d) If the applicant has not asserted public good. One comment stated that claimed, noting any specific any specific and substantial utility for asserted utilities for ESTs, such as embodiments of the invention. the claimed invention and it does not mapping the genome or tissue typing, (b) Ensure that the claims define have a well-established utility, impose a would probably not satisfy the statutory subject matter (i.e., a process, rejection under section 101, requirements of 35 U.S.C. 101 if the machine, manufacture, composition of emphasizing that the applicant has not length of the attached DNA sequence matter, or improvement thereof). disclosed a specific and substantial were greatly extended. Other comments 2. Review the claims and the utility for the invention. Also impose a stated that the disclosure of a DNA supporting written description to separate rejection under section 112, sequence alone is insufficient to enable determine if the applicant has asserted first paragraph, on the basis that the scientists to use ESTs for mapping or for the claimed invention any specific applicant has not disclosed how to use tissue typing. Some comments and substantial utility that is credible. the invention due to the lack of a suggested that PTO examination (a) If the invention has a well- specific and substantial utility. The procedures would result in granting established utility, regardless of any sections 101 and 112 rejections shift the
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(2) Provide evidence that one of the art in view of all evidence of record. ordinary skill in the art would have SUMMARY: The Leader, Information recognized that the identified specific Office personnel are reminded that Management Group, Office of the Chief and substantial utility was well they must treat as true a statement of Information Officer invites comments established at the time of filing. The fact made by an applicant in relation to on the submission for OMB review as examiner should review any an asserted utility, unless countervailing required by the Paperwork Reduction subsequently submitted evidence of evidence can be provided that shows Act of 1995. that one of ordinary skill in the art utility using the criteria outlined above. DATES: Interested persons are invited to The examiner should also ensure that would have a legitimate basis to doubt submit comments on or before January there is an adequate nexus between the the credibility of such a statement. 20, 2000. showing and the application as filed. Similarly, Office personnel must accept 3. Any rejection based on lack of an opinion from a qualified expert that ADDRESSES: Written comments should utility should include a detailed is based upon relevant facts whose be addressed to the Office of Information and Regulatory Affairs, explanation why the claimed invention accuracy is not being questioned; it is Attention: Danny Werfel, Desk Officer, has no specific and substantial credible improper to disregard the opinion solely Department of Education, Office of utility. Whenever possible, the examiner because of a disagreement over the should provide documentary evidence Management and Budget, 725 17th significance or meaning of the facts Street, NW, Room 10235, New (e.g., scientific or technical journals, offered. excerpts from treatises or books, or U.S. Executive Office Building, Washington, or foreign patents) to support the factual Once a prima facie showing of no DC 20503 or should be electronically basis for the prima facie showing of no specific and substantial credible utility mailed to the internet address specific and substantial credible utility. has been properly established, the [email protected]. If documentary evidence is not applicant bears the burden of rebutting SUPPLEMENTARY INFORMATION: Section available, the examiner should it. The applicant can do this by 3506 of the Paperwork Reduction Act of specifically explain the scientific basis amending the claims, by providing 1995 (44 U.S.C. Chapter 35) requires for his or her factual conclusions. reasoning or arguments, or by providing that the Office of Management and (a) Where the asserted specific and evidence in the form of a declaration Budget (OMB) provide interested substantial utility is not credible, a under 37 CFR 1.132 or a printed Federal agencies and the public an early prima facie showing of no specific and publication that rebuts the basis or logic opportunity to comment on information substantial credible utility must of the prima facie showing. If the collection requests. OMB may amend or establish that it is more likely than not applicant responds to the prima facie waive the requirement for public that a person skilled in the art would rejection, the Office personnel should consultation to the extent that public not consider credible any specific and review the original disclosure, any participation in the approval process substantial utility asserted by the evidence relied upon in establishing the would defeat the purpose of the applicant for the claimed invention. prima facie showing, any claim information collection, violate State or The prima facie showing must amendments, and nay new reasoning or Federal law, or substantially interfere contain the following elements: evidence provided by the applicant in with any agency’s ability to perform its (1) An explanation that clearly sets support of an asserted specific and statutory obligations. The Leader, forth the reasoning used in concluding Information Management Group, Office that the asserted specific and substantial substantial credible utility. It is essential for Office personnel to recognize, fully of the Chief Information Officer, utility is not credible; publishes that notice containing consider and respond to each (2) Support for factual findings relied proposed information collection substantive element of any response to upon in reaching this conclusion; and requests prior to submission of these (3) An evaluation of all relevant a rejection based on lack of utility. Only requests to OMB. Each proposed evidence of record. where the totality of the record information collection, grouped by (b) Where no specific and substantial continues to show that the asserted office, contains the following: (1) Type utility is disclosed or known, a prima utility is not specific, substantial, and of review requested, e.g., new, revision, facie showing of no specific and credible should a rejection based on extension, existing or reinstatement; (2) substantial utility must establish that it lack of utility be maintained. title; (3) summary of the collection; (4) is more likely than not that a person If the applicant satisfactorily rebuts a description of the need for, and skilled in the art would not be aware of prima facie rejection based on lack of proposed use of, the information; (5) any well-established credible utility that utility under section 101, withdraw the respondents and frequency of is both specific and substantial. collection; and (6) reporting and/or The prima facie showing must § 101 rejection and the corresponding rejection imposed under section 112, recordkeeping burden. OMB invites contain the following elements: public comment. (1) An explanation that clearly sets first paragraph. forth the reasoning used in concluding Dated: December 16, 1999. Dated: December 15, 1999. William E. Burrow, that there is no known well established Q. Todd Dickinson, utility for the claimed invention that is Leader, Information Management Group, Assistant Secretary of Commerce and both specific and substantial; Office of the Chief Information Officer. Commissioner of Patents and Trademarks. (2) Support for factual findings relied [FR Doc. 99–33054 Filed 12–20–99; 8:45 am] Office of Special Education and upon in reaching this conclusion; and Rehabilitative Services (3) An evaluation of all relevant BILLING CODE 3510±16±M evidence of record. Type of Review: Extension.
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Title: Application for grants under DATES: Interested persons are invited to 6 of the Higher Education Act of 1965, Disability and Rehabilitation Research. submit comments on or before January as amended and administered under 34 Frequency: Annually. 20, 2000. CFR Part 654. This information is used Affected Public: Not-for-profit ADDRESSES: Written comments should to monitor the compliance of the state institutions; individuals or households; be addressed to the Office of educational agencies. businesses or other for-profit; State, Information and Regulatory Affairs, Requests for copies of the proposed local, or Tribal Government, SEAs or Attention: Danny Werfel, Desk Officer, information collection request should be LEAs. Department of Education, Office of addressed to Vivian Reese, Department Reporting and Recordkeeping Hour Management and Budget, 725 17th of Education, 400 Maryland Avenue, Burden: Responses: 805. Burden Hours: Street, N.W., Room 10235, New SW, Room 5624, Regional Office 16,100. Executive Office Building, Washington, Building 3, Washington, D.C. 20202– Abstract: The National Institute on D.C. 20503 or should be electronically 4651, or should be electronically mailed Disability and Rehabilitation Research mailed to the internet address to the internet address (NIDRR) provides grants for research [email protected]. [email protected] or should and related activities in Rehabilitation SUPPLEMENTARY INFORMATION: Section be faxed to 202–708–9346. of Individuals with disabilities. The 3506 of the Paperwork Reduction Act of Questions regarding burden and/or grant application package contains 1995 (44 U.S.C. Chapter 35) requires the collection activity requirements program profiles, standard forms, that the Office of Management and should be directed to Joseph Schubart at program regulations, sample rating Budget (OMB) provide interested (202) 708–9266 or via his internet forms, and transmitting instructions. l Federal agencies and the public an early address Joe [email protected]. Applications are primarily institutions opportunity to comment on information Individuals who use a of higher education, but may also collection requests. OMB may amend or telecommunications device for the deaf include hospitals, State Rehabilitation waive the requirement for public (TDD) may call the Federal Information education agencies and voluntary and consultation to the extent that public Relay Service (FIRS) at 1–800–877– profit organizations. 8339. This information collection is being participation in the approval process submitted under the Streamlined would defeat the purpose of the [FR Doc. 99–33078 Filed 12–20–99; 8:45 am] Clearance Process for Discretionary information collection, violate State or BILLING CODE 4000±01±P Grant Information Collections (1890– Federal law, or substantially interfere 0001). Therefore, the 30-day public with any agency’s ability to perform its statutory obligations. The Leader, comment period notice will be the only DEPARTMENT OF ENERGY public comment notice published for Information Management Group, Office of the Chief Information Officer, this information collection. Environmental Management Site- publishes that notice containing Requests for copies of the proposed Specific Advisory Board, Nevada information collection request should be proposed information collection addressed to Vivian Reese, Department requests prior to submission of these AGENCY: Department of Energy. of Education, 400 Maryland Avenue, requests to OMB. Each proposed ACTION: Notice of open meeting. SW, Room 5624, Regional Office information collection, grouped by Building 3, Washington, DC 20202– office, contains the following: (1) Type SUMMARY: This notice announces a 4651, or should be electronically mailed of review requested, e.g. new, revision, meeting of the Environmental to the internet address OCIO l IMG l extension, existing or reinstatement; (2) Management Site-Specific Advisory [email protected] or should be faxed to Title; (3) Summary of the collection; (4) Board (EM SSAB), Nevada Test Site. 202–708–9346. Description of the need for, and The Federal Advisory Committee Act Questions regarding burden and/or proposed use of, the information; (5) (Pub. L. 92–463, 86 Stat. 770) requires the collection activity requirements Respondents and frequency of that public notice of these meetings be should be directed to Sheila Carey at collection; and (6) Reporting and/or announced in the Federal Register. (202) 708–6287 or via her internet Recordkeeping burden. OMB invites DATES: Wednesday, January 5, 2000: 6 address Sheila l [email protected]. public comment. p.m.–9 p.m. Individuals who use a Dated: December 16, 1999. ADDRESSES: Embassy Suites Hotel, 4315 telecommunications device for the deaf William E. Burrow, Swenson Street, Las Vegas, NV. (TDD) may call the Federal Information Leader, Information Management Group, FOR FURTHER INFORMATION CONTACT: Relay Service (FIRS) at 1–800–877– Office of the Chief Information Officer. Kevin Rohrer, U.S. Department of 8339. Office of Postsecondary Education Energy, Office of Environmental [FR Doc. 99–32971 Filed 12–20–99; 8:45 am] Management, P.O. Box 98518, Las Type of Review: Reinstatement BILLING CODE 4000±01±M Vegas, Nevada 89193–8513, phone: Title: Robert C. Byrd Honors 702–295–0197. Scholarship Program Performance SUPPLEMENTARY INFORMATION: DEPARTMENT OF EDUCATION Report Purpose of Frequency: Annually the Board: The purpose of the Advisory Submission for OMB Review; Affected Public: State, Local, or Tribal Board is to make recommendations to Comment Request Gov’t, SEAs or LEAs DOE and its regulators in the areas of Reporting and Recordkeeping Hour environmental restoration, waste AGENCY: Department of Education. Burden: management, and related activities. SUMMARY: The Leader, Information Responses: 1 Tentative Agenda: Management Group, Office of the Chief Burden Hours: 148 1. Presentation and discussion on Information Officer invites comments Abstract: This information is required Stewardship. on the submission for OMB review as of State agencies that administer the 2. Discussion regarding the required by the Paperwork Reduction Robert C. Byrd Honors Scholarship Underground Testing Area Act of 1995. Program under Title IV, Part A, Subpart recommendation and letter.
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3. Review of the SSAB’s comments on SUPPLEMENTARY INFORMATION: Purpose of ADDRESSES: College Hill Library, 3705 the Draft Yucca Mountain the Board: The purpose of the Board is West 112th Avenue, Westminster, CO. Environmental Impact Statement. to make recommendations to DOE and FOR FURTHER INFORMATION CONTACT: Ken Copies of the final agenda will be its regulators in the areas of available at the meeting. environmental restoration, waste Korkia, Board/Staff Coordinator, Rocky Public Participation: The meeting is management, and related activities. Flats Citizens Advisory Board, 9035 open to the public. Written statements Tentative Agenda: North Wadsworth Parkway, Suite 2250, may be filed with the Committee either 1. ‘‘EPA’s Role in Federal Facilities Westminster, CO 80021; telephone (303) before or after the meeting. Individuals Restoration,’’ presented by Mr. Richard 420–7855; fax (303) 420–7579. who wish to make oral statements Green, Director of Waste Management SUPPLEMENTARY INFORMATION: Purpose of pertaining to agenda items should Division, EPA Region 4. the Board: The purpose of the Board is contact Kevin Rohrer, at the telephone Public Participation: The meeting is to make recommendations to DOE and number listed above. Requests must be open to the public. Written statements its regulators in the areas of received 5 days prior to the meeting and may be filed with the Committee either environmental restoration, waste reasonable provision will be made to before or after the meeting. Individuals management, and related activities. include the presentation in the agenda. who wish to make oral statements The Deputy Designated Federal Officer pertaining to agenda items should Tentative Agenda: is empowered to conduct the meeting in contact Carol Davis at the address or 1. Risk Assessments Workshop, with a fashion that will facilitate the orderly telephone number listed above. Bonnie LaVelle of EPA Region VIII. conduct of business. This notice is being Requests must be received 5 days prior 2. Other Board business may be published less than 15 days in advance to the meeting and reasonable provision conducted as necessary. of the meeting due to programmatic will be made to include the presentation issues that needed to be resolved. in the agenda. The Deputy Designated Public Participation: The meeting is Minutes: The minutes of this meeting Federal Official is empowered to open to the public. Written statements will be available for public review and conduct the meeting in a fashion that may be filed with the Board either copying at the Freedom of Information will facilitate the orderly conduct of before or after the meeting. Individuals Public Reading Room, 1E–190, Forrestal business. Each individual wishing to who wish to make oral statements Building, 1000 Independence Avenue, make public comment will be provided pertaining to agenda items should SW, Washington, DC 20585 between a maximum of 5 minutes to present contact Ken Korkia at the address or 9:00 a.m. and 4 p.m., Monday-Friday, their comments at the end of the telephone number listed above. except Federal holidays. Minutes will meeting. Requests must be received at least five also be available by writing to Kevin Minutes: Minutes of this meeting will days prior to the meeting and reasonable Rohrer at the address listed above. be available for public review and provision will be made to include the Issued at Washington, DC on December 16, copying at the Department of Energy’s presentation in the agenda. The Deputy 1999. Information Resource Center at 105 Designated Federal Officer is Rachel M. Samuel, Broadway, Oak Ridge, TN between 7:30 empowered to conduct the meeting in a Deputy Advisory Committee Management a.m. and 5:30 p.m. Monday through fashion that will facilitate the orderly Officer. Friday, or by writing to Carol Davis, conduct of business. Each individual [FR Doc. 99–33046 Filed 12–20–99; 8:45 am] Department of Energy Oak Ridge wishing to make public comment will BILLING CODE 6450±01±P Operations Office, P.O. Box 2001, EM– be provided a maximum of five minutes 90, Oak Ridge, TN 37831, or by calling to present their comments. her at (423) 576–0418. Minutes: The minutes of this meeting DEPARTMENT OF ENERGY Issued at Washington, DC on December 16, will be available for public review and 1999. Environmental Management Site- copying at the Freedom of Information Rachel M. Samuel, Specific Advisory Board, Oak Ridge Public Reading Room, 1E–190, Forrestal Reservation Deputy Advisory Committee Management Building, 1000 Independence Avenue, Officer. SW, Washington, DC 20585 between AGENCY: Department of Energy. [FR Doc. 99–33047 Filed 12–20–99; 8:45 am] 9:00 a.m. and 4:00 p.m., Monday– ACTION: Notice of open meeting. BILLING CODE 6450±01±P Friday, except Federal holidays. Minutes will also be available at the SUMMARY: This notice announces a Public Reading Room located at the meeting of the Environmental DEPARTMENT OF ENERGY Board’s office at 9035 North Wadsworth Management Site-Specific Advisory Parkway, Suite 2250, Westminster, CO Environmental Management Site- Board (EM SSAB) Oak Ridge. The 80021; telephone (303) 420–7855. Hours Specific Advisory Board, Rocky Flats Federal Advisory Committee Act (Pub. of operation for the Public Reading L. 92–463, 86 Stat. 770) requires that AGENCY: Department of Energy. Room are 9:00 a.m. to 4:00 p.m. Monday public notice of these meetings be ACTION: Notice of open meeting. through Friday. Minutes will also be announced in the Federal Register. made available by writing or calling Deb DATES: Wednesday, January 5, 2000: SUMMARY: This notice announces a Thompson at the address or telephone 6:00–9:30 p.m. meeting of the Environmental number listed above. ADDRESSES: Garden Plaza Hotel, 215 Management Site-Specific Advisory South Illinois Street, Oak Ridge, TN. Board (EM SSAB), Rocky Flats. The Issued at Washington, DC on December 16, 1999. FOR FURTHER INFORMATION CONTACT: Federal Advisory Committee Act (Pub. Carol Davis, Federal Coordinator/Ex- L. 92–463, 86 Stat. 770) requires that Rachel M. Samuel, Officio Officer, Department of Energy public notice of these meetings be Deputy Advisory Committee Management Oak Ridge Operations Office, P.O. Box announced in the Federal Register. Officer. 2001, EM–90, Oak Ridge, TN 37831, DATES: Thursday, January 6, 2000: 6 [FR Doc. 99–33048 Filed 12–20–99; 8:45 am] (423) 576–0418. p.m.–9:30 p.m. BILLING CODE 6450±01±P
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DEPARTMENT OF ENERGY opportunities to comment on collections III. Request for Comments of energy information conducted by or Energy Information Administration in conjunction with the EIA. Any Prospective respondents and other comments received help the EIA to interested persons are invited to Agency Information Collection prepare data requests that maximize the comment on the actions discussed in Activities: Proposed Collection; utility of the information collected, and item II. The following guidelines are Comment Request to assess the impact of collection provided to assist in the preparation of comments. AGENCY: Energy Information requirements on the public. Also, the Administration, DOE. EIA will later seek approval by the General Issues: Office of Management and Budget ACTION: Agency information collection (OMB) of the collections under Section A. Is the proposed collection of activities: Proposed collection; comment 3507(h) of the Paperwork Reduction Act information necessary for the proper request. of 1995. performance of the functions of the SUMMARY: The Energy Information The Form EIA–902 collects agency and does the information have Administration (EIA) is soliciting information on shipments of geothermal practical utility? Practical utility is comments on the proposed revision and heat pumps. The survey tracks defined as the actual usefulness of extension of approval to the Form EIA– shipments of the following three main information to or for an agency, taking 902, ‘‘Annual Geothermal Heat Pump types of geothermal heat pumps, as into account its accuracy, adequacy, Manufacturers Survey.’’ classified by the Air Conditioning & reliability, timeliness, and the agency’s Refrigeration Institute (ARI), and the ability to process the information it DATES: Written comments must be much smaller shipped volume of non- submitted on or before February 22, collects. ARI rated systems. A brief description of 2000. If you anticipate difficulty in B. What enhancements can be made the ARI-classified system is as follows: submitting comments within that to the quality, utility, and clarity of the ARI 320—Water-Source Heat Pumps information to be collected? period, contact the person identified (WSHP)—These systems are installed in below as soon as possible. commercial buildings, where a central As a Potential Respondent: ADDRESSES: Send comments to Peter chiller or boiler supplies chilled or A. Are the instructions and Holihan, Energy Information heated water, respectively, to heat definitions clear and sufficient? If not, Administration (EI–52), Forrestal pumps installed in series. The heat which instructions need clarification? Building, U.S. Department of Energy, pumps reject building heat to chilled Washington, D.C. 20585. Alternatively, water during the cooling season and, B. Can information be submitted by Mr. Holihan may be reached by phone during the heating season, take heat the due date? at (202) 426–1147, by e-mail from boiler water. C. Public reporting burden for this [email protected], or by FAX ARI 325—Ground Water-Source Heat collection is estimated to average four (202) 426–1311. Pumps (GWHP)—The GWHP is an hours per response. The estimated FOR FURTHER INFORMATION CONTACT: open-loop system in which ground burden includes the total time, effort, or Requests for additional information or water is drawn from an aquifer or other financial resources expended to copies of the form and instructions natural body of water into piping. At the generate, maintain, retain, disclose and should be directed to Mr. Holihan at the heat pump, heat is drawn from or provide the information. Please address listed above. dumped to the water through a heat comment on the accuracy of the exchanger to the refrigerant in the heat estimate. SUPPLEMENTARY INFORMATION: pump. The heated or cooled water D. The agency estimates respondents I. Background returns to its source. will incur no additional costs for II. Current Actions ARI 330—Ground Source Closed- reporting other than the hours required III. Request for Comments Loop Heat Pumps (GSHP)—A water or to complete the collection. What is the I. Background water/glycol (antifreeze) solution flows estimated: (1) total dollar amount continuously through a closed loop of annualized for capital and start-up The Federal Energy Administration pipe buried underground. Ground heat costs; and (2) recurring annual costs of Act of 1974 (Pub. L. 93–275, 15 U.S.C. is absorbed into or rejected from the operation and maintenance, and 761 et seq.) and the Department of solution flowing in the closed loop. At purchase of services associated with this Energy Organization Act (Pub. L. 95–91, the heat pump, heat is drawn from or data collection? 42 U.S.C. 7101 et seq.) require the dumped to the closed loop solution via E. What additional actions could be Energy Information Administration heat transfer through a heat exchanger, taken to minimize the burden of this (EIA) to carry out a centralized, which passes heat to or removes heat collection of information, including the comprehensive, and unified energy from the refrigerant in the heat pump. use of information technology? For information program. This program Depending on the type of ground and example, should the agency develop collects, evaluates, assembles, analyzes, land area, systems can either be additional electronic methods (e.g., and disseminates information on energy installed horizontally or vertically. resource reserves, production, demand, Data are collected by model type, heat forms and instruction on diskettes, technology, and related economic and pump capacity, region of destination, touch tone data entry, forms that may be statistical information. This information customer type, and economic sector. completed and submitted directly is used to assess the adequacy of energy Respondents are all U.S. geothermal through the Internet, and data resources to meet near and longer term heat pump manufacturers. submission by fax or e-mail) for domestic demands. respondents to submit information? The EIA, as part of its effort to comply II. Current Actions F. Does any other Federal, State, or with the Paperwork Reduction Act of EIA will be requesting a three-year local agency collect similar information? 1995 (Pub. L. 104–13, 44 U.S.C. Chapter extension of Office of Management and If so, specify the agency, the data 35), provides the general public and Budget approval to continue using Form element(s), and the method(s) of other Federal agencies with EIA–902 through 2003. collection.
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As a Potential User: DEPARTMENT OF ENERGY Parties in the new license application proceeding wishing to take part in the A. Is the information useful at the Federal Energy Regulatory conference call may do so by calling levels of detail indicated on the form? Commission (800) 545–4387 on December 21, 1999 B. For what purpose(s) would the and informing the operator that they [Docket No. EG00±13±000] information be used? Be specific. want to be part of the Crane Valley C. Are there alternate sources for the Jones Black River Services, Inc; Notice Project conference call and giving the information and are they useful? If so, of Withdrawal operator the conference call what are their weaknesses and/or identification number M–57609. The December 15, 1999. operator will start accepting requests to strengths? Take notice that on December 2, 1999, be a part of the conference call at 1:45 Comments submitted in response to Jones Black River Services, Inc. p.m. EST prior to the 2 p.m. EST this notice will be summarized and/or withdrew its application for meeting. If you have any questions included in the request for OMB determination of exempt wholesale regarding this notice, please contact approval of the form. They also will generator status filed in the above- Charles Hall at (202) 219–2853 or send become a matter of public record. captioned proceeding. e-mail to [email protected]. Statutory Authority: Section 3506 (c)(2)(A) Any person desiring to be heard Linwood A. Watson, Jr., of the Paperwork Reduction Act of 1995 concerning the application for exempt Acting Secretary. (Pub. L. No. 104–13, 44 U.S.C. Chapter 35). wholesale generator status should file a [FR Doc. 99–32947 Filed 12–20–99; 8:45 am] Issued in Washington, DC, December 15, motion to intervene or comments with BILLING CODE 6717±01±M 1999. the Federal Energy Regulatory Commission, 888 First Street, NE, Jay H. Casselberry, Washington, DC 20426, in accordance DEPARTMENT OF ENERGY Agency Clearance Officer, Statistics and with Rules 211 and 214 of the Methods Group, Energy Information Commission’s Rules of Practice and Federal Energy Regulatory Administration. Procedure (18 CFR 385.211 and Commission [FR Doc. 99–33049 Filed 12–20–99; 8:45 am] 385.214). The Commission will limit its [Docket No. ER99±417±001, et al.] BILLING CODE 6450±01±P consideration of comments to those that concern the adequacy or accuracy of the Virginia Power and Electric Company, application. All such motions and et al.; Electric Rate and Corporate DEPARTMENT OF ENERGY comments should be filed on or before Regulation Filings January 6, 2000, and must be served on Federal Energy Regulatory the applicant. Any person wishing to December 13, 1999. Commission become a party must file a motion to Take notice that the following filings intervene. Copies of this filing are on have been made with the Commission: [Project No. 11614±001] file with the Commission and are 1. Virginia Electric and Power available for public inspection or on the Company Allison Lake Hydro; Notice of Internet at http://www.ferc.fed.us/ Surrender of Preliminary Permit online/rims.htm (please call (202) 208– [Docket No. ER99–417–001] 2222 for assistance). December 15, 1999. Take notice that on November 16, Linwood A. Watson, Jr., 1999, Virginia Electric and Power Take notice that Allison Lake Hydro, Acting Secretary. Company (Virginia Power), tendered for permittee for the proposed Allison Lake [FR Doc. 99–32944 Filed 12–20–99; 8:45 am] filing a refund report as directed by the Project, has requested that its BILLING CODE 6717±01±M Commission’s Order of October 28, 1999 preliminary permit be terminated. The in this proceeding. Under the tendered permit was issued on November 20, refund report, Virginia Power 1998, and would have expired on DEPARTMENT OF ENERGY demonstrated the calculation of the October 31, 2001. The project would amounts collected in excess of the have been located on Allison Lake and Federal Energy Regulatory settlement rates accepted by the Creek in Valdez County, Alaska. Commission Commission, together with interest computed under Section 35.19a of the The permittee filed the request on [Project No. 1354±005] November 15, 1999, and the preliminary Commission’s Regulations. permit for Project No. 11614 shall Pacific Gas & Electric Company; Copies of the filing were served upon remain in effect through the thirtieth Notice of Telephone Conference the Public Service Commission of West day after issuance of this notice unless Virginia, the Virginia State Corporation that day is Saturday, Sunday, or holiday December 15, 1999. Commission and the North Carolina as described in 18 CFR 385.2007, in The Commission staff, U.S. Forest Utilities Commission and all parties of which case the permit shall remain in Service and Pacific Gas & Electric record. effect through the first business day Company (PG&E) will conduct a Comment date: December 27, 1999, in following that day. New applications telephone conference at 2 p.m. Eastern accordance with Standard Paragraph E involving this project site, to the extent Standard Time (EST), on December 21, at the end of this notice. provided for under 18 CFR part 4, may 1999, to update staff on Forest Service 2. California Independent System be filed on the next business day. and PG&E points of view on whether Operator Corporation certain lands should be included within Linwood A. Watson, Jr., the boundary of the Crane Valley Project [Docket No. ER99–4545–001] Acting Secretary. No. 1354 and on how such an issue Take notice that on December 7, 1999, [FR Doc. 99–32951 Filed 12–20–99; 8:45 am] might affect PG&E’s application for new the California Independent System BILLING CODE 6717±01±M license in this proceeding. Operator Corporation (ISO), tendered for
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(PSE), The Notice states that, effective with or the Pool) Participants Committee tendered for filing a Service Agreement Final Settlement Statements published tendered for filing a request for under the provisions of PSE’s market- on December 15, 1999 for Trade Date termination of memberships in based rates tariff, FERC Electric Tariff, October 1, 1999, the ISO will accept NEPOOL, with a retroactive effective First Revised Volume No. 8, with settlement disputes of Incremental date of October 1, 1999, of Barton Southern Company Services, Inc., Changes that occur between Preliminary Village, Inc., Village of Enosburg Falls (Southern). and Final Settlement Statements, in Electric Light Department, Hardwick A copy of the filing was served upon accordance with the terms of Electric Department, Village of Hyde Southern. Comment date: December 27, 1999, in Amendment No. 22 to the ISO Tariff. Park, Village of Jacksonville, Inc., The ISO states that this filing has been Electric Company, The Village of accordance with Standard Paragraph E served on all parties listed on the Ludlow Electric Light Department, at the end of this notice. official service list in the above- Village of Lyndonville Electric 8. Puget Sound Energy, Inc. referenced docket. Department, Village of Morrisville Comment date: December 27, 1999, in Water & Light Department, Northfield [Docket No. ER00–736–000] accordance with Standard Paragraph E Electric Department, Orleans Electric, Take notice that on December 6, 1999, at the end of this notice. Stowe Electric Department and Swanton Puget Sound Energy, Inc. (PSE), Village (collectively, the Terminating tendered for filing a Service Agreement 3. Pacific Gas and Electric Company Vermont Municipals). Such under the provisions of PSE’s market- [Docket No. ER00–657–000] terminations are pursuant to the terms based rates tariff, FERC Electric Tariff, Take notice that on December 6, 1999, of the NEPOOL Agreement dated First Revised Volume No. 8, with Pacific Gas and Electric Company September 1, 1971, as amended, and Southern Company Energy Marketing, (PG&E), tendered for filing errata to its previously signed by the Terminating L.P., (SCEM). November 23, 1999, filing of agreements Vermont Municipals. The NEPOOL A copy of the filing was served upon between PG&E and East Bay Municipal Agreement, as amended (the NEPOOL SCEM. Utility District (EBMUD) providing for Agreement), has been designated Comment date: December 27, 1999, in special facilities and the parallel NEPOOL FPC No. 2. accordance with Standard Paragraph E operation of EBMUD’s Pardee and The Participants Committee requests a at the end of this notice. Camanche Powerhouses and PG&E’s retroactive termination to October 1, 9. California Independent System electrical system. The errata correct 1999 to accommodate to the extent Operator Corporation dates, footnotes and adds missing line possible, given NEPOOL procedural [Docket No. ER00–737–000] diagrams. requirements, the requests made by the Copies of this filing have been served Terminating Vermont Municipals for Take notice that on December 6, 1999, upon EBMUD and the CPUC. early termination of their memberships. the California Independent System Comment date: December 27, 1999, in The Participants Committee states that Operator Corporation (ISO), tendered for accordance with Standard Paragraph E such terminations of the Terminating filing a Participating Generator at the end of this notice. Vermont Municipals will not impact Agreement between El Dorado Energy, LLC (El Dorado) and the ISO for 4. Avista Corporation charges under the NEPOOL Agreement to any other Participant, will have no acceptance by the Commission. [Docket No. ER00–732–000] The ISO states that this filing has been adverse impact on NEPOOL operations served on El Dorado and the California Take notice that on December 6, 1999, or the operations of any continuing Public Utilities Commission. Avista Corporation, tendered for filing Participant, and would not change the The ISO is requesting waiver of the with the Federal Energy Regulatory NEPOOL Agreement in any manner, 60-day notice requirement to allow the Commission pursuant to 18 CFR 35.13, other than to remove the Terminating Participating Generator Agreement to be an unexecuted Service Agreement under Vermont Municipals from membership Avista Corporation’s FERC Electric effective as of November 23, 1999. in the Pool. Comment date: December 27, 1999, in Tariff First Revised Volume No. 10, with Comment date: December 27, 1999, in Public Utility District No. 1 of Pend accordance with Standard Paragraph E accordance with Standard Paragraph E at the end of this notice. Oreille County. The unexecuted Service at the end of this notice. Agreement will be replaced by an 10. California Independent System executed Service Agreement upon 6. Puget Sound Energy, Inc. Operator Corporation approval and receipt from the Public [Docket No. ER00–734–000] Utility District No. 1 of Pend Oreille [Docket No. ER00–738–000] County Commission Board. Take notice that on December 6, 1999, Take notice that on December 6, 1999, Avista Corporation requests waiver of Puget Sound Energy, Inc. (PSE), the California Independent System the prior notice requirements and tendered for filing a Service Agreement Operator Corporation (ISO), tendered for requests an effective date of November under the provisions of PSE’s market- filing a Meter Service Agreement for ISO 10, 1999. based rates tariff, FERC Electric Tariff, Metered Entities between El Dorado Notice of this filing has been served First Revised Volume No. 8, with Energy, LLC (El Dorado) and the ISO for upon Mr. Dick L. Arkills, Director, Tacoma City Light (Tacoma). acceptance by the Commission. Power Supply & Engineering, Pend A copy of the filing was served upon The ISO is requesting waiver of the Oreille PUD. Tacoma. 60-day notice requirement to allow the Comment date: December 27, 1999, in Comment date: December 27, 1999, in Meter Service Agreement for ISO accordance with Standard Paragraph E accordance with Standard Paragraph E Metered Entities to be effective as of at the end of this notice. at the end of this notice. November 23, 1999.
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The ISO states that this filing has been individuals that do not have any considered by the Commission in served on El Dorado and the California ownership interest in a franchised determining the appropriate action to be Public Utilities Commission. electric utility. Canal also does not own taken, but will not serve to make Comment date: December 27, 1999, in or control any transmission facilities protestants parties to the proceeding. accordance with Standard Paragraph E (other than limited interconnection Any person wishing to become a party at the end of this notice. facilities). Canal has no affiliates. must file a motion to intervene. Copies Canal also requested waiver of the 60- of these filings are on file with the 11. Avista Corporation day prior notice requirement to allow Commission and are available for public [Docket No. ER00–739–000] Canal Rate Schedule FERC No. 1 to inspection. This filing may also be Take notice that on December 7, 1999, become effective February 1, 2000. viewed on the Internet at http:// Avista Corporation tendered for filing, Comment date: December 27, 1999, in www.ferc.fed.us/online/rims.htm (call with the Federal Energy Regulatory accordance with Standard Paragraph E 202–208–2222 for assistance). Commission pursuant to 18 CFR 35.13, at the end of this notice. David P. Boergers, an executed Mutual Netting Agreement 14. California Independent System Secretary. allowing for arrangements of amounts Operator Corporation [FR Doc. 99–32943 Filed 12–20–99; 8:45 am] which become due and owing to one BILLING CODE 6717±01±P Party to be set off against amounts [Docket No. ER00–742–000] which are due and owing to the other Take notice that on December 7, 1999, Party with El Paso Power Service the California Independent System DEPARTMENT OF ENERGY Company. Operator Corporation (ISO), tendered for Avista Corporation requests waiver of filing a Scheduling Coordinator Federal Energy Regulatory the prior notice requirement and Agreement between the ISO and Sierra Commission Pacific Power Company (Sierra Pacific) requests an effective date of November [Project No. 349±058] 1, 1999. for acceptance by the Commission. Comment date: December 27, 1999, in The ISO is requesting waiver of the Alabama Power Company; Notice of accordance with Standard Paragraph E 60-day notice requirement to allow the Availability of Environmental at the end of this notice. Scheduling Coordinator Agreement to Assessment be made effective December 1, 1999. 12. Merrill Lynch Capital Services, Inc. The ISO states that this filing has been December 15, 1999. [Docket No. ER00–740–000] served on Sierra Pacific and the In accordance with the National California Public Utilities Commission. Environmental Policy Act of 1969 and Take notice that on December 7, 1999, Comment date: December 27, 1999, in the Federal Energy Regulatory Merrill Lynch Capital Services, Inc., accordance with Standard Paragraph E Commission’s (Commission’s) (MLCS), tendered for filing pursuant to at the end of this notice. regulations, the Office of Hydropower section 35.13 of the Commission’s Licensing has reviewed the application Regulations under the Federal Power 15. PPL Martins Creek, LLC; PPL Montour, LLC; PPL Brunner Island, requesting the Commission’s Act (18 CFR 35.13) and Section 205 of authorization to permit Mr. Donald F. the Commission’s Rules of Practice and LLC; PPL Holtwood, LLC; and PPL Susquehanna, LLC Seibert (permitee) to reconstruct and Procedure (18 CFR 385.205), revisions expand the existing Anchor Bay Marina to its FERC Electric rate Schedule No. 1, [Docket No. ER00–744–000] and has prepared an Environmental the purpose of which is to permit MLCS Take notice that on December 7, 1999, Assessment (EA) for the proposed to resell firm transmission rights. PPL Martins Creek, LLC, PPL Montour, action. Comment date: December 27, 1999, in LLC, PPL Brunner Island, LLC, PPL This 65-year-old facility, formerly accordance with Standard Paragraph E Holtwood, LLC and PPL Susquehanna known as Castaway Island Marina, at the end of this notice. LLC (collectively Applicants), tendered experienced deferred maintenance 13. Canal Emirates Power for filing an Application for Authority to when it was operated by its previous International, Inc. Sell Electric Energy, Capacity and owner. Moreover, 48 of the marina’s 70 Ancillary Services at Market-Based covered wet slips were destroyed, and [Docket No. ER00–741–000] Rates, to Resell Transmission Rights and several of its other structures Take notice that on December 7, 1999, Associated Ancillary Services and for experienced extensive damage in 1995 Canal Emirates Power International, Inc. Acceptance of Power Sales Agreements, as the result of Hurricane Opal. The (Canal) petitioned the Federal Energy in connection with a proposed corporate permitee proposes to implement a three- Regulatory Commission (Commission), realignment of PP&L Resources, Inc. year redevelopment plan that would for acceptance of Canal Rate Schedule Comment date: December 27, 1999, in enable the marina to accommodate 180 FERC No. 1; the granting of certain accordance with Standard Paragraph E boats in the water and an additional 250 blanket approvals, including the at the end of this notice. boats in storage. authority to sell electric energy and Anchor Bay Marina is situated in the capacity and ancillary services at Standard Paragraphs southwestern portion of Lake Martin, market-based rates; and the waiver of E. Any person desiring to be heard or which was formed in 1926 after the certain Commission regulations. to protest such filing should file a completion of Alabama Power Canal owns a 50 MW cogeneration motion to intervene or protest with the Company’s Martin Dam on the facility located in Binghamton, New Federal Energy Regulatory Commission, Tallapoosa River. York. Canal intends to operate that 888 First Street, NE., Washington, DC In the EA, Commission staff does not facility for the purpose of engaging in 20426, in accordance with Rules 211 identify any significant impacts that wholesale sales of electric energy and and 214 of the Commission’s Rules of would result from Commission’s capacity, and ancillary services, to Practice and Procedure (18 CFR 385.211 approval of the proposed marina customers in the restructured New York and 385.214). All such motions or redevelopment. Further, staff finds that electricity market at market-based rates. protests should be filed on or before the Commission-imposed mitigative or The shareholders of Canal are two comment date. Protests will be enhancement measures are not needed
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.071 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71449 at the site to protect the area’s For further information, please online/rims.htm. Call (202) 208–2222 environmental resources. Thus, staff contact the project manager, Mr. Robert for assistance. concludes that approval of the proposed H. Grieve, at (202) 219–2655. For further information, please amendment of license would not Linwood A. Watson, Jr., contact Jim Haimes at (202) 219–2780. constitute a major federal action Acting Secretary. Linwood A. Watson, Jr., significantly affecting the quality of the [FR Doc. 99–32950 Filed 12–20–99; 8:45 am] Acting Secretary. human environment. BILLING CODE 6717±01±M [FR Doc. 99–32949 Filed 12–20–99; 8:45 am] Copies of the EA can be viewed at the BILLING CODE 6717±01±M Commission’s Public Reference Room, Room 2A,888 First Street, NE, DEPARTMENT OF ENERGY Washington, DC 20426, or by calling DEPARTMENT OF ENERGY Federal Energy Regulatory (202) 208–1371. The EA also may be Commission Federal Energy Regulatory viewed on the Web at www.ferc.fed.us/ Commission online/rims.htm. Call (202) 208–2222 [Project No. 2177±037] for assistance. Georgia Power Company; Notice of Notice of Application Accepted For For further information, please Availability of Environmental Filing With The Commission and contact Jim Haimes at (202) 219–2780. Assessment Soliciting Motions To Intervene and Linwood A. Watson, Jr., Protest December 15, 1999. Acting Secretary. In accordance with the National December 15, 1999. [FR Doc. 99–32946 Filed 12–20–99; 8:45 am] Environmental Policy Act of 1969 and Take notice that the following BILLING CODE 6717±01±M the Federal Energy Regulatory hydroelectric application has been filed Commission’s (Commission’s) with the Commission and is available regulations, the Office of Hydropower for public inspection: DEPARTMENT OF ENERGY Licensing has received the application a. Type of Application: Major License. requesting the Commission’s b. Project No.: P–2631–007. Federal Energy Regulatory authorization to permit the Smiths c. Date Filed: August 31, 1999. Commission Water and Sewer Authority (Authority) d. Applicant: International Paper to increase the rate of water withdrawal Company. [Project No. 4718±011] at its existing pumping station at Lake e. Name of Project: Woronoco Oliver reservoir to 8.0 million gallons Hydroelectric Project. Cocheco Falls Associates; Notice of per day and has prepared an f. Location: On the Westfield River in Availability of Draft Environmental Environmental Assessment (EA) for the the Town of Russell, Hampden County, Assessment proposed action. Massachusetts. Existing facilities at the Authority’s g. Filed Pursuant to: Federal Power December 15, 1999. water pumping station are able to Act, 16 U.S.C. 791(a)–825(r). A draft environmental assessment accommodate the increased water h. Applicant Contact: (DEA) is available for public review. withdrawal; consequently, the proposed Ted Lewellyn, P.E., International Paper The DEA is for petitions to revise the action would not require any new Company, Paper Mill Road, Millers license for the Cocheco Falls Project construction activity. Falls, MA 01349, (413) 659–2337 with respect to fish passage. The DEA Lake Oliver, the reservoir formed by Michael K. Chapman, Esq., International recommends reasonable modifications Oliver Dam, is the second of three Paper Company, 6400 Poplar Avenue, to project structures and operation to impoundments that comprise the Memphis, TN 38197, (901) 763–5888 benefit fish passage and that such Middle Chattahoochee Project. The Jon Christensen, Kleinschmidt modifications would not constitute a project’s three developments abut one Associates, 75 Main Street, Pittsfield, major federal action significantly another over a 16-mile-long distance of ME 04967, (207) 487–3328 affecting the quality of the human the Chattahoochee River. i. FERC Contact: Allan Creamer (202) environment. In the EA, Commission staff does not 219–0365 or E-mail at identify any significant impacts that [email protected]. The DEA was written by staff in the would result from Commission’s j. Deadline for Filing Motions to Office of Hydropower Licensing, approval of the proposed additional Intervene and Protest: February 4, 2000. Federal Energy Regulatory Commission. water withdrawal from Lake Oliver k. Status of Environmental Analysis: Copies of the DEA can be viewed in the reservoir. Further, staff finds that This application has been accepted for Reference and Information Center, Commission-imposed mitigative or filing, but is not ready for Room 2A, of the Commission’s Offices enhancement measures are not needed environmental analysis at this time—see at 888 First Street, NE, Washington, DC at the site to protect the area’s attached paragraph E1. 20426. environmental resources. Thus, staff l. Description of Project: The proposed Comments on the DEA are invited. concludes that approval of the proposed run-of-river project would consist of the Any comments, conclusions, or amendment of license would not following features: (1) two non- recommendations that draw upon constitute a major federal action contiguous dam sections, with lengths studies, reports, or other working papers significantly affecting the quality of the of about 307 feet (North dam) and 351 for substance should be supported by human environment. feet (South dam), and a crest elevation appropriate documentation. Comments Copies of the EA can be viewed at the of 229 feet NGVD; (2) a 655-foot-long should be filed within 60 days from the Commission’s Public Reference Room, earthen dike with a sheet steel core; (3) date of this notice with David P. Room 2A, 888 First Street, NE, a 40-foot-wide by 15-foot-high intake Boergers, Secretary, 888 First Street, NE, Washington, DC 20426, or by calling structure, having trashracks with 1.25- Washington, DC 20426, and should (202) 208–1371. The EA also may be inch clear bar spacing; (4) a 550-foot- reference Project No. 4718. viewed on the Web at www.ferc.fed.us/ long penstock; (5) a powerhouse
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.072 pfrm03 PsN: 21DEN1 71450 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices containing three Francis turbines and All filings must (1) bear in all capital and APEA for the Sturgeon Falls Project generating units, having an installed letters the title ‘‘PROTEST’’ or (P–2720–032). capacity of 2,700 kW; (6) a 43-acre ‘‘MOTION TO INTERVENE;’’ (2) set Two public meetings will be held, impoundment that extends forth in the heading the name of the pursuant to the National Environmental approximately 1.2 miles upstream; (7) applicant and the project number of the Policy Act of 1969, to solicit comments an interim downstream fish passage application to which the filing about the Upper Menominee River facility; and (8) appurtenant facilities. responds; (3) furnish the name, address, Basin Projects, the Sturgeon Plant The applicant estimates that the total and telephone number of the person Project, and the Sturgeon Falls Project. average annual generation would be protesting or intervening; and (4) The meetings will be held on approximately 7,700 MWh. No federal otherwise comply with the requirements Wednesday, March 1, 2000, from 1:00 to lands are affected by the proposed of 18 CFR 385.2001 through 385.2005. 4:00 p.m. and from 7:00 to 10:00 p.m. project. Agencies may obtain copies of the The meetings will be at the Premier m. Purpose of Project: The power application directly from the applicant. Center, located at 300 East F Street, Iron generated by the project is sold on the Any of these documents must be filed Mountain, in Iron County, Michigan. local power grid. If the adjacent mill by providing the original and the The public meetings are open to all facilities and the hydro station (both number of copies required by the interested parties. owned by International Paper Company) Commission’s regulations to: The is sold to a manufacture, power Secretary, Federal Energy Regulatory Meeting Procedures generated by the proposed project could Commission, 888 First Street, NE, The public meetings will be be used to run the mill as well as be sold Washington, DC 20426. An additional conducted according to the procedures on the local power grid. copy must be sent to Director, Division used at Commission scoping meetings. o. Availability of Application: A copy of Project Review, Office of Hydropower The public meetings will be recorded by of the application is available for Licensing, Federal Energy Regulatory a stenographer and, thereby, will inspection and reproduction at the Commission, at the above address. A become a part of the formal record of the Commission’s Public Reference and copy of any protest or motion to proceedings. Individuals presenting Files and Maintenance Branch, located intervene must be served upon each statements at the meetings will be asked at 888 First Street, NE, Room 2–A, representative of the applicant specified to identify themselves for the record. Washington, DC 20426, or by calling in the particular application. Concerned parties are encouraged to (202) 219–1371. A copy of the Linwood A. Watson, Jr., offer verbal guidance during public application may be viewed or printed by Acting Secretary. meetings. Speaking time allowed for accessing the Commission’s website at [FR Doc. 99–32945 Filed 12–20–99; 8:45 am] individuals will be determined at the http://www.ferc.fed.us/online/rims.htm, BILLING CODE 6717±01±M beginning of each meeting, based on the or call (202) 208–2222 for assistance. number of persons wishing to speak and Copies are also available for inspection the approximate amount of time and reproduction at International Power DEPARTMENT OF ENERGY available for the session, but all Company, Paper Mill Road, Millers speakers will be provided at least ten Federal Energy Regulatory Falls, Massachusetts 01349 and through minutes to present their views. Commission the Town of Russell, Robert P. Drake, Persons choosing not to speak but Chairman, Board of Selectman, Town of [Project Nos. 1980±009 and 1759±036 et al.] wishing to express an opinion, as well Russell, Russell, Massachusetts 01071. as speakers unable to summarize their Protests or Motions to Intervene— Notice of Public Meetings; Wisconsin positions within the allotted time, may Anyone may submit a protest or a Electric Power Co. and Norway, WI; submit written statements for inclusion motion to intervene in accordance with Upper Menominee River Basin Projects in the public record. the requirements of Rules of Practice Written public comments may also be and Procedure, 18 CFR 385.210, December 15, 1999. mailed to the Secretary, Federal Energy 385.211, and 385.214. In determining In the matter of: Wisconsin Electric Power Regulatory Commission, 888 First the appropriate action to take, the Company; Project Nos. 1980–009, 1759–036, 2072–008, 2073–008, 2074–007, 2131–020, Street, NE, Washington, DC 20426, by Commission will consider all protests 11830–000, and 11831–000. Upper March 10, 2000. Correspondence should filed, but only those who file a motion Menominee River Basin Hydroelectric clearly show the following caption on to intervene in accordance with the Projects; Project No. 2471–005, Sturgeon the first page for each separate Commission’s Rules may become a Plant Project: City of Norway; Project No. proceeding: (1) Public Meeting party to the proceeding. Any protests or 2720–032, Sturgeon Falls Project; Notice of Comments, Upper Menominee River motions to intervene must be received Public Meetings. Basin Hydroelectric Projects, FERC Nos. on or before the specified deadline date Pursuant to the Energy Policy Act of 1980–009, 1759–036, 2072–008, 2073, for the particular application. 1992, and as part of the license 2074–007, 2131–020, 11830–000, and Filing and Service of Responsive applications, Wisconsin Electric Power 11831–000; (2) Public Meeting Documents—The application is not Company (hereinafter, referred to as Comments, Sturgeon Plant Project, ready for environmental analysis at this ‘‘WE’’) prepared an Applicant-Prepared FERC No. 2471–005; or (3) Public time; therefore, the Commission is not Environmental Assessment (APEA) for Meeting Comments, Sturgeon Falls now requesting comments, the Upper Menominee River Basin Project, FERC No. 2720–032. recommendations, terms and Projects and filed it with the Federal conditions, or prescriptions. Energy Regulatory Commission For further information, please When the application is ready for (Commission) on October 1, 1999. WE contact Ms. Patti Leppert-Slack at the environmental analysis, the also filed with the Commission a Commission, (202) 219–2767. Commission will issue a public notice surrender application and APEA for the Linwood A. Watson, Jr., requesting comments, Sturgeon Plant Project (P–2471–005). Acting Secretary. recommendations, terms and The City of Norway filed with the [FR Doc. 99–32948 Filed 12–20–99; 8:45 am] conditions, or prescriptions. Commission an amendment of license BILLING CODE 6717±01±M
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ENVIRONMENTAL PROTECTION Abstract: The goal of the SunWise EPA’s regulations are listed in 40 CFR AGENCY School Program is to teach children and part 9 and 48 CFR Chapter 15. their care givers how to protect EPA would like to solicit comments [FRL±6512±8] themselves from overexposure to the to: Agency Information Collection sun. The SunWise School Program (i) Evaluate whether the proposed Activities: Proposed Collection; recognizes the challenge of measuring collection of information is necessary Comment Request; the SunWise the progress and evaluating the for the proper performance of the School Program effectiveness of an environmental and functions of the agency, including public health education program where whether the information will have AGENCY: Environmental Protection the ultimate goal is to reduce risk and practical utility; Agency (EPA). improve public health. Therefore, the (ii) Evaluate the accuracy of the ACTION: Notice. continual and careful evaluation of agency’s estimate of the burden of the program effectiveness through a variety proposed collection of information, SUMMARY: In compliance with the of means, including data from pre- and including the validity of the Paperwork Reduction Act (44 U.S.C. post-intervention surveys, tracking and methodology and assumptions used; 3501 et seq.), this document announces monitoring of classroom activities and (iii) Enhance the quality, utility, and that EPA is planning to submit the school policies, and advisory board clarity of the information to be following proposed Information meetings, is necessary to monitor collected; and Collection Request (ICR) to the Office of progress and refine the program. (iv) Minimize the burden of the Management and Budget (OMB): The Surveys to be developed and collection of information on those who SunWise School Program, Stratospheric administered include: (1) Student are to respond, including through the Protection Division, EPA ICR No. survey to identify current sun safety use of appropriate automated electronic, 1904.01. Before submitting the ICR to knowledge and behaviors among mechanical, or other technological OMB for review and approval, EPA is students; (2) Parent survey to compare collection techniques or other forms of soliciting comments on specific aspects findings with those of their children as information technology, e.g., permitting of the proposed information collection well as to draw comparisons with the electronic submission of responses. as described below. benchmarks established in other Burden Statement: Burden means the DATES: Comments must be submitted on national surveys; (3) Teacher total time, effort, or financial resources or before February 22, 2000. questionnaire for measuring their expended by persons to generate, ADDRESSES: Office of Atmospheric receptivity to the educational maintain, retain, or disclose or provide Programs, Stratospheric Protection component of the Program; and (4) information to or for a Federal agency. Division, U.S. Environmental Protection School administrator questionnaire to This includes the time needed to review Agency, 401 M Street, SW (6205J), show receptivity to the SunWise School instructions; develop, acquire, install, Washington, DC 20460. Program and its standards, such as the and utilize technology and systems for FOR FURTHER INFORMATION CONTACT: educational component, proposed the purposes of collecting, validating, Kristin Kenausis, (202) 564–2289, (202) policy changes, and school practices and verifying information, processing 565–2095 (fax), with the Program. The data will be and maintaining information, and [email protected] or visit the analyzed and results will indicate the disclosing and providing information; SunWise website at www.epa.gov/ Program’s effect on participants’ sun- adjust the existing ways to comply with sunwise. protection attitudes and behaviors. any previously applicable instructions SUPPLEMENTARY INFORMATION: Responses to the collection of and requirements; train personnel to be Affected entities: Entities potentially information are voluntary. All responses able to respond to a collection of affected by this action are elementary to the collection of information remain information; search data sources; and middle school students, parents, anonymous and confidential. An agency complete and review the collection of teachers (SIC Div. I: Group 8211), and may not conduct or sponsor, and a information; and transmit or otherwise school administrators (SIC Div. I: Group person is not required to respond to, a disclose the information. The SunWise 8211). collection of information unless it School Program will conduct four Title: SunWise School Program; EPA displays a currently valid OMB control different surveys, targeting four distinct ICR No. 1904.01. number. The OMB control numbers for audiences.
(B) (C) (D) (A) Total hours Rate per hour Total cost Number to be surveyed annually burden ($) (D=B*C)
3,000 Students ...... 3,000 0 0 1,000 Teachers ...... 500 $36.88 $18,440.00 1,000 Parents ...... 250 20.29 5,072.50 1,000 School Administrators ...... 250 35.18 8,795.00
Total (Annual) ...... 4,000 ...... 32,307.50
ICR Total (3 years) ...... 12,000 ...... 96,922.50
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Dated: December 14, 1999. of interest to those persons who are #2, 1921 Jefferson Davis Highway, Drusilla Hufford, technical experts in human allergenicity Arlington, VA, from 8:30 a.m. to 4 p.m., Director, Stratospheric Protection Division. or those persons who may be required Monday through Friday, excluding legal [FR Doc. 99–33032 Filed 12–20–99; 8:45 am] to conduct testing to assess the potential holidays. The PIRIB telephone number BILLING CODE 6560±50±P for the allergenicity of non-digestible is (703) 305–5805. proteins expressed as plant-pesticides C. How and to Whom Do I Submit under the Federal Food, Drug and Comments? ENVIRONMENTAL PROTECTION Cosmetic Act (FFDCA), or the Federal AGENCY Insecticide, Fungicide, and Rodenticide You may submit comments through Act (FIFRA). Since other entities may the mail, in person, or electronically. To [PF±867A; FRL±6098±2] also be interested, the Agency has not ensure proper receipt by EPA, it is attempted to describe all the specific imperative that you identify docket Allergenicity Assessment of Cry9C BT control number PF–867A in the subject Corn Plant Pesticide entities that may be affected by this action. If you have any questions line on the first page of your response. AGENCY: Environmental Protection regarding the applicability of this action 1. By mail. Submit your comments to: Agency (EPA). to a particular entity, consult the person Public Information and Records ACTION: Notice. listed in the ‘‘FOR FURTHER Integrity Branch (PIRIB), Information INFORMATION CONTACT’’ section. Resources and Services Division SUMMARY: The Agency is soliciting input (7502C), Office of Pesticide Programs on the assessment of the potential for B. How Can I Get Additional (OPP), Environmental Protection allergenicity of non-digestible proteins Information, Including Copies of this Agency, 401 M St., SW., Washington, expressed as plant-pesticides. The Document and Other Related DC 20460. specific case in question concerns the Documents? 2. In person or by courier. Deliver Cry9C insecticidal protein derived from 1. Electronically. You may obtain your comments to: Public Information Bacillus thuringiensis and expressed in electronic copies of this document, and and Records Integrity Branch (PIRIB), field corn. In addition to EPA data certain other related documents Information Resources and Services evaluation records, the Agency is asking (including copies of EPA’s data Division (7502C), Office of Pesticide for comment on questions within an evaluation records, and the list of Programs (OPP), Environmental EPA background document regarding questions regarding allergenicity) that Protection Agency, Rm. 119, Crystal the use of amino acid homology, the might be available electronically, from Mall #2, 1921 Jefferson Davis Highway, brown Norway rat model, and other the EPA’s Biopesticide Internet Home Arlington, VA. The PIRIB is open from items regarding the assessment for Page at http:/ /www.epa.gov/pesticides/ 8:30 a.m. to 4 p.m., Monday through potential allergenicity. This issue will biopesticides. To access this document, Friday, excluding legal holidays. The also be one of the subjects of a FIFRA on the Home Page select ‘‘Laws and PIRIB telephone number is (703) 305– Science Advisory Panel (SAP) meeting Regulations’’ and then look up the entry 5805. in early February, 2000. for this document under the ‘‘Federal 3. Electronically. You may submit DATES: Comments, identified by docket Register--Environmental Documents.’’ your comments electronically by E-mail control number PF–867A, must be You can also go directly to the Federal to: ‘‘[email protected],’’ or you can received on or before February 22, 2000. Register listings at http://www.epa.gov/ submit a computer disk as described The actual meeting date and other fedrgstr. above. Do not submit any information details will be announced in a 2. In person. The Agency has electronically that you consider to be subsequent Federal Register established an official record for this CBI. Avoid the use of special characters publication. action under docket control number PF– and any form of encryption. Electronic ADDRESSES: Comments may be 867A. The official record consists of the submissions will be accepted in submitted by mail, electronically, or in documents specifically referenced in WordPerfect 6.1/8.0 or ASCII file person. Please follow the detailed this action (including copies of EPA’s format. All comments in electronic form instructions for each method as health effects reviews, the list of must be identified by docket control provided in Unit I. of the selected technical experts that comprise number PF–867A. Electronic comments ‘‘SUPPLEMENTARY INFORMATION.’’ the technical peer review committee, may also be filed online at many Federal To ensure proper receipt by EPA, it is and the list of questions regarding Depository Libraries. imperative that you identify docket allergenicity), any public comments received during an applicable comment D. How Should I Handle CBI that I Want control number PF–867A in the subject to Submit to the Agency? line on the first page of your response. period, and other information related to this action, including any information Do not submit any information FOR FURTHER INFORMATION CONTACT: John claimed as confidential business electronically that you consider to be Kough or Mike Mendelsohn, OPP/ BPPD information (CBI). This official record CBI. You may claim information that (751lC), Environmental Protection includes the documents that are you submit to EPA in response to this Agency, 401 M St., SW., Washington, physically located in the docket, as well document as CBI by marking any part or DC 20460; telephone number: (703) 308 as the documents that are referenced in all of that information as CBI. 8267 or (703) 308–8715; tax number: those documents. The public version of Information so marked will not be (703) 308–7026; e-mail address: the official record does not include any disclosed except in accordance with [email protected] or information claimed as CBI. The public procedures set forth in 40 CFR part 2. mendelsohn.mike @epa.gov. version of the official record, which In addition to one complete version of SUPPLEMENTARY INFORMATION: includes printed, paper versions of any the comment that includes any I. General Information electronic comments submitted during information claimed as CBI, a copy of an applicable comment period, is the comment that does not contain the A. Does this Action Apply to Me? available for inspection in the Public information claimed as CBI must be This action is directed to the public Information and Records Integrity submitted for inclusion in the public in general. This action may, however, be Branch (PIRIB), Rm. 119, Crystal Mall version of the official record.
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Information not marked confidential B. What is the Agency’s Authority for ADDRESSES: Written comments should will be included in the public version Taking this Action? be sent to Jan M. Tierney, Air and of the official record without prior The Agency is soliciting input to aid Radiation Law Office (2344–A), Office notice. If you have any questions about in determining whether there is a of General Counsel, U.S. Environmental CBI or the procedures for claiming CBI, reasonable certainty of no harm for the Protection Agency, 401 M Street, SW, please consult the person identified in proposed expansion of the exemption Washington, DC 20460. Copies of the the ‘‘FOR FURTHER INFORMATION from the requirement of a tolerance proposed consent decree are available CONTACT’’ section. under the Federal Food, Drug and from Phyllis J. Cochran, (202) 564–7606. A copy of the proposed consent decree E. What Should I Consider as I Prepare Cosmetic Act (FFDCA). was lodged with the Clerk of the United My Comments for EPA? List of Subjects States District Court for the District of You may find the following Environmental protection, Pesticides Columbia on December 1, 1999. suggestions helpful for preparing your and pests. SUPPLEMENTARY INFORMATION: NRDC comments: alleges that EPA has a mandatory duty Dated: December 9, 1999. • Explain your views as clearly as to promulgate federal implementation possible. Janet L. Andersen, plans (FIPs) and impose sanctions on 10 • nonattainment areas located in 13 States Describe any assumptions that you Director, Biopesticides and Pollution used. Prevention Division, Office of Pesticide and the District of Columbia. There are four areas that are classified as serious • Provide copies of any technical Programs. ozone nonattainment areas for the 1- information and/or data you used that [FR Doc. 99–32871 Filed 12–17–99; 9:17 am] hour ozone standard: Greater support your views. BILLING CODE 6560±50±F • Connecticut located in Connecticut; If you estimate potential burden or Metropolitan Washington located in costs, explain how you arrived at the Washington, DC, Maryland and estimate that you provide. ENVIRONMENTAL PROTECTION Virginia; Springfield/Western • Provide specific examples to AGENCY Massachusetts located in Massachusetts; illustrate your concerns. and Atlanta located in Georgia. There [FRL±6511±9] • Offer alternative ways to improve are six areas classified as severe ozone the rule or collection activity. Proposed Settlement Agreement, nonattainment for the 1-hour ozone • Make sure to submit your comments Clean Air Act Citizen Suit standard: New York-Northern New by the deadline in this notice. Jersey-Long Island located in AGENCY: Environmental Protection • To ensure proper receipt by EPA, be Connecticut, New York and New Jersey; Agency. sure to identify the docket control Philadelphia-Wilmington-Trenton number assigned to this action in the ACTION: Notice of Proposed Consent located in Pennsylvania, Delaware, subject line on the first page of your Decree; Request for Public Comment. Maryland, and New Jersey; Baltimore response. You may also provide the located in Maryland; Houston- SUMMARY: In accordance with section Galveston-Brazoria located in Texas; name, date, and Federal Register 113(g) of the Clean Air Act, as amended citation. Chicago-Gary-Lake County located in (‘‘Act’’), 42 U.S.C. 7413(g), notice is Illinois and Indiana; and Milwaukee- II. Background hereby given of a proposed partial Racine located in Wisconsin. consent decree, which was lodged with A. What Action is the Agency Taking? The proposed partial consent decree the United States District Court for the provides, in part, that EPA will On April 7, 1999, EPA announced the District of Columbia by the United promulgate full attainment FIPs by May receipt of a pesticide petition (PP States Environmental Protection Agency 15, 2001 for the serious areas without 9F5050) (64 FR 16965) (FRL–6069–8) (‘‘EPA’’) on December 1, 1999, to fully approved attainment from AgrEvo USA Company. The address a lawsuit filed by the Natural demonstration SIPs as of that date and petition, 9F5050, proposed an Resources Defense Council, will promulgate full attainment amendment to 40 CFR 180.1192 to Environmental Defense Fund, demonstration FIPs by June 14, 2002 for expand the current exemption from the Conservation Law Foundation, Clean the severe areas without fully approved requirement of a tolerance for Bacillus Air Council, Natural Resources Council attainment demonstration SIPs as of that thuringiensis subspecies tolworthi of Maine, and Sierra Club (collectively date. In addition, the consent decree Cry9C protein and the genetic material referred to as ‘‘NRDC’’). This lawsuit, provides for the FIP promulgation dates necessary for its production in corn which was filed pursuant to section to be advanced (to February 28, 2001 for from corn used for feed only (and 304(a) of the Act, 42 U.S.C. 7604(a), serious areas and July 31, 2001 for associated residues in meat, poultry, addresses EPA’s alleged failure to meet severe areas) if by May 31, 2000, EPA milk, or eggs resulting from animals fed a mandatory deadline under section does not either (1) find that for purposes such feed) to all food commodities. EPA 110(c) of the Act, 42 U.S.C. 7410(c), to of transportation conformity the areas has completed it’s initial review of the promulgate federal implementation have adequate motor vehicle emissions data submitted in support of this plans establishing attainment budgets associated with submitted petition and is and is soliciting public demonstrations for certain ozone attainment demonstration SIPs, or (2) comment on the data evaluation nonattainment areas classified as disapprove the submitted attainment records, and a list of questions regarding serious or severe and located in the demonstration SIPs. Finally, the consent human allergenicity assessment for non- eastern part of the United States and to decree provides that plaintiffs will file digestible proteins expressed as plant- impose sanctions in those areas. NRDC for dismissal of two lawsuits that are pesticides. This issue will also be one of v. EPA, No. 1:99CV02976 (D.D.C.). pending in the United States Court of the subjects of a FIFRA Science DATES: Written comments on the Appeals for the District of Columbia Advisory Panel (SAP) meeting in early proposed consent decree must be Circuit and that were filed by some or February 2000. received by January 20, 2000. all of the plaintiffs in the District Court
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.076 pfrm03 PsN: 21DEN1 71454 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices case. These two cases are: Delaware The settlement requires the settling the National Science and Technology Valley Citizens’ Council for Clean Air v. party to pay a total of $27,301.44 as Council ‘‘in consultation with research Browner, No. 96–1316 (D.C. Cir.) payment of past response costs to the universities and other stakeholders in (challenge to EPA’s findings of failure to Hazardous Substances Superfund. The the Federal science and technology submit certain portions of the settlement includes a covenant not to enterprise, shall develop a statement of attainment demonstration), and sue pursuant to section 107 of CERCLA, principles that clearly articulates the Delaware Valley Citizens’ Council for 42 U.S.C. 9607. roles, responsibilities, and expectations Clean Air v. Browner, No. 98–1079 (D.C. For thirty (30) days following the date of each of the partners and establishes Cir.) (challenge to EPA’s ‘‘Guidance for of publication of this document, the a framework for addressing future issues Implementing the 1-Hour Ozone and Agency will receive written comments as they arise. Ultimately, this statement Pre-Existing PM10 NAAQS,’’ issued by relating to the settlement. The Agency of principles will serve to shape future Richard D. Wilson, Acting Assistant will consider all comments received and discussions and guide policy Administrator for Air and Radiation, may modify or withdraw its consent to development and decision making.’’ dated December 29, 1997 (63 FR 8196 the settlement if comments received President Clinton asked that this action (Feb. 18, 1998)). disclose facts or considerations which be completed within twelve months of For a period of thirty (30) days indicate that the settlement is the date of the memorandum. The following the date of publication of this inappropriate, improper, or inadequate. findings and recommendations notice, the Agency will receive written The Agency’s response to any comments contained in the NSTC report on comments relating to the proposed received will be available for public Renewing the Federal Government- consent decree from persons who were inspection at 1445 Ross Avenue, Dallas, University Research Partnership for the not named as parties or interveners to Texas 75202–2733. 21st Century should provide the basis the litigation in question. EPA or the DATES: Comments must be submitted on for proceeding. The report proposed a Department of Justice may withdraw or or before January 20, 2000. draft statement of principles developed by the NSTC and recommended that it withhold consent to the proposed ADDRESSES: The proposed settlement be finalized in consultation with the consent decree if the comments disclose and additional background information interested community. As part of this facts or considerations that indicate that relating to the settlement are available process, this notice seeks public such consent is inappropriate, for public inspection at 1445 Ross comment. improper, inadequate, or inconsistent Avenue, Dallas, Texas 75202–2733. A with the requirements of the Act. Unless copy of the proposed settlement may be DATES: The Office of Science and EPA or the Department of Justice obtained from Carl Bolden, 1445 Ross Technology Policy welcomes comments determine, following the comment Avenue, Dallas, Texas 75202–2733 at on the proposed policy. In order to be period, that consent is inappropriate, (214) 665–6713. Comments should assured consideration, comments must the final consent decree will be entered reference the Crews Plating Superfund be postmarked no later than February with the court and will establish Site, Dallas, Dallas County, Texas, and 18, 2000. deadlines for promulgation of federal EPA Docket Number 6–21–99, and ADDRESSES: Written comments should implementation plans in the absence of should be addressed to Carl Bolden at be mailed to Dr. Arthur Bienenstock, approved state plans. the address listed above. Associate Director for Science, Office of Science and Technology Policy, Dated: December 9, 1999. FOR FURTHER INFORMATION CONTACT: Washington, DC 20502. The entire Gary S. Guzy, Michael Boydston, 1445 Ross Avenue, NSTC report may be viewed General Counsel. Dallas, Texas 75202–2733 at (214) 665– 7376. electronically by going to the following [FR Doc. 99–32862 Filed 12–20–99; 8:45 am] web site: http://www.whitehouse.gov/ BILLING CODE 6560±50±M Dated: December 15, 1999. WH/EOP/OSTP/html/rand/index.htm. Myron O. Knudson, In order to provide comments Acting Regional Administrator, Region 8. electronically, click on ‘‘Your ENVIRONMENTAL PROTECTION comments,’’ then on ‘‘Click here to AGENCY [FR Doc. 99–33024 Filed 12–20–99; 8:45 am] BILLING CODE 6560±50±M provide your electronic comments.’’ [FRL±6512±9] FOR FURTHER INFORMATION CONTACT: Anne-Marie Mazza, Office of Science Notice of Proposed Administrative EXECUTIVE OFFICE OF THE and Technology Policy, Executive Office Settlement Pursuant to the PRESIDENT of the President, Washington, DC 20502. Comprehensive Environmental Tel: 202–456–6040; Fax: 202–456–6027; Response, Compensation, and Liability Office of Science and Technology e-mail: [email protected]. Act Policy SUPPLEMENTARY INFORMATION: In order AGENCY: for the partnership between the Federal Environmental Protection Request for Comment on Proposed government and the university Agency. Statement of Principles of the community to thrive, there must be a ACTION: Notice; request for public Government-University Research clear understanding on the part of both comment. Partnership parties of the goals of the partnership SUMMARY: In accordance with section AGENCY: Office of Science and and the responsibilities of the partners. 122(i) of the Comprehensive Technology Policy. The following questions sometimes Environmental Response, ACTION: Request for comment on arise in consideration of this Compensation, and Liability Act, as proposed statement of principles of the partnership: Why does the Federal amended (‘‘CERCLA’’), 42 U.S.C. government-university research government invest in university 9622(i), notice is hereby given of a partnership. research? What is the role of graduate proposed administrative settlement students in the research enterprise? On concerning the Crews Plating Superfund SUMMARY: An April 27, 1999 what basis are the costs of research site, with Mr. Kent McNair. Presidential Memorandum directed that allocated among the parties? Federal
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Yet statements of the advice of qualified individuals who are Government-University Research rationale, goals, and objectives of the independent of those individuals Partnership public investment in university-based proposing the research. A well-designed research remain implicit, or are The following are guiding principles merit review system rewards quality dispersed in a variety of legislation and that govern interactions between the and productivity in research, and can other policy documents. As long as this Federal government and universities accommodate endeavors that are high- is so, the government-university that perform research. risk and have potential for high gain. • partnership risks being defined 1. Guiding Principles Research Must Be Conducted with primarily in an ad hoc manner, by Integrity. • detailed accounting, administrative, and Research Is an Investment in the The ethical obligations entailed in financial management requirements, Future. accepting public funds and in the and not by broader national goals. Government sponsorship of university conduct of research are of the highest In addition to the Presidential research—including the capacity to order and recipients must consider the Memorandum to the NSTC cited above, perform research and the training of the use of these funds as a trust. Great care the President also released on April 27, next generation of scientists and must be taken to ‘‘do no harm’’ and to 1999 the NSTC report on Renewing the engineers—is an investment in the act with integrity. The credibility of the Federal Government-University future of the nation, helping to assure entire enterprise relies on the integrity Research Partnership for the 21st the health, security, and quality of life of each of its participants. Century. One of the recommendations of our citizens. Government investments 2. Operating Principles contained in this report is the recognize that the expected benefits of development of a statement of research often accrue beyond the The following operating principles are principles of the government-university investment horizons of corporations or intended to assist agencies, universities, partnership in research. A clearly other private sponsors. Investments in individual investigators, and auditing articulated statement of the principles of research are managed as a portfolio, and regulatory bodies in implementing the partnership will help clarify the with a focus on aggregate returns; the guiding principles. roles, responsibilities, and expectations investments in individual research • Agency Cost Sharing Policies and of each of the partners and establish a efforts that make up the portfolio are Practices Must be Transparent. framework for addressing future issues based on the prospects for their As in any investment partnership, as they arise. Ultimately, an agreed technical success, though not on a each partner contributes to the research upon statement of principles also would presumption that those outcomes can be endeavor. While the primary serve to shape future discussions, to predicted precisely. contribution of universities is the formulate policies, and to help guide • The Linkage Between Research and intellectual capital of the researchers’ decision-making. The process itself of Education Is Vital. ideas, knowledge, and creativity, it is engaging the government and university The integration of research and sometimes appropriate for universities partners in a dialogue will increase education is the hallmark and strength to share in the costs of the research (and mutual understanding and provide a of our nation’s universities. Students in some cases cost sharing is required by good foundation for resolving complex (undergraduates as well as graduates) statute). Cost sharing can be appropriate issues in the future. The purpose of this who participate in federally sponsored when there are compelling policy notice is to help further this dialogue. research grow intellectually even as reasons for it, such as in programs The NSTC report issued a proposed they contribute to the research whose principal purpose is to build statement of the principles of the enterprise. Upon graduation, they are infrastructure and enhance an awardee’s government-university partnership (see prepared to contribute to the institution’s ability to compete for below). These were developed through advancement of national goals and to future Federal awards. Cost sharing is interagency review and discussion that educate subsequent generations of rarely appropriate when an awardee is benefited greatly from input provided scientists and engineers. Their acting solely as a supplier of goods or by the university community. Further intellectual development and scientific services to the government since this dialogue is needed among all contributions are among the important would entail a university subsidy of stakeholders before the principles are benefits to the Nation of Federal support goods purchased by the government. If finalized. for research conducted at universities. agency funds are not sufficient to cover The goals in developing a statement of There should be compelling policy the costs of a research project, the principles are to help foster an reasons for creating or perpetuating agency and the university should re- environment that promotes scientific financial or operational distinctions examine the scope of the project, unless discovery, technological innovation, between research and education. Our there are compelling policy reasons to and the development of the next scientific and engineering enterprise is require university cost sharing. generation of scientists and engineers. further enhanced by the intellectual Agencies should be clear about their The Federal government recognizes the stimulation brought to campus by cost sharing policies and announce importance to the nation of the students from varying cultural, ethnic, when and how cost sharing will figure American university system and is and socioeconomic origins. in selection processes, including driven by a desire to sustain that special • Excellence Is Promoted When explicit information regarding the resource for maximum benefit to the Investments are Guided by Merit amount of cost sharing expected. nation. A statement of principles will Review. • Partners Should Respect the Merit help articulate these goals, and provide Excellence in science and engineering Review Process. guidance for translating these goals into is promoted by making awards on the Excellence in science is promoted actions. In order to be most effective, basis of merit. Merit review assesses the when all parties adhere to merit review
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.246 pfrm03 PsN: 21DEN1 71456 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices as the basis for distributing Federal should be assessed against the costs and Wireless Telecommunications Bureau at funds for research projects and refrain benefits of accommodating diverse (202) 418–0680. from seeking Federal funds through Federal programs and the multiplicity of SUPPLEMENTARY INFORMATION: non-merit-based means. Federal university organizational structures in 1. This is a summary of the investments in research are made with determining best policies and practices. Commission’s Notice of Proposed Rule the expectation that the research ‘‘One size fits all,’’ or uniformity for Making and Order FCC 99–348, adopted community will select promising uniformity’s sake can unintentionally on November 15, 1999, and released on research paths more productively and increase requirements and burdens, but November 19, 1999. The full text of this wisely by relying on merit review than a multiplicity of practices can also be Notice of Proposed Rule Making and can a process that bypasses merit review costly. These tradeoffs should be Order is available for inspection and to directly fund a specific individual or carefully assessed whenever changes in copying during normal business hours institution. Success in obtaining funds government-wide or agency-specific in the FCC Reference Center, Room CY outside the merit review system can be policies and practices are proposed. A257, 445 12th Street, S.W., discouraging to researchers who • Change Should be Justified by Need Washington, D.C. The complete text participate in the process. Most and the Process Made Transparent. may be purchased from the significantly, bypassing merit review The process of change in the Commission’s copy contractor, threatens to undermine research government-university partnership International Transcription Service, excellence. Merit review may be used in should be made as transparent as Inc., 1231 20th Street, N.W. conjunction with other selection criteria possible. Modifications in Washington, D.C. 20037. to support agency or program goals. administrative, regulatory, or auditing 2. Effective upon the adoption date of • Agencies and Universities Should requirements, or in cost sharing this Notice of Proposed Rule Making Manage Research in a Cost-Efficient expectations, should be kept as and Order, no applications for public Manner. infrequent as possible, consistent with safety pool frequencies of 156.240 and The goal of all those involved in the need to respond to changing 156.2475 MHz within 100 miles of the sponsoring, performing, administering, circumstances. The impact of change in geographic center of Los Angeles will be regulating, and auditing university- one part of the system should be accepted for filing during the pendency based research and associated understood relative to the whole. of the Notice of Proposed Rule Making educational activities of the research Reasonable time should be allowed for and Order. Any applications received enterprise should be to make maximum both agencies and universities to adapt on or after this date will be returned as resources available for the performance to change. unacceptable for filing. of research and education. This goal can 3. Our decision to impose the freeze be accomplished by keeping agencies’ Dated: December 15, 1999. on Public Safety Pool frequencies of and universities’ costs of compliance Barbara Ann Ferguson, 156.240 and 156.2475 MHz within 100 with Federal requirements to the Administrative Officer, Office of Science and miles of the geographic center of Los minimum required for good stewardship Technology Policy. Angeles is procedural in nature and of Federal funds. For example, [FR Doc. 99–32962 Filed 12–20–99; 8:45 am] therefore the freeze is not subject to the administrative requirements should rely BILLING CODE 3170±01±P notice and comment and effective date on the least burdensome and least costly requirements of the Administrative methods that can effectively provide Procedures Act. See 5 U.S.C. 553(b)(A), needed stewardship. Universities FEDERAL COMMUNICATIONS (d); Kessler v. FCC, 326 F.2d 673 (D.C. should likewise manage their Federal COMMISSION Cir. 1963). Moreover, there is good grants as efficiently as possible. cause for the Commission’s not using • Accountability and Accounting Are [WT Docket No. 99±332; FCC 99±348] notice and comment procedures in this Not the Same. case, or making the freeze effective 30 The principal measure of Making the Frequency 156.250 MHz days after publication in the Federal accountability must be research Available for Port Operations Purposes Register, because to do so would be outcomes: have the researchers carried in Los Angeles and Long Beach, CA impractical, unnecessary, and contrary out a program of research consistent Ports to the public interest because with their commitment to the AGENCY: Federal Communications compliance would undercut the government? Financial accountability is Commission. purpose of the freeze. See 5 U.S.C. also important and should assure 553(b)(A), (d)(3). research sponsors that Federal funds ACTION: Notice. have been used properly to achieve the Ordering Clauses SUMMARY: The Order portion of this goals of the research in a cost effective document states that the Commission 4. Authority for issuance of this manner. Federal agencies must ensure generally holds in abeyance and will not Notice of Proposed Rule Making and that financial accountability process pending applications for public Order is contained in Sections 4(i), 4(j), requirements are limited to those that safety pool frequencies of 156.240 and 303(r), and 403 of the Communications are reasonably required for good 156.2475 MHz within 100 miles of the Act of 1934, as amended, 47 U.S.C. stewardship and that each measure adds geographic center of Los Angeles. The 154(i), 303(r), and 403. 5. NOTICE IS HEREBY GIVEN and sufficient value in terms of increased Commission takes this action to stop COMMENT IS SOUGHT on the stewardship to justify the burdens and processing applications while it proposed regulatory changes described costs it imposes on universities and considers a proposal to utilize the in the Notice of Proposed Rule Making agencies. frequency 156.250 MHz for port • The Benefits of Simplicity in and Order, as set forth in Proposed operations in the Los Angeles and Long Policies and Practices Should Be rules. Beach area. Weighed Against the Costs. 6. IT IS FURTHER ORDERED that the The costs and benefits of simplicity in DATES: Effective November 15, 1999. Commission’s Office of Public Affairs, regulatory, administrative, cost FOR FURTHER INFORMATION CONTACT: Reference Operations Division, SHALL accounting, and auditing practices James Shaffer of the Commission’s SEND a copy of this Notice of Proposed
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Rule Making and Order, including the FEDERAL RESERVE SYSTEM President) 925 Grand Avenue, Kansas Initial Regulatory Flexibility Analyses, City, Missouri 64198-0001: to the Chief Counsel for Advocacy of the Formations of, Acquisitions by, and 1. Valley View Bancshares, Inc., Small Business Administration. Mergers of Bank Holding Companies Overland Park, Kansas; to acquire 90 7. IT IS FURTHER ORDERED that percent of the voting shares of Bank of The companies listed in this notice effective upon the release date of this Lee’s Summit, Lee’s Summit, Missouri. have applied to the Board for approval, Notice of Proposed Rule Making and D. Federal Reserve Bank of San pursuant to the Bank Holding Company Order, no applications will be accepted Francisco (Maria Villanueva, Manager Act of 1956 (12 U.S.C. 1841 et seq.) for filing for the public safety of Analytical Support, Consumer (BHC Act), Regulation Y (12 CFR Part frequencies of 156.240 and 156.2475 Regulation Group) 101 Market Street, 225), and all other applicable statutes MHz within 100 miles of the geographic San Francisco, California 94105-1579: and regulations to become a bank center of Los Angeles, defined as 34° 03′ 1. Bank of Whitman ESOP, Colfax, holding company and/or to acquire the 15′′ north latitude and 118° 14′ 28′′ west Washington; to acquire 44 percent of the assets or the ownership of, control of, or longitude. This freeze will continue voting shares of Whitman the power to vote shares of a bank or until the Commission makes an Bancorporation, Colfax, Washington, bank holding company and all of the announcement that such applications and thereby indirectly acquire Bank of banks and nonbanking companies acceptance will resume. Whitman, Colfax, Washington. owned by the bank holding company, Federal Communications Commission. In connection with this application, including the companies listed below. Applicant also has applied to acquire Magalie Roman Salas, The applications listed below, as well B.O.W.F.I., Inc., Colfax, Washington, Secretary. as other related filings required by the and thereby engage in making and Board, are available for immediate [FR Doc. 99–32930 Filed 12–20–99; 8:45 am] servicing loans, pursuant to § inspection at the Federal Reserve Bank BILLING CODE 6712±01±P 225.28(b)(1) of Regulation Y. indicated. The application also will be available for inspection at the offices of Board of Governors of the Federal Reserve System, December 15, 1999. FEDERAL EMERGENCY the Board of Governors. Interested Robert deV. Frierson, MANAGEMENT AGENCY persons may express their views in writing on the standards enumerated in Associate Secretary of the Board. [FEMA±3153±EM] the BHC Act (12 U.S.C. 1842(c)). If the [FR Doc. 99–32932 Filed 12–20–99; 8:45 am] proposal also involves the acquisition of BILLING CODE 6210±01±F Massachusetts; Amendment No. 3 to a nonbanking company, the review also Notice of an Emergency Declaration includes whether the acquisition of the AGENCY: Federal Emergency nonbanking company complies with the FEDERAL TRADE COMMISSION Management Agency (FEMA). standards in section 4 of the BHC Act ACTION: Notice. (12 U.S.C. 1843). Unless otherwise Establishment of the Federal Trade noted, nonbanking activities will be Commission Advisory Committee on SUMMARY: This notice amends the notice conducted throughout the United States. Online Access and Security and of an emergency for the Commonwealth Unless otherwise noted, comments Request for Nominations of Massachusetts (FEMA–3153–EM), regarding each of these applications AGENCY: dated December 6, 1999, and related must be received at the Reserve Bank Federal Trade Commission. determinations. indicated or the offices of the Board of ACTION: Notice and request for EFFECTIVE DATE: December 13, 1999. Governors not later than January 14, nominations. 2000. FOR FURTHER INFORMATION CONTACT: SUMMARY: The Federal Trade A. Federal Reserve Bank of New Madge Dale, Response and Recovery Commission (‘‘Commission’’ or ‘‘FTC’’) York (Betsy Buttrill White, Senior Vice Directorate, Federal Emergency has established an Advisory Committee President) 33 Liberty Street, New York, Management Agency, Washington, DC on Online Access and Security New York 10045-0001: 20472, (202) 646–3772. (‘‘Advisory Committee’’). The purpose 1. U.S. Trust Corporation, New York, SUPPLEMENTARY INFORMATION: Notice is of the Advisory Committee is to provide New York, and NCT Holdings, Inc. hereby given that the incident period for advice and recommendations to the Greensboro, North Carolina; to acquire this disaster is closed effective Commission regarding implementation 100 percent of the voting shares of U.S. December 13, 1999. of certain fair information practices by Trust Company of North Carolina, domestic commercial Web sites— (The following Catalog of Federal Domestic Greensboro, North Carolina. NCT specifically, providing online Assistance Numbers (CFDA) are to be used Holdings, Inc., also has applied to consumers reasonable access to personal for reporting and drawing funds: 83.537, become a bank holding company. Community Disaster Loans; 83.538, Cora B. Federal Reserve Bank of Atlanta information collected from and about Brown Fund Program; 83.539, Crisis (Cynthia Goodwin, Vice President) 104 them and maintaining adequate security Counseling; 83.540, Disaster Legal Services for that information. The Commission Program; 83.541, Disaster Unemployment Marietta Street, N.W., Atlanta, Georgia 30303-2713: also seeks nominations of individuals Assistance (DUA); 83.542, Fire Suppression for appointment to the Advisory Assistance; 83.543, Individual and Family 1. Wewahitchka State Bank Employee Grant (IFG) Program; 83.544, Public Stock Ownership Plan,Wewahitchka, Committee. Assistance Grants; 83.545, Disaster Housing Florida; to acquire 43 percent of the DATES: The Advisory Committee will Program; 83.548, Hazard Mitigation Grant voting shares of Gulf Coast Community meet on February 4, 2000; February 25, Program) Bancshares, Inc., Wewahitchka, Florida, 2000; March 31, 2000; and April 28, Lacy E. Suiter, and thereby indirectly acquire 2000. Nominations for Advisory Executive Associate Director, Response and Wewahitchka State Bank, Wewahitchka, Committee membership must be Recovery Directorate. Florida. submitted on or before January 5, 2000. [FR Doc. 99–33010 Filed 12–20–99; 8:45 am] C. Federal Reserve Bank of Kansas ADDRESSES: The Advisory Committee BILLING CODE 6718±02±P City (D. Michael Manies, Assistant Vice will meet in Room 432, Federal Trade
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Commission, 600 Pennsylvania Avenue, almost five years.1 Throughout its access to and adequate security for NW, Washington, DC 20580. Advisory online privacy efforts, the Commission’s personal information collected from and Committee meetings will be open to the goal has been to understand the about online consumers raises a number public. Parties interested in submitting emerging online marketplace and its of implementation issues for online nominations should send an original information practices, to assess the businesses, the Commission announced and two copies to the Secretary, Federal impact of these practices on consumers, its intention to convene a task force to Trade Commission, Room H–159, 600 and to encourage and facilitate effective examine these issues.3 self-regulation as the preferred approach Pennsylvania Avenue, NW, Washington, 2. The Advisory Committee DC 20580. Nominations should be to protecting consumer privacy online. captioned ‘‘Advisory Committee on The Commission has issued two Pursuant to Section 9 of the Federal Online Access and Security— reports to Congress describing the status Advisory Committee Act, 5 U.S.C. App. Nomination, P004807.’’ To enable of domestic commercial Web sites’ § 9(c), the Commission has charged the prompt review and public access, paper implementation of fair information Advisory Committee with providing submissions should be accompanied by practices. In Privacy Online: A Report to advice and recommendations to the Commission regarding implementation a version on diskette in ASCII, Congress (June 1998) (‘‘1998 Report’’), of certain fair information practices by WordPerfect (please specify version) or the Commission described the well- domestic commercial Web sites— Microsoft Word (please specify version) settled fair information practice specifically, providing online format. Diskettes should be labeled with principles of (1) Notice/Awareness; (2) consumers reasonable access to personal the name of the submitter, the Advisory Choice/Consent; (3) Access/ Participation; (4) Integrity/Security; and information collected from and about Committee caption, and the name and (5) Enforcement/Redress. The 1998 them and maintaining adequate security version of the word processing program Report assessed existing self-regulatory for that information. The Advisory used to create the document. efforts in light of these fair information Committee will consider the parameters Alternatively, nominations may be practice principles and set out findings of reasonable access to personal submitted to the following email of the Commission’s extensive survey of information and adequate security and address: [email protected]. commercial Web sites’ information report to the Commission on options for The public may also submit comments practices. The 1998 Report concluded implementation of these information in the manner designated for that an effective self-regulatory system practices. nominations. had yet to emerge and that additional The Advisory Committee will FOR FURTHER INFORMATION CONTACT: incentives were required in order to consider, among other things, whether Laura Mazzarella, Division of Financial ensure that consumer privacy would be the extent of access provided by Web Practices, Federal Trade Commission, protected.2 sites should vary with the sensitivity of 600 Pennsylvania Avenue, NW, Mail In a follow-up report entitled Self the personal information collected and/ Stop 4429, Washington, DC 20580, Regulation and Privacy Online: A or the purpose for which such telephone (202) 326–3424, email Report to Congress (July 1999) (‘‘1999 information is collected; whether the difficulty and costs of retrieving [email protected]; or Hannah Stires, Report’’), the Commission noted that a consumers’ data should be considered; Division of Financial Practices, Federal recent Georgetown University study had whether consumers should be provided Trade Commission, 600 Pennsylvania found a significant improvement in the access to enhancements to personal Avenue, NW, Mail Stop 4429, number of Web sites meeting the fair information collected directly from Washington, DC 20580, telephone (202) information practice principle of notice/ awareness. The Commission also noted them, such as inferences about their 326–3178, email [email protected]. that significant challenges remain for preferences and information about them SUPPLEMENTARY INFORMATION: industry self-regulation, particularly the derived from other databases; Authority: 15 U.S.C. 41 et seq.; 5 U.S.C. full implementation of all fair appropriate and feasible methods for App. §§ 1–15; 16 CFR Part 16. information practice principles verifying the identity of individuals identified in the 1998 Report. seeking access; whether a reasonable fee In accordance with the requirements Recognizing that providing reasonable should be assessed for access, and if so, of Section 9 of the Federal Advisory what a reasonable fee would be; and Committee Act, 5 U.S.C. App. § 9(a)(2), 1 The Commission held its first public workshop whether limits should be placed on the on privacy in April 1995. Since then, the frequency of requests for access, and if and Part 16 of the Commission’s Commission has held a series of hearings and regulations, 16 CFR 16.5(d), the workshops focusing on online privacy, including so, what those limits should be. Commission has directed publication of most recently a public workshop on Online The Advisory Committee will also this notice that it has established an Profiling sponsored jointly with the Department of consider how to define the standards by Commerce on November 8, 1999. The Commission which the adequacy of measures taken Advisory Committee on Online Access and its staff have also issued several reports and Security. The Commission certifies addressing consumer protection issues, including by Web sites to protect the security of that creation of the Advisory Committee online privacy, in the electronic marketplace. See, personal information collected online is necessary and in the public interest e.g., Individual Reference Services: A Federal Trade may be judged; what might constitute Commission Report to Congress (December 1997); reasonable steps to assure the integrity because it will further the Commission’s FTC Staff Report: Public Workshop on Consumer work in fostering and evaluating self- Privacy on the Global Information Infrastructure of this information; and what regulatory efforts to protect consumer (December 1996); FTC Staff Report: Anticipating the managerial and technical measures privacy online. By this Notice, the 21st Century: Consumer Protection Policy in the should be undertaken to protect this New High-Tech, Global Marketplace (May 1996). information from unauthorized use or Commission is also requesting 2 With respect to the protection of children’s nominations for members to serve on privacy online, the Commission recommended that disclosure. the Advisory Committee. Congress enact legislation. 1998 Report at 42–43. The Advisory Committee will conduct Congress subsequently enacted the Children’s its work in accordance with the 1. Background Online Privacy Protection Act of 1998, 15 U.S.C. provisions of the Federal Advisory § 6501 et seq., and authorized the Commission to Committee Act. The agency will provide The Commission has been involved in promulgate regulations implementing the Act. The Commission’s final rule was issued in October addressing online privacy issues for 1999. 16 CFR Part 312 (1999). 3 1999 Report at 14.
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Industry Categories Under the Small Advisory Committee provides advice or Business Competitiveness recommendations shall be made solely Nominees should have expertise in Demonstration Program by the Commission. the issues and/or technologies relevant AGENCY: Office of Acquisition Policy, The Advisory Committee will meet in to the implementation of fair GSA. Room 432, Federal Trade Commission, information practices by commercial 600 Pennsylvania Avenue, NW, Web sites. Nominees must be able to ACTION: Notice. Washington, DC, on February 4, 2000; attend all Advisory Committee meetings SUMMARY: The General Services February 25, 2000; March 31, 2000; and and to participate in good faith in the Administration (GSA) is publishing its April 28, 2000. Meetings of the tasks undertaken by the Advisory revised list of the ten (10) targeted Advisory Committee will be open to the Committee. Members of the Committee industry categories for expanded small public. Meetings of subgroups of the full will serve without compensation and business participation in acquisitions. Advisory Committee will likely occur will bear the cost of their own travel- Title VII of the ‘‘Business Opportunity more frequently. Subgroups will report related expenses. Employees of the Development Reform Act of 1988’’ to the Advisory Committee only. The United States Government are not (Public Law 100–656) required GSA to Advisory Committee will present its eligible to serve as members of the implement a program to expand small written report describing options for Advisory Committee. business participation in the agency’s implementing reasonable access to, and Advisory Committee members will be acquisitions of selected products and adequate security for, personal services in 10 industry categories where selected on the basis of the following information collected online, and the historically small business participation criteria: costs and benefits of each option, by had been low despite adequate numbers May 15, 2000. The Advisory Committee 1. The individual’s participation of small business contractors in the will conclude its work on May 31, 2000. would promote a balance of points of economy. Criteria for determining Fifteen days after publication of this views represented and functions to be products and services in the ten (10) notice in the Federal Register, a copy of performed by the Advisory Committee. targeted industry categories were (1) the the Advisory Committee’s charter will products or services were purchased in be filed with the Secretary of the 2. The individual has expertise in or knowledge of the issues that are the substantial quantities by the Federal Federal Trade Commission, the Government, (2) less than ten (10) Committee on Commerce, Science, and focus of the Advisory Committee’s work. percent annually was purchased from Transportation of the United States small business concerns, and (3) the Senate, and the Committee on 3. The individual adequately reflects industries had significant amounts of Commerce of the United States House of the views of the relevant affected small business productive capacity that Representatives. A copy of the charter interest(s). had not been utilized by the will also be furnished to the Library of Government. The Small Business Credit Congress and posted on the Interested persons may nominate and Business Opportunity Enhancement Commission’s Web site at www.ftc.gov. themselves or others for Advisory Act of 1992 (Public Law 102–366) The charter will be available for public Committee membership. Nominations extended the program through inspection in accordance with the should include a summary of the September 30, 1996. In 1997, the Small Freedom of Information Act, 5 U.S.C. nominee’s qualifications and of the Business Reauthorization Act of 1997, 552, and Federal Trade Commission interests he or she can represent and was enacted into law. As a result, the regulations, 16 CFR 4.9, Monday should be submitted in the form and program is extended indefinitely. GSA’s through Friday between the hours of manner described above on or before past participation in awarding contracts 8:30 a.m. and 5 p.m. in Room 130, January 5, 2000. At its discretion, the to small businesses in selected industry Federal Trade Commission, 600 agency may also appoint Advisory categories targeted for expansion has Pennsylvania Avenue, NW, Washington, Committee members according to the been successful by either meeting or DC 20580. above criteria in order to insure that exceeding 10 percent. Therefore, GSA The Commission will provide committee membership is balanced in recognized the need to select ten (10) additional information about Advisory terms of points of view and that the new targeted industry categories. The Committee meetings, including meeting relevant interests are represented. The Office of Federal Procurement Policy times and agendas, in the Federal agency will notify members of their (OFPP) directed agencies in the Federal Register and on the Commission’s Web selection as soon as possible after Register dated June 2, 1999, to publish site, www.ftc.gov. January 20, 2000. an announcement to solicit public 3. Nominations for Advisory Committee By direction of the Commission. comments on its agency program for Membership Donald S. Clark, expansion of small business The Advisory Committee will include participation in the targeted categories. Secretary of the Commission. GSA’s program includes the following approximately thirty members who are [FR Doc. 99–33015 Filed 12–20–99; 8:45 am] appointed for a limited term, to begin on selected targeted industry categories: February 4, 2000, and to end on May 31, BILLING CODE 6750±01±P 2000, and who serve at the discretion of SIC Description the Commission. In selecting Advisory 2392 .. House Furnishings. Committee members, the agency will 2393 .. Mattresses and Bedsprings. appoint individuals who can represent 2621 .. Paper Mills. effectively the broad range of interests 2656 .. Sanitary Food Containers.
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SIC Description ADDRESSES: Written comments should authorities. All data products listed be submitted to the OMB Desk Office at below must fully comply with the data 2679 .. Converted Paper Products. the following address: Alison Eydt, confidentiality statute under which the 3519 .. Internal Combustion Engines. Human Resources and Housing Branch, raw data was collected. 3631 .. Household Cooking Equipment. Office of Information and Regulatory Data Products 3633 .. Household Laundry Equipment. Affairs, OMB; New Executive Office 3951 .. Pens and Mechanical Pencils. Data will be produced in three forms: 4813 .. Telephone Communications (Except Building, Room 10235; Washington, Radio). 20503. (1) Files derived from the Household Comments submitted in response to Sample, which can be linked back to DATES: Public comments on GSA’s this notice will be summarized and other information from household program for expansion of small business included in the request for OMB respondents in the MEPS–HC; (2) files participation in the above targeted approval of the proposed information containing employer information from categories should be submitted in collection. All comments will become a the List Sample (available for use by writing to the address shown below on matter of public record. researchers at the Census Bureau’s or before January 5, 2000. FOR FURTHER INFORMATION CONTACT: Research Data Centers); and (3) a large compendium of tables of estimates ADDRESSES: Mail comments to General Cynthia D. McMichael, AHRQ Reports Services Administration, Office of Clearance Officer, (301) 594–3132. based on the List Sample (available on Acquisition Policy, GSA Acquisition SUPPLEMENTARY INFORMATION: the AHRQ website). These tables will Policy Division (MVP), 1800 F Street, contain descriptive statistics, such as, Proposed Project NW, Room 4027, Washington, DC numbers of establishments offering 20405. ‘‘1999–2001 Medical Expenditure Panel health insurance, average premiums, average contributions, total enrollments, FOR FURTHER INFORMATION CONTACT: Survey—Insurance Component (MEPS– IC).’’ numbers of self insured establishments Cecelia L. Davis, GSA Acquisition and other related statistics for a large Policy Division, (202) 219–0202. The MEPS–IC, an annual survey of number of population subsets defined Dated: December 16, 1999. the characteristics of employer- by firm size, state, industry and J. Les Davison, sponsored health insurance, was first establishment characteristics, such as, Acting Deputy Associate Administrator for conducted by AHRQ in 1997, seeking age, profit/nonprofit status and union/ Acquisition Policy. data pertaining to the calendar year nonunion. [FR Doc. 99–33077 Filed 12–20–99; 8:45 am] 1996. The survey has since been The data are intended to be used for BILLING CODE 6820±61±M conducted annually for calendar years purposes such as: 1997 and 1998. • Generating national and State This survey will be conducted for estimates of employer health care AHRQ by the Bureau of the Census DEPARTMENT OF HEALTH AND offerings; using a sample comprised of: • HUMAN SERVICES Producing estimates to support the 1. Employers selected from Census Bureau of Economic Analysis within the Agency for Healthcare Research and Bureau lists of private sector employers Department of Commerce and the Quality; Agency Information Collection and government employers (known as Health Care Financing Administration Activities: Proposed Collection; the List Sample); and in their respective calculations of health Comment Request 2. Employers identified by care expenditures for the Gross respondents to the MEPS-Household Domestic Product and National Health AGENCY: Agency for Healthcare Research Component (MEPS–HC) for the same Accounts (annual totals for various and Quality (AHRQ), formerly known as calendar year (known as the Household categories of health care expenditures the Agency for Health Care Policy and Sample). for the United States); Research (AHCPR). Data to be collected from each • Producing national and State ACTION: Notice. employer will include a description of estimates of spending on employer- the business (e.g., size, industry) and sponsored health insurance to study the SUMMARY: This notice announces that description of health insurance plans results of national and State health care the Agency for Healthcare Research and available, plan enrollments, total plan policies; Quality (AHRQ) is planning to request costs and costs to employees. • Supplying data for modeling the the Office of Management and Budget Data Confidentiality Provisions demand for health insurance; and (OMB) to allow a proposed information • Providing data on health plan collection of the ‘‘1999–2001 Medical The MEPS–IC List Sample data choices, costs, and benefits that can be Expenditure Panel Survey—Insurance confidentiality is protected under linked back to households’ use of health Component (MEPS–IC)’’ In accordance section 9 of Title 13, United States Code care resources as were reported in the with the Paperwork Reduction Act of (the U.S. Census Bureau statute). MEPS– MEPS–HC survey for studies of the 1995, Public Law 104–13 (44 U.S.C. IC Household Sample data consumer health care selection process. 3506(c)(2)(A)), AHRQ invites the public confidentiality is protected under These data will provide the basis for to comment on this proposed sections 308(d) and 903(c) of the Public researchers to address important information collection. Health Service Act (42 U.S.C. 242m and questions for the benefit of employers This proposed information collection 42 U.S.C. 299a–1). Section 308(d), the and policymakers alike. was previously published in the Federal confidentiality statute of the National Register on October 13, 1999 and Center for Health Statistics, is Method of Collection allowed 60 days for public comment. No applicable because the MEPS–HC The data will be collected using a public comments were received. The sample is derived from respondents of combination of modes. The Census purpose of this notice is to allow an an earlier NCHS survey. Section 903(c) Bureau’s first contact with employers additional 30 days for public comment. is the confidentiality statute that applies will be made by telephone. DATES: Comments on this notice must be to all identifiable data collected This contact will solicit and gather received by January 20, 1999. pursuant to AHRQ’s statutory information on the availability of health
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Estimated total Estimated annual Annual number of respondents Estimated hours annual burden cost to the gov- per respondent hours ernment
33,839 ...... 5 19,369 $7,000,000
Estimates of annual respondent petition (FAP 9M4696) has been filed by This guidance is neither final nor is it burden are based upon experience from the United States Department of in effect at this time. This guidance collection of the previous three MEPS— Agriculture, Food Safety and Inspection provides labeling recommendations for IC surveys. Service, 300 12th St. SW., rm. 112, over-the-counter sample collection Copies of these proposed collection Washington, DC 20250. The petition systems for drugs of abuse testing and plans and instruments can be obtained proposes to amend the food additive is being issued as a result of FDA’s from the AHRQ Reports Clearance regulations in § 179.26 Ionizing proposed reclassification of over-the- Officer (see above). radiation for the treatment of food (21 counter sample collection systems for Dated: December 15, 1999. CFR 179.26) in item 6. of the table in drugs of abuse testing as class I John M. Eisenberg, paragraph (b) to: (1) Increase the restricted devices. Director. maximum dose of ionizing radiation DATES: Submit written comments [FR Doc. 99–32942 Filed 12–20–99; 8:45 am] permitted in the treatment of poultry concerning this draft guidance by March products (2) include specific language BILLING CODE 4160±90±M 22, 2000. intended to clarify the poultry products ADDRESSES: See the SUPPLEMENTARY covered by the regulations and (3) INFORMATION section for information on DEPARTMENT OF HEALTH AND remove the limitation that any electronic access to the draft guidance. HUMAN SERVICES packaging used during irradiation of Submit written requests for single poultry shall not exclude oxygen. copies on a 3.5′′ diskette of the draft The agency has determined under 21 Food and Drug Administration guidance document entitled ‘‘Guidance CFR 25.32(j) that this action is of a type on Labeling for Over-the-Counter [Docket No. 99F±5322] that does not individually or Sample Collection Systems for Drugs of cumulatively have a significant effect on United States Department of Abuse Testing’’ to the Division of Small the human environment. Therefore, Agriculture, Food Safety and Manufacturers Assistance (HFZ–220), neither an environmental assessment Inspection Service; Filing of Food Center for Devices and Radiological nor an environmental impact statement Additive Petition Health, Food and Drug Administration, is required. AGENCY: Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Dated: December 3, 1999. HHS. Send two self-addressed adhesive labels Alan M. Rulis, to assist that office in processing your ACTION: Notice. Director, Office of Premarket Approval, request, or fax your request to 301–443– SUMMARY: The Food and Drug Center for Food Safety and Applied Nutrition. 8818. Administration (FDA) is announcing [FR Doc. 99–33004 Filed 12–20–99; 8:45 am] Submit written comments on this that the United States Department of BILLING CODE 4160±01±F draft guidance to the Dockets Agriculture, Food Safety and Inspection Management Branch, (HFA–305), Food Service has filed a petition proposing and Drug Administration, 5630 Fishers that the food additive regulations be DEPARTMENT OF HEALTH AND Lane, rm. 1061, Rockville, MD 20852. amended to increase the maximum dose HUMAN SERVICES Comments should be identified with the of ionizing radiation permitted in the docket number found in brackets in the treatment of poultry products, include Food and Drug Administration heading of this document. specific language intended to clarify the [Docket No. 99D±5125] FOR FURTHER INFORMATION CONTACT: poultry products covered by the Joseph Hackett, Center for Devices and regulations, and remove the limitation Draft Guidance on the Labeling for Radiological Health (HFZ–440), Food that any packaging used during Over-the-Counter Sample Collection and Drug Administration, 9200 irradiation of poultry shall not exclude Systems for Drugs of Abuse Testing; Corporate Blvd., Rockville, MD 20850, oxygen. Availability 301–594–3084. FOR FURTHER INFORMATION CONTACT: AGENCY: Food and Drug Administration, SUPPLEMENTARY INFORMATION: Rudaina H. Alrefai, Center for Food HHS. Safety and Applied Nutrition (HFS– I. Background ACTION: Notice. 206), Food and Drug Administration, In the Federal Register of March 5, 100 C St. SW., Washington, DC 20204, SUMMARY: The Food and Drug 1998 (63 FR 10792), FDA published a 202–418–3034. Administration (FDA) is announcing the proposed rule that would reclassify SUPPLEMENTARY INFORMATION: Under the availability of the draft guidance over-the-counter (OTC) sample Federal Food, Drug, and Cosmetic Act entitled ‘‘Guidance on Labeling for collection systems for drugs of abuse (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), Over-the-Counter Sample Collection testing from class III (premarket notice is given that a food additive Systems for Drugs of Abuse Testing.’’ approval) to class I (general controls),
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71462 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices and would exempt them from the Persons interested in obtaining a copy DEPARTMENT OF HEALTH AND premarket notification (510(k)) and of the draft guidance may also do so HUMAN SERVICES current good manufacturing practice using the Internet. CDRH maintains an (CGMP) requirements. The proposal entry on the Internet for easy access to National Institutes of Health would also restrict these devices under information including text, graphics, Notice of Establishment section 520(e) of the Federal Food, Drug, and files that may be downloaded to a and Cosmetic Act (the act) (21 U.S.C. personal computer. Updated on a Pursuant to the Federal Advisory 360j(e)) to require the following: (1) The regular basis, the CDRH home page Committee Act, as amended (5 U.S.C. laboratory test(s) incorporated into these includes the draft guidance entitled Appendix 2), the Director, National systems would be required to have been ‘‘Guidance on Labeling for Over-the- Institutes of Health (NIH), announces cleared, approved, or otherwise Counter Sample Collection Systems for the establishment of the PubMed recognized by FDA as accurate and Central National Committee reliable for laboratory use; (2) the Drugs of Abuse Testing,’’ device safety alerts, Federal Register reprints, (Committee). laboratory performing the underlying This Committee will advise the information on premarket submissions test(s) must be able to reliably perform Director, NIH, the Director, National the necessary screening and (including lists of approved applications Library of Medicine, and the Director, confirmatory tests; and (3) the samples and manufacturers’ addresses), small National Center for Biotechnology must be adequately identified to avoid manufacturers’ assistance, information Information, on the content and mix-ups and the test sample collection on video conferencing and electronic operation of the PubMed Central system must be accurately labeled so submissions, mammography matters, repository. The Committee will that consumers can readily use it. The and other device-oriented information. establish criteria to certify groups draft guidance will help manufacturers The CDRH home page may be accessed submitting materials to the system, meet this third criterion if the regulation at http://www.fda.gov/cdrh. ‘‘Guidance monitoring the operation of the system, becomes final and also can be used by on Labeling for Over-the-Counter and ensuring that PubMed Central manufacturers currently marketing these Sample Collection Systems for Drugs of evolves and remains responsive to the products under FDA’s Interim Policy Abuse Testing’’ will be available at needs of researchers, publishers, regarding ‘‘Parents’ Access to Tests for http://www.fda.gov/cdrh/ librarians and the general public. Drugs of Abuse.’’ This draft guidance ggpmain.html#docs. Unless renewed by appropriate action also addresses the need to provide prior to its expiration, the charter for the consumers with access to professional IV. Paperwork Reduction Act of 1995 PubMed Central National Advisory assistance in interpreting/understanding Committee will expire two years from The information collection provisions test results and counseling referrals. the date of establishment. referred to in this guidance have been II. Significance of Guidance approved under OMB control number Dated: December 15, 1999. This draft guidance document 0910–0368. This approval expires April Harold Varmus, represents the agency’s current thinking 30, 2001. An agency may not conduct or Director, National Institutes of Health. on labeling of over-the-counter sample sponsor, and a person is not required to [FR Doc. 99–32966 Filed 12–20–99; 8:45 am] collection systems for drugs of abuse respond to, a collection of information BILLING CODE 4140±01±M testing. It does not create or confer any unless it displays a currently valid OMB rights for or on any person and does not control number. operate to bind FDA or the public. An DEPARTMENT OF HEALTH AND alternative approach may be used if V. Comments HUMAN SERVICES such approach satisfies the applicable Interested persons may, on or before National Institutes of Health statute, regulations, or both. The agency has adopted good March 22, 2000, submit to Dockets Management Branch (address above) National Center for Research guidance practices (GGP’s), which set Resources; Notice of Closed Meeting forth the agency’s policies and written comments regarding this draft procedures for the development, guidance. Two copies of any comments Pursuant to section 10(d) of the issuance, and use of guidance are to be submitted, except that Federal Advisory Committee Act, as documents (62 FR 8961, February 27, individuals may submit one copy. amended (5 U.S.C. Appendix 2), notice 1997). This guidance document is Comments are to be identified with the is hereby given of the following issued as a Level 1 guidance consistent docket number found in brackets in the meeting. with GGP’s. heading of this document. The guidance The meeting will be closed to the document and received comments may public in accordance with the III. Electronic Access be seen in the Dockets Management provisions set forth in sections In order to receive the draft guidance Branch between 9 a.m. and 4 p.m., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., entitled ‘‘Guidance on Labeling for Monday through Friday. as amended. The grant applications and Over-the-Counter Sample Collection the discussions could disclose Systems for Drugs of Abuse Testing’’ via Dated: December 10, 1999. confidential trade secrets or commercial your fax machine; call the CDRH Facts- Linda S. Kahan, property such as patentable material, On-Demand (FOD) system at 800–899– Deputy Director for Regulations Policy, Center and personal information concerning 0381 or 301–827–0111 from a touch- for Devices and Radiological Health. individuals associated with the grant tone telephone. At the first voice [FR Doc. 99–33002 Filed 12–20–99; 8:45 am] applications, the disclosure of which prompt press 1 to access DSMA Facts, BILLING CODE 4160±01±F would constitute a clearly unwarranted at second voice prompt press 2, and invasion of personal privacy. then enter the document number (1154) Name of Committee: National Center for followed by the pound sign (#). Then Research Resources Special Emphasis Panel follow the remaining voice prompts to Biomedical Research Technology. complete your request. Date: January 5, 2000.
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Time: 2:00 pm to 3:00 pm. Agenda: To review and evaluate contract DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant proposals. HUMAN SERVICES applications. Place: Doubletree Hotel, 1750 Rockville Place: 6705 Rockledge Drive, suite 6018, Pike, Rockville, MD 20852. National Institutes of Health Bethesda, MD 20892, (Telephone Conference Contact Person: Lyle Furr, Contract Review Call). Specialist, Office of Extramural Program National Institute on Aging; Notice of Contact Person: D. G. Patel, PHD, Scientific Review, National Institute on Drug Abuse, Closed Meeting Review Administrator, Office of Review, National Institutes of Health, DHHS, 6001 National Center for Research Resources, 6705 Executive Boulevard, Room 3158, MSC 9547, Pursuant to section 10(d) of the Rockledge Drive, MSC 7965, Room 6018, Bethesda, MD 20892–9547, (301) 435–1439. Federal Advisory Committee Act, as Bethesda, MD 20892–7965, 301–435–0824. Name of Committee: National Institute on amended (5 U.S.C. Appendix 2), notice (Catalogue of Federal Domestic Assistance is hereby given of the following Program Nos. 93.306, Comparative Medicine, Drug Abuse Special Emphasis Panel ‘‘INVEST’’. meeting. 93.306, 93.333, Clinical Research, 93.333, The meeting will be closed to the 93.371, Biomedical Technology; 93.389, Date: January 19, 2000. Research Infrastructure, National Institutes of Time: 9:30 a.m. to 5 p.m. public in accordance with the Health, HHS) Agenda: To review and evaluate contract provisions set forth in sections Dated: December 15, 1999. proposals. 552b(c)(4), and 552b(c)(6), Title 5 Place: Doubletree Hotel, 1750 Rockville U.S.C., as amended. The grant LaVerne Y. Stringfield, Pike, Rockville, MD 20852. applications and the discussions could Director, Office of Federal Advisory Contact Person: Lyle Furr, Contract Review disclose confidential trade secrets or Committee Policy. Specialist, Office of Extramural Program commercial property such as patentable [FR Doc. 99–33084 Filed 12–20–99; 8:45 am] Review, National Institute on Drug Abuse, material, and personal information BILLING CODE 4140±01±M National Institutes of Health, DHHS, 6001 concerning individuals associated with Executive Boulevard, Room 3158, MSC 9547, the grant applications, the disclosure of Bethesda, MD 20892–9547, (301) 435–1439. which would constitute a clearly DEPARTMENT OF HEALTH AND Name of Committee: National Institute on unwarranted invasion of personal HUMAN SERVICES Drug Abuse Special Emphasis Panel privacy. ‘‘Measurement Modules for Prevention National Institutes of Health Interventions’’. Name of Committee: National Institute on Date: January 26, 2000. Aging Special Emphasis Panel, Review of National Institute on Drug Abuse; Time: 9:30 a.m. to 10:30 a.m. P01—Teleconference. Notice of Closed Meetings Agenda: To review and evaluate contract Date: January 13, 2000. Time: 11:30 a.m. to 1:30 p.m. Pursuant to section 10(d) of the proposals. Place: Doubletree Hotel, 1750 Rockville Agenda: To review and evaluate grant Federal Advisory Committee Act, as applications. Pike, Rockville, MD 20852. Place: Gateway Building, 7201 Wisconsin amended (5 U.S.C. Appendix 2), notice Contact Person: Lyle Furr, Contract Review is hereby given of the following Avenue, Suite 2c212, Bethesda, MD 20892, Specialist, Office of Extramural Program (Telephone Conference Call). meetings. Review, National Institute on Drug Abuse, The meetings will be closed to the Contact Person: William A. Kachadorian, National Institutes of Health, DHHS, 6001 PhD, Scientific Review Administrator, The public in accordance with the Executive Boulevard, Room 3158, MSC 9547, provisions set forth in sections Bethesda Gateway Building, 7201 Wisconsin Bethesda, MD 20892–9547, (301) 435–1439. Avenue/Suite 2C212, Bethesda, MD 20892, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute on (301) 496–9666. as amended. The contract proposals and Drug Abuse Special Emphasis Panel (Catalogue of Federal Domestic Assistance the discussions could disclose ‘‘Develop Prevention Research Program Nos. 93.866, Aging Research, confidential trade secrets or commercial Dissemination’’. National Institutes of Health, HHS) property such as patentable material, Date: January 26, 2000. Dated: December 10, 1999. and personal information concerning Time: 10:30 a.m. to 3 p.m. LaVerne Y. Stringfield, individuals associated with the contract Agenda: To review and evaluate contract proposals, the disclosure of which proposals. Director, Office of Federal Advisory Committee Policy. would constitute a clearly unwarranted Place: Doubletree Hotel, 1750 Rockville invasion of personal privacy. Pike, Rockville, MD 20852. [FR Doc. 99–32969 Filed 12–20–99; 8:45 am] Contact Person: Lyle Furr, Contract Review BILLING CODE 4140±01±M Name of Committee: National Institute on Specialist, Office of Extramural Program Drug Abuse Special Emphasis Panel review, national Institutes of Health, DHHS, ‘‘Development of Improved HIV Risk 6001 Executive Boulevard, 6001 Executive DEPARTMENT OF HEALTH AND Behavior Questionnaire and Interview’’ Boulevard, Room 3158, MSC 9547, Bethesda, HUMAN SERVICES Date: January 5, 2000. MD 20892–9547, (301) 435–1439. Time: 9:30 a.m. to 5 p.m. National Institutes of Health Agenda: To review and evaluate contract (Catalogue of Federal Domestic Assistance Program Nos. 93.277, Drug Abuse Scientist proposals. National Institute of Diabetes and Place: Doubletree Hotel, 1750 Rockville Development Award for Clinicians, Scientist Pike, Rockville, MD 20852. Development Awards, and Research Scientist Digestive and Kidney Diseases; Notice Contact Person: Lyle Furr, Contract Review Awards; 93.278, Drug Abuse National of Closed Meeting Specialist, Office of Extramural Program Research Service Awards for Research Pursuant to section 10(d) of the Review, National Institute on Drug Abuse, Training; 93.279, Drug Abuse Research National Institutes of Health, DHHS, 6001 Programs, National Institutes of Health, HHS) Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Executive Boulevard, Room 3158, MSC 9547, Dated: December 13, 1999. Bethesda, MD 20892–9547, (301) 435–1439. is hereby given of the following LaVerne Y. Stringfield, Name of Committee: National Institute on meeting. Director, Office of Federal Advisory Drug Abuse Special Emphasis Panel The meeting will be closed to the Committee Policy. ‘‘Prevention Training’’. public in accordance with the Date: January 12, 2000. [FR Doc. 99–32968 Filed 12–20–99; 8:45 am] provisions set forth in sections Time: 9:30 a.m. to 5 p.m. BILLING CODE 4140±01±M 552b(c)(4) and 552b(c)(6), Title 5 U.S.C.
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71464 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices as amended. The grant applications and Agenda: To review and evaluate grant Research Support; 93.821, Cell Biology and the discussions could disclose applications. Biophysics Research; 93.859, Pharmacology, confidential trade secrets or commercial Place: Juliana Hotel, 590 Bush Street, San Physiology, and Biological Chemistry property such as patentable material, Francisco, CA 94108. Research; 93.862, Genetics and Contact Person: Carole H. Latker, PhD, Developmental Biology Research; 93.88, and personal information concerning Scientific Review Administrator, Office of individuals associated with the grant Minority Access to Research Careers; 93.96, Scientific Review, National Institute of Special Minority Initiatives, National applications, the disclosure of which General Medical Sciences, National Institutes Institutes of Health, HHS) would constitute a clearly unwarranted of Health, Natcher Bulding, Room 1AS–13, invasion of personal privacy. Bethesda, MD 20892, (301) 594–2848. Dated: December 15, 1999. LaVerne Y. Stringfield, Name of Committee: National Institute of (Catalogue of Federal Domestic Assistance Diabetes and Digestive and Kidney Diseases Program Nos. 93.375, Minority Biomedical Director, Office of Federal Advisory Special Emphasis Panel, ZDK1 GRB–6 J2. Research Support; 93,821, Cell Biology and Committee Policy. Date: January 7, 2000. Biophysics Research; 93.859, Pharmacology, [FR Doc. 99–33083 Filed 12–20–99; 8:45 am] Physiology, and Biological Chemistry Time: 8:00 a.m. to 5:00 p.m. BILLING CODE 4140±01±M Agenda: To review and evaluate grant Research; 93.862, Genetics and applications. Developmental Biology Research; 93.88, Minority Access to Research Careers; 93.96, Place: Residence Inn, 7335 Wisconsin DEPARTMENT OF HEALTH AND Avenue, Bethesda, MD 20814. Special Minority Initiatives, National Contact Person: Neal A. Musto, PhD, Institutes of Health, HHS) HUMAN SERVICES Scientific Review Administrator, Review Dated: December 15, 1999. National Institutes of Health Branch, DEA, NIDDK, Natcher Building, LaVerne Y. Stringfield. Room 6AS–37A, National Institutes of Director, Office of Federal Advisory National Institute of Dental & Health, Bethesda, MD 20892–6600, (301) Committee Policy. 594–7798. Craniofacial Research; Notice of [FR Doc. 99–33082 Filed 12–20–99; 8:45 am] (Catalogue of Federal Domestic Assistance Closed Meeting Program Nos. 93.847, Diabetes, BILLING CODE 4140±01±M Endocrinology and Metabolic Research; Pursuant to section 10(d) of the 93.848, Digestive Diseases and Nutrition Federal Advisory Committee Act, as Research; 93.849, Kidney Diseases, Urology DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice and Hematology Research, National Institutes HUMAN SERVICES is hereby given of the following of Health, HHS) meeting. National Institutes of Health Dated: December 10, 1999. The meeting will be closed to the LaVerne Y. Stringfield, National Institute of General Medical public in accordance with the Director, Office of Federal Advisory Sciences; Notice of Closed Meeting provisions set forth in sections Committee Policy. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Pursuant to section 10(d) of the [FR Doc. 99–32970 Filed 12–20–99; 8:45 am] as amended. The contract proposals and Federal Advisory Committee Act, as BILLING CODE 4140±01±M the discussions could disclose amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial is hereby given of the following property such as patentable material, meeting. DEPARTMENT OF HEALTH AND and personal information concerning HUMAN SERVICES The meeting will be closed to the public in accordance with the individuals associated with the contract National Institutes of Health provisions set forth in sections proposals, the disclosure of which 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted National Institute of General Medical as amended. The grant applications and invasion of personal privacy. Sciences; Notice of Closed Meeting the discussions could disclose Name of Committee: National Institute of confidential trade secrets or commercial Dental Research Special Emphasis Panel Pursuant to section 10(d) of the property such as patentable material, Dental, Oral and Craniofacial Data Resource Federal Advisory Committee Act, as and personal information concerning Center. amended (5 U.S.C. Appendix 2), notice individuals associated with the grant Date: January 13, 2000. is hereby given of the following applications, the disclosure of which Time: 9 am to 1 pm. meeting. would constitute a clearly unwarranted Agenda: To review and evaluate contract The meeting will be closed to the invasion of personal privacy. proposals. Place: Chevy Chase Holiday Inn, 5520 public in accordance with the Name of Committee: National Institute of provisions set forth in sections Wisconsin Ave., Chevy Chase, MD 20815. General Medical Sciences Initial Review Contact Person: Louise P. Corman, Phd., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Group Biomedical Research and Research Scientific Review Administrator, Review as amended. The grant applications and Training Review Subcommittee A. Branch, NIH, NHLBI, Rockledge Building II, the discussions could disclose Date: March 15, 2000. 6701 Rockledge Drive, Suite 7180, Bethesda, Time: 8:00 a.m. to 5:00 p.m. confidential trade secrets or commercial MD 20892–7924, (301) 435–0270. property such as patentable material, Agenda: To review and evaluate grant applications. (Catalogue of Federal Domestic Assistance and personal information concerning Program Nos. 93.121, Oral Diseases and individuals associated with the grant Place: Holiday Inn Chevy Chase, 5520 Wisconsin Avenue, Chevy Chase, MD 20815. Disorders Research, National Institutes of applications, the disclosure of which Contact Person: Carole H. Latker, PhD, Health, HHS) would constitute a clearly unwarranted Scientific Review Administrator, Office of Dated: December 15, 1999. invasion of personal privacy. Scientific Review, National Institute of LaVerne Y. Stringfield, Name of Committee: National Institute of General Medical Sciences, National Institutes Director, Office of Federal Advisory General Medical Sciences Special Emphasis of Health, Natcher Building, Room 1AS–13, Committee Policy. Panel Trauma and Burn. Bethesda, MD 20892, (301) 594–3663. Date: January 13–15, 2000. (Catalogue of Federal Domestic Assistance [FR Doc. 99–33085 Filed 12–20–99; 8:45 am] Time: 7:30 am to 11:00 am. Program Nos. 93.375, Minority Biomedical BILLING CODE 4140±01±M
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DEPARTMENT OF HEALTH AND the discussions could disclose Time: 2:00 p.m. to 3:00 p.m. HUMAN SERVICES confidential trade secrets or commercial Agenda: To review and evaluate grant property such as patentable material, applications. National Institutes of Health and personal information concerning Place: NIH, Rockledge 2, Bethesda, individuals associated with the grant MD 20892, (Telephone Conference Call). National Library of Medicine; Notice of applications, the disclosure of which Contact Person: John L. Bowers, PHD, Closed Meeting would constitute a clearly unwarranted Scientific Review Administrator, Center Pursuant to section 10(d) of the invasion of personal privacy. for Scientific Review, National Institutes Federal Advisory Committee Act, as Name of Committee: Center for of Health, 6701 Rockledge Drive, Room amended (5 U.S.C. Appendix 2), notice Scientific Review Special Emphasis 4168, MSC 7806, Bethesda, MD 20892, is hereby given of the following Panel. (301) 435–1725. meeting. Date: December 15, 1999. This notice is being published less The meeting will be closed to the Time: 1:00 p.m. to 2:00 p.m. than 15 days prior to the meeting due public in accordance with the Agenda: To review and evaluate grant to the timing limitations imposed by the provisions set forth in sections applications. review and funding cycle. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: NIH, Rockledge 2, Bethesda, Name of Committee: Center for as amended. The contract proposals and MD 20892, (Telephone Conference Call). Scientific Review Special Emphasis the discussions could disclose Contact Person: Edmund Copeland, Panel. confidential trade secrets or commercial PHD, Scientific Review Administrator, Date: December 21, 1999. property such as patentable material, Center for Scientific Review, National Time: 12:00 p.m. to 1:00 p.m. and personal information concerning Institutes of Health, 6701 Rockledge Agenda: To review and evaluate grant individuals associated with the contract Drive, Room 4142, MSC 7804, Bethesda, applications. proposals, the disclosure of which MD 20892, (301) 435–1715. Place: NIH, Rockledge 2, Bethesda, This notice is being published less would constitute a clearly unwarranted MD 20892, (Telephone Conference Call). than 15 days prior to the meeting due invasion of personal privacy. Contact Person: Edmund Copeland, to the timing limitations imposed by the PHD, Scientific Review Administrator, Name of Committee: National Library of review and funding cycle. Medicine Special Emphasis Panel NHAAP Center for Scientific Review, National Name of Committee: Center for Institutes of Health, 6701 Rockledge Phase II Contract Review. Scientific Review Special Emphasis Date: January 27, 2000. Drive, Room 4142, MSC 7804, Bethesda, Time: 10:30 am to 5:00 pm. Panel. MD 20892, (301) 435–1715. Agenda: To review and evaluate contract Date: December 20, 1999. This notice is being published less proposals. Time: 3:00 p.m. to 5:00 p.m. than 15 days prior to the meeting due Place: National Library of Medicine, 6705 Agenda: To review and evaluate grant to the timing limitations imposed by the Rockledge Drive, Suite 301, Bethesda, MD applications. review and funding cycle. 20892. Place: NIH, Rockledge 2, Bethesda, Contact Person: Peter Clepper, Program MD 20892, (Telephone Conference Call). (Catalogue of Federal Domestic Assistance Officer, National Library of Medicine, Contact Person: Marcia Litwack, PHD, Program Nos. 93.306, Comparative Medicine, Extramural Programs, Rockledge One, 6705 Scientific Review Administrator, Center 93.306; 93.333, Clinical Research, 93.333, 93.337, 93.393–93.396, 93.837–93.844, Rockledge Drive, Suite 301, Bethesda, MD for Scientific Review, National Institutes 20892. 93.846–93.878, 93.892, 93.893, National of Health, 6701 Rockledge Drive, Room Institutes of Health, HHS) (Catalogue of Federal Domestic Assistance 4150, MSC 7804, Bethesda, MD 20892, Dated: December 9, 1999. Program Nos. 93.879, Medical Library (301) 435–1719. Assistance, National Institutes of Health, LaVerne Y. Stringfield, HHS) This notice is being published less than 15 days prior to the meeting due Director, Office of Federal Advisory Dated: December 15, 1999. Committee Policy. to the timing limitations imposed by the LaVerne Y. Stringfield, review and funding cycle. [FR Doc. 99–32967 Filed 12–20–99; 8:45 am] Director, Office of Federal Advisory Name of Committee: Center for BILLING CODE 4140±01±M Committee Policy. Scientific Review Special Emphasis [FR Doc. 99–33081 Filed 12–20–99; 8:45 am] Panel. DEPARTMENT OF HEALTH AND BILLING CODE 4140±01±M Date: December 21, 1999. Time: 2:00 p.m. to 5:00 p.m. HUMAN SERVICES Agenda: To review and evaluate grant National Institutes of Health DEPARTMENT OF HEALTH AND applications. HUMAN SERVICES Place: NIH, Rockledge 2, Bethesda, Center for Scientific Review; Notice of MD 20892, (Telephone Conference Call). Closed Meetings National Institutes of Health Contact Person: Marcia Litwack, PHD, Pursuant to section 10(d) of the Center For Scientific Review; Notice of Scientific Review Administrator, Center Federal Advisory Committee Act, as Closed Meetings for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room amended (5 U.S.C. Appendix 2), notice Pursuant to section 10(d) of the 4150, MSC 7804, Bethesda, MD 20892, is hereby given of the following Federal Advisory Committee Act, as (301) 435–1719. meetings. amended (5 U.S.C. Appendix 2), notice This notice is being published less The meetings will be closed to the is hereby given of the following than 15 days prior to the meeting due public in accordance with the meetings. to the timing limitations imposed by the provisions set forth in sections The meetings will be closed to the review and funding cycle. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., public in accordance with the Name of Committee: Center for as amended. The grant applications and provisions set forth in sections Scientific Review Special Emphasis the discussions could disclose 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Panel. confidential trade secrets or commercial as amended. The grant applications and Date: December 21, 1999. property such as patentable material,
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.160 pfrm03 PsN: 21DEN1 71466 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices and personal information concerning is hereby given of the following applications, the disclosure of which individuals associated with the grant meeting. would constitute a clearly unwarranted applications, the disclosure of which The meeting will be closed to the invasion of personal privacy. would constitute a clearly unwarranted public in accordance with the Name of Committee: Center for Scientific invasion of personal privacy. provisions set forth in sections Review Special Emphasis Panel. Name of Committee: Center for Scientific 552b(c)(4) and 552b(c)(6). Title 5 U.S.C., Date: December 20, 1999. Review Special Emphasis Panel. as amended. The grant applications and Time: 1:00 p.m. to 2:30 p.m. Date: January 4, 2000. the discussions could disclose Agenda: To review and evaluate grant Time: 1 p.m. to 3 p.m. confidential trade secrets or commercial applications. Agenda: To review and evaluate grant property such as patentable material, Place: NIH, Rockledge 2, Bethesda, MD applications. and personal information concerning 20892, (Telephone Conference Call). Contact Person: Jean Hickman, PHD, Place: NIH, Rockledge 2, Bethesda, MD individuals associated with the grant 20892, (Telephone Conference Call). Scientific Review Administrator, Center for applications, the disclosure of which Scientific Review, National Institutes of Contact Person: Marcelina B. Powers, would constitute a clearly unwarranted DVM, MS, Scientific Review Administrator, Health, 6701 Rockledge Drive, Room 4194, Center for Scientific Review, National invasion of personal privacy. MSC 7808, Bethesda, MD 20892 (301) 435– Institutes of Health, 6701 Rockledge Drive, Name of Committee: Center for Scientific 1146. Room 4152, MSC 7804, Bethesda, MD 20892, Review Special Emphasis Panel. This notice is being published less than 15 (301) 435–1720. Date: December 15, 1999. days prior to the meeting due to the timing Time: 12:00 p.m. to 1:00 p.m. limitations imposed by the review and Name of Committee: Center for Scientific funding cycle. Review Special Emphasis Panel. Agenda: To review and evaluate grant Date: January 6, 2000. applications. Name of Committee: Center for Scientific Time: 2 p.m. to 4 p.m. Place: NIH, Rockledge 2, Bethesda, MD Review Special Emphasis Panel. Agenda: To review and evaluate grant 20892, (Telephone Conference Call). Date: December 21, 1999. Time: 1:00 p.m. to 3:00 p.m. applications. Contact Person: Mary Custer, PhD, Agenda: To review and evaluate grant Place: NIH, Rockledge 2, Bethesda, MD Scientific Review Administrator, Center for applications. 20892, (Telephone Conference Call). Scientific Review, National Institutes of Place: NIH, Rockledge 2, Bethesda, MD Contact Person: Leonard Jakubczak, PHD, Health, 6701 Rockledge Drive, Room 5102, 20892, (Telephone Conference Call). Scientific Review Administrator, Center for MSC 7850, Bethesda, MD 20892, (301) 435– Contact Person: Martin Slater, PHD, Scientific Review, National Institutes of 1164. Scientific Review Administrator, Center for Health, 6701 Rockledge Drive, Room 5172, This notice is being published less Scientific Review, National Institutes of MSC 7844, Bethesda, MD 20892, (301) 435– than 15 days prior to the meeting due Health, 6701 Rockledge Drive, Room 4184, 1247 to the timing limitations imposed by the MSC 7808, Bethesda, MD 20892, (301) 435– Name of Committee: Center for Scientific review and funding cycle. 1149. Review Special Emphasis Panel. (Catalogue of Federal Domestic Assistance This notice is being published less than 15 Date: January 7, 2000. Program Nos. 93.306, Comparative Medicine, days prior to the meeting due to the timing Time: 2:45 PM to 5:00 PM. 93.306; 93.333, Clinical Research, 93.333, limitations imposed by the review and Agenda: To review and evaluate grant 93.337, 93.393–93.396, 93.837–93.844, funding cycle. applications. 93.846–93.878, 93.892, 93.893, National (Catalogue of Federal Domestic Assistance Place: NIH, Rockledge 2, Bethesda, MD Institutes of Health, HHS) 20892, (Telephone Conference Call). Program Nos. 93.306, Comparative Medicine, Dated: December 14, 1999. Contact Person: Carl D. Banner, PHD, 93.306; 93.333, Clinical Research, 93.333, Scientific Review Administrator, Center for LaVerne Y. Stringfield, 93.337, 93.393–93.396, 93.837–93.844, Scientific Review, National Institutes of Director, Office of Federal Advisory 93.846–93.878, 93.892, 93.893, National Health, 6701 Rockledge Drive, Room 5212, Committee Policy. Institutes of Health, HHS) MSC 7850, Bethesda, MD 20892, (301) 435– [FR Doc. 99–32964 Filed 12–20–99; 8:45 am] Dated: December 14, 1999. 1251, [email protected]. BILLING CODE 4140±01±M LaVerne Y. Stringfield, (Catalogue of Federal Domestic Assistance Director, Office of Federal Advisory Program Nos. 93.306, Comparative Medicine, Committee Policy. 93.306; 93.333, Clinical Research, 93.333, DEPARTMENT OF HEALTH AND [FR Doc. 99–32965 Filed 12–20–99; 8:45 am] 93.337, 93.393–93.396, 93.837–93.844, HUMAN SERVICES 93.846–93.878, 93.892, 93.893, National BILLING CODE 4140±01±M Institutes of Health, HHS) National Institutes of Health Dated: December 14, 1999. DEPARTMENT OF HEALTH AND LaVerne, Y. Stringfield, Center for Scientific Review; Notice of HUMAN SERVICES Director, Office of Federal Advisory Closed Meetings Committee Policy. Pursuant to section 10(d) of the National Institutes of Health [FR Doc. 99–32963 Filed 12–20–99; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140±01±M Center for Scientific Review; Notice of amended (5 U.S.C. Appendix 2), notice Closed Meetings is hereby given of the following DEPARTMENT OF HEALTH AND meetings. Pursuant to section 10(d) of the HUMAN SERVICES The meetings will be closed to the Federal Advisory Committee Act, as public in accordance with the amended (5 U.S.C. Appendix 2), notice National Institutes of Health provisions set forth in sections is hereby given of the following 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., meetings. Center for Scientific Review; Notice of as amended. The grant applications and The meetings will be closed to the Closed Meeting the discussions could disclose public in accordance with the confidential trade secrets or commercial provisions set forth in sections Pursuant to section 10(d) of the property such as patentable material, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as and personal information concerning as amended. The grant applications and amended (5 U.S.C. Appendix 2), notice individuals associated with the grant the discussions could disclose
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71467 confidential trade secrets or commercial acres of public land withdrawn for the SUMMARY: This order withdraws property such as patentable material, Bureau of Land Management’s Public approximately 2,795 acres of National and personal information concerning Water Reserve No. 107, Interpretation Forest System lands from location and individuals associated with the grant No. 192. The land does not qualify for entry under the United States mining applications, the disclosure of which a public water reserve and the laws, for a 20-year period, for the would constitute a clearly unwarranted revocation is needed to permit disposal Department of the Interior, Central Utah invasion of personal privacy. of the land through exchange. With this Project Completion Act Office to protect Name of Committee: Center for Scientific revocation, there is no remaining land the Diamond Fork System, Bonneville Review Special Emphasis Panel. withdrawn under this Secretarial order Unit of the Central Utah Project. The Date: December 16, 1999. in the state of Montana. The land has lands have been and will remain open Time: 1:00 pm to 4:00 pm. been open to metalliferous mining and to mineral leasing. Agenda: To review and evaluate grant mineral leasing under the terms of the EFFECTIVE DATE: December 21, 1999. applications. withdrawal, but is temporarily closed to Place: NIH, Rockledge 2, Bethesda, MD surface entry and all mining due to a FOR FURTHER INFORMATION CONTACT: Cliff 20892, (Telephone Conference Call). pending legislated land exchange. Yardley, BLM Arizona State Office, 222 Contact Person: Mary Clare Walker, Scientific Review Administrator, Center for EFFECTIVE DATE: December 21, 1999. North Central Avenue, Phoenix, Arizona Scientific Review, National Institutes of FOR FURTHER INFORMATION CONTACT: Russ 85004–2203, 602–417–9437. Health, 6701 Rockledge Drive, Room 5104, Sorensen, Dillon Field Office, 1005 By virtue of the authority vested in MSC 7852, (301) 435–1165. Selway Drive, Dillon, Montana 59725– the Secretary of the Interior by Section This notice is being published less than 15 9431, 406–683–2337 or Sandra Ward, 204 of the Federal Land Policy and days prior to the meeting due to the timing Management Act of 1976, 43 U.S.C. limitations imposed by the review and BLM Montana State Office, P.O. Box funding cycle. 36800, Billings, Montana 59107, 406– 1714 (1994), it is ordered as follows: Name of Committee: Center for Scientific 896–5052. 1. Subject to valid existing rights, the Review Special Emphasis Panel, ZRG1 PBC By virtue of the authority vested in following described National Forest 1. the Secretary of the Interior by Section System lands are hereby withdrawn Date: December 17, 1999. 204 of the Federal Land Policy and from location and entry under the Time: 10:00 am to 11:00 am. Management Act of 1976, 43 U.S.C. Agenda: To review and evaluate grant United States mining laws (30 U.S.C. 1714 (1994), it is ordered as follows: Ch. 2 (1994)), but not from leasing under applications. 1. The Secretarial Order dated Place: NIH, Rockledge 2, Bethesda, MD the mineral leasing laws, to protect the 20892 (Telephone Conference Call). November 24, 1933, which withdrew Diamond Fork System, Bonneville Unit Contact Person: Zakir Bengali, Scientific public land for the Bureau of Land of the Central Utah Project: Review Administrator, Center for Scientific Management’s Public Water Reserve No. Review, National Institutes of Health, 6701 107, Interpretation No. 192, is hereby Salt Lake Meridian Rockledge Drive, Room 5150, MSC 7842, revoked insofar as it affects the Uinta National Forest Bethesda, MD 20892, (301) 435–1742. following described land: T. 8 S., R. 5 E., This notice is being published less Principal Meridian, Montana Sec. 1; than 15 days prior to the meeting due Sec. 2, lots 1, 2, 7, and 8; T. 13 S., R. 1 E., to the timing limitations imposed by the Sec. 12, E1⁄2SE1⁄4; Sec. 18, NE1⁄4SE1⁄4. review and funding cycle. Sec. 14, S1⁄2SE1⁄4; The area described contains 40 acres in Sec. 20, E1⁄2NE1⁄4SE1⁄4 and SE1⁄4SE1⁄4; (Catalogue of Federal Domestic Assistance Beaverhead County. Program Nos. 93.306, Comparative Medicine, Sec. 21, S1⁄2NE1⁄4, E1⁄2SW1⁄4NW1⁄4, 93.306; 93.333, Clinical Research, 93.333, 2. The above-described land is hereby SE1⁄4NW1⁄4, SW1⁄4, N1⁄2SE1⁄4, and 93.337, 93.393–93.396, 93.837–93.844, made available for exchange under SW1⁄4SE1⁄4; 93.846–93.878, 93.892, 93.893, National Section 206 of the Federal Land Policy Sec. 22, NE1⁄4, NE1⁄4NW1⁄4, S1⁄2NW1⁄4, Institutes of Health, HHS) and Management Act of 1976, 43 U.S.C. N1⁄2SW1⁄4, and N1⁄2SE1⁄4; Dated: December 15, 1999. 1716 (1994). Sec. 28, NW1⁄4NW1⁄4; Sec. 29, NE1⁄4, SE1⁄4NW1⁄4, and S1⁄2; LaVerne Y. Stringfield, Dated: December 1, 1999. Sec. 33, SW1⁄4NW1⁄4. Director, Office of Federal Advisory John Berry, Committee Policy. The areas described aggregate Assistant Secretary of the Interior. [FR Doc. 99–33086 Filed 12–20–99; 8:45 am] approximately 2,795 acres in Utah County. [FR Doc. 99–32973 Filed 12–20–99; 8:45 am] BILLING CODE 4140±01±M BILLING CODE 4310±DN±P 2. The withdrawal made by this order does not alter the applicability of those land laws governing the use of the DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR National Forest System lands under lease, license, or permit, or governing Bureau of Land Management Bureau of Land Management the disposal of their mineral or [MT±924±1430±ET; MTM 41226] [AZA 78501] vegetative resources other than under the mining laws. Public Land Order No. 7421; Partial Public Land Order No. 7422; 3. This withdrawal will expire 20 Revocation of Secretarial Order Dated Withdrawal of National Forest System November 24, 1933; Montana years from the effective date of this Lands for the Diamond Fork System, order unless, as a result of a review Bonneville Unit of the Central Utah AGENCY: Bureau of Land Management, conducted before the expiration date Interior. Project; Utah pursuant to Section 204(f) of the Federal ACTION: Public land order. AGENCY: Bureau of Land Management, Land Policy and Management Act of Interior. 1976, 43 U.S.C. 1714(f) (1994), the SUMMARY: This order revokes a Secretary determines that the ACTION: Public land order. Secretarial order insofar as it affects 40 withdrawal shall be extended.
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Dated: December 1, 1999. interest in real property located on park contracts for public comment prior to John Berry, area lands. As an example, a Category II the adoption of final regulations and the Assistant Secretary of the Interior, contract might be used to authorize a new standard concession contract. Any [FR Doc. 99–32972 Filed 12–20–99; 8:45 am] gift shop operation in a portion of a park changes that may be made to the BILLING CODE 4310±RK±P visitor center, or a snack bar operation standard concession contract as a result in an assigned building. of public comment will be incorporated, Category III contracts will be used in to the extent applicable, in the DEPARTMENT OF THE INTERIOR situations where no lands or buildings simplified concession contracts. NPS are assigned to the concessioner; plans to adopt the new regulations, the National Park Service consequently, the concessioner will not new standard concession contract and be allowed to construct or install any the simplified concession contracts Simplified Standard Concession capital improvements or perform capital contemporaneously after due Contracts maintenance and the concessioner will consideration of all public comments ACTION: Proposed National Park Service not obtain any compensable interest in received on these documents. real property located on park area lands. simplified standard concession Category II Contract contracts. Many outfitter/guide operations will be authorized by Category III contracts. United States Department of the Interior SUMMARY: The National Park Service NPS, although not required to do so National Park Service (NPS) authorizes certain business by law, seeks public comments on the lllllllllllllllllllll entities to operate concessions in areas proposed simplified standard of the national park system. The concession contracts (Category II and [Name of Area] lllllllllllllllllllll agreements embodying these Category III contracts) to assist it in the authorizations consist primarily of development of final versions as a [Site] lllllllllllllllllllll standard language that incorporate NPS matter of public policy. terms and conditions established by law [Type of Service] DATES: NPS will accept written lllllllll and prudent contract administration. In comments on the proposed simplified Concession Contract No. lllllllllllllllllllll 1998, Public Law 105–391 was enacted concession contracts on or before which in many significant ways affects January 20, 2000. [Name of Concessioner] lllllllllllllllllllll the content of concession contracts to be ADDRESSES: Comments should be entered into after its effective date. On [Address, including email address and phone addressed to: Concession Program number] September 3, 1999, NPS published a Manager, National Park Service, 1849 Doing Business As llllllllll proposed new standard concession ‘‘C’’ Street, NW, Washington, DC 20240. contract (Category I contract) reflecting Covering the Period lllll through FOR FURTHER INFORMATION CONTACT: the requirements of the new law, as well lllll Wendelin Mann, Concession Program, as a variety of improvements NPS National Park Service, 1849 ‘‘C’’ Street, Category II—Concession Contract wishes to make to its standard NW, Washington, D.C. 20240 (202/565– concession contract, including a new Table of Contents 1219). organizational structure for the sake of Identification of the Parties clarity. SUPPLEMENTARY INFORMATION: Public Purpose and Authorities Under this notice, NPS proposes two Law 105–391, enacted on November 13, Sec. 1. Term of Contract simplified versions of its proposed 1998, among other matters, amended the Sec. 2. Definitions standard concession contract (Category statutory policies and procedures under Sec. 3. Services and Operations II and Category III contracts) that will be which NPS operated its concession A. Required and Authorized Visitor used for smaller concession operations. program. The new law requires Services NPS proposes the following adoption of new regulations governing B. Operation and Quality of Operation the award, content and management of C. Operating Plan [OPTIONAL] distinctions between the three contract D. Merchandise and Services categories: concession contracts. On June 30, 1999, E. Rates Category I contracts will be used in NPS published for public comment F. Impartiality as to Rates and Services situations where the concessioner will proposed regulations implementing the Sec. 4. Concessioner Personnel be required or allowed to construct or new law. On September 3, 1999, NPS Sec. 5. Legal, Regulatory, Policy Compliance install capital improvements on park published for public comment a A. Legal, Regulatory, Policy Compliance area lands, thereby acquiring a proposed new standard concession B. Notice compensable interest in real property on contract. As indicated in the September C. How and Where to Send Notice park area lands. Category I contracts 3, 1999, public notice, after adoption of Sec. 6. Environmental and Cultural the new regulations and the new Protection will also require that the concessioner A. Environmental Protection perform capital maintenance on standard contract, NPS intended to B. Protection of Cultural and Archeological assigned concession facilities, as develop and adopt a simplified (‘‘short- Resources necessary, and will require the form’’) concession contract that will be Sec. 7. Interpretation of Area Resources establishment of a maintenance reserve used for smaller concession operations A. Concessioner Obligations for this purpose. that do not involve the concessioner’s B. Director Review of Content Category II contracts will be used in obtaining a compensable interest in real C. Provision of Interpretation Not situations where a concessioner will property located on park area lands. Exclusive operate on assigned land or in an However, based on its initial review of Sec. 8. Concession Facilities Used in assigned concession facility, but will comments in response to the proposed Operation by Concessioner A. Assignment of Concession Facilities not allow the concessioner to construct regulations and standard concession B. Concession Facilities Withdrawals or install capital improvements or contract, NPS has determined that it C. Effect of Withdrawal perform capital maintenance and, would be appropriate to develop two D. Right of Entry therefore, do not involve the simplified contract categories and E. Personal Property concessioner’s obtaining a compensable publish both simplified concession F. Condition of Concession Facilities
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G. Utilities [Sole Proprietorship] (b) ‘‘Area’’ means the property within Sec. 9. Maintenance the boundaries of [Name of Park Unit]. A. Maintenance Obligation This Contract made and entered into by and between the United States of (c) ‘‘Capital Improvement’’ shall have B. Maintenance Plan [Optional] the meaning set forth in 36 CFR Part 51 Sec. 10. Fees America, acting in this matter by the A. Franchise Fee Director of the National Park Service, as of the effective date of this B. Payments Due through the Regional Director of the CONTRACT. (d) ‘‘Concession Facilities’’ shall mean C. Interest lllll Region, hereinafter referred all Area lands assigned to the Sec. 11. Indemnification and Insurance to as the ‘‘Director,’’ and, an individual Concessioner under this CONTRACT, A. Indemnification of, doing business as lllll, B. Insurance in General all real property improvements assigned hereinafter referred to as the C. Commercial Public Liability to the Concessioner under this Contract, ‘‘Concessioner’’: D. Property Insurance including without limitation all Sec. 12. Bonds and Liens Witnesseth government personal property assigned A. Bonds B. Liens That whereas, [Name of Park, to the Concessioner under this Sec. 13. Accounting Records and Reports Recreation Area, etc.] is administered by CONTRACT. The United States retains A. Accounting System the Director as a unit of the national title and ownership to all Concession B. Annual Financial Report park system to conserve the scenery and Facilities. C. Other Financial Reports the natural and historic objects and the (e) ‘‘Director’’ means the Director of Sec. 14. Other Reporting Requirements wild life therein, and to provide for the the National Park Service and his duly A. Insurance Certification authorized representatives unless B. Environmental Reporting public enjoyment of the same in such manner as will leave such Area otherwise indicated. C. Miscellaneous Reports and Data (f) ‘‘Exhibit’’ or ‘‘Exhibits’’ shall mean Sec. 15. Suspension and Termination unimpaired for the enjoyment of future the various exhibits, which are attached A. Suspension generations; and B. Termination Whereas, to accomplish these to this CONTRACT, each, of which is C. Notice of Bankruptcy or Insolvency purposes, the Director has determined hereby made a part of this CONTRACT. D. Requirements in the Event of that certain visitor services are (g) ‘‘Gross Receipts’’ means the total amount received or realized by, or Termination necessary and appropriate for the public E. Removal of Personal Property accruing to, the Concessioner from all use and enjoyment of the Area and Sec. 16. Assignment, Sale or Encumbrance of sales for cash or credit, of services, should be provided for the public Interests accommodations, materials, and other visiting the Area; and Sec. 17. General Provisions merchandise made pursuant to the Sec. 18. Special Provisions [Optional] Whereas, the Director desires the Exhibits Concessioner to establish and operate rights granted by this CONTRACT, Exhibit ‘‘A’’: Nondiscrimination these visitor services at reasonable rates including gross receipts of Exhibit ‘‘B’’: Assigned Land, Real Property under the supervision and regulation of subconcessioners as herein defined, commissions earned on contracts or Improvements the Director; Exhibit ‘‘C’’: Assigned Government Now, therefore, pursuant to the agreements with other persons or Personal Property authority contained in the Acts of companies operating in the Area, and Exhibit ‘‘E’’: Insurance Requirements gross receipts earned from electronic Exhibit ‘‘F’’: Maintenance Plan August 25, 1916 (16 U.S.C. 1, 2–4), and November 13, 1998 (P.L. 105–391), and media sales, but excluding: [OPTIONAL] (i) Intracompany earnings on account Exhibit ‘‘G’’: Operating Plan [OPTIONAL] other laws that supplement and amend of charges to other departments of the Exhibit ‘‘X’’: 36 CFR Part 51 the Acts, the Director and the operation (such as laundry); [Corporation] Concessioner agree as follows: (ii) Charges for employees’ meals, This CONTRACT is made and entered Sec. 1. Term of Contract lodgings, and transportation; into by and between the United States (iii) Cash discounts on purchases; This Concession Contract No. (iv) Cash discounts on sales; of America, acting in this matter by the lllll (‘‘CONTRACT’’) shall be lllll (v) Returned sales and allowances; Director of the National Park Service, effective as of , and shall be (vi) Interest on money loaned or in through the Regional Director of the for the term of lllll (ll) years lllll bank accounts; Region, hereinafter referred from lllll, 20ll. (vii) Income from investments; to as the ‘‘Director,’’ and, a corporation Sec. 2. Definitions (viii) Income from subsidiary organized and existing under the laws of companies outside of the Area; the State of lllll doing business The following terms used in this (ix) Sale of property other than that as hereinafter referred to as the CONTRACT will have the following purchased in the regular course of ‘‘Concessioner’’: meanings, which apply to both the business for the purpose of resale; singular and the plural forms of the (x) Sales and excise taxes that are [Partnership] defined terms: added as separate charges to approved This CONTRACT is made and entered (a) ‘‘Applicable Laws’’ means the laws sales prices, gasoline taxes, fishing into by and between the United States of Congress governing the Area, license fees, and postage stamps, of America, acting in this matter by the including, but not limited to, the rules, provided that the amount excluded Director of the National Park Service, regulations, requirements and policies shall not exceed the amount actually through the Regional Director of the promulgated under those laws, whether due or paid government agencies; lllll Region, hereinafter referred now in force, or amended, enacted or (xi) Receipts from the sale of to as the ‘‘Director’’, and of lllll, promulgated in the future, including, handcrafts that have been approved for lllll, and lllll of, partners, without limitation, federal, state and sale by the Director as constituting doing business as, pursuant to a local laws, rules, regulations, authentic American Indian, Alaskan partnership agreement dated requirements and policies governing Native, Native Samoan, or Native lllll, with the principal place of nondiscrimination, protection of the Hawaiian handicrafts. business at lllll, hereinafter environment and/or protection of public All monies paid into coin operated referred to as the ‘‘Concessioner’’: health and safety. devices, except telephones, whether
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All revenues The Concessioner shall provide the All rates and charges to the public by received from charges for in-room plant, personnel, equipment, goods, and the Concessioner for visitor services telephone or computer access shall be commodities necessary for providing, shall be reasonable and appropriate for included in gross receipts. operating and maintaining the required the type and quality of facilities and/or (h) ‘‘Gross receipts of and authorized visitor services in services required and/or authorized subconcessioners’’ means the total accordance with this CONTRACT. The under this CONTRACT. The amount received or realized by, or Concessioner’s authority to provide Concessioner’s rates and charges to the accruing to, subconcessioners from all visitor services under the terms of this public must be approved by the Director sources, as a result of the exercise of the CONTRACT is non-exclusive. in accordance with rate approval procedures and guidelines promulgated rights conferred by subconcession (c) Operating Plan [OPTIONAL—This by the Director from time to time. contracts hereunder without section may be deleted and operating allowances, exclusions or deductions of requirements incorporated under (f) Impartiality as to Rates and Services any kind or nature whatsoever. Section 18, Special Provisions.] (i) ‘‘Leasehold Surrender Interest’’ (1) In providing visitor services, the shall have the meaning set forth in 36 The Director, acting through the Concessioner must require its CFR Part 51 as of the effective date of Superintendent, shall establish and employees to observe a strict this CONTRACT. revise, as necessary, specific impartiality as to rates and services in (j) ‘‘Real Property Improvements’’ requirements for the operations of the all circumstances. The Concessioner means real property other than land, Concessioner under this CONTRACT in shall comply with all Applicable Laws including, but not limited to, capital the form of an Operating Plan relating to nondiscrimination in improvements. (including, without limitation, a risk providing visitor services to the public (k) ‘‘Superintendent’’ means the management program, that must be including, without limitation, those set manager of the Area. adhered to by the Concessioner). The forth in Exhibit ‘‘A.’’ (l) ‘‘Visitor services’’ means the initial Operating Plan is attached to this (2) The Concessioner may grant accommodations, facilities and services CONTRACT as Exhibit ‘‘G.’’ The complimentary or reduced rates under that the Concessioner is required and Director in his discretion, after such circumstances as are customary in authorized to provide by section 3(a) of consultation with the Concessioner, businesses of the character conducted this CONTRACT. may make modifications to the initial under this CONTRACT. However, the Operating Plan provided that these Director reserves the right to review and Sec. 3. Services and Operations modifications shall not be inconsistent modify Concessioner’s complimentary (a) Required and Authorized Visitor with the terms and conditions of the or reduced rate policies and practices. Services main body of this CONTRACT. (3) The Concessioner will provide Federal employees conducting official (d) Merchandise and Services During the term of this CONTRACT, business reduced rates for lodging, the Director requires and authorizes the (1) The Director reserves the right to essential transportation and other Concessioner to provide the following determine and control the nature, type specified services necessary for visitor services for the public within the and quality of the visitor services conducting official business in Area: described in this CONTRACT, accordance with guidelines established (1) Required Visitor Services. The including, but not limited to, the nature, by the Director. Complimentary or Concessioner is required to provide the type, and quality of merchandise, if any, reduced rates and charges shall following visitor services during the to be sold or provided by the otherwise not be provided to Federal term of this CONTRACT: Concessioner within the Area. employees by the Concessioner except [Provide detailed description of (2) All material, regardless of media to the extent that they are equally required services. Broad generalizations format (i.e. printed, electronic, available to the general public. such as ‘‘any and all facilities and broadcast media), provided to the public services customary in such operations’’ by the Concessioner, including Sec. 4. Concessioner Personnel or ‘‘such additional facilities and promotional material, must be approved (a) The Concessioner shall provide all services as may be required’’ are not to in writing by the Director prior to use. personnel necessary to provide the be used. A provision stating ‘‘The All such material will identify the visitor services required and authorized Concessioner may provide services Concessioner as an authorized by this CONTRACT. incidental to the operations authorized Concessioner of the National Park (b) The Concessioner shall comply hereunder at the request and written Service, Department of the Interior. with all Applicable Laws relating to approval of the Director’’ is acceptable.] (3) [OPTIONAL—To be used only if employment and employment (2) Authorized Visitor Services. The the concessioner is authorized to sell conditions, including, without Concessioner is authorized but not merchandise.] The Concessioner, where limitation, those identified in Exhibit required to provide the following visitor applicable, will develop and implement ‘‘A.’’ services during the term of this a plan satisfactory to the Director that (c) The Concessioner shall ensure that CONTRACT: will assure that all gift merchandise, if its employees are hospitable and [Provide detailed description of any, to be sold or provided reflects the exercise courtesy and consideration in authorized services.] purpose and significance of the Area, their relations with the public. The including, but not limited to, Concessioner shall have its employees (b) Operation and Quality of Operation merchandise that reflects the who come in direct contact with the The Concessioner shall provide, conservation of the Area’s resources or public, so far as practicable, wear a operate and maintain the required and the Area’s geology, wildlife, plant life, uniform or badge by which they may be
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The Concessioner through its employees in an efficient Compliance shall be financially responsible for and effective manner and for the environmental audits that may be purpose of maintaining a healthful, law This CONTRACT, operations thereunder by the Concessioner and the required by the Director for each three- abiding, and safe working environment year period of this CONTRACT. for its employees. The Concessioner administration of it by the Director shall be subject to all Applicable Laws. The (2) The Concessioner shall obtain the shall conduct appropriate background Director’s approval prior to using any reviews of applicants for employment to Concessioner must comply with all Applicable Laws in fulfilling its chemicals, pesticides, any hazardous or assure that they conform to the hiring toxic substance, material, or waste of policies established by the obligations under this CONTRACT at the Concessioner’s sole cost and any kind, including building materials Concessioner. such as asbestos, or any contaminant, (e) The Concessioner shall hire, to the expense. Certain Applicable Laws governing protection of the environment pollutant, petroleum, petroleum product greatest extent possible, people who are or petroleum by-product. both interested in serving the public in are further described in this Contract. Certain Applicable Laws relating to (3) The Concessioner shall monitor, a national park environment and test, maintain, repair, upgrade, replace, interested in being positive contributors nondiscrimination in employment and providing accessible facilities and remove, or mitigate, in accordance with to the park’s purpose. Applicable Laws and in accordance (f) The Concessioner shall ensure that services to the public are further with the requirements of the Director: its employees are provided the training described in this CONTRACT. (i) Any discharge, release or needed to provide quality visitor (b) Notice services and to maintain up-to-date job threatened release (whether solid, liquid skills. The Concessioner shall give the or gaseous in nature) of any hazardous (g) The Concessioner shall review the Director immediate written notice of or toxic substance, material, or waste of conduct of any of its employees whose any violation of Applicable Laws and, at any kind, including building materials action or activities are considered by the its sole cost and expense, must such as asbestos, or any contaminant, Concessioner or the Director to be promptly rectify any such violation. pollutant, petroleum, petroleum product or petroleum by-product on or to the inconsistent with the proper (c) How and Where To Send Notice administration of the Area and Area, including soil, surface water or enjoyment and protection of visitors and All notices required by this groundwater; shall take such actions as are necessary CONTRACT, shall be in writing and (ii) Any materials, equipment, and to fully correct the situation. shall be served on the parties at the facilities associated with such (h) The Concessioner shall maintain, following addresses. The mailing of a discharge, release or threatened release; to the greatest extent possible, a drug notice by registered or certified mail, or free environment, both in the workplace return receipt requested, shall be (iii) any materials, equipment and and in any employee housing within the sufficient service. Notices sent to the facilities used in the handling, storage, Area. Director shall be sent to the following disposal, transport or other use of any (i) The Concessioner shall publish a address: such hazardous or toxic substance, statement notifying employees that the Superintendent material, or waste of any kind, including unlawful manufacture, distribution, Park name building materials such as asbestos, or dispensing, possession, or use of a Address any contaminant, pollutant, petroleum, controlled substance is prohibited in the Attention: petroleum product or petroleum by- product. workplace and in the Area, and Notices sent to the Concessioner shall specifying the actions that will be taken be sent to the following address: (4) The Concessioner shall timely against employees for violating this contact, notify and/or otherwise confer Concessioner prohibition. In addition, the with appropriate federal, state and/or Address Concessioner shall establish a drug-free local agencies with respect to any Attention: awareness program to inform employees reporting obligation arising out of about the danger of drug abuse in the Sec. 6. Environmental and Cultural Concessioner’s operations under this workplace and the Area, the availability Protection CONTRACT and the Concessioner shall of drug counseling, rehabilitation and simultaneously provide notice of such (a) Environmental Protection employee assistance programs, and the contact to the Director and allow the Concessioner’s policy of maintaining a (1) In addition to complying with all Director the opportunity to participate drug-free environment both in the Applicable Laws pertaining to the in any such proceedings. workplace and in the Area. protection of natural resources within (5) The Concessioner shall give the (j) The Concessioner shall take the area, the Concessioner will conduct Director immediate notice of any appropriate personnel action, up to and its operation, construction, discharge, release or threatened release including termination or requiring maintenance, acquisition, and provision (whether solid, liquid or gaseous in satisfactory participation in a drug of visitor services in a manner that nature) of any hazardous or toxic abuse or rehabilitation program which is prevents or reduces environmental substance, material, or waste of any approved by a Federal, State, or local degradation and that promotes the use kind, including building materials such health, law enforcement or other of environmentally beneficial products. as asbestos, or any contaminant, appropriate agency, for any employee The Concessioner will develop, pollutant, petroleum, petroleum product that violates the prohibition on the pursuant to guidelines provided by the or petroleum by-product.
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(6) The Concessioner shall give the (b) Protection of Cultural and upon Area lands. The Concessioner Director immediate written notice of Archeological Resources shall not obtain a Leasehold Surrender any threatened or actual notice of The Concessioner shall ensure that Interest or other compensable interest in violation of any federal, state or local any protected sites and archeological Capital Improvements constructed or law, rule, regulation, requirement or resources within the Area are not installed in violation of this policy relating to or governing the use, disturbed or damaged by the CONTRACT. handling, storage, disposal, transport, Concessioner, including the (2) The Director shall from time to presence, acceptable concentration, or Concessioner’s employees, time amend Exhibit B to reflect changes remediation of any hazardous or toxic subcontractors or agents, except in in Concession Facilities assigned to substance, material, or waste of any accordance with Applicable Laws, and Concessioner. kind, including building materials such only with the prior approval of the (b) Concession Facilities Withdrawals as asbestos, or any contaminant, Director. Discoveries of any pollutant, petroleum, petroleum product archeological resources by Concessioner The Director may withdraw all or or petroleum by-product received by shall be promptly reported to the portions of these Concession Facilities Concessioner. Director. The Concessioner shall cease assignments at any time during the term (7) The Concessioner, at its sole cost work or other disturbance which may of this CONTRACT if: and expense, shall promptly rectify any impact any protected site or (1) The withdrawal is for the purpose discharge or release as set forth in this archeological resource until the Director of enhancing or protecting Area section or any threatened or actual grants approval, upon such terms and resources or visitor enjoyment or safety; violation as set forth in this section, conditions as the Director deems (2) The operations utilizing the including, but not limited to, payment necessary, to continue such work or assigned Concession Facilities have of any fines or penalties imposed other disturbance. been terminated or suspended by the thereon. Director; or (8) The Concessioner shall indemnify Sec. 7. Interpretation of Area Resources (3) Land assigned to the Concessioner the United States in accordance with (a) Concessioner Obligations is no longer necessary for the section 12 of the Contract from losses, (1) The Concessioner shall provide all concession operation. damages or judgements (including, visitor services in a manner that is (c) Effect of Withdrawal without limitation, fines and penalties) consistent with and supportive of the and expenses (including, without interpretive themes, goals and objectives Any permanent withdrawal of limitation, attorneys fees and experts of the Area. assigned Concession Facilities which fees) arising out of the activities of the (2) The Concessioner may assist in the Director considers as essential for Concessioner pursuant to this section. Area interpretation at the request of the the Concessioner to provide the visitor Such indemnification shall survive Director to enhance visitor enjoyment of services required by this CONTRACT termination of this CONTRACT. the Area. Any additional visitor services will be treated by the Director as a (9) If the Concessioner does not that may result from this assistance termination of this Contract pursuant to promptly rectify the discharge or release must be recognized in writing through Section 16. No compensation is due the (whether solid, liquid or gaseous in written amendment of Section 3 of this Concessioner in these circumstances. nature) of any hazardous or toxic CONTRACT. (d) Right of Entry substance, material, or waste of any kind, including building materials such (b) Director Review of Content The Director shall have the right at as asbestos, or any contaminant, The Concessioner must submit the any time to enter upon or into the pollutant, petroleum, petroleum product proposed content of any interpretive Concession Facilities assigned to the or petroleum by-product, the Director programs, exhibits, materials or displays Concessioner under this CONTRACT for may, in its sole discretion and after to the Director for review and approval any purpose he may deem necessary for notice to Concessioner, take any such prior to offering such programs, exhibits the administration of the Area. action the Director deems necessary to or displays to Area visitors. (e) Personal Property minimize, remediate, or otherwise clean (c) Provision of Interpretation Not up such release or discharge, and (1) Personal Property Provided by the Exclusive recover any costs associated with such Concessioner. The Concessioner shall action from the Concessioner upon Notwithstanding any provision of this provide all personal property, including demand. CONTRACT to the contrary, the Director removable equipment, furniture and (10) Even if not specifically required retains the right to provide Area goods, necessary for its operations by Applicable Laws, the Concessioner interpretation, including without under this CONTRACT. shall comply with directives of the limitation, the conduct of interpretive (2) Personal Property Provided by the Director to clean up or remove any programs and the sale of interpretive Government. The Director may provide materials, product or by-product used, materials, directly or though cooperative certain items of government personal handled, stored, disposed, transported or other agreements with third parties, property and equipment for the onto or into the Area by the as the Director determines to be Concessioner’s use in the performance Concessioner to ensure that the Area necessary or appropriate. of this CONTRACT. The Director hereby remains in good condition. Sec. 8. Concession Facilities Used in assigns government personal property (11) The Concessioner shall be Operations by Concessioner and equipment listed in Exhibit C to the responsible for managing weeds, Concessioner as of the effective date of harmful insects, rats, mice and other (a) Assignment of Concession Facilities this CONTRACT. This Exhibit C will be pests on all lands and improvements (1) The Director hereby assigns modified from time to time by the assigned to the Concessioner under this Concession Facilities as described in Director as items may be withdrawn or CONTRACT. All such weed and pest Exhibit B to the Concessioner for the additional items added. The management activities shall be in purposes of this CONTRACT. The Concessioner shall be accountable to the accordance with guidelines established Concessioner shall not be authorized to Director for the government personal by the Director. construct any Capital Improvements property and equipment assigned to it
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If the property franchise fee is consistent with the whatsoever, and by whomsoever made, ceases to be serviceable, it shall be probable value of the privileges granted in any way relating to or arising out of returned to the Director for disposition. by this CONTRACT as defined in this the activities of the Concessioner, his section. employees, subcontractors or agents (f) Condition of Concession Facilities (3) The Concessioner shall have no under this CONTRACT. This Concessioner has inspected the right to an adjustment of the fees except indemnification shall survive the Concession Facilities, including any as provided below. The Concessioner termination or expiration of this government personal property, is shall have no right to waiver of the Contract. thoroughly acquainted with their franchise fee. condition, and accepts the Concession (b) Insurance in General (b) Payments Due Facilities ‘‘as is.’’ (1) The Concessioner shall obtain and (1) The franchise fee shall be due on (g) Utilities maintain during the entire term of this a monthly basis at the end of each CONTRACT at its sole cost and expense, (1) The Director may provide utilities month and shall be paid by the the types and amounts of insurance to the Concessioner for use in Concessioner in such a manner that the coverage necessary to fulfill the connection with the operations required Director shall receive payment within obligations of this CONTRACT. The and/or authorized under this fifteen (15) days after the last day of Director shall approve the types and CONTRACT when available at rates to each month that the Concessioner amounts of insurance coverage be fixed by the Director under operates. This monthly payment shall purchased by the Concessioner. applicable guidelines. include the franchise fee equal to the (2) The Director will not be (2) If the Director does not provide specified percentage of gross receipts for responsible for any omissions or these utilities, the Concessioner shall, the preceding month. inadequacies of insurance coverages and with the written approval of the Director (2) The Concessioner shall pay any amounts in the event the insurance and under any requirements that the additional fee amounts due at the end purchased by the Concessioner proves Director shall prescribe, secure of the operating year as a result of to be inadequate or otherwise necessary utilities at its own expense adjustments at the time of submission of insufficient for any reason whatsoever. from sources outside the Area. the Concessioner’s Annual Financial (3) At the request of the Director, the Sec. 9. Maintenance Report. Overpayments shall be offset Concessioner shall at the time insurance against the following year’s fees. is first purchased and annually, (a) Maintenance Obligation (3) All franchise fee payments thereafter, provide the Director with a The Concessioner shall be solely consisting of $10,000 or more, shall be Certificate of Insurance that accurately responsible for maintenance, repairs, deposited electronically by the details the conditions of the policy as housekeeping, and groundskeeping for Concessioner using the Treasury evidence of compliance with this all Concession Facilities to the Financial Communications System. section. The Concessioner shall provide satisfaction of the Director. (c) Interest the Director thirty (30) days advance written notice of any material change in (b) Maintenance Plan [OPTIONAL— An interest charge will be assessed on This section may be deleted and the Concessioner’s insurance program overdue amounts for each thirty (30) hereunder. maintenance requirements incorporated day period, or portion thereof, that under Section 18, Special Provisions.] payment is delayed beyond the fifteen (c) Commercial Public Liability For these purposes, the Director, (15)-day period provided for above. The (1) The Concessioner shall provide acting through the Superintendent, shall percent of interest charged will be based commercial general liability insurance undertake appropriate inspections, and, on the current value of funds to the against claims arising out of or resulting after consultation with the United States Treasury as published from the acts or omissions of the Concessioner, shall establish and revise, quarterly in the Treasury Fiscal Concessioner or its employees in as necessary, a Maintenance Plan Requirements Manual. The Director may carrying out the activities and consisting of specific maintenance also impose penalties for late payment operations required and/or authorized requirements which shall be adhered to to the extent authorized by Applicable under this CONTRACT. by the Concessioner. The initial Law. (2) This insurance shall be in the Maintenance Plan is set forth in Exhibit Sec. 11. Indemnification and Insurance amount commensurate with the degree F. The Director in his discretion may of risk and the scope and size of the modify the Maintenance Plan from time (a) Indemnification activities required and/or authorized to time after consultation with the The Concessioner agrees to assume under this CONTRACT, as more Concessioner. Such modifications shall liability for and does hereby agree to specifically set forth in Exhibit E. not be inconsistent with the terms and save, hold harmless, protect, defend and Furthermore, the commercial general conditions of the main body of this indemnify the United States of America, liability package shall provide the CONTRACT. its agents and employees from and coverages and limits described in Sec. 10. Fees against any and all liabilities, Exhibit E. obligations, losses, damages or (3) All liability policies shall specify (a) Franchise Fee judgments (including without limitation that the insurance company shall have (1) For the term of this CONTRACT, penalties and fines), claims, actions, no right of subrogation against the the Concessioner shall pay to the suits, costs and expenses (including United States of America and shall Director for the privileges granted under without limitation attorneys fees and provide that the United States of this CONTRACT a franchise fee equal to experts fees) of any kind and nature America is named an additional lllll Percent (lllll %) of whatsoever on account of fire or other insured.
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(4) From time to time, as conditions Sec. 12. Bonds and Liens $1,000,000, the financial statements shall be audited by an independent in the insurance industry warrant, the (a) Bonds Director may, in his discretion, modify Certified Public Accountant in Exhibit E to revise the minimum The Director may require the accordance with the Generally Accepted required limits or to require additional Concessioner to furnish appropriate Auditing Standards (GAAS) and types of insurance. forms of bonds acceptable to the procedures promulgated by the Director conditioned upon faithful American Institute of Certified Public (d) Property Insurance performance of its obligations under this Accountants. CONTRACT,in such form and in such (3) If annual gross receipts are (1) In the event of damage or amount as the Director may deem between $250,000, and $1,000,000, the destruction, the Concessioner will adequate. repair or replace those Concession financial statements shall be reviewed Facilities and other buildings, (b) Lien by an independent Certified Public structures, equipment, furnishings, As additional security for the faithful Accountant in accordance with the betterments, improvements and performance by the Concessioner of its Generally Accepted Auditing Standards merchandise utilized by the obligations under this Contract, and the (GAAS) and procedures promulgated by Concessioner in the performance of the payment to the Government of all the American Institute of Certified Concessioner’s obligations under this damages or claims that may result from Public Accountants. CONTRACT. the Concessioner’s failure to observe (4) If annual gross receipts are less any such obligations, the Government than $250,000, the financial statements (2) For this purpose, the Concessioner shall have at all times the first lien on may be prepared without involvement shall provide fire and extended all assets of the Concessioner within the by an independent Certified Public insurance coverage on Concession Area, including, but not limited to, all Accountant, unless otherwise directed Facilities in amounts that the Director personal property of the Concessioner by the Director. may require during the term of the used in performance of the CONTRACT Contract. The values currently in effect hereunder. (c) Other Financial Reports are set forth in Exhibit E. This Exhibit (1) Balance Sheet. Within ninety (90) will be revised at least every three (3) Sec. 13. Accounting Records and Reports days of the execution of this years, or earlier if there is a substantial CONTRACT or its effective date, change in value of Concession Facilities. (a) Accounting System whichever is later, the Concessioner (3) Commercial property insurance (1) The Concessioner shall maintain shall submit to the Director a balance shall provide for the Concessioner and an accounting system under which its sheet as of the beginning date of the the United States of America to be accounts can be readily identified with term of this CONTRACT. The balance named insured as their interests may its system of accounts classification. sheet shall be audited or reviewed, as appear. Such accounting system shall be determined by the gross receipts, by an (4) In the event of loss, the capable of providing the information independent Certified Public Concessioner shall use all proceeds of required by this CONTRACT. The Accountant. Concessioner’s system of accounts such insurance to repair, rebuild, restore Sec. 14. Other Reporting Requirements or replace Concession Facilities, classification shall be directly related to equipment, furnishings and other the Concessioner Annual Financial The following describes certain other personal property hereunder, as Report Form issued by the Director. reports required under this CONTRACT: (2) If the Concessioner’s annual gross directed by the Director. Policies may receipts are $250,000 or more, the (a) Insurance Certification not contain provisions limiting Concessioner must use the accrual As specified in Section 12, at the time insurance proceeds to in situ accounting method. replacement. The lien provision of insurance is first purchased, and (3) In computing net profits for any annually thereafter, the Concessioner Section 13 shall apply to such insurance purposes of this CONTRACT, the proceeds. shall provide the Director with a Concessioner shall keep its account in Certificate of Insurance for all insurance (5) Insurance policies that cover such manner that there can be no coverages related to its operations under Concession Facilities shall contain a diversion or concealment of profits or this CONTRACT. The Concessioner loss payable clause approved by the expenses in the operations authorized shall give the Director thirty (30) days Director which requires insurance hereunder by means of arrangements for advance written notice of any material proceeds to be paid directly to the the procurement of equipment, change in its insurance program. Concessioner without requiring merchandise, supplies or services from endorsement by the United States. The sources controlled by or under common (b) Environmental Reporting use of insurance proceeds for repair or ownership with the Concessioner or by any other device. The Concessioner shall submit a replacement of Concession Facilities quarterly report on any matters related will not alter their character as (b) Annual Financial Report to the Concessioner’s environmental properties of the United States and, (1) The Concessioner shall submit compliance requirements under this notwithstanding any provision of this annually as soon as possible but not CONTRACT. CONTRACT to the contrary, the later than ninety (90) days after the last Concessioner shall gain no ownership, (c) Miscellaneous Reports and Data day of its fiscal year a financial Leasehold Surrender Interest or other statement for the preceding fiscal year The Director from time to time may compensable interest as a result of the or portion of a year as prescribed by the require the Concessioner to submit other use of these insurance proceeds. Director (‘‘Concessioner Annual reports and data regarding its (6) The commercial property package Financial Report’’). performance under the CONTRACT or shall include the coverages and amounts (2) If the annual gross receipts of the otherwise, including, but not limited to, described in Exhibit E. Concessioner are in excess of operational information.
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Sec. 15. Suspension and Termination (4) The Director may terminate this of the term of this CONTRACT, CONTRACT upon the filing or the reasonable wear and tear excepted. (a) Suspension execution of a petition in bankruptcy by (e) Removal of Personal Property The Director may temporarily or against the Concessioner, a petition suspend operations under this seeking relief of the same or different Except as otherwise provided in this CONTRACT in whole or in part when kind under any provision of the CONTRACT, upon expiration or necessary for administrative purposes or Bankruptcy Act or its successor, an termination of this CONTRACT for any to enhance or protect Area resources, assignment by the Concessioner for the reason, the Concessioner shall remove visitor enjoyment or safety. No benefit of creditors, a petition or other its personal property from the Area compensation of any nature shall be due proceeding against the Concessioner for unless it is sold to the Director or a the Concessioner in the event of a the appointment of a trustee, receiver or successor concessioner. No suspension of operations, including, but liquidator, or the taking by any person compensation is due the Concessioner not limited to, compensation for losses or entity of the rights granted by this from the Director or a successor based on lost income, profit, or the CONTRACT or any part thereof upon concessioner for such personal property. necessity to make expenditures as a execution, attachment or other process The Director or a successor concessioner result of the suspension. of law or equity. The Director may may purchase such personal property terminate this CONTRACT if the from the Concessioner subject to (b) Termination Director determines that the mutually agreed upon terms. Personal (1) The Director may terminate this Concessioner is unable to perform the property not removed from the Area by CONTRACT in whole or part at any terms of this CONTRACT due to the Concessioner as of the date of time when necessary for the purpose of bankruptcy or insolvency. expiration or termination of this enhancing or protecting Area resources (5) Termination of this CONTRACT CONTRACT, unless the Director in or visitor enjoyment or safety. for any reason shall be by written notice writing extends such date of removal, (2) The Director may terminate this to the Concessioner. shall be considered abandoned property CONTRACT in whole or part for default (c) Notice of Bankruptcy or Insolvency subject to disposition by the Director, at full cost and expense of the if the Director determines that the The Concessioner must give the Concessioner, in accordance with Concessioner has breached any Director notice fifteen (15) days prior to Applicable Laws. requirement of this CONTRACT, filing any petition in bankruptcy, filing including, but not limited to, the any petition seeking relief of the same Sec. 16. Assignment, Sale or requirement to maintain and operate or different kind under any provision of Encumbrance of Interests visitor services to the satisfaction of the the Bankruptcy Act or its successor, or (a) This CONTRACT is subject to the Director, the requirement to provide making any assignment for the benefit of requirements of 36 CFR Part 51 as it only visitor services required or creditors. The Concessioner must also may be amended from time to time with authorized by the Director, the give the Director immediate notice of respect to proposed conveyances and requirement to pay the established any petition or other proceeding against encumbrances as those terms are franchise fee, and the requirement to the Concessioner for the appointment of defined in 36 CFR Part 51, including, comply with Applicable Laws. a trustee, receiver, or liquidator, or, the but not limited to, proposed (3) In the event of a breach of the taking by any person or entity of the management and subconcession CONTRACT, the Director will provide rights granted by this CONTRACT or agreements. Failure by the Concessioner the Concessioner an opportunity to cure any part thereof upon execution, to comply with 36 CFR Part 51 is a by providing written notice to the attachment or other process of law or material breach of this CONTRACT for Concessioner of the breach. In the event equity. For purposes of the bankruptcy which the Director may terminate this of a monetary breach, the Director will statutes, this CONTRACT is not a lease, CONTRACT for default. The Director give the Concessioner a fifteen (15) day but is an executory contract exempt shall not be obliged to recognize any period to cure the breach. If the breach from inclusion in assets of Concessioner right of any person or entity to an is not cured within that period, then the pursuant to 11 U.S.C. 1135. Director may terminate the CONTRACT interest in this CONTRACT of any for default. In the event of a (d) Requirements in the Event of nature or operating rights under this nonmonetary breach, if the Director Termination CONTRACT, if obtained in violation of considers that the nature of the breach (1) In the event of termination of this 36 CFR part 51. so permits, the Director will give the CONTRACT by the Director for any (b) The Concessioner shall advise any Concessioner thirty (30) days to cure the reason, no compensation of any nature person(s) or entity proposing to enter breach or to provide a plan, to the shall be due the Concessioner including, into a transaction which may be subject satisfaction of the Director in his sole but not limited to, compensation for to 36 CFR part 51 of the requirements discretion, to cure the breach over a losses based on lost income, profit, or of that regulation. specified period of time. If the breach is the necessity to make expenditures as a Sec. 17. General Provisions not cured within this specified period of result of the termination. time, the Director may terminate the (2) Upon termination of this (a) The Director and Comptroller CONTRACT for default. CONTRACT for any reason, and except General of the United States, or any of Notwithstanding this provision, as otherwise provided in this section, their duly authorized representatives, repeated breaches of the same nature the Concessioner shall, at shall have access to the records of the shall be grounds for termination for Concessioner’s expense, promptly Concessioner as provided by 36 C.F.R. default without a cure period. In the vacate the Area, remove all of Part 51 as it may now exist or be event of a breach of any nature, the Concessioner’s personal property, repair amended from time to time. Director may suspend the any injury occasioned by installation of (b) All information required to be Concessioner’s operations as removal of such property, and ensure submitted to the Director by the appropriate in accordance with Section that Concession Facilities are in as good Concessioner pursuant to this 16(a). condition as they were at the beginning CONTRACT is subject to public release
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71476 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices by the Director to the extent required or of this CONTRACT or to award of a new Doing Business As llllllllll authorized by Applicable Laws. contract of any nature. Covering the Periodlllll through (c) Subconcession or other third party (j) This CONTRACT does not grant lllll lllllllllllllll agreements, including management rights or benefits of any nature to any Category III—Concession Contract agreements, for the provision of third party. principal services required and/or (k) The invalidity of a specific Table of Contents authorized under this CONTRACT are provision of this CONTRACT shall not Identification of the Parties not permitted. However, subconcession affect the validity of the remaining Purpose and Authorities or other third party agreements may be provisions of this CONTRACT. Sec. 1. Term of Contract allowed for incidental or specialized Sec. 18. Special Provisions Sec. 2. Definitions services which are incidental to the Sec. 3. Services and Operations principal services required and/or [OPTIONAL—To be used when A. Required and Authorized Visitor authorized under this CONTRACT. Any operating and maintenance Services proposal to provide incidental or requirements are incorporated in the B. Operation and Quality of Operation specialized services through body of the contract, rather than as C. Operating and Maintenance Plan subconcession or other third party separate operating and maintenance [OPTIONAL] agreements must be submitted to the plans.] D. Merchandise and Services Director in writing, along with a copy of In Witness Whereof, the duly E. Rates F. Impartiality as to Rates and Services the proposed subconcession or third authorized representatives of the parties have executed this Contract as of the Sec. 4. Concessioner Personnel party agreement, and shall be effective Sec. 5. Legal, Regulatory, Policy Compliance only if approved in writing by the lllll day of lllll, lllll A. Legal, Regulatory, Policy Compliance Director. If the Director approves a . D. Notice subconcession or other third party E. How and Where to Send Notice Concessioner: Sec. 6. Environmental and Cultural agreement, the Concessioner and the lllllllllllllllllll Director will amend the CONTRACT to By Protection reflect such approval. Agreements with (Title, Company Name) A. Environmental Protection others to provide vending or other coin- B. Protection of Cultural and Archeological United States of America: Resources operated machines shall not be By lllllllllllllllllll Sec. 7. Fees considered subconcession agreements. A. Franchise Fee (Director, National Park Service) (d) The Concessioner is not entitled to B. Payments Due be awarded or to have negotiating rights [Corporations] C. Interest to any Federal procurement or service Sec. 8. Indemnification and Insurance contract by virtue of any provision of Attest: A. Indemnification this CONTRACT. By lllllllllllllllllll B. Insurance in General (e) Any and all taxes or assessments Title llllllllllllllllll C. Commercial Public Liability Sec. 9. Bonds and Liens of any nature that may be lawfully [Sole Proprietorship] imposed by any State or its political A. Bonds subdivisions upon the property or Witnesses: B. Liens Sec. 10. Accounting Records and Reports business of the Concessioner shall be Name llllllllllllllllll Address llllllllllllllll A. Accounting System paid promptly by the Concessioner. llllllllllllllllll B. Annual Financial Report (f) No member of, or delegate to, Title Name llllllllllllllllll C. Other Financial Reports Congress or Resident Commissioner Address llllllllllllllll Sec. 11. Other Reporting Requirements shall be admitted to any share or part of Title llllllllllllllllll A. Insurance Certification this CONTRACT or to any benefit that D. Environmental Reporting [Partnership] may arise from this CONTRACT but this E. Miscellaneous Reports and Data. restriction shall not be construed to Witnesses as to Each: Sec. 12. Suspension and Termination A. Suspension extend to this CONTRACT if made with Name llllllllllllllllll E. Termination a corporation or company for its general Address llllllllllllllll F. Notice of Bankruptcy or Insolvency benefit. (Name) lllllllllllllllll Address llllllllllllllll G. Requirements in the Event of (g) This CONTRACT is subject to the Termination provisions of 43 CFR, Subtitle A, [Concessioner] E. Removal of Personal Property Subpart D, concerning nonprocurement Name llllllllllllllllll Sec. 13. Assignment, Sale or Encumbrance of debarment and suspension. The Director (Name) lllllllllllllllll Interests may recommend that the Concessioner Sec. 14. General Provisions Category III—Contract be debarred or suspended in accordance Sec. 15. Special Provisions [Optional] with the requirements and procedures United States Department of the Interior Exhibits Exhibit ‘‘A’’: Nondiscrimination described in those regulations, as they National Park Service Exhibit ‘‘C’’: Assigned Government are effective now or may be revised in lllllllllllllllllllll Personal Property the future. [Name of Area] Exhibit ‘‘E’’: Insurance Requirements (h) This CONTRACT contains the sole lllllllllllllllllllll Exhibit ‘‘G’’: Operating and Maintenance and entire agreement of the parties. No [Site] Plan [OPTIONAL] oral representations of any nature form lllllllllllllllllllll Exhibit ‘‘X’’: 36 CFR Part 51 the basis of or may amend this [Type of Service] [Corporation] CONTRACT. This CONTRACT may be Concession Contract No. lllllllll extended, renewed or amended only lllllllllllllllllllll This CONTRACT is made and entered when agreed to in writing by the [Name of Concessioner] into by and between the United States Director and the Concessioner. lllllllllllllllllllll of America, acting in this matter by the (i) The Concessioner is not granted by [Address, including email address and phone Director of the National Park Service, this CONTRACT any rights to renewal number] through the Regional Director of
VerDate 15-DEC-99 20:32 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71477 thelllllRegion, hereinafter Sec. 1. Term of Contract (x) Sales and excise taxes that are referred to as the ‘‘Director,’’ and, a This Concession Contract No. added as separate charges to approved corporation organized and existing llll(‘‘CONTRACT’’) shall be sales prices, gasoline taxes, fishing under the laws of the State effective as of llllll, and shall be license fees, and postage stamps, lllll of doing business as for the term of (llll) years provided that the amount excluded hereinafter referred to as the fromllll, 20ll. shall not exceed the amount actually ‘‘Concessioner’’: due or paid government agencies Sec. 2. Definitions (xi) Receipts from the sale of [Partnership] The following terms used in this handcrafts that have been approved for This CONTRACT is made and entered CONTRACT will have the following sale by the Director as constituting into by and between the United States meanings, which apply to both the authentic American Indian, Alaskan of America, acting in this matter by the singular and the plural forms of the Native, Native Samoan, or Native Director of the National Park Service, defined terms: Hawaiian handicrafts. through the Regional Director of (a) ‘‘Applicable Laws’’ means the laws All monies paid into coin operated thelllllRegion, hereinafter of Congress governing the Area, devices, except telephones, whether provided by; the Concessioner or by referred to as the ‘‘Director’’, and including, but not limited to, the rules, others, shall be included in gross oflllll,lllll, and regulations, requirements and policies receipts. However, only revenues lllll of, partners, doing business promulgated under those laws, whether actually received by the Concessioner as, pursuant to a partnership agreement now in force, or amended, enacted or from coin-operated telephones shall be datedlllll, with the principal promulgated in the future, including, included in gross receipts. All revenues place of business atlllll, without limitation, federal, state and received from charges for in-room hereinafter referred to as the local laws, rules, regulations, telephone or computer access shall be ‘‘Concessioner’’: requirements and policies governing nondiscrimination, protection of the included in gross receipts. [Sole Proprietorship] environment and/or protection of public (h) ‘‘Gross receipts of health and safety. subconcessioners’’ means the total This CONTRACT made and entered (b) ‘‘Area’’ means the property within amount received or realized by, or into by and between the United States the boundaries of [Name of Park Unit]. accruing to, subconcessioners from all of America, acting in this matter by the (c) ‘‘Capital Improvement’’ shall have sources, as a result of the exercise of the Director of the National Park Service, the meaning set forth in 36 CFR Part 51 rights conferred by subconcession through the Regional Director of as of the effective date of this Contract. contracts hereunder without thelllllRegion, hereinafter (e) ‘‘Director’’ means the Director of allowances, exclusions or deductions of referred to as the ‘‘Director,’’ and, an the National Park Service and his duly any kind or nature whatsoever. individual of, doing business authorized representatives unless (i) ‘‘Leasehold Surrender Interest’’ aslllll, hereinafter referred to as otherwise indicated. shall have the meaning set forth in 36 the ‘‘Concessioner’’: (f) ‘‘Exhibit’’ or ‘‘Exhibits’’ shall mean CFR Part 51 as of the effective date of the various exhibits, which are attached this CONTRACT. Witnesseth to this CONTRACT, each, of which is (j) ‘‘Superintendent’’ means the That whereas, [Name of Park, hereby made a part of this CONTRACT. manager of the Area. (g) ‘‘Gross Receipts’’ means the total Recreation Area, etc.] is administered by (k) ‘‘Visitor services’’ means the amount received or realized by, or the Director as a unit of the national accommodations, facilities and services accruing to, the Concessioner from all park system to conserve the scenery and that the Concessioner is required and sales for cash or credit, of services, the natural and historic objects and the authorized to provide by section 3(a) of accommodations, materials, and other wild life therein, and to provide for the this CONTRACT. merchandise made pursuant to the public enjoyment of the same in such rights granted by this CONTRACT, Sec. 3. Services and Operations manner as will leave such Area including gross receipts of unimpaired for the enjoyment of future (c) Required and Authorized Visitor subconcessioners as herein defined, generations; and Services commissions earned on contracts or Whereas, to accomplish these agreements with other persons or During the term of this CONTRACT, purposes, the Director has determined companies operating in the Area, and the Director requires and authorizes the that certain visitor services are gross receipts earned from electronic Concessioner to provide the following necessary and appropriate for the public media sales, but excluding: visitor services for the public within the use and enjoyment of the Area and (i) Intracompany earnings on account Area: [Provide detailed description of should be provided for the public of charges to other departments of the required and authorized services.] visiting the Area; and operation (such as laundry); The Concessioner shall not be authorized to construct any Capital Whereas, the Director desires the (ii) Charges for employees’ meals, lodgings, and transportation; Improvements upon Area lands. The Concessioner to establish and operate Concessioner shall not obtain a these visitor services at reasonable rates (iii) Cash discounts on purchases; (iv) Cash discounts on sales; Leasehold Surrender Interest or other under the supervision and regulation of compensable interest in Capital the Director; (v) Returned sales and allowances; (vi) Interest on money loaned or in Improvements constructed or installed Now, therefore, pursuant to the bank accounts; in violation of this CONTRACT. authority contained in the Acts of (vii) Income from investments; (d) Operation, Maintenance and Quality August 25, 1916 (16 U.S.C. 1, 2–4), and (viii) Income from subsidiary of Operation November 13, 1998 (P.L. 105–391), and companies outside of the Area; other laws that supplement and amend (ix) Sale of property other than that (1) The Concessioner shall provide, the Acts, the Director and the purchased in the regular course of operate and maintain the required and Concessioner agree as follows: business for the purpose of resale; authorized visitor services in
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Concessioner Personnel CONTRACT is non-exclusive. by the Concessioner, including (2) The Concessioner shall provide promotional or interpretive material, (a) The Concessioner shall provide all and maintain all personal property must be approved in writing by the personnel necessary to provide the necessary for its operations under this Director prior to use. All such material visitor services required and authorized Contract. will identify the Concessioner as an by this CONTRACT. (3) The Director may provide certain authorized Concessioner of the National (b) The Concessioner shall comply items of government personal property Park Service, Department of the Interior. with all Applicable Laws relating to and equipment for the Concessioner’s (3) [OPTIONAL—To be used only if employment and employment use in the performance of this the concessioner is authorized to sell conditions, including, without CONTRACT. The Director hereby merchandise.] The Concessioner, where limitation, those identified in Exhibit assigns government personal property applicable, will develop and implement ‘‘A.’’ and equipment listed in Exhibit C to the a plan satisfactory to the Director that (c) The Concessioner shall ensure that Concessioner as of the effective date of will assure that all gift merchandise, if its employees are hospitable and this CONTRACT. This Exhibit C will be any, to be sold or provided reflects the exercise courtesy and consideration in modified from time to time by the purpose and significance of the Area, their relations with the public. The Director as items may be withdrawn or including, but not limited to, Concessioner shall have its employees additional items added. The merchandise that reflects the who come in direct contact with the Concessioner shall be accountable to the conservation of the Area’s resources or public, so far as practicable, wear a Director for the government personal the Area’s geology, wildlife, plant life, uniform or badge by which they may be property and equipment assigned to it archeology, local Native American identified as the employees of the and shall be responsible for maintaining culture, local ethnic culture, and Concessioner. the property and equipment as historic significance. (d) The Concessioner shall establish necessary to keep it in good and pre-employment screening, hiring, operable condition. If the property (e) Rates training, employment, termination and ceases to be serviceable, it shall be All rates and charges to the public by other policies and procedures for the returned to the Director for disposition. the Concessioner for visitor services purpose of providing visitor services shall be reasonable and appropriate for through its employees in an efficient (c) Operating and Maintenance Plan the type and quality of facilities and/or and effective manner and for the [OPTIONAL—This section may be services required and/or authorized purpose of maintaining a healthful, law deleted and operating requirements under this CONTRACT. The abiding, and safe working environment incorporated under Section 18, Special Concessioner’s rates and charges to the for its employees. The Concessioner Provisions.] public must be approved by the Director shall conduct appropriate background The Director, acting through the in accordance with rate approval reviews of applicants for employment to Superintendent, shall establish and procedures and guidelines promulgated assure that they conform to the hiring revise, as necessary, specific by the Director from time to time. policies established by the requirements for the operations of the Concessioner. (f) Impartiality as to Rates and Services Concessioner under this CONTRACT in (e) The Concessioner shall hire, to the the form of an Operating and (1) In providing visitor services, the greatest extent possible, people who are Maintenance Plan (including, without Concessioner must require its both interested in serving the public in limitation, a risk management program, employees to observe a strict a national park environment and that must be adhered to by the impartiality as to rates and services in interested in being positive contributors Concessioner). The initial Operating and all circumstances. The Concessioner to the park’s purpose. Maintenance Plan is attached to this shall comply with all Applicable Laws (f) The Concessioner shall ensure that CONTRACT as Exhibit ‘‘G.’’ The relating to nondiscrimination in its employees are provided the training Director in his discretion, after providing visitor services to the public needed to provide quality visitor consultation with the Concessioner, including, without limitation, those set services and to maintain up-to-date job may make modifications to the initial forth in Exhibit ‘‘A.’’ skills. Operating and Maintenance Plan (2) The Concessioner may grant (g) The Concessioner shall review the provided that these modifications shall complimentary or reduced rates under conduct of any of its employees whose not be inconsistent with the terms and such circumstances as are customary in action or activities are considered by the conditions of the main body of this businesses of the character conducted Concessioner or the Director to be CONTRACT. under this Contract. However, the inconsistent with the proper Director reserves the right to review and administration of the Area and (d) Merchandise and Services modify Concessioner’s complimentary enjoyment and protection of visitors and (1) The Director reserves the right to or reduced rate policies and practices. shall take such actions as are necessary determine and control the nature, type (3) The Concessioner will provide to fully correct the situation. and quality of the visitor services Federal employees conducting official (h) The Concessioner shall maintain, described in this CONTRACT, business reduced rates for lodging, to the greatest extent possible, a drug including, but not limited to, the nature, essential transportation and other free environment, both in the workplace type, and quality of merchandise, if any, specified services necessary for and in any employee housing within the to be sold or provided by the conducting official business in Area. Concessioner within the Area. The accordance with guidelines established (i) The Concessioner shall publish a Concessioner shall provide all visitor by the Director. Complimentary or statement notifying employees that the services in a manner that is consistent reduced rates and charges shall unlawful manufacture, distribution,
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Environmental and Cultural Contract and the Concessioner shall workplace and the Area, the availability Protection simultaneously provide notice of such of drug counseling, rehabilitation and contact to the Director and allow the employee assistance programs, and the (a) Environmental Protection Director the opportunity to participate Concessioner’s policy of maintaining a (1) In addition to complying with all in any such proceedings. drug-free environment both in the Applicable Laws pertaining to the (5) The Concessioner shall give the workplace and in the Area. protection of natural resources within Director immediate notice of any (j) The Concessioner shall take the area, the Concessioner will conduct discharge, release or threatened release appropriate personnel action, up to and its operation, maintenance, acquisition, (whether solid, liquid or gaseous in including termination or requiring and provision of visitor services in a nature) of any hazardous or toxic satisfactory participation in a drug manner that prevents or reduces substance, material, or waste of any abuse or rehabilitation program which is environmental degradation and that kind, including building materials such approved by a Federal, State, or local promotes the use of environmentally as asbestos, or any contaminant, health, law enforcement or other beneficial products. The Concessioner pollutant, petroleum, petroleum product appropriate agency, for any employee will develop, pursuant to guidelines or petroleum by-product. (6) The Concessioner shall give the that violates the prohibition on the provided by the Director, and carry out, Director immediate written notice of unlawful manufacture, distribution, to the satisfaction of the Director, a any threatened or actual notice of dispensing, possession, or use of a documented environmental monitoring violation of any federal, state or local controlled substance. program or programs to ensure that park law, rule, regulation, requirement or resources affected by concessioner Sec. 5. Legal, Regulatory, Policy policy relating to or governing the use, activities under this CONTRACT are not Compliance handling, storage, disposal, transport, unduly impaired. The Concessioner presence, acceptable concentration, or (c) Legal, Regulatory and Policy shall be financially responsible for remediation of any hazardous or toxic Compliance environmental audits that may be substance, material, or waste of any This CONTRACT, operations required by the Director for each three- kind, including building materials such thereunder by the Concessioner and the year period of this CONTRACT. as asbestos, or any contaminant, administration of it by the Director shall (2) The Concessioner shall obtain the pollutant, petroleum, petroleum product be subject to all Applicable Laws. The Director’s approval prior to using any or petroleum by-product received by Concessioner must comply with all chemicals, pesticides, any hazardous or Concessioner. Applicable Laws in fulfilling its toxic substance, material, or waste of (7) The Concessioner, at its sole cost obligations under this CONTRACT at any kind, including building materials and expense, shall promptly rectify any the Concessioner’s sole cost and such as asbestos, or any contaminant, discharge or release as set forth in this expense. Certain Applicable Laws pollutant, petroleum, petroleum product section or any threatened or actual governing protection of the environment or petroleum by-product. violation as set forth in this section, are further described in this (3) The Concessioner shall monitor, including, but not limited to, payment CONTRACT. Certain Applicable Laws test, maintain, repair, upgrade, replace, of any fines or penalties imposed relating to nondiscrimination in remove, or mitigate, in accordance with thereon. employment and providing accessible Applicable Laws and in accordance (8) The Concessioner shall indemnify facilities and services to the public are with the requirements of the Director: the United States in accordance with further described in this CONTRACT. (i) Any discharge, release or section 12 of the CONTRACT from threatened release (whether solid, liquid losses, damages or judgements (d) Notice or gaseous in nature) of any hazardous (including, without limitation, fines and The Concessioner shall give the or toxic substance, material, or waste of penalties) and expenses (including, Director immediate written notice of any kind, including building materials without limitation, attorneys fees and any violation of Applicable Laws and, at such as asbestos, or any contaminant, experts fees) arising out of the activities its sole cost and expense, must pollutant, petroleum, petroleum product of the Concessioner pursuant to this promptly rectify any such violation. or petroleum by-product on or to the section. Such indemnification shall Area, including soil, surface water or (c) How and Where To Send Notice survive termination of this CONTRACT. groundwater; (9) If the Concessioner does not All notices required by this (ii) Any materials, equipment, and promptly rectify the discharge or release CONTRACT, shall be in writing and facilities associated with such (whether solid, liquid or gaseous in shall be served on the parties at the discharge, release or threatened release; nature) of any hazardous or toxic following addresses. The mailing of a or substance, material, or waste of any notice by registered or certified mail, (iii) Any materials, equipment and kind, including building materials such return receipt requested, shall be facilities used in the handling, storage, as asbestos, or any contaminant, sufficient service. Notices sent to the disposal, transport or other use of any pollutant, petroleum, petroleum product Director shall be sent to the following such hazardous or toxic substance, or petroleum by-product, the Director address: material, or waste of any kind, including may, in its sole discretion and after Superintendent building materials such as asbestos, or notice to Concessioner, take any such Park name any contaminant, pollutant, petroleum, action the Director deems necessary to
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.276 pfrm03 PsN: 21DEN1 71480 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices minimize, remediate, or otherwise clean (b) Payments Due (b) Insurance in General up such release or discharge, and (1) The Concessioner shall obtain and recover any costs associated with such (1) The franchise fee shall be due on a monthly basis at the end of each maintain during the entire term of this action from the Concessioner upon Contract at its sole cost and expense, the demand. month and shall be paid by the Concessioner in such a manner that the types and amounts of insurance (10) Even if not specifically required Director shall receive payment within coverage necessary to fulfill the by Applicable Laws, the Concessioner fifteen (15) days after the last day of obligations of this CONTRACT. The shall comply with directives of the each month that the Concessioner Director shall approve the types and Director to clean up or remove any operates. This monthly payment shall amounts of insurance coverage materials, product or by-product used, include the franchise fee equal to the purchased by the Concessioner. handled, stored, disposed, transported specified percentage of gross receipts for (2) The Director will not be onto or into the Area by the the preceding month. responsible for any omissions or Concessioner to ensure that the Area inadequacies of insurance coverages and remains in good condition. (2) The Concessioner shall pay any amounts in the event the insurance additional fee amounts due at the end purchased by the Concessioner proves (11) The Concessioner shall be of the operating year as a result of responsible for managing weeds, to be inadequate or otherwise adjustments at the time of submission of insufficient for any reason whatsoever. harmful insects, rats, mice and other the Concessioner’s Annual Financial pests on all lands and improvements (3) At the request of the Director, the Report. Overpayments shall be offset Concessioner shall at the time insurance assigned to the Concessioner under this against the following year’s fees. Contract. All such weed and pest is first purchased and annually, management activities shall be in (3) All franchise fee payments thereafter, provide the Director with a accordance with guidelines established consisting of $10,000 or more, shall be Certificate of Insurance that accurately by the Director. deposited electronically by the details the conditions of the policy as Concessioner using the Treasury evidence of compliance with this (b) Protection of Cultural and Financial Communications System. section. The Concessioner shall provide Archeological Resources the Director thirty (30) days advance (c) Interest written notice of any material change in The Concessioner shall ensure that An interest charge will be assessed on the Concessioner’s insurance program any protected sites and archeological hereunder. resources within the Area are not overdue amounts for each thirty (30) disturbed or damaged by the day period, or portion thereof, that (c) Commercial Public Liability payment is delayed beyond the fifteen Concessioner, including the (1) The Concessioner shall provide (15)-day period provided for above. The Concessioner’s employees, commercial general liability insurance percent of interest charged will be based subcontractors or agents, except in against claims arising out of or resulting on the current value of funds to the accordance with Applicable Laws, and from the acts or omissions of the United States Treasury as published only with the prior approval of the Concessioner or its employees in quarterly in the Treasury Fiscal Director. Discoveries of any carrying out the activities and Requirements Manual. The Director may archeological resources by Concessioner operations required and/or authorized also impose penalties for late payment shall be promptly reported to the under this CONTRACT. to the extent authorized by Applicable Director. The Concessioner shall cease (2) This insurance shall be in the Law. work or other disturbance which may amount commensurate with the degree impact any protected site or Sec. 8. Indemnification and Insurance of risk and the scope and size of the archeological resource until the Director activities required and/or authorized (b) Indemnification grants approval, upon such terms and under this CONTRACT, as more conditions as the Director deems The Concessioner agrees to assume specifically set forth in Exhibit E. necessary, to continue such work or liability for and does hereby agree to Furthermore, the commercial general other disturbance. save, hold harmless, protect, defend and liability package shall provide the Sec. 7. Fees indemnify the United States of America, coverages and limits described in its agents and employees from and Exhibit E. (a) Franchise Fee against any and all liabilities, (3) All liability policies shall specify that the insurance company shall have (1) For the term of this CONTRACT, obligations, losses, damages or judgments (including without limitation no right of subrogation against the the Concessioner shall pay to the United States of America and shall Director for the privileges granted under penalties and fines), claims, actions, suits, costs and expenses (including provide that the United States of this CONTRACT a franchise fee equal to America is named an additional lllll percent (lllll %) of without limitation attorneys fees and experts fees) of any kind and nature insured. the Concessioner‘s Gross Receipts for (4) From time to time, as conditions the preceding year or portion of a year. whatsoever on account of fire or other peril, bodily injury, death or property in the insurance industry warrant, the (2) The Concessioner agrees that this damage, or claims for bodily injury, Director may, in his discretion, modify franchise fee is consistent with the death or property damage of any nature Exhibit E to revise the minimum probable value of the privileges granted whatsoever, and by whomsoever made, required limits or to require additional by this CONTRACT as defined in this in any way relating to or arising out of types of insurance. section. the activities of the Concessioner, his Sec. 9. Bonds and Liens (3) The Concessioner shall have no employees, subcontractors or agents right to an adjustment of the fees except under this CONTRACT. This (c) Bonds as provided below. The Concessioner indemnification shall survive the The Director may require the shall have no right to waiver of the termination or expiration of this Concessioner to furnish appropriate franchise fee. CONTRACT. forms of bonds acceptable to the
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Director conditioned upon faithful procedures promulgated by the to enhance or protect Area resources, performance of its obligations under this American Institute of Certified Public visitor enjoyment or safety. No CONTRACT, in such form and in such Accountants. compensation of any nature shall be due amount as the Director may deem (3) If annual gross receipts are the Concessioner in the event of a adequate. between $250,000, and $1,000,000, the suspension of operations, including, but financial statements shall be reviewed not limited to, compensation for losses (d) Lien by an independent Certified Public based on lost income, profit, or the As additional security for the faithful Accountant in accordance with the necessity to make expenditures as a performance by the Concessioner of its Generally Accepted Auditing Standards result of the suspension. obligations under this CONTRACT, and (GAAS) and procedures promulgated by (b) Termination the payment to the Government of all the American Institute of Certified damages or claims that may result from Public Accountants. (1) The Director may terminate this the Concessioner’s failure to observe (4) If annual gross receipts are less CONTRACT in whole or part at any any such obligations, the Government than $250,000, the financial statements time when necessary for the purpose of shall have at all times the first lien on may be prepared without involvement enhancing or protecting Area resources all assets of the Concessioner within the by an independent Certified Public or visitor enjoyment or safety. Area, including, but not limited to, all Accountant, unless otherwise directed (2) The Director may terminate this personal property of the Concessioner by the Director. CONTRACT in whole or part for default if the Director determines that the used in performance of the CONTRACT (c) Other Financial Reports hereunder. Concessioner has breached any (1) Balance Sheet. Within ninety (90) requirement of this CONTRACT, Sec. 10. Accounting Records and days of the execution of this including, but not limited to, the Reports CONTRACT or its effective date, requirement to maintain and operate (a) Accounting System whichever is later, the Concessioner visitor services to the satisfaction of the shall submit to the Director a balance Director, the requirement to provide (1) The Concessioner shall maintain sheet as of the beginning date of the only visitor services required or an accounting system under which its term of this CONTRACT. The balance authorized by the Director, the accounts can be readily identified with sheet shall be audited or reviewed, as requirement to pay the established its system of accounts classification. determined by the gross receipts, by an franchise fee, and the requirement to Such accounting system shall be independent Certified Public comply with Applicable Laws. capable of providing the information Accountant. (3) In the event of a breach of the required by this CONTRACT. The CONTRACT, the Director will provide Concessioner’s system of accounts Sec. 11. Other Reporting Requirements the Concessioner an opportunity to cure classification shall be directly related to The following describes certain other by providing written notice to the the Concessioner Annual Financial reports required under this CONTRACT: Concessioner of the breach. In the event Report Form issued by the Director. of a monetary breach, the Director will (2) If the Concessioner’s annual gross (a) Insurance Certification give the Concessioner a fifteen (15) day receipts are $250,000 or more, the As specified in Section 12, at the time period to cure the breach. If the breach Concessioner must use the accrual insurance is first purchased, and is not cured within that period, then the accounting method. annually thereafter, the Concessioner Director may terminate the CONTRACT (3) In computing net profits for any shall provide the Director with a for default. In the event of a purposes of this CONTRACT, the Certificate of Insurance for all insurance nonmonetary breach, if the Director Concessioner shall keep its account in coverages related to its operations under considers that the nature of the breach such manner that there can be no this CONTRACT. The Concessioner so permits, the Director will give the diversion or concealment of profits or shall give the Director thirty (30) days Concessioner thirty (30) days to cure the expenses in the operations authorized advance written notice of any material breach, or to provide a plan, to the hereunder by means of arrangements for change in its insurance program. satisfaction of the Director in his sole the procurement of equipment, discretion, to cure the breach over a (b) Environmental Reporting merchandise, supplies or services from specified period of time. If the breach is sources controlled by or under common The Concessioner shall submit a not cured within this specified period of ownership with the Concessioner or by quarterly report on any matters related time, the Director may terminate the any other device. to the Concessioner’s environmental CONTRACT for default. compliance requirements under this Notwithstanding this provision, (b) Annual Financial Report CONTRACT. repeated breaches of the same nature (1) The Concessioner shall submit (c) Miscellaneous Reports and Data shall be grounds for termination for annually as soon as possible but not default without a cure period. In the later than ninety (90) days after the last The Director from time to time may event of a breach of any nature, the day of its fiscal year a financial require the Concessioner to submit other Director may suspend the statement for the preceding fiscal year reports and data regarding its Concessioner’s operations as or portion of a year as prescribed by the performance under the Contract or appropriate in accordance with Section Director (‘‘Concessioner Annual otherwise, including, but not limited to, 16(a). Financial Report’’). operational information. (4) The Director may terminate this (2) If the annual gross receipts of the Sec. 12. Suspension and Termination CONTRACT upon the filing or the Concessioner are in excess of execution of a petition in bankruptcy by $1,000,000, the financial statements (b) Suspension or against the Concessioner, a petition shall be audited by an independent The Director may temporarily seeking relief of the same or different Certified Public Accountant in suspend operations under this kind under any provision of the accordance with the Generally Accepted CONTRACT in whole or in part when Bankruptcy Act or its successor, an Auditing Standards (GAAS) and necessary for administrative purposes or assignment by the Concessioner for the
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Any or entity of the rights granted by this from the Director or a successor proposal to provide incidental or CONTRACT or any part thereof upon concessioner for such personal property. specialized services through execution, attachment or other process The Director or a successor concessioner subconcession or other third party of law or equity. The Director may may purchase such personal property agreements must be submitted to the terminate this CONTRACT if the from the Concessioner subject to Director in writing, along with a copy of Director determines that the mutually agreed upon terms. Personal the proposed subconcession or third Concessioner is unable to perform the property not removed from the Area by party agreement, and shall be effective terms of CONTRACT due to bankruptcy the Concessioner as of the date of only if approved in writing by the or insolvency. expiration or termination of this Director. If the Director approves a (5) Termination of this CONTRACT CONTRACT, unless the Director in subconcession or other third party for any reason shall be by written notice writing extends such date of removal, agreement, the Concessioner and the to the Concessioner. shall be considered abandoned property Director will amend the CONTRACT to subject to disposition by the Director, at reflect such approval. Agreements with (c) Notice of Bankruptcy or Insolvency full cost and expense of the others to provide vending or other coin- The Concessioner must give the Concessioner, in accordance with operated machines shall not be Director notice fifteen (15) days prior to Applicable Laws. considered subconcession agreements. filing any petition in bankruptcy, filing (d) The Concessioner is not entitled to any petition seeking relief of the same Sec. 13. Assignment, Sale or be awarded or to have negotiating rights or different kind under any provision of Encumbrance of Interests to any Federal procurement or service the Bankruptcy Act or its successor, or (a) This CONTRACT is subject to the Contract by virtue of any provision of making any assignment for the benefit of requirements of 36 CFR Part 51 as it this CONTRACT. creditors. The Concessioner must also may be amended from time to time with (e) Any and all taxes or assessments give the Director immediate notice of respect to proposed conveyances and of any nature that may be lawfully any petition or other proceeding against encumbrances as those terms are imposed by any State or its political the Concessioner for the appointment of defined in 36 CFR Part 51, including, subdivisions upon the property or a trustee, receiver, or liquidator, or, the but not limited to, proposed business of the Concessioner shall be taking by any person or entity of the management and subconcession paid promptly by the Concessioner. rights granted by this CONTRACT or agreements. Failure by the Concessioner (f) No member of, or delegate to, any part thereof upon execution, to comply with 36 CFR Part 51 is a Congress or Resident Commissioner attachment or other process of law or material breach of this CONTRACT for shall be admitted to any share or part of equity. For purposes of the bankruptcy which the Director may terminate this this CONTRACT or to any benefit that statutes, this CONTRACT is not a lease, CONTRACT for default. The Director may arise from this CONTRACT but this but is an executory Contract exempt shall not be obliged to recognize any restriction shall not be construed to from inclusion in assets of Concessioner right of any person or entity to an extend to this CONTRACT if made with pursuant to 11 U.S.C. 1135. interest in this CONTRACT of any a corporation or company for its general nature or operating rights under this benefit. (d) Requirements in the Event of CONTRACT, if obtained in violation of (g) This CONTRACT is subject to the Termination 36 CFR Part 51. provisions of 43 C.F.R., Subtitle A, (1) In the event of termination of this (b) The Concessioner shall advise any Subpart D, concerning nonprocurement CONTRACT by the Director for any person(s) or entity proposing to enter debarment and suspension. The Director reason, no compensation of any nature into a transaction which may be subject may recommend that the Concessioner shall be due the Concessioner including, to 36 CFR Part 51 of the requirements be debarred or suspended in accordance but not limited to, compensation for of that regulation. with the requirements and procedures losses based on lost income, profit, or described in those regulations, as they Sec. 14. General Provisions the necessity to make expenditures as a are effective now or may be revised in result of the termination. (a) The Director and Comptroller the future. (2) Upon termination of this General of the United States, or any of (h) This CONTRACT contains the sole CONTRACT for any reason, and except their duly authorized representatives, and entire agreement of the parties. No as otherwise provided in this section, shall have access to the records of the oral representations of any nature form the Concessioner shall, at Concessioner as provided by 36 CFR the basis of or may amend this Concessioner’s expense, promptly Part 51 as it may now exist or be CONTRACT. This Contract may be vacate the Area, remove all of amended from time to time. extended, renewed or amended only Concessioner’s personal property, repair (b) All information required to be when agreed to in writing by the any injury occasioned by installation of submitted to the Director by the Director and the Concessioner. removal of such property, and ensure Concessioner pursuant to this (i) The Concessioner is not granted by that Concession Facilities are in as good CONTRACT is subject to public release this CONTRACT any rights to renewal condition as they were at the beginning by the Director to the extent required or of this CONTRACT or to award of a new of the term of this CONTRACT, authorized by Applicable Laws. CONTRACT of any nature. reasonable wear and tear excepted. (c) Subconcession or other third party (j ) This CONTRACT does not grant agreements, including management rights or benefits of any nature to any (e) Removal of Personal Property agreements, for the provision of third party. Except as otherwise provided in this principal services required and/or (k) The invalidity of a specific CONTRACT, upon expiration or authorized under this CONTRACT are provision of this Contract shall not termination of this CONTRACT for any not permitted. However, subconcession affect the validity of the remaining reason, the Concessioner shall remove or other third party agreements may be provisions of this CONTRACT.
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Sec. 15. Special Provisions DATES: The Regional Director, Northeast agencies and organizations, and the Region, approved the Record of public. [OPTIONAL—To be used when Decision on November 23, 1999. The legislated purposes of Gettysburg operating and maintenance FOR FURTHER INFORMATION CONTACT: NMP are: requirements are incorporated in the • To preserve the topographical, body of the CONTRACT, rather than as Superintendent, Gettysburg National Military Park, 97 Taneytown Road, natural and cultural features that were a separate operating and maintenance significant to the outcome of the Battle plan.] Gettysburg, PA 17325, telephone 717– 334–1124. of Gettysburg. In witness whereof, the duly • To mark the lines of battle, and to authorized representatives of the parties SUPPLEMENTARY INFORMATION: preserve the monuments and markers have executed this CONTRACT as of Introduction that commemorate the struggle. thelllllday ofllll,llll. • To provide opportunities for people Concessioner: The Department of the Interior, to learn about the Battle of Gettysburg National Park Service (NPS) has By (Title) (Company Name) in the full social, political and cultural prepared this Record of Decision on the context of the Civil War and American United States of America: Final General Management Plan and History. By Director, National Park Service Environmental Impact Statement for • To preserve the objects, artifacts [Corporations] Gettysburg National Military Park and archives that document the battle, (NMP), Pennsylvania. This Record of its aftermath and commemoration. Attest: Decision is a statement of the The mission that NPS has established By lllllllllllllllllll background of the project, the decision for Gettysburg NMP is: To preserve and llllllllllllllllll Title made, the basis for the decision, other protect the resources associated with the [Sole Proprietorship] alternatives considered, the Battle of Gettysburg and the Soldiers’ Witnesses: environmentally preferable alternative, National Cemetery, and to provide measures to minimize environmental understanding of the events that Name llllllllllllllllll Address llllllllllllllll harm, and the public involvement in the occurred here, within the context of Title llllllllllllllllll decision making process. American history. The four mission goals that NPS Name llllllllllllllllll Background of the Project llllllllllllllll established for Gettysburg NMP are: Address • Title llllllllllllllllll Park Significance, Legislative Purpose, The landscapes, buildings, monuments, structures, archeological [Partnership] Mission and Mission Goals sites, artifacts and archives that are Witnesses as to each: Gettysburg NMP, located in Adams significant to the outcome and County, Pennsylvania, was established Name llllllllllllllllll commemoration of the Battle of Address llllllllllllllll to preserve the nationally significant Gettysburg are protected, rehabilitated Name llllllllllllllllll resources of the Battle of Gettysburg, the and maintained in good condition. Address llllllllllllllll Soldiers’ National Cemetery and the • The public understands and [Concessioner] commemoration and preservation of the appreciates the significant events lllllllllllllllll battlefield. The battle was the largest associated with the Gettysburg (Name) and most costly in human terms to (Name) lllllllllllllllll Campaign and its impact upon the occur on the North American continent. Dated: December 1, 1999. development of the nation. It lessened the Confederacy’s ability to • Maureen Finnerty, Visitors safely enjoy high quality successfully wage war and contributed educational experiences accessible to all Associate Director, Park Operations and to the ultimate preservation of the Education, National Park Service. segments of the population. United States. The creation of the • Public and private entities [FR Doc. 99–31752 Filed 12–20–99; 8:45 am] Soldiers’ National Cemetery, and understand the park’s mission and act BILLING CODE 4310±70±P Abraham Lincoln’s Gettysburg Address, cooperatively to protect and interpret heightened Americans’ sense of the resources related to the Gettysburg meaning and importance of the war. The Campaign and its commemoration. DEPARTMENT OF THE INTERIOR national park inspired by those who experienced the Civil War preserved The Need for a New General National Park Service major features of the 1863 battlefield Management Plan Record of Decision, General and commemorated the valor and The purpose of a General Management Plan and Environmental sacrifice of the participants. These Management Plan/Environmental Impact Statement, Gettysburg National elements make Gettysburg a place where Impact Statement (GMP/EIS) is to set Military Park, Adams County, PA Americans continue to remember and forth a basic management philosophy honor those whose struggle led to a for a park and to provide a framework SUMMARY: Pursuant to section 102 (2)(c) united nation. for future decision making. NPS’ of the National Environmental Policy As part of its compliance with the Management Policies require that a Act of 1969, as amended, and the Government Performance and Results park’s GMP be reviewed periodically regulations promulgated by the Council Act of 1993, NPS developed for each and revised or amended as necessary to on Environmental Quality (40 CFR unit of the national park system a reflect new issues or management 1505.2), the Department of the Interior, legislative purpose statement, a mission objectives, or when it has exceeded the National Park Service, has prepared a statement and mission goals. NPS period for which it was developed, Record of Decision on the Final General developed these elements in which is usually 15 years. (NPS Management Plan/Final Environmental consultation with the Pennsylvania Management Policies, Chapter 2:6) The Impact Statement for Gettysburg State Historic Preservation Officer, the park’s last GMP was completed more National Military Park, Adams County, Gettysburg National Military Park than 17 years ago, in 1982; although the Pennsylvania. Advisory Commission, other interested plan continues to be used as a general
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.280 pfrm03 PsN: 21DEN1 71484 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices guide for operations, it is no longer The Final General Management Plan/ resource areas contains a concentration adequate to address the policy and Environmental Impact Statement has of essential park resources. NPS must operational issues now facing the park’s been prepared to satisfy the protect these resources in order to managers. requirements of the National maintain unimpaired the values for Since the completion of the 1982 Environmental Policy Act (NEPA) of which Congress designated the park. plan, the boundaries of the park have 1969, as amended, which requires the NPS used these resource areas to changed, adding more than one-third to evaluation of potential impacts resulting differentiate actions for the GMP its total acreage. NPS has determined from federal actions. It includes a alternatives. description of the environment affected that the park contains three nationally Combination of Other Ongoing Planning by the proposed activities and the significant landscapes, only one of With the General Management Plan which NPS considered fully in the 1982 environmental consequences of GMP. Some of the most important implementing any of the alternatives. In 1994, several years before the resources of the park are sustaining The Final General Management Plan/ initiation by NPS of a new GMP for Gettysburg NMP, NPS had begun a damage from visitors. In other cases, Environmental Impact Statement is a process to consider changes to its visitor such as at Ziegler’s Grove, Culp’s Hill, programmatic statement. The proposed center and museum facilities. The and the second day’s battlefield, action and alternatives consist of a basic current visitor center and museum changes to the natural and built management framework for future facilities at Gettysburg NMP are located environment have obscured the decision making; therefore, site-specific on land that was central to the Battle of underlying historic landscape of the details and recommendations are not Gettysburg and they are visible from battle. NPS surveys of its collections always included. Consequently, the large portions of the battlefield as and archives revealed that lack of statement presents an overview of contemporary intrusions on the adequate, environmentally controlled potential impacts relating to the battlefield’s historic setting. In addition, storage space was causing these proposed program for each alternative. In the future, if NPS determines that the facilities are greatly inadequate to resources to deteriorate. The lack of an specific actions called for by the meet visitor and curatorial needs. For appropriately sized and approved plan require additional these reasons, construction of new environmentally controlled gallery for analysis of impacts, more detailed museum and visitor center facilities in the cyclorama painting, ‘‘Battle of assessments of impacts may be prepared a more suitable location has long been Gettysburg,’’ meant that it, too, was as part of necessary implementation an objective of the park. However, sustaining damage. The park’s planning. These documents will be Federal funding limitations have increasing visitation, the changing tiered from this environmental impact effectively precluded the possibility of educational needs of its visitors, and the statement. constructing replacement facilities with demands placed on its visitor In the process of preparing this GMP/ government funds. infrastructure, exceed NPS’ ability to EIS, NPS conducted new research and The concept of a public/private provide necessary services. Therefore, at analysis on the battle and its cooperative effort to solve some of the Gettysburg NMP, a new GMP/EIS was relationship to the contested terrain. visitor center and curatorial needs was needed to provide guidance for Based on careful study of period first considered by NPS when a local stewardship and interpretation of the documents, NPS delineated those developer proposed a new Cyclorama park’s three nationally significant battlefield landscape features that were Building paired with a private IMAX landscapes—the site of the Battle of significant to the outcome of the battle, theater on a piece of park-owned land. Gettysburg, the Soldiers’ National as well as the locations of combat. NPS In order to respond to the unsolicited Cemetery, and the commemorative also studied the features that offer, NPS held three public workshops landscape of avenues and monument— characterize the Soldiers’ National and in March 1995 developed a draft as well as its collections and archives. Cemetery and the battle’s plan/environmental assessment to Consequently, the decision was made to commemoration. In addition, NPS evaluate the proposal. After a total of 65 begin a general management plan with conducted an extensive assessment to days of public and agency review, NPS an environmental impact statement in compare present day landscape features decided to look at additional options for order to reach a decision regarding the to those that existed at the time of the the building’s configuration and initiate specific resource conditions and visitor battle. Through this work, NPS divided a nationwide call for cooperators. experiences that NPS should achieve the resources of Gettysburg NMP into Between August 1995 and April 1996, and maintain at Gettysburg NMP. five priority and two other categories. NPS prepared a Draft Development Concept Plan/Environmental The Planning Process Resources in Priority categories 1, 2, and 3 are essential to the reasons for which Assessment (DCP) to explore NPS began the EIS process on May 5, Gettysburg NMP was designated by alternatives for the center. The DCP 1997 with the publication in the Federal Congress, and their preservation and included four alternative concepts for Register of a Notice of Intent to prepare rehabilitation is mandatory if NPS is to the new facilities: a no action a draft EIS. Scoping meeting were held meet its legislative purposes at this alternative; building a collections and to identify issues and concerns relating park. Resources in Priority categories 4 archival storage facility and leaving the to the proposed general management and 5 include other types of resources, Cyclorama and Visitor Center as they plan. NPS published the Notice of such as non-battle related wetlands, that are now; renovating the existing Visitor Availability of the draft EIS in the NPS must consider according to law or Center in place and building a new Federal Register on August 18, 1998. NPS policies. Other categories included Cyclorama Building with collections The comment period on the draft ended tools, such as visitor centers, and non- storage; and building a new combined October 17, 1998. NPS responded to contributing features. facility incorporating all these uses on a substantive comments in the Final This information was used to site removed from significant battle GMP/EIS, which was released on June delineate resource areas: the Major action (the preferred option indicated in 18, 1999. The Notice of Availability of Battle Action Area, the Soldiers’ the Draft DCP/EA). As a part of the the Final GMP/EIS appeared in the National Cemetery and the Battlefield development of this plan, NPS held a Federal Register on June 25, 1999. Commemorative Area. Each of these series of workshops, focus group
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Public Law 101–377, An Act to Revise The intent of the selected action is to a Request for Proposals, Visitor Center the Boundary of Gettysburg National and Museum Facilities, Gettysburg rehabilitate the Gettysburg battlefield so Military Park. The priorities and that the features that were significant to National Military Park (RFP). The RFP planned actions for protecting lands solicited specific proposals from non- the outcome of the battle and its within the 1990 boundary are detailed commemoration more nearly reflect Federal sources to enter into a in the park’s 1993 Land Protection Plan. their historic conditions. The selected cooperative agreement with NPS to The action alternatives in the GMP/EIS action will identify and protect the provide new visitor center and museum describe several minor boundary resources that contribute to the park’s facilities either on park land or on non- adjustments and other actions needed to national significance, including its three park land in the vicinity of the park. address deficiencies in the 1990 nationally significant landscapes: the The terms of the RFP invited creative legislation and the 1993 Land Protection site of the Battle of Gettysburg, the proposals from all possible sources with Plan. Soldiers’ National Cemetery, and the few limitations so long as they furthered 1995 White-Tailed Deer Management commemorative landscape of avenues the NPS goals for the new facilities. The Plan /Environmental Impact Statement: and monuments built by the battle’s RFP required that proposals suggest a In 1994, NPS released a draft white- veterans. Through the construction of site for the facilities within a specific tailed deer management plan and new museum and collections storage area of consideration (extending beyond environmental impact statement (white- facilities, the selected action will also the boundaries of the park). Among tailed deer management plan). This provide improved protection for the other matters, the RFP noted that a white-tailed deer management plan cyclorama painting, a National Historic reevaluation of environmental issues reviewed alternatives for managing the Object, and for the park’s extensive would be a part of the process for population of white-tailed deer at collections and archives. The entering any agreement, and that Gettysburg NMP and Eisenhower NHS. combination of rehabilitated historic depending on the proposal an In June 1995, NPS approved the white- landscapes and improved museum amendment to the current General tailed deer management plan and a interpretation in the new facility will Management Plan might be required. record of decision was signed. NPS allow visitors to understand the Battle of Gettysburg, its aftermath and NPS, as of the RFP closing date of determined in the white-tailed deer management plan that a deer density of commemoration within the full context May 16, 1997, received six proposals. of American history. Because the On November 8, 1997, the Director of 25 deer per forested square mile must be maintained at Gettysburg NMP and present Visitor Center and Cyclorama the National Park Service announced Building are located virtually on that it had selected a proposal for Eisenhower National Historic Site. There is nothing in the GMP/EIS for Ziegler’s Grove, one of the most negotiation. NPS selected the proposal historically significant areas of the because it offered to have a non-profit Gettysburg NMP that will affect this desired deer density, hence the white- battlefield, NPS is compelled to remove corporation provide the facilities sought tailed deer management plan is not these structures and restore the historic by NPS on an excellent site and affected by the GMP/EIS. scene. Partnerships with private entities ultimately would result in the donation and local and state governments will of the facilities to Gettysburg NMP. Government Performance and Results permit increased protection and Act Strategic Park Management Plan: In Although the proposal was judged as interpretation of Civil War resources, as 1997, NPS developed a systemwide plan well as of historically significant the best overall proposal received in to meet the requirements of the response to the RFP, NPS pointed out viewsheds and roads outside of the Government Performance and Results park’s boundaries. Together, these that there were aspects of the proposal Act of 1993. As previously noted, as a that needed to be negotiated in order to actions will allow NPS to meet the part of its compliance with this act, NPS legislative purposes of the park. achieve an acceptable cooperative develops for each unit of the national Specifically, under the selected agreement. As part of this process, NPS park system a new significance action, NPS will rehabilitate both the sought public comment on the proposal statement, legislative purpose significant large-scale and small-scale through environmental and other public statements, mission statement, mission elements of the park’s historic review processes between November goals and long term goals to guide landscape. NPS will reinstitute the 1997 and spring 1998. management of the park (the Strategic pattern of open fields and wooded areas, Scoping for the park’s new General Park Management Plan). At Gettysburg and the historic circulation system of Management Plan and Environmental National Military Park, this plan was lanes, present during the battle. This Impact Statement had been initiated in developed in consultation with the State will restore within the Battle Action April 1997. Based on public input Historic Preservation Officer, the Resource Area the fields of view that received from the DCP, the GMP/EIS Gettysburg National Military Park prevailed in 1863 and allow visitors to and other public comment, NPS Advisory Commission, other interested understand how the armies moved determined that it was desirable to agencies and organizations, and the across the landscape. The selected incorporate the issues of visitor use and general public. The action alternatives action also includes within the Battle interpretation at the visitor center and developed in the GMP/EIS are based Action Resource Area the rehabilitation museum facilities as an element of its upon the significance, purpose, mission of those small-scale landscape elements- and mission goals outlined in the park’s forthcoming draft GMP/EIS. fences, woodlots, orchards and other Strategic Park Management Plan. features-that were significant to the
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.088 pfrm03 PsN: 21DEN1 71486 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices outcome of the battle. The selected interpretation or use. The complex will will allow NPS fully to meet both its action will enable visitors to appreciate include necessary and appropriate resource preservation and interpretive the obstacles and terrain that confronted visitor services that are entirely mandates. individual troops during the conflict. consistent with the purposes of the park The selected action will significantly The selected action will rehabilitate and NPS policy. improve resource protection. The the major landscape features and The Visitor Center and Cyclorama selected action will preserve and circulation of the Civil War portion of Building are currently located on some rehabilitate the features that were the Soldiers’ National Cemetery, as well of the Battle of Gettysburg’s most significant to the outcome of the battle as its significant design features. historically significant land along and allow the restoration of Ziegler’s Together these actions will allow Cemetery Ridge, known as Ziegler’s Grove, the site of some of the most visitors to understand the equality of Grove. Ziegler’s Grove was at the center intense and bloodiest fighting of the sacrifice made by those who lost their of the Union line during the second and war. It will significantly enhance life in the battle, as intended by the third days of the battle, and was the site preservation and rehabilitation of the designer of the Soldiers’ National where more than 6500 men fought. To nationally significant Soldiers’ National Cemetery. achieve the park’s legislative mandate Cemetery, the site of Lincoln’s The selected action will also restore park managers determined to return Gettysburg Address and of the burial of the major features of the park’s Ziegler’s Grove to its 1863 appearance many Union dead. It will preserve the Battlefield Commemorative Area, by removing the intrusive Visitor Center nationally significant commemorative including monument groups. The and Cyclorama Building. The relocation corridors of Gettysburg NMP by selected action will provide for of visitor facilities to a new site near providing for the restoration of enhanced protection of these resources, their existing location but on land that monument groups (markers, which are the most threatened by visitor was not significant to the outcome of the monuments, cannon, etc.) and by overuse. It will incorporate coordinated battle will allow restoration of Ziegler’s limiting future damage from visitor measures to manage visitor use and Grove, the area that was the center of overuse to sensitive resources here. transportation, including a shuttle to the Union Line during the second and Transportation management will further provide access to park sites and a link third days of the battle. protect sensitive resources from to downtown. This will respond to The selected action will include vehicular damage. New collections visitor desires to see the battlefield measures to interpret the role of both storage will provide adequate while protecting sensitive cultural and soldiers and noncombatants, and will conditions for the preservation and natural resources from damage. The strengthen the interpretation of the role curation of the park’s collections and selected action will also revise of the town of Gettysburg in the battle archives. A new, environmentally stable agricultural practices in order to protect and its aftermath and link it to the gallery in which the conserved historic and natural resources through battlefield. It will expand partnerships cyclorama painting will be displayed such means as altering mowing and cooperative initiatives with entities will allow NPS to stem further schedules to protect nesting birds, at all levels, especially those that could deterioration and adequately preserve removing wetlands and streambanks protect the historically agricultural this National Historic Object. from pastures, utilizing low-till and no- character of significant battle and Civil Changes in the management of the till methods, and limiting pesticide use. War sites outside the park’s boundary, park’s agricultural program to enhance (Historic field patterns will be recreated the character of historic road corridors surface water quality in the park’s by erecting fences or hedgerows in and park gateways, and important park streams and ponds, enhance streambank existing historic crop fields and in viewsheds. The approach to stabilization and reduce soil erosion newly opened areas.) rehabilitation incorporated in the will protect watershed areas considered The selected action will provide a selected action will broaden the scope significant to the Chesapeake Bay. The new museum complex, located at a site of overall interpretation and expand the combination of removal of non-historic outside the Battle Action Resource Area, number of venues that could be well woodlands and changes in the where NPS could provide adequate understood by and interpreted to agricultural tilling, mowing and haying protection for its archives, collections visitors. In turn, the opening of new techniques will allow NPS to better and the cyclorama painting and provide sites for interpretation will provide protect the state-listed open-land necessary visitor services without relief for heavily visited and adversely species that inhabit the park. harming the historic landscapes of the impacted sites. The selected action also In addition, the selected action will park. The museum facilities proposed in adopts a previously approved encourage partnerships with private the selected action will provide Development Concept Plan/ entities and local and regional adequate facilities for the protection of Environmental Assessment, which governments to protect, preserve and the park’s remarkable collections and proposed consolidation of park offices interpret resources that are related to the archives. A new gallery for the and visitor facilities not included in the Battle of Gettysburg, its aftermath and cyclorama painting, ‘‘Battle of park’s museum and visitor center to a commemoration that are located outside Gettysburg,’’ will allow the painting to site within the Visitor and Park Services of park boundaries. The selected action be properly hung and displayed in an Overlay Area. calls for partnership actions to preserve environmentally stable gallery, which is resources and interpret the role of the critical to its preservation. A new Basis for Decision Borough of Gettysburg in the battle, its facility will greatly improve museum Alternative C, the proposed plan in aftermath and the ongoing preservation interpretation at the park, and place the the Final GMP/EIS and the selected of the battlefield. It also encourages Gettysburg Battle in its larger context of action, provides the most desirable partnerships with private entities and the Civil War and the Gettysburg combination of resource preservation, local and regional governments to Campaign. The complex will be built by visitor interpretation and experience, protect the agricultural setting of the a private foundation at no cost to the and cost-effectiveness among the park and major roadways leading to the government, and NPS will retain final alternatives considered for meeting the park, including Taneytown Road and approval on all decisions that would legislative purposes and mission of Baltimore Pike, elements that are affect the complex’s design, Gettysburg NMP. The selected action important to a visitor’s experience.
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These actions should limit somewhat Alternative A: Continuation of Current Action Area and the Soldiers’ National the amount of significant battle and Management Cemetery and preservation of other 1863 Civil Wars sites outside the park This alternative assumed continuation features. It would also have provided a boundary lost to commercial and of current policies and associated new museum complex to replace suburban development. actions. It provided a baseline for obsolete facilities and meet the park’s The selected action also will greatly comparison of the other alternatives and interpretive goals. Because the actions improve interpretation of the Battle of is required by the National included in Alternative B were Gettysburg, its aftermath and Environmental Policy Act regulations. considered necessary to meet minimally commemoration both through enhanced Alternative A retained the management the park’s mission goals, the actions museum interpretation as well as guidance and direction of the 1982 recommended in this alternative were also incorporated into Alternative C, the through landscape restoration. New General Management Plan and the selected action, and Alternative D. museum exhibits will provide subsequent Management Objectives As a part of Alternative B, the substantially improved interpretation of developed in the 1988 Statement for rehabilitation of large-scale landscape the battle in its full context, as required Management. This alternative retained features would have reinstated the by the park’s legislation. Visitors’ the management zones defined by the patterns of open and wooded areas experiences in the park will be 1982 GMP and would have continued within the Major Battle Action Area, improved, both in the museum complex the management policies articulated in including restoration of Ziegler’s Grove. and on the battlefield. Visitors will that document towards the landscape, Because of this action, NPS would be receive improved orientation and park facilities, and visitor use able to represent accurately the patterns information about how to use the park. management. Under this management of open land vs. forested land present Rehabilitation of the landscape will strategy, NPS would have continued to during the battle in the areas where allow visitors to understand both the preserve existing features and resources major battle action occurred. This movements of the armies as well as the significant to the battle. Existing historic would allow visitors to visualize and impact of the battle on individual cropfields and woodlots would have understand the major movements of the soldiers. Rehabilitation of the Soldiers’ continued to be preserved and armies and to appreciate tactical National Cemetery will allow visitors to maintained in their current conditions, decisions made by its leaders. understand the meaning inherent in its using contemporary agricultural Alternative B would not, however, have design, a meaning so eloquently defined techniques. The Soldiers’ National rehabilitated the small-scale features by Abraham Lincoln in the Gettysburg Cemetery would have continued to be that were significant to the outcome of Address. managed to maintain and perpetuate the battle, such as fence lines or Implementation of this action will modern vegetation and changes made orchards. increase visitation and length of stay at for maintenance with modern Alternative B also suggested the park, which in turn will increase per equipment. In the commemorative area, rehabilitation of the large-scale capita spending by 10% over current individual monuments and monument landscape and designed features that levels. The combination of higher per groups would have continued to be characterize the Saunders design for the capita spending and a moderate increase preserved and restored, and the formal Soldiers’ National Cemetery. Under this in visitation means that visitors will designed corridor in which the War alternative, the cemetery would have spend an additional $24,278,900 Department placed them would have remained in its modern condition, annually in the communities adjacent to been recalled by mowing of the area. except that the vegetation and the park, an increase of 21.5% over Modern features, such as parking areas, circulation in the Civil-War portion of current spending levels. (Final GMP/ bollards, paths, fencing or other the cemetery would have been managed EIS, 91–92, 282–286) restraints would have been added as so that visitors could understand the needed to protect resources from ideas of equality expressed by Saunders Other Alternatives Considered overuse and damage by pedestrians and in the design. These ideas parallel those vehicles. NPS would have continued to expressed by Abraham Lincoln in his The Final General Management Plan/ manage Big Round Top as a natural Gettysburg Address. The Environmental Impact Statement area. NPS managers rejected this option commemorative landscape would have describes four alternatives for among other reasons because it failed to been managed similarly to Alternative management, the environment that will provide adequate protection to the A. be affected by those alternatives, and the park’s three historic landscapes, did not This alternative incorporated the environmental consequences of allow for the restoration of Ziegler’s development of a new museum complex implementing these action alternatives. Grove, and did not provide adequate and associated facilities that could The major topic areas covered in each protection for the park’s archives, provide improved interpretation and alternative are related to the park’s four collections and the cyclorama painting. visitor services, located on a site that mission goals, and include resource For a fuller discussion of the issues was not pivotal to the outcome of the protection and rehabilitation, visitor surrounding a continuation of current battle. Enhanced programs would have interpretation, visitor experience, and management policies, see the discussion provided broad, in-depth interpretation partnerships. Major impact topics of issues considered on pages 10–17 of of the causes and consequences of the include impacts to cultural resources, the Final GMP/EIS. Gettysburg Campaign, its impact on impacts to natural resources, impacts to participants and noncombatants, and visitor interpretation and experience, Alternative B: Minimum Required the enduring meaning of the Gettysburg impacts to the socio-economic Actions Address. Strong linkages would have environment, impacts to traffic, parking This alternative included the least been provided from the park and the and transit, and impacts to park costly set of actions that would have proposed museum complex to historic operations. responded minimally to the park’s structures at the center of the Borough NPS considered three alternatives in mission goals. Alternative B of Gettysburg. NPS would have worked addition to Alternative C, the proposed incorporated rehabilitation of large-scale cooperatively with partners to plan. They are: landscape features in the Major Battle communicate the role of key in-town
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Interpretation would have interpretation, but believed it should be these topics. relied heavily on the new museum combined with the higher levels of The broad initiatives of this complex to provide the context rehabilitation and preservation alternative would have improved the overview, and assumed that visitors proposed by the other alternatives. visitors’ understanding of the battle would be able to understand those The GMP team considered two other landscape by making it possible for stories without extensive field alternatives, Full Restoration and them to understand the movements of interpretation because NPS had fully Interpretation Only. The first responded the armies—the generals’ perspective— restored the battlefield, cemetery and to the perception among some and by providing greatly improved commemorative landscapes. participants in the public process that centralized interpretation of the causes Modern wayside signs would have the battlefield should be fully restored and consequences of the Gettysburg been removed and visitors would have to its 1863 condition. However, NPS Campaign. Alternative B also had to rely on the system of markers determined that this was not feasible incorporated visitor activity placed by the park’s veterans to and would not comply with the management policies that would have understand and experience the park. Secretary’s Standards for Historic improved the condition of park Visitors would have been encouraged to Preservation because of its impact on resources by limiting damage from concentrate their travel along the the park’s two nationally significant visitor use. commemorative avenues, and post-battle landscapes, the Soldiers’ This alternative provided for better alternative means of transport and National Cemetery and the protection of the park’s landscape and interpretation would have encouraged commemoration built by battle veterans. historic resources than did Alternative visitors to tour the battlefield with far The Interpretation Only alternative A, no action. However, NPS managers less reliance on private vehicles than would have included no rehabilitation rejected this option because they currently. and restoration of park features. considered that the rehabilitation of Although this alternative provides for However, visitor surveys, comment both the large-scale features and the better protection of the park’s landscape during scoping, and experience with small-scale features that were significant and historic resources than Alternative visitors on the site convinced NPS to the outcome of the Battle of A, and for more extensive rehabilitation managers that this approach could not Gettysburg, its aftermath and than either Alternative B or C, NPS meet the park’s interpretive goals. In commemoration (as called for in managers rejected it because the addition, NPS managers believed that Alternative C, the selected action) environmental and dollar costs were this approach would not allow NPS to would more fully meet the park’s much greater than any other alternative meet its legislative purposes. For these legislative mandates by preserving and because it proposed rehabilitation of the reasons, these four alternatives were rehabilitating all features that were entire park, including places that were eliminated from further consideration. significant to the outcome of the battle. not the site of major battle action. In NPS’ consideration of alternatives for In addition, although Alternative B addition, NPS managers did not its visitor facilities, through the would have improved interpretation of consider that this alternative could development of the draft DCP and its the battlefield, especially of the provide significantly improved resource RFP process is discussed in the general’s perspective, the selected protection or interpretation. Background of the Project section of this action would allow visitors to ROD. Other Alternatives Considered understand not only the general’s Environmentally Preferable Alternative perspective but also the impact of the In addition, a number of other battle upon individual combatants and alternatives were considered by the The environmentally preferred civilians. planning team or in public workshops, alternative is defined as ‘‘the one that but not included for further will promote National Environmental Alternative D: Maximum Park consideration in the Draft GMP/EIS. Policy as expressed in the National Rehabilitation These are discussed in detail on pages Environmental Policy Act’s, section 101. This alternative included the resource 58–60 of the Final GMP/EIS. Ordinarily, this means the alternative management, interpretive and museum Two additional alternatives were that causes the least damage to the facilities actions included in Alternative proposed and reviewed with the public biological and physical environment; it C. However, Alternative D expanded on in workshops and were presented in also means the alternative which best the resource management actions GMP newsletters. These alternatives protects, preserves, and enhances the described in Alternative C by were called Improve Areas of Most historic, cultural, and natural resources recommending additional rehabilitation Intensive Use, and Diversified Visitor in the area where the proposed action is and restoration. Alternative D proposed Experience. The first recommended to take place.’’ (‘‘Forty Most Asked restoring the entirety of the known and traffic free zones representing each day Questions Concerning Council on documented battle landscape in the of the battle, where special Environmental Quality’s (CEQ) National Major Battle Action area and the interpretation, resource protection and Environmental Policy Act Regulations,’’ significant elements outside the Major other actions would occur. The public 1981). Battle Action area included in the other generally felt that this approach was too The environmentally preferred resources area. This alternative would restrictive and placed too much alternative is Alternative C, the selected have rehabilitated all identifiable emphasis on first time visitors. The action. Alternative C best protects, historic features, regardless of their second alternative placed its emphasis preserves and enhances the historic, significance to the outcome of the Battle on innovative interpretation of the cultural and natural resources of of Gettysburg. battlefield. NPS would have Gettysburg NMP. In particular, the Rehabilitation of missing features concentrated its resources on selected action: increases the ability of from the commemorative era, interpretation rather than on the park to protect, preserve and principally along the system of rehabilitation and restoration, although enhance the historic and cultural commemorative avenues, would have a minimum level of rehabilitation of the resources of the park and meet its
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Alternative A, as Final General Management Plan/ state-listed open land species; and described in the Final General Environmental Impact Statement. allows NPS to meet more fully the Management Plan/Environmental Rehabilitation of the features that requirements of the Chesapeake Bay Impact Statement, does not provide were significant to the outcome of the Program. As noted above, the selected adequate protection for the park’s three Battle of Gettysburg, its aftermath and action improves the ability of NPS to historic landscapes, its cultural and commemoration has the potential to protect the essential resources of natural resources, or its collections, cause environmental harm. NPS will Gettysburg NMP. Through this proposal, archives and the cyclorama painting and take the following actions to avoid or NPS could: preserve and rehabilitate the therefore does not meet the park’s minimize harm resulting from these resources considered significant to the legislative mandate. actions: • outcome of the battle; protect the Alternative B, as described in the Impacts to known and unknown cyclorama painting, collections, and Final General Management Plan/ archeological resources due to tree archives; and preserve and rehabilitate Environmental Impact Statement, would removal will be mitigated and the significant features of the Soldiers’ provide many of the same cultural and minimized by implementing Section National Cemetery and commemorative natural resource benefits as described in 106 of NHPA, through the use of best landscapes of the park. The selected the selected action. Both alternatives management practices, and through action allows NPS fully to meet the would include the rehabilitation of the appropriate design that will allow for requirements of Gettysburg NMP’s pattern of open vs. closed areas present little ground disturbance. • legislation at the least cost to the during the battle, actions to preserve Use of best management practices environment, park visitors and the resources in the Soldiers’ National will minimize impacts to topography Federal budget. The provision of new Cemetery and the commemorative due to tree removal and existing roads museum facilities on a site removed Resource Area, reformulation of the and lanes will be used so that no new park’s agriculture program, and roads will need to be constructed. from the park’s most important • resources means that NPS could restore provision of new visitor facilities. Short-term impacts to soils due to these significant areas. However, Alternative C, the selected tree removal will be minimized using action, more fully meets NPS’ legislative best management practices. Although the new construction purposes because it provides for the • Tree removal may have an impact needed to consolidate the park’s protection and, where needed, the to roosting and nesting areas of black museum and visitor facilities would rehabilitation, of all features that were vultures in the park. These actions will permanently remove 18 acres of land, significant to the outcome of the Battle be mitigated by leaving the white-pine including up to 2 acres of wetlands, at of Gettysburg, its aftermath and trees typically used by vultures and by the new site as wildlife habitat, NPS commemoration. Alternative B merely leaving small clumps and mature trees will be able to restore about 38 acres of provides for the rehabilitation of a around known nesting areas. meadow, orchard and woodlands that subset of those resources during the • Tree removal may have an impact were very significant to the outcome of period of the plan. on certain species of the fauna of the the battle at the sites of the current Alternative D, as described in the park. None of these species are rare or facilities. The selected action proposes Final General Management Plan/ of special concern. However, NPS will the removal of only as much non- Environmental Impact Statement minimize these impacts by using best historic forest as is needed to meet the provides for maximum rehabilitation of practices and by monitoring of specific park’s legislative purposes and mission the park’s landscapes, including all taxa. goals. In addition, under the selected features that could be documented. This • Localized steam water temperature action, NPS will maintain as historic would provide for rehabilitation of will increase in some sub-watersheds woodlots the number of acres needed in landscapes and features beyond that from loss of forest cover; however, this order to meet the park’s legislative called for by the park’s legislative can be minimized by planting low purpose. The gradual removal of some purposes. Although this could provide a growing woody vegetation along stream non-historic forest will increase the total more complete experience of the corridors. acreage of open land in the park, conditions prevalent in 1863, the • Tree removal and conversion of the because those areas will be environmental costs would be area into an actively managed woodlot reestablished as open grasslands, concomitantly greater. Because park could have an impact on one state-listed pastures, or orchards. The increased managers do not consider that plant specie. However, using best area of open grassland will improve and additional restoration would management practices for tree removal expand the habitat needed to support significantly improve interpretation or and protecting individual plants could the sensitive state-listed species that protection of essential resources, the minimize this. Maintaining the area as occur within the park, almost all of additional environmental costs would a woodlot will benefit the plant by which are open land species. NPS will not be warranted. opening the canopy. more fully meet the requirements of the The selected action provides the Rehabilitation of Ziegler’s Grove and Chesapeake Bay Program by protecting appropriate balance between protection the center of the Union’s battle line sensitive watersheds from cattle and and rehabilitation of the park’s along Cemetery Ridge necessitates the other agricultural damage. NPS will significant cultural and natural removal of the Cyclorama Building, institute changes in its management of resources and environmental costs. which is listed on the National Register the park’s agricultural permits to of Historic Places. In December 1998, enhance surface water quality in the Measures to Minimize Environmental NPS began consultations with the park’s streams and ponds, enhance Harm Advisory Council on Historic streambank stabilization, and reduce NPS has identified and incorporated Preservation, the Pennsylvania Historic soil erosion. In addition, these changes into the selected action all practical Preservation Officer, and interested
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71490 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices parties and individuals regarding the • Approximately 10 acres of prime park’s legislative purposes, mission, and removal of the structure. On May 14, farmland may be impacted by mission goals, developed as a part of 1999, the Advisory Council on Historic development; a Farm Conversion Impact NPS’ compliance with the Government Preservation concurred with the draft Rating and Land Evaluation System Performance and Results Act. NPS also GMP/EIS’ proposed restoration of the Report will be completed before any held meetings to discuss its analysis of park’s historic landscapes and the work begins. Approximately 38 acres of park resources, concepts for the park, cyclorama painting, and the removal of meadow, orchard, and woodlands will and alternatives for the park. After NPS the Cyclorama Building, finding that be re-established at the sites of the old selected a proposal for negotiation for ‘‘The rehabilitation of this key visitor centers to mitigate the removal of new museum and visitor facilities (as a battlefield site so that the battlefield can approximately 21–26 acres of hay and 8 result of the Draft Development Concept properly be interpreted must be acres of woods at the new museum and Plan and Environmental Assessment for regarded as a historic mission of the visitor center site. Collections Storage, Museum and highest order.’’ A history of related • Up to 2 acres of wetlands could be Visitor Facilities and subsequent RFP), actions is included on page 241 of the impacted due to construction; however, it held additional meetings to review the Final General Management Plan/ a Wetlands Statement of Findings as details of the proposed facilities and Environmental Impact Statement; the required by Directors Order 77.1, will be their possible environmental Advisory Council on Historic completed prior to the initiation of consequences with the public. During Preservation’s Finding is included as work. In addition, up 100 acres of Spring, 1998, NPS determined as a Appendix 11. After that decision, NPS wetlands will be restored as a result of result of these meetings and other consulted with the Advisory Council, changes to the agriculture program and agency and public comment to combine the Pennsylvania State Preservation the removal of field drains in the Draft Development Concept Plan Officer and interested parties to develop agricultural fields. • and Environmental Assessment for appropriate mitigation policies with Construction activities could Collections Storage, Museum and regard to the removal of the Cyclorama temporarily displace or kill some Visitor Facilities with the ongoing GMP/ Building and in accordance with the individual wildlife or flora around the EIS process. During this period, NPS Memorandum of Agreement dated July new visitor and administrative facilities. also prepared and mailed five 29, 1999. This will be mitigated through the newsletters to interested agencies, Construction activities related to the park’s inventorying and monitoring organizations, and individuals. A Draft relocation of the park’s museum program to assure no sensitive species General Management Plan/ complex, visitor facilities and are being affected. Environmental Impact Statement was • Visitors might be temporarily administrative facilities to a site developed and released to the public on inconvenienced by construction and removed from its prime resources have August 14, 1998. Almost 3,800 copies of relocation activities; however, the potential to cause environmental the Draft General Management Plan/ construction and relocation will be harm. NPS will take the following Environmental Impact Statement were scheduled to avoid the peak visitation actions to avoid or minimize harm distributed to agencies, organizations periods. resulting from these actions: and the public. The Notice of • Implementation of appropriate Although overall visitor spending will Availability of the draft EIS was erosion control and revegetation increase due to the new museum published in the Federal Register on measures will minimize short- and long- complex, redistribution of visitor August 18, 1998. Nine public meetings term disturbance and vegetation loss spending may occur because of the were held during the public comment from construction activities for the new relocation of the museum complex. The period. Two workshops provided an visitor facilities, administrative anticipated increases in visitation, the facilities, burial of utility lines, and increase in length of stay, the limitation overview of the entire GMP. Four other actions. of the menu and of the serving times in workshops concentrated on a particular • Unknown archeological resources the food service facility, the routing of aspect of the plan, including resource may be impacted by development the park auto tour route through the preservation and rehabilitation, activities and, if significant, the Borough of Gettysburg, and the socioeconomic impacts, partnership facilities will be relocated or the continued availability of information issues including traffic, and archeological resources could be about community visitor facilities in the interpretation and education. One excavated to salvage the artifacts. In museum by the Visitor and Convention meeting held by the Gettysburg NMP addition, a monitoring and preservation Bureau should help mitigate these Advisory Commission, incorporated program will allow archeologists to impacts. To minimize development of discussion on the GMP and the museum determine the nature of cumulative new tourism related private complex proposal. All seven of these impacts, and devise avoidance or development near the new museum site, meetings included question and answer mitigation methods. NPS, either directly or through its sessions. NPS also held two formal • Two small areas of historic rock various partners, will protect through public hearings to allow the public to walls may be destroyed to accommodate easement or acquisition, lands that were comment on the plan. A listing of entrances to the new museum complex. significant to the outcome of the Battle. meetings, public workshops and NPS will consult with the Advisory hearings, and consultation activities is Council and the State Historic Public and Interagency Involvement included in the Final General Preservation Officer to develop NPS officially began the EIS process Management Plan/Environmental appropriate mitigation policies with on May 5, 1997 with the publication in Impact Statement beginning on page regard to the removal of these two the Federal Register of a Notice of 306. sections of wall. Intent to prepare a draft EIS. Scoping The comment period on the draft • Design of the new visitor or meetings were held to identify issues ended October 17, 1998. Between administrative facilities will seek to and concerns relating to the proposed October 1998 and May 1999 NPS met minimize topographic changes and keep general management plan. As a part of with local governments, members of as much of the new site in a natural its scoping for the EIS, Gettysburg NMP Congress and representatives of state condition as possible. requested public and agency review the and local agencies and organizations to
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.095 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71491 ensure that their comments and local businesses. One of NPS’ goals was and museum store. The new facility will concerns had been properly understood. to improve visitors’ experiences in the continue these uses, providing enough Comments received through January 20, museum complex by providing space to make these operations more 1999 were included in the Final GMP/ necessary and appropriate facilities that efficient. The new facility will also EIS. would enable them to extend their stay provide limited food service. The new NPS received over 500 oral or written in the facility and properly use and facilities will allow NPS to provide comments on the draft GMP/EIS. Some enjoy the facility. During GMP scoping, superior orientation and interpretation, comments concerned the relocation of NPS evaluated the proposal in relation adequate protection for its collections, the park’s visitor centers to a nearby to this goal, and determined what was archives and the cyclorama painting, site. Some commentors, representing necessary and appropriate to allow and will remove modern intrusions descendents of the more than 6500 men visitors to extend their stay in the from the historic core of the battlefield. who fought where the Visitor Center facility and therefore in the community. Others were concerned that the and Cyclorama Building are now Because of this scoping process, NPS inclusion of the museum proposal as a located, contended that appropriate reduced the size of the cafeteria-style part of the GMP/EIS violated NPS policy restoration of the Ziegler’s Grove area is restaurant and eliminated the arts and or NEPA. However, after considering necessary because of the approximately crafts store and other retail activities in public and agency comment on the 970 soldiers who became casualties of the proposed new museum complex. issue, NPS determined that it was in the the Battle of Gettysburg at that location. These changes were described in the public interest to combine the two Others, many of whom operate draft GMP/EIS. ongoing public processes into the GMP/ businesses in close proximity to the However, even after making these EIS. NPS considers that the park’s visitor centers, are concerned that changes in the draft GMP/EIS, NPS environmental review procedures NPS’ relocation of its visitor facilities received comments about the food followed in this matter, including would impact their businesses, either by service facility during the public review consideration of public comment as a changing pedestrian patterns or by of that document. After a review of the part of the process, complied with removing parking from near their comments received on the draft GMP/ NEPA. businesses. EIS, NPS reevaluated its needs again Finally, some commentors are NPS acknowledged in the draft GMP/ and determined that it could further concerned that net removal of 576 acres EIS that despite the overall positive reduce the scope of the food service to of non-historic woodlands would create economic impact resulting from be included in the facility and still meet environmental impacts on local plant Alternative C, the selected action, the its goal. NPS determined that limited and animal communities and that relocation of park visitor facilities might food service would allow visitors to rehabilitation of the battlefield was not change visitor spending patterns and extend their stay and properly use and necessary for proper interpretation of create indirect effects on area enjoy the facilities. Therefore, NPS the battlefield. NPS determined that it development or individual businesses. decided to change the cafeteria-style could best meet its legislated purposes Because of comments received during restaurant to a limited food service and mission, and provide a more scoping, NPS had included actions to facility, operating with a warming meaningful visitor experience, by mitigate possible effects in the draft kitchen and providing snacks and light rehabilitating the battlefield in the GMP/EIS. These included: NPS meals only. An economic assessment manner described in the selected action. partnership in the development of the performed on this limited food service NPS acknowledged that removal of non- Wills House; an NPS ranger presence in option found that food service historic woodlands would have an downtown; partnerships to strengthen expenditures within the park would impact on some forest species. However, the historic pathways pedestrian decrease by 34% from the level with the exception of the black vulture, environment; expansion of NPS’ auto predicted in the draft GMP/EIS, and that these species are widespread and the tour to include resources within the visitor expenditures outside the park removal of non-historic woodlands Borough of Gettysburg; inclusion of a would therefore increase by an would not affect their abundance or downtown/park shuttle; protecting sites estimated additional $495,000 per year, distribution. NPS considers that impacts within the park boundary and the to a total of $24,278,900 annually. This upon the state-listed black vulture could Gettysburg Battlefield Historic District represents an increase in visitor be mitigated by the activities noted in from inappropriate development; and spending of 21.5% over current the previous section. As noted above, continued promotion of local visitor spending levels (Final GMP/EIS, pages the concomitant increase in meadow services by the Visitor and Convention 91–92, 282–286). and pasture land will increase and Bureau in the park visitor center. As a Some commentors feared that the new improve open-land habitat and therefore result of comments received on the draft museum complex would commercialize the sensitive state-listed species that GMP/EIS, NPS enhanced its discussion the battlefield. However, NPS considers depend upon that habitat. of the protection of Taneytown Road that the proposed collections storage, NPS responded to substantive and Baltimore Pike, and included museum and visitor facilities do not comments in the final EIS, which was capital costs for the shuttle, which had commercialize the battlefield, but released to the public on June 18, 1999. inadvertently been left out of the draft provide necessary and appropriate NPS mailed approximately 586 copies GMP/EIS. Finally, NPS decided to services to visitors that enhance the of the two-volume document to agency, provide parking to serve the Soldiers’ visitor experience and are entirely organizational and individual National Cemetery near the existing consistent with NPS policies, commentors. The Notice of Availability parking lots and included this in the regulations and statutes. The existing of the final EIS appeared in the Federal Final GMP/EIS. visitor facilities at Gettysburg NMP Register on June 25, 1999, and the Final Other commentors were concerned include collections storage, a museum, General Management Plan/ that the inclusion of a cafeteria-style a visitor center, the electric map, the Environmental Impact Statement was restaurant, arts and crafts store and cyclorama painting, a conventional made available for a 30-day no action other retail activities originally theater in which NPS presents an period starting on that date. proposed for inclusion in the museum education film, a licensed battlefield In accordance with the Programmatic complex would compete unfairly with guide tour center, and the park’s book Agreement among the National Park
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Service, the Advisory Council on abstracted below has been forwarded to repayment and water service contracts Historic Preservation and the National the Office of Management and Budget which are used to repay the irrigators Conference of State Historic (OMB) for review, comment, and obligation to the Federal Government. Preservation Officers executed July 17, approval. The ICR describes the nature Data from the census also are utilized to 1995, NPS has completed the of the information collection and its determine Class 1 equivalency consultation review steps related to expected cost and burden. computations, i.e., determining the general management planning (VI. C., DATES: Comments must be submitted on number of acres of Class 2 and 3 land D., and E.). NPS, the Pennsylvania State or before January 20, 2000. that are required to be equivalent in Historic Preservation Officer and the ADDRESSES: Send comments regarding productivity to Class 1 land. Crop Advisory Council on Historic the information collection to the production data are also used to analyze Preservation have negotiated and on following addresses: Mr. Larry Schluntz, the double subsidy occurring on July 28, 1999 signed a Programmatic Bureau of Reclamation, Reclamation Reclamation project lands. Double Agreement. Implementation of this Law and Revenues Office, D–5200, P.O. subsidies occur when an irrigator agreement will fulfill the NPS’ Box 25007, Denver, CO 80225, and receives interest-free irrigation water responsibilities under section 106 of the Office of Information and Regulatory and is also eligible for farm program National Historic Preservation Act. Affairs, Office of Management and payments from the U.S. Department of Letters received from the Budget, Attention: Desk Officer for the Agriculture. In recent years, the census Pennsylvania Natural Diversity Department of the Interior, 725 17th has provided data which are used to Inventory of the Pennsylvania Street, NW, Washington, DC 20503. administer international trade Department of Conservation and Natural Our practice is to make comments, agreements, such as the North American Resources and the U.S. Fish and including names and home addresses of Free Trade Agreement. Data from the Wildlife Service are included as respondents, available for public census are also used by the Office of the Appendix 7 of the Final General review. Individual respondents may Inspector General, General Accounting Management Plan/Environmental request that we withhold their home Office, and the Congressional Research Impact Statement. These letters address from pubic disclosure, which Service to independently evaluate the identified threatened, rare and we will honor to the extent allowable by Reclamation program and to estimate endangered species and species of law. There also may be circumstances in the impacts of proposed legislation. special concern protected by the which we would withhold a These data are also supplied to other respective agencies. There are no known respondent’s identity from public Federal and State agencies to evaluate Federal threatened, rare and endangered disclosure, as allowable by law. If you the program and provide data for species within the park. Impacts to state wish us to withhold your name and/or research. The census will provide data listed species are either positive, or can address, you must state this to provide the required 5-year review of be mitigated, as noted above. prominently at the beginning of your ability-to-pay analysis which is being The public and agency comments comment. We will make all submissions incorporated into new repayment and contained in the two volumes of the from organizations or businesses, and water service contracts. The basis for Final General Management Plan/ from individuals identifying themselves these reviews is an audit by the Office Environmental Impact Statement and as representatives or officials of of the Inspector General, Department of additional information available in the organizations or businesses, available the Interior. files at Gettysburg NMP headquarters for public disclosure in their entirety. Burden: The respondent burden is provides valuable background for the FOR FURTHER INFORMATION CONTACT: For estimated at 6,250 hours for farmers and context in which the proposed plan has further information or a copy of the 1,800 for irrigation districts. These been developed. All comments received forms contact Larry Schluntz, Bureau of estimates are derived as follows. There on the Draft and Final General Reclamation, P.O. Box 25007, Denver, are an estimated 50,000 farm operators Management Plan/Environmental CO 80225; telephone: (303) 445–2901. in the sampling universe and if a 50 Impact Statement are on file at SUPPLEMENTARY INFORMATION: percent sampling rate is assumed there Gettysburg NMP headquarters in Title: Crop Acreage and Yields and will be 25,000 respondents in any given Gettysburg, Pennsylvania. Water Distribution (OMB Control No. year. It is estimated that each Dated: November 23, 1999. 1006–0001). This is a request for a respondent will require 15 minutes to John A. Latschun, reinstatement of a previous data complete the form. In most cases, the Regional Director, Northeast Regional Office. collection with changes. The titles of the individual irrigators will have the [FR Doc. 99–32836 Filed 12–20–99; 8:45 am] forms and the form numbers associated requested data of crop production and BILLING CODE 4310±70±P with this information collection are: yields in their own records and it only Form 7–332, Water User Crop Census takes a few minutes to transfer these Report, and Form 7–2045, Crop and data to the respondent form. This yields DEPARTMENT OF THE INTERIOR Water Data. Since this is a request for an estimated 6,250 hours. In addition, reinstatement of a previously approved the irrigation districts compile the Bureau of Reclamation collection of information, the Bureau of individual responses into a district-wide Reclamation (Reclamation) decided it response which is submitted to Agency Information Collection would be less confusing for the public Reclamation. It is estimated that each of Activities Under OMB Review to use the earlier titles for these forms. the 225 districts will require 8 hours to AGENCY: Bureau of Reclamation, Abstract: The annual crop census is complete this compilation, which is a Interior. taken on all Bureau of Reclamation total of 1,800 burden hours for the districts. The overall total is estimated ACTION: Notice. (Reclamation) projects, along with collection of related statistics, primarily at 8,050 burden hours. SUMMARY: In compliance with the for use as a tool in administering, Respondents/Affected entities: Paperwork Reduction Act (44 U.S.C. managing, and evaluating the Federal Irrigators who receive irrigation water 3501 et seq.), this notice announces that reclamation program. The census is from Bureau of Reclamation projects the Information Collection Request (ICR) used to assist in the administration of and irrigation districts.
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Estimated number of respondents: DEPARTMENT OF THE INTERIOR rather than issue a check to the account Estimated 50,000 irrigators in the holder. Response to the collection of universe; reporting burden estimate Office of the Special Trustee for information by the account holder is, based on a 50 percent sample or 25,000 American Indians however, voluntary. Conditions of respondents annually. Approximately [Docket No. FR99N±0002] disclosure are in accordance with 225 districts will consolidate the provisions contained in the Privacy Act respondent data and provide a Notice of Agency Information of 1974, as amended. summarized report annually to Collection: Proposed Collection; II. Benefits of Using Direct Deposit Reclamation. Comment Request; Direct Deposit Trust Funds Form (1) Possibility of checks being lost in Estimated total annual burden on the mail or stolen is eliminated. respondents: 6,250 hours for irrigators ACTION: Notice and request for (2) IIM funds are available sooner and 1,800 hours for irrigation districts. comments. than if the mail service is used because Frequency of Collection: Annually. they are electronically sent to the bank. SUMMARY: In compliance with the (3) If your bank account is an interest- An agency may not conduct or Paperwork Reduction Act (44 U.S.C. earning account, your IIM funds begin sponsor, and a person is not required to 3501 et seq.), this document announces earning interest sooner because the respond to a collection of information OST’s plan to submit the following funds are in the bank within one or two unless it displays a currently valid OMB proposed Information Collection days of the payment date. control number. Reclamation will Request (ICR) to the Office of (4) A notice of payment is sent display a valid OMB control number on Management and Budget (OMB): Direct whenever a deposit is made to the the survey forms. A Federal Register Deposit Trust Funds Form. Before account. notice with a 60-day comment period submitting the ICR to OMB for review (5) It’s less expensive and more soliciting comments on this collection and approval, OST is soliciting efficient. comments on specific aspects of the of information was published in the III. Request for Comments Federal Register (63 FR 10243, Mar. 2, proposed information collection as 1998). Reclamation did not receive any described below. An agency may not The OST is soliciting comments to: comments on this collection of conduct or sponsor a collection of (1) Evaluate whether the proposed information during the comment period. information and a person is not required collection of information is necessary to respond unless it displays a currently for the proper performance of the Comments valid OMB control number. functions of the agency, including DATES: Comments must be submitted on whether the information will have Comments are invited on: or before February 22, 2000. practical utility; (2) Evaluate the accuracy of the (a) Whether the proposed collection of ADDRESSES: Send or hand deliver agency’s estimate of the burden of the information is necessary for the proper comments to Sarah Yepa, Office of Trust proposed collection of information, performance of our functions, including Funds Management, Office of Special including the validity of the whether the information will have Trustee for American Indians, 505 methodology and assumptions used; practical use; Marquette, NW, Albuquerque, New (3) Enhance the quality, utility, and Mexico 87102. (b) The accuracy of our burden clarity of the information to be estimate for the proposed collection of FOR FURTHER INFORMATION CONTACT: collected; and information; Alley David, Liaison Officer, Branch of (4) Minimize the burden of the (c) Ways to enhance the quality, Directives and Regulatory Management collection of information on those who usefulness, and clarity of the Liaison Officer, at the above address. are to respond, including through the information to be collected; and Telephone (505) 248–5751, Fax (505) use of appropriate automated electronic, 248–5782, or e-mail at (d) Ways to minimize the burden of mechanical, or other technological [email protected]. collection techniques or other forms of the collection of information on SUPPLEMENTARY INFORMATION: information technology, e.g., permitting respondents, including the use of Affected entities: Entities potentially electronic submission of responses. automated collection techniques or affected by this action are Individual IV. Burden Statement other forms of information technology. Indian Monies (IIM) account holders. OMB has up to 60 days to approve or Title: Direct Deposit Trust Funds The estimated total reporting burden disapprove this information collection, Form. is 12,750 hours over a 3-year period. but may respond after 30 days; The estimated burden hour per I. Background therefore, public comment should be respondent is .25 hours. The estimated submitted to OMB within 30 days in The Debt Collection Improvement Act number of respondents is 51,000. order to assure maximize consideration. of 1996 requires, with few exceptions, Burden means the total time, effort, or that all Federal payments be made by financial resources expended by persons Murlin Coffey, automated clearinghouse (ACH). to generate, maintain, retain, or disclose Manager, Property and Office Services. Although individual compliance to the or provide information to or for a [FR Doc. 99–32981 Filed 12–20–99; 8:45 am] Act is voluntary, the Secretary of the Federal agency. This includes the time BILLING CODE 4310±94±M Interior, as the designated trustee for needed for reviewing instructions; funds held by the Federal government developing, acquiring, installing, and on behalf of individual Indians, is utilizing technology and systems for the encouraging the use of direct deposit by purposes of collecting, validating, and IIM account holders. verifying information, processing and The information being requested will maintaining information, and disclosing enable the Secretary to deposit IIM and providing information; adjusting funds into an account at a bank by ACH existing ways to comply with any
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Donna Erwin, deliver your comments to: Sarah Yepa, [FR Doc. 99–32898 Filed 12–20–99; 8:45 am] Director, Office of Trust Funds Management. Office of Trust Funds Management, BILLING CODE 4310±2W±U [FR Doc. 99–32897 Filed 12–20–99; 8:45 am] Office of the Special Trustee for BILLING CODE 4310±2W±U American Indians, 505 Marquette, NW, Suite 1000, Albuquerque New Mexico INTERNATIONAL TRADE 87102. DEPARTMENT OF THE INTERIOR COMMISSION FOR FURTHER INFORMATION CONTACT: [Investigations Nos. AA1921±197 (Review); Office of the Special Trustee for Alley David, Branch of Directives and 701±TA±231, 319±320, 322, 325±328, 340, American Indians Regulatory Management, at (505) 248– 342, and 348±350 (Review); and 731±TA± 5751, Fax (505) 248–5782, or 573±576, 578, 582±587, 604, 607±608, 612, [Docket No. FR99N±0001] electronically at and 614±618 (Review)] Notice of Proposed Information [email protected]. Certain Carbon Steel Products From Collection: Comment Request SUPPLEMENTARY INFORMATION: The American Indian Trust Fund Australia, Belgium, Brazil, Canada, ACTION: Notice and request for Management Reform Act of 1994 (the Finland, France, Germany, Japan, comments. Reform Act) allows tribes to withdraw Korea, Mexico, Netherlands, Poland, their money held in trust by the U.S. Romania, Spain, Sweden, Taiwan, and SUMMARY: In compliance with the Government. To withdraw their money, United Kingdom Paperwork Reduction Act (44 U.S.C. tribes must first submit an application 3501 et seq.) The Office of the Special AGENCY: United States International and get approval from the Secretary of Trustee for American Indians (OST) Trade Commission. the Interior. The Reform Act also allows announces a request for public comment ACTION: Notice of Commission tribes to apply for technical assistance from Indian Tribes concerning the determinations to conduct full five-year and financial assistance to complete the renewal of Information Collection reviews concerning the countervailing application. Financial assistance may authorization. We will be submitting a duty and antidumping duty orders on not always be available. Section 1200.13 request to the Office of Management and certain carbon steel products from tells tribes how to submit an application Budget to extend authorization for OMB Australia, Belgium, Brazil, Canada, to withdraw their money and Sec. Control Nos. 1035–0001, 1035–0002, Finland, France, Germany, Japan, Korea, 1200.14 tells them how they can apply and 1035–0003. The information Mexico, Netherlands, Poland, Romania, for technical and financial assistance. collection allows us to collect Spain, Sweden, Taiwan, and United documents associated with tribes Burden Statement Kingdom. withdrawing their funds held in trust The current information collection and applying for technical assistance to SUMMARY: The Commission hereby gives authorizations expire December 31, withdraw funds under 25 CFR 1200. notice that it will proceed with full 1999. A Federal agency may not reviews pursuant to section 751(c)(5) of Request for Comments conduct or sponsor and a person is not the Tariff Act of 1930 (19 U.S.C. You may send or deliver comments to required to respond to, a collection of 1675(c)(5)) to determine whether the addressee in the ADDRESSES section information unless it displays a revocation of the countervailing duty below. Please put the document number currently valid OMB control number. and antidumping duty orders on certain on your comments found in brackets in The application forms and burden carbon steel products from Australia, the heading of this notice. Your estimates are: Belgium, Brazil, Canada, Finland, comments will be summarized and 1. OMB No. 1035–0001, OST Form No. SF– France, Germany, Japan, Korea, Mexico, included in the request to OMB for 424A, Application for Technical Netherlands, Poland, Romania, Spain, approval and will become public record. Assistance to Withdraw Tribal Funds Sweden, Taiwan, and United Kingdom We solicit your specific comments as to: from Trust Status (Specific Budget): would be likely to lead to continuation (1) Whether the proposed information Estimate Burden Hours—468 or recurrence of material injury within Annual Respondents—12 a reasonably foreseeable time. The collection is necessary for the proper Estimate Burden Per Response—39 performance of our agency’s functions, 2. OMB No. 1035–0002, OST Form No. SF– Commission has determined to exercise including whether the information has 424, Application for Technical its authority to extend the review period practical usefulness. Assistance to Withdraw Tribal Funds by up to 90 days pursuant to 19 U.S.C. (2) Whether the accuracy of our from Trust Status (General): 1675(c)(5)(B); a schedule for the reviews burden estimate of the collection of Estimate Burden Hours—156 will be established and announced at a information, including the validity of Annual Respondents—12 later date. the methodology and assumptions used Estimate Burden Per Response—13 For further information concerning is reasonable. 3. OMB No. 1035–0003, Application to the conduct of these reviews and rules (3) Enhance the quality, utility and Withdraw Tribal Funds from Trust of general application, consult the Status: clarity of the information to be Estimate Burden Hours—4,104 Commission’s Rules of Practice and collected. Annual Respondents—12 Procedure, part 201, subparts A through (4) How to minimize the burden of the Estimate Burden Per Response—342 E (19 CFR part 201), and part 207, collection of information on those who Total Burden Hours for all Information subparts A, D, E, and F (19 CFR part are to respond, including the use of Collections—4,728 207). Recent amendments to the Rules
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71495 of Practice and Procedure pertinent to INTERNATIONAL TRADE Practice and Procedure (19 CFR five-year reviews, including the text of COMMISSION 210.4(d)). subpart F of part 207, are published at On August 18, 1999, Oak and Howrey [Inv. No. 337±TA±409] 63 FR 30599, June 5, 1998, and may be filed a motion to delay issuance of the downloaded from the Commission’s Certain CD±ROM Controllers and public version of the RD imposing World Wide Web site at http:// Products Containing The SameÐII; sanctions against Oak and Howrey. On www.usitc.gov/rules.htm. Denial of Motion for Sanctions; August 31, 1999, the ALJ issued Order No. 18 denying Oak and Howrey’s EFFECTIVE DATE: December 3, 1999. Vacatur of Recommended Determination motion to delay issuance of the public FOR FURTHER INFORMATION CONTACT: Vera version of the RD. On September 8, Libeau (202–205–3176), Office of AGENCY: U.S. International Trade 1999, the Commission issued an order Investigations, U.S. International Trade Commission. delaying issuance of the public version Commission, 500 E Street SW, ACTION: Notice. of the sanctions RD until issuance of the Washington, DC 20436. Hearing- public version of the Commission impaired persons can obtain SUMMARY: Notice is hereby given that opinion on whether there is a violation information on this matter by contacting the U.S. International Trade of section 337 in this investigation. The the Commission’s TDD terminal on 202– Commission has determined to deny deadline for the parties to file comments 205–1810. Persons with mobility respondents’ motion for monetary on the RD was extended until 14 days impairments who will need special sanctions and to vacate the presiding after issuance of the public version of assistance in gaining access to the administrative law judge’s (‘‘ALJ’’) the Commission opinion on violation of Commission should contact the Office recommended determination (‘‘RD’’) on section 337. All parties filed comments of the Secretary at 202–205–2000. monetary sanctions in the above- on the RD. General information concerning the captioned investigation. On October 1, 1999, the Commission Commission may also be obtained by FOR FURTHER INFORMATION CONTACT: affirmed the ID’s finding of no accessing its internet server (http:// Timothy P. Monaghan, Esq., Office of infringement, but reversed the ID’s www.usitc.gov). the General Counsel, U.S. International findings of invalidity and Trade Commission, 500 E Street, SW, unenforceability, and therefore SUPPLEMENTARY INFORMATION: On Washington, DC 20436, telephone 202– determined there was no violation of December 3, 1999, the Commission 205–3152. General information section 337 in the investigation. determined that it should proceed to concerning the Commission may also be This action is taken under the full reviews in the subject five-year obtained by accessing its Internet server authority of section 337 of the Tariff Act reviews pursuant to section 751(c)(5) of (http://www.usitc.gov). Hearing- of 1930 (19 U.S.C. 1337) and section the Act. The Commission found that the impaired persons are advised that 210.25 of the Commission’s Rules of domestic interested party group information on this matter can be Practice and Procedure (19 CFR 210.25). responses to its notice of institution (64 obtained by contacting the Copies of the Commission’s order and FR 47862, September 1, 1999) were Commission’s TDD terminal on 202– all other nonconfidential documents in adequate with respect to all reviews, 205–1810. the record of this investigation are or and that the respondent interested party SUPPLEMENTARY INFORMATION: The will be available for inspection during group responses were adequate with official business hours (8:45 a.m. to 5:15 respect to Belgium, Brazil, Canada, Commission instituted this investigation on May 13, 1998, based on a complaint p.m.) in the Office of the Secretary, U.S. Finland, France, Germany, Japan, Korea, International Trade Commission, 500 E Mexico, Netherlands, Romania, Spain, filed by Oak Technology, Inc. (‘‘Oak’’). The respondents named in the Street, SW, Washington, DC 20436, and United Kingdom but inadequate telephone 202–205–2000. with respect to Australia, Poland, investigation are MediaTek, Inc., United Sweden, and Taiwan. The Commission Microelectronics Corp., Lite-On By order of the Commission. also found that other circumstances Technology Corp., and AOpen, Inc. On Issued: December 13, 1999. warranted conducting full reviews with May 12, 1999, the ALJ issued his final Donna R. Koehnke, respect to Australia, Poland, Sweden, initial determination (‘‘ID’’) finding the Secretary. patent in controversy invalid, and Taiwan. [FR Doc. 99–32934 Filed 12–20–99; 8:45 am] unenforceable, not infringed, and that A record of the Commissioners’ votes, there was no violation of section 337 of BILLING CODE 7020±02±P the Commission’s statement on the Tariff Act of 1930 (19 U.S.C. 1337). adequacy, and any individual On January 13, 1999, respondents Commissioner’s statements will be INTERNATIONAL TRADE filed a motion for monetary sanctions COMMISSION available from the Office of the against complainant Oak and its Secretary and at the Commission’s web litigation counsel, Howrey & Simon site. (‘‘Howrey’’). On August 10, 1999, the [Investigation No. 731±TA±859 (Preliminary)] Authority: These reviews are being ALJ issued an RD which recommended conducted under authority of title VII of the that sanctions be imposed on Oak and Circular Seamless Stainless Steel Tariff Act of 1930; this notice is published Howrey, jointly and severally, for an Hollow Products From Japan pursuant to section 207.62 of the amount equal to respondents’ Commission’s rules. reasonable attorney fees and costs in the Determination By order of the Commission. investigation. The ALJ found that Oak On the basis of the record 1 developed Issued: December 14, 1999. and Howrey had abused Commission in the subject investigation, the United process by filing a section 337 States International Trade Commission Donna R. Koehnke, complaint it knew was based on a Secretary. patent that was invalid and 1 The record is defined in sec. 207.2(f) of the [FR Doc. 99–32935 Filed 12–20–99; 8:45 am] unenforceable, in violation of section Commission’s Rules of Practice and Procedure (19 BILLING CODE 7020±02±P 210.4(d) of the Commission’s Rules of CFR § 207.2(f)).
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.102 pfrm03 PsN: 21DEN1 71496 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices determines,2 pursuant to section 733(a) duty investigation No. 731–TA–859 Hearing-impaired individuals are of the Tariff Act of 1930 (19 U.S.C. (Preliminary). The Commission received advised that information on this matter § 1673b(a)), that there is a reasonable an amendment to the petition on can be obtained by contacting the indication that an industry in the November 9, 1999, in which Commission’s TDD terminal on 202– United States is materially injured by Pennsylvania Extruded Tube Co. joined 205–1810. Persons with mobility reason of imports from Japan of circular as a co-petitioner in the case. impairments who will need special seamless stainless steel hollow Notice of the institution of the assistance in gaining access to the products, provided for in subheadings Commission’s investigation and of a Commission should contact the Office 7304.10.50, 7304.41.30, 7304.41.60, and public conference to be held in of the Secretary at 202–205–2000. 7304.49.00 of the Harmonized Tariff connection therewith was given by General information concerning the Schedule of the United States, that are posting copies of the notice in the Office Commission may also be obtained by alleged to be sold in the United States of the Secretary, U.S. International accessing its internet server (http:// at less than fair value (LTFV). Trade Commission, Washington, DC, www.usitc.gov). Pursuant to section 207.18 of the and by publishing the notice in the Commission’s rules, the Commission Federal Register of November 4, 1999 SUPPLEMENTARY INFORMATION: On June also gives notice of the commencement (64 FR 60223). The conference was held 30, 1993, the Commission self-initiated of the final phase of its investigation. in Washington, DC, on November 16, a changed circumstances review of its The Commission will issue a final phase 1999, and all persons who requested the 1973 affirmative determination in notice of scheduling which will be opportunity were permitted to appear in Stainless Steel Plate from Sweden, Inv. published in the Federal Register as person or by counsel. No. AA1921–114, TC Pub. 573 (May provided in section 207.21 of the The Commission transmitted its 1973). The decision to initiate the Commission’s rules upon notice from determination in this investigation to review followed discovery of a 1976 the Department of Commerce the Secretary of Commerce on December Treasury scope ruling that excluded (Commerce) of an affirmative 10, 1999. The views of the Commission three specific products from the scope preliminary determination in the are contained in USITC Publication of the original antidumping finding investigation under section 733(b) of the 3262 (December 1999), entitled Circular covering stainless steel plate from Act, or, if the preliminary determination Seamless Stainless Steel Hollow Sweden. The Commission determined is negative, upon notice of an Products from Japan: Investigation No. that exclusion of these three products affirmative final determination in that 731–TA–859 (Preliminary). from the scope of the finding investigation under section 735(a) of the Issued: December 13, 1999. constituted changed circumstances Act. Parties that filed entries of By order of the Commission. sufficient to warrant review of its appearance in the preliminary phase of Donna R. Koehnke, determination. Following publication of the investigation need not enter a the notice of institution of the review, separate appearance for the final phase Secretary. [FR Doc. 99–32933 Filed 12–20–99; 8:45 am] the domestic industry and the Swedish of the investigation. Industrial users, producer Avesta requested that the BILLING CODE 7020±02±P and, if the merchandise under Commission suspend the review until investigation is sold at the retail level, the Department of Commerce could representative consumer organizations resolve an ongoing scope inquiry have the right to appear as parties in INTERNATIONAL TRADE COMMISSION covering the same products. On August Commission antidumping and 16, 1993, the Commission suspended countervailing duty investigations. The [Investigation No. 751±TA±15] the review. The review has remained Secretary will prepare a public service suspended since that date during Stainless Steel Plate From Sweden list containing the names and addresses Commerce’s scope proceeding and of all persons, or their representatives, AGENCY: United States International subsequent appellate litigation. who are parties to the investigation. Trade Commission. On August 3, 1998, the Commission Background ACTION: Termination of changed instituted a review of the finding under This investigation results from a circumstances review. 19 U.S.C. 1675(c) to determine whether petition filed on behalf of Altx, Inc., revocation of the antidumping finding SUMMARY: Watervliet, NY; American Extruded On August 6, 1999, the covering stainless steel plate from Products, PMAC Ltd., Beaver Falls, PA; Department of Commerce published Sweden would be likely to lead to DMV Stainless USA, Inc., Houston, TX; notice of the revocation of the continuation or recurrence of material Salem Tube, Inc., Greenville, PA; antidumping finding on stainless steel injury to an industry in the United Sandvik Steel Co., Scranton, PA; plate from Sweden (64 FR 42922). The States within a reasonably foreseeable International Extruded Products LLC d/ revocation of the antidumping finding time (63 FR 41288, August 3, 1998). On b/a Wyman-Gordon Energy Products— renders moot the Commission’s June 23, 1999, the Commission IXP Buffalo, Buffalo, NY; and the United suspended changed circumstances determined that revocation of the Steelworkers of America, AFL-CIO/CLC, review on stainless steel plate from antidumping finding covering stainless Pittsburgh, PA, on October 26, 1999, Sweden (investigation No. 751–TA–15). steel plate from Sweden would not be alleging that an industry in the United Accordingly, the Commission hereby likely to lead to continuation or States is materially injured and gives notice that it is terminating recurrence of material injury to an threatened with material injury by changed circumstances review industry in the United States within a reason of less-than-fair-value imports of investigation No. 751–TA–15. reasonably foreseeable time. Stainless circular seamless stainless steel hollow EFFECTIVE DATE: December 13, 1999. Steel Plate from Sweden, Inv. No. products from Japan. Accordingly, FOR FURTHER INFORMATION CONTACT: AA1921–114 (Review), USITC Pub. effective October 26, 1999, the Robert Carpenter (202–205–3172), 3204 (July 1999). Accordingly, on Commission instituted antidumping Office of Investigations, U.S. August 6, 1999, the Department of International Trade Commission, 500 E Commerce published notice of the 2 Commissioner Crawford not participating. Street SW., Washington, DC 20436. revocation of the antidumping finding
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CFR 207.40 and 207.45(d), the countervailing duty investigations. The ACTION: Commission has determined to Secretary will prepare a public service Institution of investigation. terminate the suspended changed list containing the names and addresses EFFECTIVE DATE: December 13, 1999. circumstances proceeding. of all persons, or their representatives, SUMMARY: Following receipt of a request Authority: This review is being terminated who are parties to the investigation. dated November 22, 1999, from the under authority of title VII of the Tariff Act of 1930. Background United States Trade Representative (USTR), the Commission instituted By order of the Commission. On October 28, 1999, a petition was investigation No. 332–408, Database on Issued: December 14, 1999. filed with the Commission and Trade and Investment in Services, Part Donna R. Koehnke, Commerce by Weirton Steel Corp., II, under section 332(g) of the Tariff Act Secretary. Weirton, WV; the United Steelworkers of 1930 (19 U.S. C. 1332(g)). [FR Doc. 99–32937 Filed 12–20–99; 8:45 am] of America (USW), AFL-CIO; and the FOR FURTHER INFORMATION CONTACT: BILLING CODE 7020±02±P Independent Steelworkers Union (ISU), Information specific to this investigation alleging that an industry in the United may be obtained from Mr. Richard States is materially injured and Brown, Office of Industries (202–205– INTERNATIONAL TRADE threatened with material injury by 3438) or Ms. Tsedale Assefa, Office of COMMISSION Industries (202–205–2374). For reason of LTFV imports of tin- and information on the legal aspects of this [Investigation No. 731±TA±860 chromium-coated steel sheet from (Preliminary)] investigation, contact Mr. William Japan. Accordingly, effective October Gearhart of the Office of the General 28, 1999, the Commission instituted Tin- and Chromium-Coated Steel Sheet Counsel (202–205–3091). The media antidumping investigation No. 731–TA– From Japan should contact Ms. Margaret 860 (Preliminary). O’Laughlin, Office of External Relations Determination Notice of the institution of the (202–205–1819). Hearing impaired On the basis of the record 1 developed Commission’s investigation and of a individuals are advised that information in the subject investigation, the United public conference to be held in on this matter can be obtained by States International Trade Commission connection therewith was given by contacting the TDD terminal on (202– determines,2 pursuant to section 733(a) posting copies of the notice in the Office 205–1810). General information of the Tariff Act of 1930 (19 U.S.C. of the Secretary, U.S. International concerning the Commission may be 1673b(a)), that there is a reasonable Trade Commission, Washington, DC, obtained by accessing its Internet server indication that an industry in the and by publishing the notice in the (http://www.usitc.gov). United States is materially injured by Federal Register of November 4, 1999 Background: reason of imports from Japan of tin- and (64 FR 60225). The conference was held chromium-coated steel sheet (as defined Article 19 of the General Agreement in Washington, DC, on November 18, on Trade in Services (GATS) requires by the Department of Commerce 1999, and all persons who requested the World Trade Organization (WTO) (Commerce)), that are alleged to be sold opportunity were permitted to appear in members to enter into successive in the United States at less than fair person or by counsel. negotiations beginning not later than value (LTFV). January 1, 2000, with a view to Pursuant to section 207.18 of the The Commission transmitted its achieving progressively higher levels of Commission’s rules, the Commission determination in this investigation to liberalization in services trade and also gives notice of the commencement the Secretary of Commerce on December investment. In preparing for such of the final phase of its investigation. 13, 1999. The views of the Commission negotiations, the USTR has asked the The Commission will issue a final phase are contained in USITC Publication Commission to develop a confidential notice of scheduling which will be 3264 (December 1999), entitled ‘‘Tin- database that provides up-to-date published in the Federal Register as and Chromium-Coated Steel Sheet from information on service markets in other provided in section 207.21 of the Japan: Investigation No. 731–TA–860 WTO member countries. As requested Commission’s rules upon notice from (Preliminary).’’ by the USTR, the Commission, pursuant Commerce of an affirmative preliminary By order of the Commission. to section 332(g) of the Tariff Act of determination in the investigation under 1930, instituted an investigation for the section 733(b) of the Act, or, if the Issued: December 15, 1999. purpose of developing a confidential preliminary determination is negative, Donna R. Koehnke, database of information on trade and upon notice of an affirmative final Secretary. investment in 62 foreign service determination in that investigation [FR Doc. 99–32938 Filed 12–20–99; 8:45 am] markets. The Commission will develop under section 735(a) of the Act. Parties BILLING CODE 7020±02±P a database that provides, to the extent that filed entries of appearance in the available, the following information with respect to six service industries: 1 The record is defined in sec. 207.2(f) of the Commission’s Rules of Practice and Procedure (19 (1) Current market access and national CFR § 207.2(f)). treatment restrictions to foreign service 2 Commissioner Crawford not participating. providers;
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(2) Liberalization and deregulation telecommunication services, express Natural Resources Division, Department that has taken place since 1995 (or since delivery services, entertainment of Justice, Washington, D.C. 20530, and 1997 for financial services); technology services, foreign legal should refer to United States v. Atkemix (3) Contemplated services consultancy services, accounting Thirty-Seven, Inc., Rhone-Poulenc Ag. liberalization or deregulation; and services, architectural services, Company, Inc., (M.D. F1.), DOJ # 90–11– (4) Sector-specific preferences engineering services, construction 2–1227/1. extended to third-country trading services, energy services (defined as The proposed consent decree may be partners. mining, oil, gas, and electricity), and examined at the Office of the United The industries identified by USTR environmental services. The States Attorney, 400 North Tampa include health related and social Commission also provided information Street, Suite 3200, Tampa, Florida services (defined as hospital, clinic, with respect to temporary entry and stay 33602; the Region 4 Office of the outpatient facility, nursing home, of service providers. In addition, the Environmental Protection Agency, 61 assisted living services, but excluding Commission sought to identify, to the Forsyth Street, Atlanta, Georgia 30303, such services when publicly provided); extent available, common approaches to and at the Consent Decree Library, Post education and training services (defined the deregulation and liberalization of Office Box 7611, Washington, D.C. as higher education services, adult service markets among WTO members, 20044–7611, (202) 514–1547. A copy of education services, and other education and best prospects for services trade the proposed consent decree may be services, and training services in liberalization during the impending obtained by mail from the Consent traditional and non-traditional settings, WTO negotiations. but excluding such services when Decree Library, Post Office Box 7611, publicly provided); travel and tourism By order of the Commission. Washington, DC 20044–7611. In services (defined as lodging, food Issued: December 14, 1999. requesting a copy please refer to the serving services including restaurants, Donna R. Koehnke, referenced case and enclose a check in the amount of 25 cents per page for travel agency, tour operator, and tourist Secretary. guide services); insurance services reproduction costs, payable to the [FR Doc. 99–32936 Filed 12–20–99; 8:45 am] Consent Decree Library. (defined as direct insurance and co- BILLING CODE 7020±02±P insurance, including life and non-life Joel M. Gross, insurance services; reinsurance and Chief, Environmental Enforcement Section, Environment and Natural Resources Division. retrocession; insurance intermediation, DEPARTMENT OF JUSTICE such as brokerage and agency; and [FR Doc. 99–32976 Filed 12–20–99; 8:45 am] services auxiliary to insurance Notice of Lodging of Consent Decree BILLING CODE 4410±15±M including consultancy, actuarial, risk Under the Comprehensive, assessment and claim settlement); Environmental Response, banking, securities, and other financial Compensation and Liability Act DEPARTMENT OF JUSTICE services (defined as deposit taking, (``CERCLA'') lending, leasing, payment and Notice of Lodging of Consent Decree transmission services, trading of In accordance with Departmental Pursuant to the Clean Air Act securities and all other financial assets, policy, 28 CFR 50.7, notice is hereby Notice is hereby given that a proposed securities underwriting and related given that a proposed consent decree in consent decree in United States v. services, asset management, clearance Civil Action No. 99–2673–Civ–T–24B Cumberland Farms, Inc., Civil Action and settlement, and financial was lodged with the United States No. 3:98CV2226 (AVC), was lodged on information and advisory services); and District Court for the Middle District of October 1, 1999, in the United States computer and related services (defined Florida on November 23, 1999. District Court for the District of as data processing services, database In this action the United States sought Connecticut. The proposed consent services, software implementation injunctive relief and recovery of decree will resolve the United States’ services, and consultancy services response costs under sections 106(a) Clean Air Act, 42 U.S.C. 7401 et seq. related to the installation and and 107 of CERCLA, 42 U.S.C. 9606(a) (‘‘the Act’’), claims alleged in a maintenance of computer hardware and and 9607, with respect to the Stauffer software). In addition, the Commission Chemical Superfund Site in Tarpon complaint against Cumberland Farms will attempt to identify common Springs, Florida (‘‘the Site’’). for violations of the Act at a bulk approaches, if any, to the deregulation Under a proposed Consent Decree, gasoline terminal it previously owned and liberalization of service markets Atkemix Thirty-Seven, Inc., the present and operated in New Haven, among WTO members. The USTR owner and operator of the Site, and Connecticut. requested that the Commission provide Rhone-Poulenc Ag Company, Inc., the Pursuant to the consent decree, the database no later than May 26, 2000. former owner and operator of the Site, Cumberland Farms will pay a civil USTR indicated that the database will have agreed to perform the remedy penalty in the amount of $40,000. The be confidential for a period of 10 years. chosen by EPA to clean up the Site, pay decree further requires Cumberland USTR also noted that it considers the the government’s remaining past Farms to perform two supplemental Commission’s database to be an response costs, and pay future response environmental projects. interagency memorandum that will costs, in settlement of the government’s The Department of Justice will contain predecisional advice and be claims under Sections 106 and 107 of receive, for a period of thirty (30) days subject to the deliberative process CERCLA, 42 U.S.C. 9606 and 9607. from the date of this publication, privilege. This investigation follows a The Department of Justice will comments relating to the proposed previous request for a confidential receive, for a period of thirty (30) days consent decree. Comments should be database (Inv. No. 332–397) that was from the date of this publication, addressed to the Assistant Attorney provided to the USTR on April 30, 1999. comments relating to the proposed General for the Environment and That database focused on distribution consent decree. Comments should be Natural Resources Division, Department services (defined as wholesaling, addressed to the Assistant Attorney of Justice, Washington, DC 20530, and retailing, and franchising), General for the Environment and should refer to United States v.
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Cumberland Farms, Inc., DOJ Ref. #90– landfill cap, monitoring of ground cents per page reproduction costs) 5–2–1–06457. water, surface water and sediments payable to the Consent Decree Library. The proposed consent decree may be under a natural attenuation remedy, and Joel M. Gross, examined at the office of the United the performance of any active Environmental Enforcement Section, States Attorney for the District of remediation of ground water, surface Environment and Natural Resources Division. Connecticut, 450 Main St., Hartford, water and sediments that EPA may [FR Doc. 99–32975 Filed 12–20–99; 8:45 am] Conn. 06103; and at the Region I office select in the future. Also, Peter Johnson/ BILLING CODE 4410±15±M of the Environmental Protection Grassy Knoll will pay $100,000, and Agency, 1 Congress St., Boston, Mass. Workplace Systems Corporation will 02114–2023. A copy of the proposed pay $25,000 and perform a DEPARTMENT OF JUSTICE consent decree may also be obtained by supplemental environmental project, to mail from the Consent Decree Library, [AAG/A Order No. 181±99] resolve our claims for civil penalties/ P.O. Box 7611, Washington, DC 20044. punitive damages concerning their Privacy Act of 1974; System of When requesting a copy please refer to Records the referenced case and enclose a check alleged violations of a unilateral made payable to the Consent Decree administrative order issued by EPA in The Department of Justice, United Library in the amount of $6.25 (25 cents 1990 (‘‘1990 UAO’’). States Attorneys’ Offices proposes to per page reproduction costs). Additionally, under the proposed modify the United States Attorneys Joel M. Gross, Decree, Settling Defendants will Offices Criminal Case File System, Section Chief, Environmental Enforcement reimburse the State for a portion of its Justice/USA–007, last published Section, Environment and Natural Resources past response costs and will reimburse separately on January 22, 1988 at 53 FR Division. the Town of Londonderry, New 1861 and published as modified on [FR Doc. 99–32977 Filed 12–20–99; 8:45 am] Hampshire for a portion of its response January 20, 1998 at 63 FR 8659, 8669. BILLING CODE 4410±15±M costs. Further, Peter Johnson agrees to The primary purpose of this system is convey to the Town of Londonberry to facilitate a uniform system of record certain property at the Site, subject to keeping related to criminal litigation DEPARTMENT OF JUSTICE use restrictions. In return, the United and prosecutions and ancillary civil matters arising from criminal cases Notice of Consent Judgments States covenants not to sue Settling Defendants for response costs or handled by the United States Attorneys Pursuant to the Comprehensive Offices. The Department now proposes response actions at the Site, subject to Environmental Response, to modify the system by adding one new certain reopeners and reservations of Compensation and Liability Act routine use. rights. The United States also covenants In accordance with Departmental New routine use (w) will enable the not to sue Peter Johnson and Workplace United States Attorneys Offices to better Policy, 28 CFR 50.7, 38 FR 19029, and Systems for civil penalties and punitive 42 U.S.C. 9622(d), notice is hereby inform victims of crimes of the status of damages for their violations of the 1990 the investigation, the disposition of the govern that a proposed Consent Decree UAO. Only three third-party defendants in United States v. Exxon Corporation, case in which they were a victim or a are not participating in the settlement. et al., DOJ # 90–11–2–201, Civ No. C– complainant, and the status of the 92–486, was lodged in the United States The Department of Justice will defendant if convicted. District Court for the District of New receive, for a period of thirty (30) days 5 U.S.C. 552a(e) (4) and (11) provide Hampshire on December 8, 1999. The from the date of this publication, that the public be given thirty days in Consent Decree resolves claims of the written comments relating to the which to comment on these proposed United States under Sections 106(b) and proposed Consent Decree. Comments changes. Comments must be submitted 107(a) and (c) of the Comprehensive should be addressed to the Assistant in writing to Mary Cahill, Management Environmental Response, Compensation Attorney General for the Environment Analyst, Management and Planning and Liability Act (‘‘CERCLA’’), 42 U.S.C. and Natural Resources Division, Staff, Justice Management Division, 9606(b) and 9607(a) and (c), against four Department of Justice, Washington, DC Department of Justice, Washington DC 20530 by January 20, 2000. defendants and twenty-seven (27) third- 20530, and should refer to United States As required by 5 U.S.C. 552a(r) and party defendants (‘‘Settling v. Exxon Corporation, et al., DOJ # 90– Defendants’’) relating to cost the Office of Management and Budget 11–2–201. The proposed Consent (OMB) implementing regulations, the reimbursement and cleanup of the Decree may be examined at the Office of Auburn Road Landfill Superfund Site in Department of Justice has provided a the United States Attorney, District of report on the proposed changes to OMB Londonderry, New Hampshire (the New Hampshire, 55 Pleasant Street— ‘‘Site’’). The direct defendants are Exxon and the Congress. Room 312, Concord, New Hampshire A modified system description is set Corporation, Grassy Knoll Associates, 03301; and at the Region I Office of the Peter Johnson, and Workplace Systems forth below. U.S. Environmental Protection Agency, Corporation. Under the proposed Dated: December 14, 1999. One Congress Street, Suite 1100—RCA, Consent Decree, the Settling Defendants Stephen R. Colgate, Boston, Massachusetts 02114–2023. agree, inter alia, to reimburse to the Assistant Attorney General for United States $5.84 million in past Copies of the Consent Decree may be Administration. response costs incurred at the Site, to obtained by mail from the Justice JUSTICE/USA±007 perform future Work at the Site under Department Consent Decree Library, EPA’s 1989 Record of Decision as P.O. Box 7611 Ben Franklin Station, SYSTEM NAME: Washington, DC 20044, (202) 514–1547. amended by EPA’s 1996 Amended Criminal Case Files. Record of Decision, and to pay EPA’s In requesting a copy, please enclose a oversight costs incurred in connection check in the amount of $170.00 (25 SYSTEM LOCATION: with that Work. The Work involves Ninety-four United States Attorneys’ operation and maintenance of the Offices (see Appendix identified as
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Justice/USA–999); the Executive Office superintendents from multiple state, Catalog of Federal Domestic for United States Attorneys, United major municipal, and territorial Assistance Number: 16.601. States Department of Justice, 10th and corrections agencies who are in their Authority: Public Law 93–415. initial year of service in this position. Constitution Avenue, N.W. Washington Dated: December 9, 1999. D.C. 20530; and posted on the internet The award recipient will also develop Morris L. Thigpen, website of the EOUSA at http:// an outcome evaluation instrument for www.usdoj.gov/eousa. retrospective application with those Director, National Institute of Corrections. [FR Doc. 99–32974 Filed 12–20–99; 8:45 am] * * * * * participating in the training, their superiors, peers or others. BILLING CODE 4410±36±M ROUTINE USES OF RECORDS MAINTAINED IN THE Funds Available: The award will be SYSTEM, INCLUDING CATEGORIES OF USERS AND limited to $100,000 (direct and indirect THE PURPOSES OF SUCH USES: costs) and project activity must be * * * * * completed within 12 months of the date DEPARTMENT OF LABOR (w) Information may be disclosed to of award. Funds may not be used for complainants and victims to the extent construction, or to acquire or build real Office of the Secretary necessary to provide them with property. This project will be a Submission for OMB Review; information concerning the progress or collaborative venture with the NIC Comment Request results of the imvestigation or case Prisons Division. arising from the matters of which they Deadline for Receipt of Applications: December 15, 1999. complained or were the victim. Applications must be received by 4:00 The Department of Labor (DOL) has p.m. on Wednesday, January 19, 2000, * * * * * submitted the following public 4:00 p.m. Eastern daylight time. They information collection requests (ICRs) to SYSTEM MANAGER(S) AND ADDRESS: should be addressed to: National the Office of Management and Budget System manager for the system in Institute of Corrections, 320 First Street, each office is the Administrative Office/ NW, Room 5007, Washington, DC (OMB) for review and approval in Assistant, for the U.S. Attorney for each 20534. Hand delivered applications accordance with the Paperwork district (see appendix or EOUSA should be brought to 500 First Street, Reduction Act of 1995 (Pub. L. 104–13, internet address http://www.usdoj.gov/ NW, Washington, DC 20534. The front 44 U.S.C. chapter 35). A copy of each eous). desk will call Bobbi Tinsley at (202) individual ICR, with applicable 307–3106, extension 0 for pickup. supporting documentation, may be NOTIFICATION PROCEDURE: obtained by calling the Department of ADDRESSES AND FURTHER INFORMATION: Address inquiries to the system Labor. To obtain documentation for Request for the application kit, which manager for the judicial district in BLS, ETA, PWBA, and OASAM contact includes further details on the project’s which the case or matter is pending. Karin Kurz ((202) 219–5096, ext. 159 or objectives, etc., should be directed to (See appendix or EOUSA internet by E-mail to [email protected]). To Judy Evens, Cooperative Agreement address of http://www.usdoj.gov/eousa). obtain documentation for ESA, MSHA, Control Office, National Institute of OHSA, and VETS contact Darrin King * * * * * Corrections, 320 First Street, NW, Room ((202) 219–5096, ext. 151 or by E-Mail [FR Doc. 99–32941 Filed 12–20–99; 8:45 am] 5007, Washington, DC 20534 or by to [email protected]). BILLING CODE 4410±AR±M calling 800–995–6423, ext. 159, 202– 307–3106, ext. 159, or email: jevens Comments should be sent to Office of @bop.gov. A copy of this Information and Regulatory Affairs, DEPARTMENT OF JUSTICE announcement, application forms, and Attn: OMB Desk Officer for BLS, DM, additional information may also be ESA, ETA, MSHA, OSHA, PWBA, or National Institute of Corrections obtained through the NIC web site: VETS, Office of Management and Budget, Room 10235, Washington, DC Solicitation for a Cooperative http.www.nicic.org (click on ‘‘What’s 20503 ((202) 395–7316), within 30 days AgreementÐ``Development of Training New’’ and ‘‘Cooperative Agreements’’). from the date of this publication in the Curriculum for Delivery of Executive All technical and/or programmatic Federal Register. Training to Newly Appointed Wardens'' questions concerning this announcement should be directed to The OMB is particularly interested in AGENCY: National Institute of Dick Franklin at the above address or by comments which: Corrections, Department of Justice. calling 800–995–6423 or 202–307–1300, • Evaluate whether the proposed ACTION: Solicitation for a Cooperative etc. 145, or by E-mail via rfranklin@bop. collection of information is necessary Agreement. gov. for the proper performance of the Eligibility Applicants: An eligible functions of the agency, including SUMMARY: This cooperative agreement is applicant is any state or general unit of whether the information will have made available for the development of local government, public or private practical utility; a core curriculum for the training of agency, educational institution, • newly appointed prison wardens/ Evaluate the accuracy of the organization team, or individual with agency’s estimate of the burden of the superintendents. The award recipient the requisite skills to successfully meet will develop a 32-hour training proposed collection of information, the outcome objectives of the project. including the validity of the curriculum including an instructors’ Review Considerations: Applications guide, lesson plans, computer-generated methodology and assumptions used; received under this announcement will • view graphs to support the curriculum, be subjected to an NIC 3 to 5 member Enhance the quality, utility, and and a participant manual. The Peer Review Process. clarity of the information to be curriculum will provide persons with Number of Awards: One (1) collected; and prison management and operations NIC Application Number: 00P08 This • Minimize the burden of the experience with training materials and number should appear as a reference collection of information on those who delivery strategies for state-of-the-art line in your cover letter and also in box are to respond, including through the executive training of wardens/ 111 of Standard Form 424. use of appropriate automated,
VerDate 15-DEC-99 20:32 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71501 electronic, mechanical, or other OMB Number: 1218–0010 (Extension). imports of electric resistance welded technological techniques or other forms Frequency: On occasion. (ERW) carbon and alloy pipe while of information technology, e.g., Affected Public: Business or other for- reducing purchases from the sole permitting electronic submission of profit; Federal, State, Local or Tribal customer. responses. Government. Conclusion Agency: Employment Standards Number of Respondents: 80. Administration. Estimated Time Per Respondent: time After careful review of the additional Title: Requirements of a Bona Fide for response ranges from approximately facts obtained on reconsideration, I Thrift or Savings Plan (29 CFR part 547) 5 minutes for employers to maintain conclude that increased imports of and Requirements of a Bona Fide Profit employee exposure monitoring and articles like or directly competitive with sharing Plan or Trust (29 CFR part 549). medical records to 10 hours for electric resistance welded (ERW) carbon OMB Number: 1215–0119. employers to provide reports of vinyl and alloy pipe contributed importantly Frequency: Recordkeeping only. chloride emergencies and incidents to to the declines in sales or production Affected Public: Business or other for- the nearest OSHA area office. and to the total or partial separation of profit; Individuals or households; Not- Total Burden Hours: 2,978 hours. workers of Camp-Hill Corporation, for-profit institutions; State, Local or Total Annualized capital/startup: $0. McKeesport, Pennsylvania. In Tribal Government. Total annual costs (operating/ accordance with the provisions of the Number of Respondents: 1.924 maintaining systems or purchasing Act, I make the following certification: services): $258,042. million. All workers of Camp-Hill Corporation, Total Burden Hours: (Recordkeeping) Description: The Vinyl Chloride Standard requires employers to monitor McKeesport, Pennsylvania engaged in the 2. production of electric resistance welded Total Annualized capital/startup employee exposure to vinyl chloride, to (ERW) carbon and alloy pipe who became costs: $0. monitor employee health, and to totally or partially separated from Total annual costs (operating/ provide employees with information employment on or after October 30, 1997 are maintaining systems or purchasing about their exposures and the health eligible to apply for adjustment assistance services): $0. effects of exposure to vinyl chloride. In under Section 223 of the Trade Act of 1974. Description: This information addition, employers must notify OSHA Signed in Washington, DC this 30th day of collection requests clearance of the area directors of regulated areas and November 1999. recordkeeping provisions of section changes to regulated areas, and of any Grant D. Beale, 7(e)(3)(b), of the Fair Labor Standards emergencies that involve vinyl chloride. Program Manager, Office of Trade Act, which permits the exclusion from Ira L. Mills, Adjustment Assistance. an employee’s regular rate of pay, Departmental Clearance Officer. [FR Doc. 99–32994 Filed 12–20–99; 8:45 am] payments on behalf of an employee to [FR Doc. 99–32986 Filed 12–20–99; 8:45 am] BILLING CODE: 4510±30±M a bona fide thrift or savings plan, profit- BILLING CODE 4510±27±M sharing plan or trust. The implementing Regulations 29 CFR parts 547 and 549 DEPARTMENT OF LABOR set forth the requirements for a bona DEPARTMENT OF LABOR fide thrift or savings plan, profit-sharing Employment and Training plan, or trust. Employment and Training Administration Agency: Employment Standards Administration [TA±W±34,695] Administration. [TA±W±35,216] Title: Request to Be Selected As Energizer Power Systems; Eveready Payee. Camp-Hill Corporation, McKeesport, Battery Company Now Known as OMB Number: 1215–0166. Pennsylvania; Notice of Revised Moltech Power Systems, Gainesville, Agency Form Number: CM–910. Determination on Reconsideration FL; Amended Certification Regarding Frequency: One time. Eligibility To Apply for Worker Affected Public: Individuals or On May 20, 1999, the Department Adjustment Assistance households; Businesses or other for- issued an Affirmative Determination profit; Not-for-profit institutions; State, Regarding Application on In accordance with section 223 of the Local or Tribal government. Reconsideration applicable to workers Trade Act of 1974 (19 U.S.C. 2273) the Number of Respondents: 2,350. and former workers of the subject firm. U.S. Department of Labor issued a Estimated Time Per Respondent: 20 The notice was published in the Federal Certification of Eligibility to Apply for minutes. Register on June 3, 1999 (64 FR 29891). Worker Adjustment Assistance on Total Burden Hours: 783. The Department initially denied TAA August 28, 1998 applicable to all Total Annualized capital/startup to workers of Camp-Hill Corporation, workers of Energizer Power Systems costs: $0. McKeesport, Pennsylvania, producing located in Gainesville, Florida. The Total annual costs (operating/ electric resistance welded (ERW) carbon notice was published in the Federal maintaining systems or purchasing and alloy pipe because the ‘‘contributed Register on September 28, 1998 (63 FR services): $846. importantly’’ group eligibility 51605). The determination was Description: The CM–910 is used to requirement of Section 222(3) of the amended on September 29, 1998 to obtain information about prospective Trade Act of 1974, as amended, was not include workers whose wages were representative payees to determine met. reported under its parent firm, Eveready whether they are qualified to handle On reconsideration, the Department Battery Company. The amended notice monetary benefits on behalf of the Black conducted a customer survey of the sole was published in the Federal Register Lung beneficiary. customer’s customers of electric on October 9, 1998 (63 FR 54497). Agency: Occupational Safety and resistance welded (ERW) carbon and At the request of the company, the Health Administration. alloy pipe. The survey revealed that Department reviewed the certification Title: Vinyl Chloride (29 CFR some of the sole customer’s customers for workers of the subject firm. The 1910.1017). were increasing their reliance on workers are engaged in the production
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71502 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices of rechargeable batteries. Company Signed in Washington, DC this 2nd day of Signed at Washington, DC, this 6th day of information shows that in November December, 1999. December 1999. 1999, the Energizer Power Systems, Grant D. Beale, Grant D. Beale, Division of Eveready Battery Company, Program Manager, Office of Trade Program Manager, Office of Trade was purchased by Moltech Corporation. Adjustment Assistance. Adjustment Assistance. The Gainesville, Florida location of [FR Doc. 99–32996 Filed 12–20–99; 8:45 am] [FR Doc. 99–32988 Filed 12–20–99; 8:45 am] Energizer Power Systems became BILLING CODE 4510±30±M BILLING CODE 4510±30±M known as Moltech Power Systems and will continue to lay off workers. DEPARTMENT OF LABOR Accordingly, the Department is DEPARTMENT OF LABOR amending the certification Employment and Training Employment and Training determination to correctly identify the Administration Administration new ownership to read ‘‘Energizer Power Systems, Division of Eveready [TA±W±37,034] Battery Company, now known as [TA±W±36,516] Moltech Power Systems, Gainesville, Moltech Power Systems,’’ Gainesville, Jockey International, Carlisle Textile Florida; Notice of Termination of Florida. Plant, Carlisle, KY; Dismissal of Investigation The intent of the Department’s Application for Reconsideration certification is to include all workers of Pursuant to section 221 of the Trade Energizer Power Systems who were Pursuant to 29 CFR 90.18(C) an Act of 1974, an investigation was adversely affected by increased imports application for administrative initiated on November 8, 1999 in of rechargeable batteries. reconsideration was filed with the response to a worker petition which was filed on October 22, 1999 on behalf of The amended notice applicable to Director of the Office of Trade Adjustment Assistance for workers at workers at Moltech Power Systems, TA–W–34,695 is hereby issued as Gainesville, Florida. follows: the Jockey International, Carlisle Textile Plant, Carlisle, Kentucky. The An active certification covering the All workers of Energizer Power Systems, application contained no new petitioning group of workers remains in now known as Moltech Power Systems, substantial information which would effect (TA–W–34,695). Consequently, Gainesville, Florida who became totally or bear importantly on the Department’s further investigation in this case would partially separated from employment on or determination. Therefore, dismissal of serve no purpose, and the investigation after June 12, 1997 through August 28, 2000 the application was issued. has been terminated. are eligible to apply for adjustment assistance Signed in Washington, DC, this 24th day of TA–W–36,516; Jockey International Carlisle under Section 223 of the Trade Act of 1974. November, 1999. Textile Plant, Carlisle, Kentucky Signed at Washington DC this 30th day of (December 2, 1999) Grant D. Beale, November, 1999. Signed at Washington, DC, this 6th day of Program Manager, Office of Trade Grant D. Beale, December, 1999. Adjustment Assistance. Program Manager, Office of Trade Grant D. Beale, [FR Doc. 99–32997 Filed 12–20–99; 8:45 am] Adjustment Assistance. Program Manager, Office of Trade BILLING CODE 4510±30±M [FR Doc. 99–33001 Filed 12–20–99; 8:45 am] Adjustment Assistance. BILLING CODE 4510±30±M [FR Doc. 99–32989 Filed 12–20–99; 8:45 am] DEPARTMENT OF LABOR BILLING CODE 4510±30±M DEPARTMENT OF LABOR Employment and Training Administration DEPARTMENT OF LABOR Employment and Training [TA±W±36,442] Administration Employment and Training Administration Philips Lighting Company; Fairmont, [TA±W±36,687] WV; Notice of Affirmative Determination Regarding Application [TA±W±36,856] Fashions Apparel, Inc., El Paso, TX; for Reconsideration Notice of Termination of Investigation Levingston Engineers, Inc., Sulphur, By application dated October 19, LA; Dismissal of Application for 1999, the International Union of Pursuant to section 221 of the Trade Reconsideration Electronic, Electrical, Salaried, Machine Act of 1974, an investigation was and Furniture Workers (IUE), AFL–CIO, initiated on August 16, 1999, in Pursuant to 29 CFR 90.18(C) an Local 627, requested administrative response to a petition filed on the same application for administrative reconsideration of the Department’s date on behalf of workers at Fashions reconsideration was filed with the negative determination regarding Apparel, Inc., El Paso, Texas. Director of the Office of Trade eligibility to apply for Trade Adjustment A certification applicable to the Adjustment Assistance for workers at Assistance (TAA), applicable to workers petitioning group of workers, employed the Levingston Engineers, Inc., Sulphur, and former workers of Philips Lighting at Fashions Apparel, Inc., El Paso, Louisiana. The application contained no Company, Fairmont, West Virginia. The Texas, was issued on November 19, new substantial information which denial notice was signed on September 1999 and is currently in effect (TA–W– would bear importantly on the 15, 1999 and published in the Federal 36,874). Consequently, further Department’s determination. Therefore, Register on October 14, 1999 (64 FR investigation in this case would serve dismissal of the application was issued. 55750). no purpose, and the investigation has TA–W–36,856; Levingston Engineers, Inc., The Department has reviewed the been terminated. Sulphur, Louisiana (December 2, 1999) request for reconsideration and has
VerDate 15-DEC-99 20:56 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71503 determined further investigation with company, and not receiving any further Alexander City, New #1 Mill and 755 Lee respect to the products manufactured at information, the Department is Street Plants, Alexander City, Alabama (TA– the Fairmont facility and imports of terminating its investigation for W–36,110F), 8416 Hwy 231 North, products by Philips Lighting Wetumpka, Alabama (TA–W–36,110G), and reconsideration of this petition. Brundidge, Alabama (TA–W–36,110H) who Corporation during the relevant period Signed at Washington, DC, this 30th day of become totally or partially separated from is warranted. The further review will November 1999. employment on or after April 12, 1998 seek to establish whether any articles Grant D. Beale, through June 8, 2001 are eligible to apply for produced at the Fairmont facility during adjustment assistance under Section 223 of Program Manager, Office of Trade the Trade Act of 1974. the relevant period are like or directly Adjustment Assistance. competitive with any products imported Signed at Washington D.C. this 30th day of [FR Doc. 99–32993 Filed 12–20–99; 8:45 am] by the company during that period or November, 1999. whether production of any article was BILLING CODE 4510±30±M Grant D. Beale, shifted from the Fairmont facility to Program Manager, Office of Trade Mexico or Canada during the relevant DEPARTMENT OF LABOR Adjustment Assistance. period. [FR Doc. 99–32995 Filed 12–20–99; 8:45 am] Conclusion Employment and Training BILLING CODE 4510±30±M Administration After careful review of the application, I conclude that the [TA±W±36,110, Sylacagua, Alabama; TA±W± DEPARTMENT OF LABOR additional information provided by the 36,110E, Dadeville, Alabama; TA±W± petitioners is of sufficient weight to 36,110F, New # 1 Mill and 755 Lee Street Employment and Training justify reconsideration of the Plants, Alexander City, Alabama; TA±W± Administration 36,110G, 8416 Hwy 231 North, Wetumpka, Department of Labor’s prior decision. Alabama; TA±W±36,110H, Brundidge, [TA±W±37,038] The application is, therefore, granted. Alabama] Signed at Washington, DC, this 23d day of Williams Advanced Materials, November 1999. Russell Corporation; Amended Incorporated, Buffalo, New York; Grant D. Beale, Certification Regarding Eligibility To Notice of Termination of Investigation Apply for Worker Adjustment Program Manager, Office of Trade Pursuant to section 221 of the Trade Adjustment Assistance. Assistance Act of 1974, an investigation was [FR Doc. 99–33000 Filed 12–20–99; 8:45 am] In accordance with Section 223 of the initiated on November 8, 1999 in BILLING CODE 4510±30±M Trade Act of 1974 (19 U.S.C. 2273) the response to a worker petition which was Department of Labor issued a filed on behalf of all workers at Certification of Eligibility To Apply for DEPARTMENT OF LABOR Williams Advanced Materials, Worker Adjustment Assistance on June Incorporated, located in Buffalo, New Employment and Training 8, 1999, applicable to workers of Russell York (TA–W–37,038). Administration Corporation, located in Sylacagua, The petitioner has requested that the Alabama. The notice was published in petition be withdrawn. Consequently, [TA±W±33,935] the Federal Register on June 30, 1999 further investigation in this case would (64 FR 35184). serve no purpose, and the investigation Reef Gear Manufacturing, At the request of the company, the has been terminated. Incorporated, Plant II, Marine City, Department reviewed the certification Michigan; Notice of Termination of Signed at Washington, DC this 6th day of for workers of the subject firm. New Affirmative Determination Regarding December 1999. information received by the company Application for Reconsideration Grant D. Beale, shows that worker separations occurred # Program Manager, Office of Trade On February 11, 1998, the Department at the Dadeville, New 1 Mill and 755 Adjustment Assistance. issued an Affirmative Determination Lee Street Plants, Alexander City, 8416 [FR Doc. 99–32998 Filed 12–20–99; 8:45 am] Hwy 231 North, Wetumpka and Regarding Application on BILLING CODE 4510±30±M Reconsideration applicable to workers Brundidge, Alabama locations of Russell and former workers of the subject firm. Corporation. The workers are engaged in The notice was published in the Federal the production of fleece wear and/or DEPARTMENT OF LABOR Register on February 24, 1998 (63 FR T-shirts. 9264). The intent of the Department’s Employment and Training The Department initially certified certification is to include all workers of Administration TAA to workers of Reef Gear, Plant II, Russell Corporation who were adversely Marine City, Michigan producing gear affected by increased imports. Trade Adjustment Assistance/NAFTA blanks because the ‘‘contributed Accordingly, the Department is Financial Status Report/Request for importantly’’ group eligibility amending the certification to cover the Funds; Comment Request workers of Russell Corporation, requirement of section 22(3) of the ACTION: Notice. Trade Act of 1974, as amended, was Dadeville, New #1 Mill and 755 Lee met. Street Plants, Alexander City, 8416 Hwy SUMMARY: The Department of Labor, as The company requested that the 231 North, Wetumpka and Brundidge, part of its continuing effort to reduce certification be reconsidered because it Alabama. paperwork and respondent burden felt that imports had not caused the The amended notice applicable to conducts a preclearance consultation worker separations and provided some TA–W–36,110 is hereby issued as program to provide the general public information which the Department felt follows: and Federal agencies with an warranted a review of its certification. All workers of Russell Corporation, opportunity to comment on proposed After repeated attempts to collect Sylacagua, Alabama (TA–W–36,110), and/or continuing collections of additional information from the Dadeville, Alabama (TA–W–36,110E), information in accordance with the
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Paperwork Reduction Act of 1995 workers adversely affected by imports proposed collection of information, (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This (Trade program) or by imports from including the validity of the program helps to ensure that requested Canada or Mexico (NAFTA program). methodology and assumptions used; data can be provided in the desired Thus, the Trade program and NAFTA • Enhance the quality, utility, and format, reporting burden (time and trade program consists of entitlements clarity of the information to be financial resources) is minimized, for trade readjustment allowances, job collected; and collection instruments are clearly search allowances, job relocation • Minimize the burden of the understood, and the impact of collection allowances and training. In order for collection of information on those who requirements on respondents can be workers to continue to receive are to respond, including through the properly assessed. Currently, the entitlement to trade adjustment use of appropriate automated, allowances, they must be enrolled in a Employment and Training electronic, mechanical, or other training program approved by the Administration is soliciting comments technological collection techniques or Secretary of Labor (1423 of OTCA) for concerning the proposed extension of other forms of information technology, the trade program and (section 250 of the Trade Adjustment Assistance/North e.g., permitting electronic submissions the NAFTA Implementation Act) for the American Free Trade Agreement of responses. (NAFTA) Transitional Adjustment NAFTA program. Assistance program Financial Status Although training becomes an III. Current Actions Report/Request for Funds. A copy of the entitlement under both programs, the OTCA imposed a training cap in section The ETA–9023 has been successfully proposed information collection request utilized by the ETA and the States with (ICR) can be obtained by contacting the 236 for the Trade program and under subchapter D for the NAFTA program. only minor modifications since FY office listed below in the ADDRESSES 1989. The Federal Register Notice section of this notice. The statutory cap is $80 million for the Trade program and $30 million for the requests an extension of the ETA–9023 DATES: Written comments must be for both the TAA and NAFTA programs. submitted to the office listed in the NAFTA program. The purpose of the collection of this information on the Overall, States have done a ADDRESSES section below on or before Form ETA–9023 is to be able to monitor commendable job in completing the February 22, 2000. expenditures for both programs to form with relatively minor problems or ADDRESSES: Jess Aragon or Erica Cantor, ensure that the statutory ceilings are not questions raised by the States on the 200 Constitution Avenue, NW, exceeded. form. The ETA–9023 has been Washington DC 20210, 202–219–7979 Additionally, the Secretary of Labor is extremely important to the ETA over the (this is not a toll free number). FAX responsible for ensuring that resources last several years because the entire $80 number 202–219–6564. are equitably distributed to the States. million available, under the statutory SUPPLEMENTARY INFORMATION: This form enables the ETA to evaluate cap for the Trade program for training was allocated to the States. The ETA– I. Background a State’s need for resources and to redistribute resources among States as 9023 report was critical in allowing ETA The amendments to the Trade Act necessary. to be able to redistribute resources contained in the Omnibus Trade and equitably among States so training Competitiveness Act (OTCA) of 1988 II. Review Focus activity would not be discontinued in (Public Law 100–418) and Title 5 of the The Department of Labor is some States. North American Free Trade Agreement particularly interested in comments Type of Review: Reinstatement. Implementation Act (Public Law 103– which: Title: Trade Adjustment Assistance/ • 182) of 1993 made some significant Evaluate whether the proposed NAFTA Financial Status Report/ changes which affect the way the Trade collection of information is necessary Request for Funds. Adjustment Assistance and North for the proper performance of the OMB Number: 1205–0275. American Free Trade Agreement functions of the agency, including (NAFTA) Adjustment Assistance whether the information will have Agency Number: ETA–9023. programs are funded and administered. practical utility; Affected Public: State Government, These changes made enrollment in • Evaluate the accuracy of the State Employment Security Agencies. training programs an entitlement for agency’s estimate of the burden of the Cite/Reference/Form/etc: See below.
Total Total Average time Cite/reference respondents Frequency responses per responses Burden
TAA Rptg...... 50 5 250 2 hrs. 500 NAFTA Rptg...... 50 5 250 2 hrs. 500 Totals ...... 500 ...... 1,000 ......
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The total costs is $26.00 × 100 hours Signed in Washington, D.C. this 7th day of DIGITAL IMAGING GRAPHICS = $26,000. December 1999. DEPARTMENT, 1700 CHERRY STREET, KNOXVILLE, TENNESSEE 37917 Comments submitted in response to Grant D. Beale, California this comment request will be Program Manager, Office of Trade Adjustment Assistance. summarized and/or included in the TA–W–36,633N request for Office of Management and [FR Doc. 99–32991 Filed 12–20–99; 8:45 am] VALENCIA SEWING FACILITY, SAN BILLING CODE 4510±30±M FRANCISCO, CALIFORNIA 94103 Budget approval of the information TA–W–36,633T collection request; they will also LEVI STRAUSS & COMPANY become a matter of public record. DEPARTMENT OF LABOR CORPORATE HEADQUARTERS, SAN Dated: December 15, 1999. FRANCISCO, CA 94111 Jack H. Rapport, Employment and Training Georgia Comptroller, Employment and Training Administration TA–W–36,633O Administration. BLUE RIDGE PLANT, BLUE RIDGE, [TA±W±36,633] GEORGIA 31503 [FR Doc. 99–32985 Filed 12–20–99; 8:45 am] BILLING CODE 4510±30±P Levi Strauss & Company Florida TA–W–36,633U Texas WESTON CUSTOMER FULFILLMENT DEPARTMENT OF LABOR TA–W–36,633A REGIONAL OFFICE, WESTON, HARLINGEN PLANT and Texas FLORIDA 33331 Employment and Training Commission for the Blind, HARLINGEN, Kentucky TEXAS 78550 Administration TA–W–36,633V TA–W–36,633B FLORENCE CUSTOMER SERVICE CYPRESS PLANT and Judy’s Cafeteria, EL CENTER, FLORENCE, KENTUCKY [NAFTA±3265] PASO, TEXAS 79905 41042 TA–W–36,633C TA–W–36,633W Georgia-Pacific Corporation, McALLEN PLANT and Texas Commission HEBRON CUSTOMER SERVICE CENTER, Bellingham, WA; Notice of Revised for the Blind, McALLEN, TEXAS 78504 HEBRON, KENTUCKY 41048 Determination on Reconsideration TA–W–36,633H KASTRIN PLANT, including EL PASO Mississippi On October 27, 1999, the Department DIGITAL IMAGING GRAPHICS OF THE TA–W–36,633X issued a Notice of Affirmative EL PASO REGIONAL OFFICE, EL PASO, CANTON CUSTOMER SERVICE CENTER, TEXAS 79907 CANTON, MISSISSIPPI 39046 Determination Regarding Application TA–W–36,633I for Reconsideration in response to an BROWNSVILLE PLANT, BROWNSVILLE, Nevada appeal filed by the Association of TEXAS 78521 TA–W–36,633Y Western Pulp and Paper Workers on TA–W–36,633J SKY HARBOR CSC, HENDERSON, behalf of Local 194. The notice will SAN BENITO PLANT, SAN BENITO, NEVADA 89012 TEXAS 78586 soon be published in the Federal Amended Certification Regarding Register. TA–W–36,633K SAN ANTONIO SEWING PLANT, SAN Eligibility To Apply for Worker The workers at the subject firm ANTONIO, TEXAS 78227 Adjustment Assistance produced liquefied chlorine gas and a TA–W–36,633L In accordance with section 223 of the byproduct, liquid caustic soda. The SAN ANTONIO FINISHING PLANT Trade Act of 1974 (19 U.S.C. 2273) the including SAN ANTONIO CREDIT workers are not separately identifiable Department of Labor issued a by product. UNION, SAN ANTONIO FINISHING PLANT, SAN ANTONIO, TEXAS 78227 Certification of Eligibility to Apply for On reconsideration, the Department TA–W–36,633P Worker Adjustment Assistance on obtained evidence that the subject firm RICHARDSON TECHNOLOGY CENTER, August 11, 1999, applicable to workers increased its reliance on imports from RICHARDSON, TEXAS 75081 of Levi Strauss & Company at eight Canada of articles like or directly TA–W–36,633Q facilities located in Texas, Tennessee, competitive with chlorine. WESTLAKE DATA CENTER, WESTLAKE, Georgia, and Virginia. The notice was TEXAS 76262 published in the Federal Register on Conclusion TA–W–36,633R DALLAS CUSTOMER FULFILLMENT September 29, 1999 (64 FR 52541). In After careful review of the additional REGIONAL OFFICE, DALLAS, TEXAS addition, the Department denied facts obtained on reconsideration, I 75252 eligibility for an additional eight Levi conclude that increased imports of TA–W–36,633Z Strauss & Company facilities in Texas, articles from Canada like or directly AMARILLO FINISHING FACILITY, Tennessee, and California because there competitive with chlorine, contributed AMARILLO, TEXAS 79107 had not been threats of employment loss importantly to the declines in sales or Tennessee at those facilities. The notice was also production and to the total or partial TA–W–36,633D published in the Federal Register on separation of workers of Georgia-Pacific JOHNSON CITY PLANT including TRI- September 29, 1999 (64 FR 52539). Corporation, Bellingham, Washington. CITIES MAID (GARY, TN), JOHNSON The company requested that the seven In accordance with the provisions of the CITY, TENNESSEE 37605 of the eight facilities (TA–W–36,633H Act, I make the following determination: TA–W–36,633E through TA–W–633L, and TA–W– MOUNTAIN CITY PLANT including 36,633N and O) which were previously All workers of Georgia-Pacific Corporation, DIVERSCO (Spartanburg, SC), and denied be certified because of reduced Bellingham, Washington, who became totally ARAMARK (Mountain City, TN), work hours at each facility and provided or partially separated from employment on or MOUNTAIN CITY, TENNESSEE 37683 after June 16, 1998 through two years from TA–W–36,633S information to indicate that workers had the date of the certification, are eligible to KNOXVILLE REGIONAL OFFICE their work hours reduced by at least 20 apply for NAFTA–TAA under Section 250 of including GLOBAL FULFILLMENT percent. In addition, the company the Trade Act of 1974. SERVICES CENTER and KNOXVILLE requested that contractors working full-
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71506 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices time at all of the facilities also be TA–W–36,633Q WESTLAKE DATA Signed in Washington, DC, this 7th day of included in the certification. The CENTER, WESTLAKE, TEXAS December 1999. company also requested that an TA–W–36,633R DALLAS CUSTOMER Grant D. Beale, additional eleven facilities and work FULFILLMENT REGIONAL OFFICE, Program Manager, Office of Trade sites in seven states (Texas, Tennessee, DALLAS, TEXAS 75252 Adjustment Assistance. TA–W–36,633S KNOXVILLE REGIONAL California, Florida, Kentucky, [FR Doc. 99–32999 Filed 12–20–99; 8:45 am] Mississippi, and Nevada) be included as OFFICE, including GLOBAL FULFILLMENT SERVICES CENTER and BILLING CODE 4510±30±M a result of additional layoff KNOXVILLE DIGITAL IMAGING announcements. GRAPHICS DEPARTMENT, 1700 CHERRY The intent of the Department’s STREET, KNOXVILLE, TENNESSEE 37917 DEPARTMENT OF LABOR certification is to include all workers of TA–W–36,633T LEVIS STRAUSS & the subject firm, including full time COMPANY CORPORATE Employment and Training contractors working at the identified HEADQUARTERS, SAN FRANCISCO, Administration facilities, adversely affected by CALIFORNIA 94111 increased imports. Accordingly, the TA–W–36,633U WESTON CUSTOMER [NAFTA±02932] Department is amending the FULFILLMENT REGIONAL OFFICE, certification to include workers WESTON, FLORIDA 33331 Westinghouse Electric Company impacted by articles like or directly TA–W–36,633V FLORENCE CUSTOMER Energy Systems Business Unit (ESBU) competitive with denim and Docker SERVICE CENTER, FLORENCE, Including Leased Workers of Landrum apparel. KENTUCKY 41042 Staff Services and CDI/Pensacola, The amended notice applicable to TA–W–36,633W HEBRON CUSTOMER Pensacola, FL; Amended Certification TA–W–36,633 is hereby issued as SERVICE CENTER, HEBRON, KENTUCKY Regarding Eligibility to Apply for 41048 follows: NAFTA-Transitional Adjustment TA–W–36,633X CANTON CUSTOMER Assistance All workers of the following Levi Strauss SERVICE CENTER, CANTON, MISSISSIPPI & Company facilities who became totally or 39046 In accordance with section 250(A), partially separated from employment who TA–W–36,633Y SKY HARBOR CSC, subchapter D, chapter 2, Title II, of the became totally or partially separated from HENDERSON, NEVADA 89012.’’ employment on or after August 8, 1999 Trade Act of 1974 (19 U.S.C. 2273), the Signed in Washington, D.C. this 29th day through August 11, 2001 are eligible to apply Department of Labor issued a of November 1999. for adjustment assistance under section 223 Certification for NAFTA Transitional of the Trade Act of 1974: Grant D. Beale, Adjustment Assistance on April 1, 1999, TA–W–36,633 WICHITA FALLS PLANT, Program Manager, Office of Trade applicable to workers of Westinghouse WICHITA FALLS, TEXAS 76303 Adjustment Assistance. Electric Company, Energy Systems TA–W–36,633A HARLINGEN PLANT, [FR Doc. 99–32992 Filed 12–20–99; 8:45 am] Business Unit (ESBU), Pensacola, including TEXAS COMMISSION FOR THE BILLING CODE 4510±30±M Florida. The notice was published in the BLIND, HARLINGEN, TEXAS 78550 Federal Register on May 11, 1999 (64 TA–W–36,633B CYPRESS PLANT, including JUDY’s CAFETERIA, EL PASO, FR 25374). TEXAS 79905 DEPARTMENT OF LABOR At the request of the State agency, the TA–W–36,633C McALLEN PLANT, Department reviewed the certification including TEXAS COMMISSION FOR THE Employment and Training for workers of the subject firm. New BLIND, McALLEN, TEXAS 78504 Administration information shows that some workers of TA–W–36,633D JOHNSON CITY PLANT, Westinghouse Electric Company, Energy including TRI-CITIES MAID (Gary, TN) [NAFTA±003545] Systems Business Unit (ESBU), were JOHNSON CITY, TENNESSEE 37605 leased from Landrum Staff Services and TA–W–36,633E MOUNTAIN CITY PLAN, Wabash Technologies, Wabash including DIVERSCO (Spartanburg, SC) CDI/Pensacola to produce air cooled and ARAMARK MOUNTAIN CITY, Magnetics Automotive Product Group, electric generators at the Pensacola, TENNESSEE 37683 Huntington, Indiana; Notice of Florida facility. Worker separations TA–W–36,633F WARSAW PLANT, Termination of Investigation occurred at Landrum Staff Services and WARSAW, VIRGINIA 22572 CDI/Pensacola as a result of worker TA–W–36,633G VALDOSTA PLANT, Pursuant to Title V of the North separations at Westinghouse Electric VALDOSTA, GEORGIA 31601 American Free Trade Agreement TA–W–36,633J KASTRIN PLANT, Company, Energy Systems Business Implementation Act (Pub. L. 103–182 Unit (ESBU). KASTRIN, TEXAS 79907 concerning transitional adjustment TA–W–36,633I BROWNSVILLE PLANT, Based on these findings, the BROWNSVILLE, TEXAS 78521 assistance, hereinafter called NAFTA– Department is amending the TA–W–36,633J SAN BENITO PLANT, SAN TAA and in accordance with section certification to include workers of BENITO, TEXAS 78586 250(a), Subchapter D, Chapter 2, Title II, Landrum Staff Services and CDI/ TA–W–36,633K SAN ANTONIO SEWING of the Trade Act of 1974, as amended Pensacola, Pensacola, Florida leased to PLANT, SAN ANTONIO, TEXAS 78227 (19 U.S.C. 2331), an investigation was Westinghouse Electric Company, Energy TA–W–36,633L SAN ANTONIO initiated on November 2, 1999, in Systems Business Unit (ESBU), FINISHING PLANT, including SAN response to a petition filed on behalf of ANTONIO CREDIT UNION, SAN Pensacola, Florida. ANTONIO FINISHING PLANT, SAN workers at Wabash Technologies, The intent of the Department’s ANTONIO, TEXAS 78227 Wabash Magnetics Automotive Product certification is to include all workers of TA–W–36,633N VALENCIA SEWING Group, Huntington, Indiana. Workers Westinghouse Electric Company, Energy FACILITY, SAN FANCISCO, CALIFORNIA produce automotive-related sensors. Systems Business Unit (ESBU) 94103 The petitioner has requested that the adversely affected by imports from TA–W–36,633O BLUE RIDGE PLANT, BLUE RIDGE GEORIGA 31503 petition be withdrawn. Consequently, Mexico. TA–W–36,633P RICHARDSON further investigation in this case would The amended notice applicable to TECHNOLOGY CENTER, RICHARDSON, serve no purpose, and the investigation NAFTA–02932 is hereby issued as TEXAS 75081 has been terminated. follows:
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All workers of Westinghouse Electric information collections. The comments ACTION: Notice of availability of Company, Energy Systems Business Unit and suggestions should address one or proposed records schedules; request for (ESBU), Pensacola, Florida and leased more of the following points: (a) comments. workers of Landrum Staff Services and CDI/ whether the proposed collection Pensacola, Pensacola, Florida engaged in information is necessary for the proper SUMMARY: The National Archives and employment related to the production of air Records Administration (NARA) cooled electric generators at Westinghouse performance of the functions of NARA; (b) the accuracy of NARA’s estimate of publishes notice at least once monthly Electric Company, Energy Systems Business of certain Federal agency requests for Unit (ESBU), Pensacola, Florida who became the burden of the proposed information totally or partially separated from collection; (c) ways to enhance the records disposition authority (records employment on or after March 18, 1999 quality, utility, and clarity of the schedules). Once approved by NARA, through April 1, 2001 are eligible to apply for information to be collected; and (d) records schedules provide mandatory NAFTA–TAA under Section 250 of the Trade ways to minimize the burden of the instructions on what happens to records Act of 1974. collection of information on when no longer needed for current Signed at Washington, D.C. this 7th day of respondents, including the use of Government business. They authorize December, 1999. information technology. The comments the preservation of records of Grant D. Beale, that are submitted will be summarized continuing value in the National Program Manager, Office of Trade and included in the NARA request for Archives of the United States and the Adjustment Assistance. Office of Management and Budget destruction, after a specified period, of [FR Doc. 99–32990 Filed 12–20–99; 8:45 am] (OMB) approval. All comments will records lacking administrative, legal, BILLING CODE 4510±30±M become a matter of public record. In this research, or other value. Notice is notice, NARA is soliciting comments published for records schedules in concerning the following information which agencies propose to destroy NATIONAL ARCHIVES AND RECORDS collection: records not previously authorized for ADMINISTRATION Title: Request to Microfilm Records. disposal or reduce the retention period OMB number: 3095–0017. of records already authorized for Agency Information Collection Agency form number: None. disposal. NARA invites public Activities: Proposed Collection; Type of review: Regular. comments on such records schedules, as Comment Request Affected public: Companies and required by 44 U.S.C. 3303a(a). organizations that wish to microfilm DATES: Requests for copies must be AGENCY: National Archives and Records archival holdings in the National received in writing on or before Administration (NARA). Archives of the United States or a February 4, 2000. Once the appraisal of ACTION: Notice. Presidential library for the records is completed, NARA will micropublication. send a copy of the schedule. NARA staff SUMMARY: NARA is giving public notice Estimated number of respondents: 5. usually prepare appraisal that the agency proposes to request Estimated time per response: 10 memorandums that contain additional extension of a currently approved hours. information concerning the records information collection for requesting Frequency of response: On occasion covered by a proposed schedule. These, permission to use privately-owned (when respondent wishes to request too, may be requested and will be equipment to microfilm archival permission to microfilm records). provided once the appraisal is holdings in the National Archives of the Estimated total annual burden hours. completed. Requesters will be given 30 United States and Presidential libraries. 50 days to submit comments. The public is invited to comment on the Abstract: The information collection ADDRESSES: To request a copy of any proposed information collection is prescribed by 36 CFR 1254.92. The records schedule identified in this pursuant to the Paperwork Reduction collection is prepared by companies and notice, write to the Life Cycle Act of 1995. organizations that wish to microfilm Management Division (NWML), archival holdings with privately-owned DATES: Written comments must be National Archives and Records equipment. NARA uses the information received on or before February 22, 2000 Administration (NARA), 8601 Adelphi to determine whether the request meets to be assured of consideration. Road, College Park, MD 20740–6001. the criteria in 36 CFR 1254.94, to ADDRESSES: Comments should be sent Requests also may be transmitted by evaluate the records for filming and to to: Paperwork Reduction Act Comments FAX to 301–713–6852 or by e-mail to schedule use of the limited space (NHP), Room 3200, National Archives [email protected]. Requesters available for filming. and Records Administration, 8601 must cite the control number, which Adelphi Rd, College Park, MD 20740– Dated: December 15, 1999. appears in parentheses after the name of 6001; or faxed to 301–713–6913; or L. Reynolds Cahoon, the agency which submitted the electronically mailed to Assistant Archivist for Human Resources and schedule, and must provide a mailing [email protected]. Information Services. address. Those who desire appraisal FOR FURTHER INFORMATION CONTACT: [FR Doc. 99–33007 Filed 12–20–99; 8:45 am] reports should so indicate in their Requests for additional information or BILLING CODE 7515±01±P request. copies of the proposed information FOR FURTHER INFORMATION CONTACT: collections and supporting statements Marie Allen, Director, Life Cycle should be directed to Tamee Fechhelm NATIONAL ARCHIVES AND RECORDS Management Division (NWML), at telephone number 301–713–6730, ext. ADMINISTRATION National Archives and Records 226, or fax number 301–713–6913. Administration, 8601 Adelphi Road, Records Schedules; Availability and College Park, MD 20740–6001. SUPPLEMENTARY INFORMATION: Pursuant Request for Comments to the Paperwork Reduction Act of 1995 Telephone: (301)713–7110. E-mail: (Public Law 104–13), NARA invites the AGENCY: National Archives and Records [email protected]. general public and other Federal Administration, Office of Records SUPPLEMENTARY INFORMATION: Each year agencies to comment on proposed Services—Washington, DC. Federal agencies create billions of
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.026 pfrm03 PsN: 21DEN1 71508 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices records on paper, film, magnetic tape, War. Recordkeeping copies of these files and similar matters, 1902–1964. Also and other media. To control this are proposed for permanent retention. proposed for disposal are card indexes accumulation, agency records managers 2. Department of Defense, Office of to temporary investigation files, 1938– prepare schedules proposing retention the Inspector General (N1–509–00–2, 2 1958, and files on management periods for records and submit these items, 2 temporary items). Records of improvement projects accumulated schedules for NARA’s approval, using investigations of deaths of members of during the 1960s that pertain to such the Standard Form (SF) 115, Request for the Armed Forces from self-inflicted matters as forms management, space Records Disposition Authority. These causes, 1994–1999, including electronic utilization, and personnel management. schedules provide for the timely transfer copies of documents created using A wide variety of older records pre- into the National Archives of electronic mail and word processing. dating 1970 are proposed for permanent historically valuable records and This schedule also increases the retention including letter books and authorize the disposal of all other retention period for recordkeeping ledgers of the Vermont District, records records after the agency no longer needs copies of these files, which were of the Port of New York Collector’s to conduct its business. Some schedules previously approved for disposal. Office, records relating to clearances are comprehensive and cover all the 3. Department of Energy, Agency- and entrances at the Port of Baltimore, records of an agency or one of its major wide (N1–434–98–24, 5 items, 4 and selected Central File segments, subdivisions. Most schedules, however, temporary items). Investigative records 1902–1964. cover records of only one office or that lack historical significance, 7. Department of the Treasury, United program or a few series of records. Many including files stemming from States Mint (N1–104–99–3, 3 items, 3 of these update previously approved allegations that do not result in an temporary items). Correspondence, schedules, and some include records investigation. Files include reports, contracts, monitoring reports, proposed as permanent. correspondence, and supporting statements of work, periodic inspection working papers. Files that pertain to No Federal records are authorized for plans and schedules, and surveys cases that attract media or congressional destruction without the approval of the relating to asbestos abatement in agency attention, result in substantive changes Archivist of the United States. This facilities. Also included are electronic in agency policy, or document major approval is granted only after a copies of documents created using violations of criminal law are proposed thorough consideration of their electronic mail and word processing. for permanent retention. A 75 year 8. Environmental Protection Agency, administrative use by the agency of retention period is proposed for Office of Pesticides Programs (N1–412– origin, the rights of the Government and temporary files that pertain to 99–13, 3 items, 3 temporary items). of private persons directly affected by environmental matters or health and Company transfer files, including paper the Government’s activities, and safety issues. and microfilm records and electronic whether or not they have historical or 4. Department of Health and Human copies of documents created using other value. Services, Office of the Assistant electronic mail and word processing. Besides identifying the Federal Secretary for Health (N1–514–99–1, 4 The records consist of correspondence, agencies and any subdivisions items, 4 temporary items). Older records transfer agreements, and other requesting disposition authority, this accumulated primarily during the 1970s supporting documentation that pertain public notice lists the organizational and 1980s. Included are such records as to the transfer or ownership of unit(s) accumulating the records or contract files related to health care companies, products, and data. indicates agency-wide applicability in statistics, correspondence relating to the 9. Environmental Protection Agency, the case of schedules that cover records administrative activities of the Division Agency-wide (N1–412–99–14, 5 items, 5 that may be accumulated throughout an of Health Examination Statistics, temporary items). Appointee clearance agency. This notice provides the control expired project files of the Division of files and laboratory performance number assigned to each schedule, the Data Policy documenting the process by evaluation records, including electronic total number of schedule items, and the which administrative clearances were copies of records created using number of temporary items (the records obtained for studies, and contract files electronic mail and word processing. proposed for destruction). It also relating to the establishment of health Clearance files document the selection includes a brief description of the service management operations in of political appointees and include temporary records. The records several localities. applications for employment, schedule itself contains a full 5. Department of Housing and Urban background information about description of the records at the file unit Development, Federal Housing individuals, financial disclosure forms, level as well as their disposition. If Administration (N1–31–99–1, 18 items, security clearances, and White House NARA staff has prepared an appraisal 10 temporary items). Closed case files clearance checklists. Laboratory memorandum for the schedule, it too, for servicing and tracking loan accounts, performance files document the includes information about the records. working copies of statistical summaries accreditation program for labs and Further information about the and reports, and fiscal accounting include statistical reports, performance disposition process is available on records. Temporary records were summaries, and other documents, used request. accumulated between 1934 and 1971. to measure the quality of work Schedules Pending Records proposed for permanent performed at laboratories. retention include policy 10. Environmental Protection Agency, 1. Department of Defense, Office of correspondence, studies, procedural Agency-wide (N1–412–99–15, 2 items, 2 the Inspector General (N1–509–00–1, 2 memos, subject files, and market temporary items). Case files and items, 1 temporary item). Electronic analysis reports. working papers for mission-related copies of documents created using 6. Department of the Treasury, U.S. projects that explore new technologies electronic mail and word processing Customs Service (N1–36–99–1, 15 or methods for improving the that relate to investigations of the loss items, 3 temporary items). Central File environment, including electronic of U.S. Central Command nuclear, segments relating to specific actions copies of records created using biological, and chemical desk logs involving rate setting, classification of electronic mail and word processing. accumulated during the Persian Gulf merchandise, entry duties, exemptions, The records include proposals,
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.165 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71509 monitoring and measurement plans, relating to the Commission Issuance self-administered by the gaming correspondence, progress reports, and Posting System, an electronic database operations. Pursuant to those other supporting documentation. The of agency issuances created for public regulations, the Commission is required records do not include final reports on reference use. Included are input to adopt and communicate assessment the planning and establishment of documents, the master database, rates; the gaming operations are agency programs following pilot outputs, and system documentation. required to apply those rates to their projects, which were previously 16. National Gambling Impact Study revenues, compute the fees to be paid, approved for permanent retention. Commission, Agency-wide (N1–220– report the revenues, and remit the fees 11. Environmental Protection Agency, 99–3, 40 items, 11 temporary items). to the Commission on a quarterly basis. Agency-wide (N1–412–99–21, 2 items, 2 Background information and unsolicited The regulations of the Commission temporary items). Records relating to public opinion and reference files not and the rates being finalized today are Federal Register notices, including used for decision-making purposes by effective for calendar year 1999. drafts and final notices, tear sheets from the Commission. Also included are Elizabeth L. Homer, the Federal Register, newspaper electronic copies of records created Vice-Chairman. clippings, press releases, citations and using electronic mail, word processing, [FR Doc. 99–33079 Filed 12–20–99; 8:45 am] abstracts of articles, correspondence, and web-based systems. Records BILLING CODE 7565±01±M logs, and tracking systems. Also proposed for permanent retention included are electronic copies of include correspondence files, meeting documents created using electronic mail files, subject files, subcommittee files, and word processing. NUCLEAR REGULATORY case studies, reports, and publications. COMMISSION 12. Environmental Protection Agency, Electronic information systems Agency-wide (N1–412–99–22, 4 items, 4 pertaining to the Commission’s [License No. 37±20553±01 (Suspended) temporary items). Quality Assurance comprehensive study of the legal, social, Docket No. 030±19405, EA 99±217] Project Plans and Quality Management and economic impact of gambling on Alfonso DeLeo, Jr., P.O. Box 312, Plans, including electronic copies of American society are also proposed for Ardmore, PA 19003; Order Modifying records created using electronic mail permanent retention. and word processing. Records document Order Suspending License (Effective administrative procedures for ensuring Dated: December 10, 1999. Immediately) and Order Revoking that environmental data used to support Michael J. Kurtz, License agency decisions are of adequate quality Assistant Archivist for Record Services— I and usability for their intended purpose. Washington, DC. Included are records that establish [FR Doc. 99–33006 Filed 12–20–99; 8:45 am] Alfonso DeLeo (Mr. DeLeo or criteria for planning, implementing, BILLING CODE 7515±01±P licensee) is the holder of suspended documenting, and assessing data Byproduct Material License No. 37– collection activities. 20553–01 (license) that was originally 13. Railroad Retirement Board, Office NATIONAL INDIAN GAMING issued by the Nuclear Regulatory of Programs (N1–184–99–1, 6 items, 6 COMMISSION Commission (NRC or Commission) temporary items). Paper and optical disk pursuant to 10 CFR Part 30 on April 4, copies of Railroad Unemployment Fee Rates 1982. The license authorized: (1) Insurance Act records compiled in Possession and use of cesium-137 and AGENCY: determining the validity of sickness National Indian Gaming americium-241 sealed sources (gauges) insurance applications and Commission. at temporary jobsites of the licensee unemployment claim forms for ACTION: Notice. anywhere in the United States where compensation administered by the SUMMARY: Notice is hereby given, the Commission maintained jurisdiction agency. Also included are electronic pursuant to 25 CFR 514.1(a)(3), that the for regulating the use of licensed copies of documents created using National Indian Gaming Commission material; and (2) storage of the licensed electronic mail and word processing. has adopted final annual fee rates of material at 141 Golf Hills Road, 14. Federal Energy Regulatory 0.00% for tier 1 and 0.08% (.0008) for Havertown, PA. The license has an Commission, Office of the Chief tier 2 for calendar year 1999. These rates expiration date of March 31, 2004. Information Officer (N1–138–99–2, 7 shall apply to all assessable gross Licensees of the Commission are items, 7 temporary items). Records revenues from each gaming operation required to pay annual fees. relating to the Commission Issuance under the jurisdiction of the Posting System Manager, an electronic II Commission. database for internal agency use that Pursuant to 10 CFR 171.16, Mr. DeLeo contains copies of issuances and related FOR FURTHER INFORMATION CONTACT: is required to pay an annual fee for the documents. Included are input Bobby Gordon, National Indian Gaming license. In accordance with 10 CFR Part documents, the master database, outputs Commission, 1441 L Street, NW, Suite 15, the licensee was sent an original (including text files used for input into 9100, Washington, DC 20005; telephone invoice, a second invoice, and a final a publicly available data base), system 202/632/7003; fax 202/632/7066 (these notice requesting payment. The final documentation, and electronic copies of are not toll-free numbers). notice of payment due specifically records created using electronic mail SUPPLEMENTARY INFORMATION: The informed the licensee that ‘‘non- and word processing. Recordkeeping Indian Gaming Regulatory Act payment of your fee may result in the copies of the agency’s issuances were established the National Indian Gaming revocation of your license in accordance previously approved for permanent Commission which is charged with, with the enforcement provisions of the retention. among other things, regulating gaming Commission’s regulations,’’ namely, 10 15. Federal Energy Regulatory on Indian lands. CFR 171.23. The NRC conducted an Commission, Office of the Chief The regulations of the Commission inspection at Mr. DeLeo’s Havertown, Information Officer (N1–138–98–7, 4 (25 CFR part 500) provide for a system PA facility on November 16, 1994, at items, 4 temporary items). Records of fee assessment and payment that is which time he still possessed the
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DELINQUENT INVOICES
Invoice date Invoice No. Amount billed Comment
1. 8/9/91 ...... AMO2856±91 $1,400.00 FY 1991 Annual Invoice. 2. 8/24/92 ...... AMO2423±92 400.00 FY 1992 Annual Invoice. 3. 8/21/93 ...... AMO2764±93 400.00 FY 1993 Annual Invoice. 4. 8/20/94 ...... AMO2144±94 2,470.00 FY 1994 Annual Invoice. 5. 7/22/95 ...... AMO2094±95 1,700.00 FY 1995 Annual Invoice.
On February 12, 1996, the NRC issued licensed material to an authorized III an Order Suspending License (Effective recipient by October 15, 1998. The deliberate failures of the licensee Immediately) to Alfonso DeLeo, Jr., The NRC attempted to contact Mr. to: (1) Comply with the February 12, based on the non-payment of license DeLeo several times between December 1996 Order (suspension of license); (2) fees for fiscal years 1991 through 1995. 30, 1998, and March 10, 1999 by leaving pay the annual fee as required by The Order of February 12, 1996, messages on his answering machine to Commission regulations; and (3) comply required, among other things, that determine the status of the licensed with 10 CFR 30.36 demonstrate that the Alfonso DeLeo, Jr. dispose of any material. As of April 1, 1999, Mr. DeLeo licensee is either unwilling or unable to licensed material acquired or possessed had not returned the telephone calls. As comply with Commission requirements. under the authority of License No. 37– a result, a joint inspection/investigation Consequently, I lack the requisite 20553–01. As of the date of this Order, by the NRC’s Division of Nuclear reasonable assurance that public health Mr. DeLeo had not complied with the Materials Safety and Office of and safety will be protected if the February 12, 1996 Order, in that he has Investigations was conducted on April licensee were to continue to be in not disposed of the subject licensed 1, 1999, at his Havertown, PA, facility. possession of licensed material at this material. That investigation disclosed that Mr. time. Therefore, the public health, During a subsequent inspection by the DeLeo still retained possession of the safety, and interest require that the NRC at Mr. DeLeo’s Havertown, PA gauges. Based on the above, including licensee leak test the licensed material facility on December 5, 1996, the NRC the OI investigation, the NRC concluded prior to transfer to an authorized determined that he failed to notify the that Mr. DeLeo was in willful violation recipient; that the licensee transfer the Commission in accordance with 10 CFR of NRC requirements. licensed material to an authorized 30.36(d)(3) of the cessation of principal recipient within 30 days as described Since Mr. DeLeo had not conducted licensed activities. Specifically, Mr. below; and that Byproduct Material his activities in full compliance with DeLeo had ceased activities prior to License No. 37–20553–01 be revoked. NRC requirements, a written Notice of August 15, 1994, the regulation’s Furthermore, pursuant to 10 CFR 2.202, Violation and Proposed Imposition of effective date. As a result, a Notice of I find that the significance and Civil Penalty (Notice) was served upon Violation (Notice) was issued on willfulness of the violations described Mr. DeLeo by letter dated June 2, 1999. December 16, 1996. Mr. DeLeo failed to above is such that no further notice is reply to the Notice within 30 days of its The Notice states the nature of the required and that the public health, issuance as required by 10 CFR 2.201. violation, the provision of the NRC’s safety and interest require that the The NRC contacted Mr. DeLeo on requirements that the Licensee had provisions of Section IV.A. of this Order February 13, 1997, concerning his violated, and the amount of the civil be immediately effective. failure to reply to the December 16, penalty proposed for the violation. IV 1996 Notice, and he indicated that he Although Mr. Deleo confirmed to the would reply to the Notice. Mr. DeLeo NRC, during a telephone conversation Accordingly, pursuant to sections 81, did not reply to the Notice until March on June 18, 1999, that he had received 161b, 161c, 161i, 161o, 182 and 186 of 16, 1998. the NRC’s June 2, 1999 letter the Atomic Energy Act of 1954, as Prior to that reply, the NRC also sent transmitting the Notice of Violation and amended, and the Commission’s Mr. DeLeo a letter on February 24, 1997, Proposed Imposition of Civil Penalty, he regulations in 10 CFR 2.202, and 10 CFR describing the Decommissioning failed to respond to it and was still in Parts 30, 170, and 171, Timeliness rule (10 CFR 30.36), and possession of the gauges. Therefore, the A. It is hereby ordered, effective indicating that the licensed material in NRC staff issued an Order on August 23, immediately, that: his possession needed to be transferred 1999, imposing a $5,500 civil penalty 1. The requirements of Paragraphs A to another authorized recipient by and also proposing additional daily through E of Section III of the Order October 15, 1998. The letter further penalties in the amount of $500 per day dated February 12, 1996, and attached stated that failure to dispose of licensed for his continued failure to transfer the hereto remain in effect except where material by that date could result in gauges. Subsequently, the NRC held a modified below. significant enforcement action, management meeting with Mr. DeLeo on 2. The licensee shall complete a leak including the imposition of monetary November 9, 1999 in the Region I office test pursuant to Byproduct Material civil penalties. Nonetheless, Mr. DeLeo to explain the NRC’s position and License No. 37–20553–01, Condition did not transfer the gauges. During provide Mr. DeLeo an opportunity to 12.A., B., C., D., E., F., and G. to confirm another inspection of Mr. DeLeo’s explain his position. Mr. DeLeo did not the absence of leakage and to establish Havertown, PA, facility on March 16, agree with the NRC’s position that he the levels of residual radioactive 1998, he was again informed that 10 must immediately transfer his licensed contamination prior to transfer of the CFR 30.36 required him to transfer material to an authorized recipient. gauges to an authorized recipient.
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3. Within 30 days of the date of this requests a hearing, that person shall set The proposed amendment would add Order, the licensee shall cause all forth with particularity the manner in an exception to the RBS Technical licensed material in its possession to be which his interest is adversely affected Requirements Manual (TRM), Section transferred to an authorized recipient in by this Order and shall address the TR 3.9.14, current prohibition for travel accordance with 10 CFR 30.41. criteria set forth in 10 CFR 2.714(d). of loads in excess of 1200 pounds over 4. After the conditions of Paragraph 3 If a hearing is requested by the fuel assemblies in the spent fuel storage. are met and within 30 days of the date licensee or a person whose interest is The exception would allow the of this Order, the licensee shall submit adversely affected, the Commission will movement of spent fuel pool watertight a completed NRC Form 314 to the issue an Order designating the time and gates, which separate the spent fuel pool Regional Administrator, NRC Region I, place of any hearing. If a hearing is held, from the cask and lower transfer pools. at 475 Allendale Road, King of Prussia, the issue to be considered at such Approval of this exception would allow Pennsylvania 19406–1415. hearing shall be whether this Order the licensee to perform maintenance B. It is further ordered that: should be sustained. and repairs to the gates and watertight 1. Upon a written finding by the Pursuant to 10 CFR 2.202(c)(2)(i), the seals, provided the licensee complies Regional Administrator, NRC Region I, licensee, may, in addition to demanding with the defense-in-depth that no licensed material remains in the a hearing, at the time the answer is filed recommendations, or take alternative licensee’s possession and that other or sooner, move the presiding officer to measures to compensate for deficiencies applicable provisions of 10 CFR 30.36 set aside the immediate effectiveness of in the defense-in-depth approach, have been fulfilled, Byproduct Material the Order on the ground that the Order, addressed in NUREG–0612, ‘‘Control of License No. 37–20553–01 is revoked. including the need for immediate Heavy Loads at Nuclear Power Plants.’’ The Director, Office of Enforcement, effectiveness, is not based on adequate Corresponding sections of the RBS may relax or rescind, in writing, any of Updated Safety Analysis Report (USAR) the above provisions upon evidence but on mere suspicion, unfounded allegations, or error. would be revised to be consistent with demonstration of good cause by the the exception and to state that the licensee. In the absence of any request for hearing, or written approval of an provisions of NUREG–0612 will be met. V extension of time in which to request a The load of the gate (approximately hearing, the provisions specified in 1600 pounds) and rigging In accordance with 10 CFR 2.202, the (approximately 400 pounds) exceeds the licensee must, and any other person Section IV above shall be final 20 days from the date of this Order without load analyzed over spent fuel. In adversely affected by this Order may accordance with the guidance in further order or proceedings. If an submit an answer to this Order, and Nuclear Regulatory Commission (NRC) extension of time for requesting a may request a hearing on this Order, Bulletin 96–02, ‘‘Movement of Heavy hearing has been approved, the within 20 days of the date of this Order. Loads over Spent Fuel, over Fuel in the provisions specified in Section IV shall Where good cause is shown, Reactor Core, or over Safety-Related be final when the extension expires if a consideration will be given to extending Equipment,’’ issued April 11, 1996, and hearing request has not been received. the time to request a hearing. A request Title 10 of the Code of Federal An answer or a request for hearing shall for extension of time must be made in Regulations, Part 50.59 (10 CFR 50.59), not stay the immediate effectiveness of writing to the Director, Office of these changes have been determined to this order. Enforcement, U.S. Nuclear Regulatory involve an unreviewed safety question. Commission, Washington, D.C. 20555, Dated at Rockville, Maryland this 13th day Before issuance of the proposed and shall include a statement of good of December 1999. license amendment, the Commission cause for the extension. The answer may For the Nuclear Regulatory Commission. will have made findings required by the consent to the Order. Unless the answer Carl J. Paperiello, Atomic Energy Act of 1954, as amended consents to this Order, the answer shall, Deputy Executive Director for Materials, (the Act) and the Commission’s in writing and under oath or Research and State Programs. regulations. affirmation, specifically admit or deny [FR Doc. 99–33021 Filed 12–20–99; 8:45 am] The Commission has made a each allegation or charge made in this BILLING CODE 7590±01±P proposed determination that the Order and set forth the matters of fact amendment request involves no and law on which the licensee or other significant hazards consideration. Under person adversely affected relies and NUCLEAR REGULATORY the Commission’s regulations in 10 CFR reasons as to why the Order should not COMMISSION 50.92, this means that operation of the have been issued. Any answer or facility in accordance with the proposed request for a hearing shall be submitted [Docket No. 50±458] amendment would not (1) involve a to the Secretary, U.S. Nuclear significant increase in the probability or Regulatory Commission, ATTN: Chief, Entergy Operations, Inc.; Notice of consequences of an accident previously Rulemakings and Adjudications Staff, Consideration of Issuance of evaluated; or (2) create the possibility of Washington, D.C. 20555. Copies also Amendment to Facility Operating a new or different kind of accident from shall be sent to the Director, Office of License, Proposed No Significant any accident previously evaluated; or Enforcement, U.S. Nuclear Regulatory Hazards Consideration Determination, (3) involve a significant reduction in a Commission, Washington, D.C. 20555; and Opportunity for a Hearing margin of safety. As required by 10 CFR to the Assistant General Counsel for 50.91(a), the licensee has provided its Materials Litigation and Enforcement at The U.S. Nuclear Regulatory analysis of the issue of no significant the same address; and to the Regional Commission (the Commission) is hazards consideration, which is Administrator, NRC Region I, 475 considering issuance of an amendment presented below: Allendale Road, King of Prussia, to Facility Operating License No. NPF– 1. Involved a significant increase in the Pennsylvania 19406–1415; and to the 47 issued to Entergy Operations, Inc. probability or consequences of an accident licensee if the answer or hearing request (the licensee), for operation of the River previously evaluated. is by a person other than the licensee. Bend Station, Unit 1 (RBS) located in The River Bend Station (RBS) fuel building If a person other than the licensee West Feliciana Parish, Louisiana. fuel storage facilities consist of three separate
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.287 pfrm03 PsN: 21DEN1 71512 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices but interconnected stainless steel-lined that the potential for a heavy load drop is maximum weight of the gate and associated concrete pools. The spent fuel storage pool is extremely small. The gate lifting using the lifting devices is 2000 pounds. Therefore, the largest of these pools. Adjacent to the fuel fuel building bridge crane and cask crane there is ample safety factor margin for lifting storage pool are the cask pool and the lower will conform with NUREG–0612 guidelines the gate with the cask crane. inclined fuel transfer (IFTS) pool. Each of in that the probability of the gate drop over The probability and consequences of a these two pools is separated from the fuel the spent fuel assemblies is extremely small. seismic event are not affected by the storage pool by a full-height wall broken by Both cranes have a rated capacity of fifteen proposed gate lifting. The consequences of a a watertight gate. The watertight gates are (15) tons. The maximum weight of the gate seismic event during the gate lifting are normally open, but are closed to seal their and associated lifting devices is one (1) ton. insignificant since both cranes, the fuel respective pools during cask handling and Therefore, there is ample safety factor margin building bridge crane and the cask crane, are equipment maintenance operations. It is for lifting and movements of the subject seismically qualified for the lifted load. In necessary to lift the gate between the spent spent fuel pool gate. Special lifting devices, addition, the design of all rigging devices fuel pool and the IFTS pool for seal which have redundancy or ultimate strength conforms to NUREG–0612 guidelines, with a replacement. The total weight of the gate of at least 10 times the lifted load, will also factor of safety of 10 ultimate strength for the including the rigging equipment is 2000 be utilized during the rigging process. Even weight of the load. pounds. This lift is considered as a heavy though neither the fuel building bridge crane Consistent with the defense-in-depth load lift since it is higher than the current or the cask crane is a single-failure-proof approach outlined in NUREG–0612, the RBS analyzed light load limit of 1200 pounds crane, rigging the spent fuel pool gate using movement will be conducted according to for movement of loads over the spent fuel these cranes will provide the required load handling instructions, operator training pool. RBS TRM 3.9.14 prohibits any load in redundancy that meets the intent of NUREG– will be conducted on the activity prior to the 0612 single-failure-proof criteria. excess of 1200 pounds from travel over fuel movement, and the equipment will be assemblies in the storage pool. In the second rigging scheme, the initial inspected and checked before the movement Each of the gates is designed with a gate lift will be performed through the use of will be performed. NUREG–0612 gives pneumatic seal that, when pressurized, seals structural steel lugs that are permanently guidance that when a particular heavy load the respective pool from the spent fuel pool, welded to the Fuel Building overhead must be brought over spent fuel, alternative forming a watertight barrier. No provisions structural steel girder located over the measures may be used. The combination of for moving the gates over spent fuel were centerlines of the wall openings for the two preventative measures, as proposed, included in the licensing basis for RBS heavy gates that separate the spent fuel pool from minimizes the risks inherent in hauling large loads. However, the qualified life for the gate the IFTS and the cask pools. For example, the loads over spent fuel to permissible levels. seals necessitates that they be replaced IFTS lower pool gate will be moved With these provisions and the guidance in several times over the life of the plant. northward toward the cask pool opening Therefore, approval of an exception to the using the aforementioned structural steel lugs NUREG–0612, the increase in probability of current prohibition for loads over the spent and lifting devices such as chains, slings, and a load drop is negligible. fuel pool is required to allow for replacement shackles. Once the gate is through the cask It is therefore concluded that the proposed of the gate seals. pool opening, the movement path will no gate lifting and movement does not involve To perform the movement of the gate from longer be over irradiated spent fuel. Once a significant increase in the probability or its installed position to a position where it through the cask pool opening, the gate will consequences of an accident previously can be accessed for seal replacement, an be moved eastward toward the center of the evaluated. engineering plan that meets the intent of cask pool. The cask crane auxiliary hook will 2. Create the possibility of a new or NUREG–0612, ‘‘Control of Heavy Loads [at lift the gate inside the cask pool. Finally, the different kind of accident from any accident Nuclear Power Plants],’’ has been developed. gate will be placed on the Fuel Building floor previously evaluated. There are numerous design features, which elevation 113 [feet] adjacent to the cask pool The lifting of the fuel pool gate in the spent comply with NUREG–0612 guidelines, that for seal replacement. For the movement of fuel pool as described above, minimizes the will preclude the gate from dropping onto the the gate between the spent fuel pool and the possibility of a heavy load drop onto spent spent fuel assemblies during the movement cask pool, the distance of the movement is fuel assemblies as not credible in accordance activity. These features include the design of reduced because the gate movement would with NUREG–0612 single-failure-proof the lifting devices, design of the cask and fuel essentially entail lifting of the gate to above criteria. In addition, movement of the gate in bridge cranes, crane operator training, and the hinges, rotating it, and moving it through the cask pool using the cask crane does not the use of written procedures. The guidance the opening directly into the cask pool. create the possibility of a new or different in NUREG–0612 will be met in all respects, Though seal replacement on the cask pool kind of accident. The cask drop accident except that in lieu of a single[-]failure-proof gate is not necessary at the present time, it scenario in the current RBS licensing basis, crane, the scheme will employ redundant may be necessary in the future. As such, the since the cask crane is not a single-failure- and diverse means to meet the intent of proposed changes would allow movement of proof crane, envelops the accidental drop of single-failure[-]proof movements. either of the two spent fuel pool gates for the gate in the cask pool during handling by It is proposed for the subject spent fuel repair or seal replacement. the cask crane. That is, the analyzed weight pool gate lift to use one of two rigging The proposed load lift of the fuel pool gate of a cask is 125 tons versus the weight of the schemes that comply with the intent of for replacement of the seal conforms to all of gate and the associated rigging of 1 ton. NUREG–0612 guidance. The first one will be the NUREG–0612 guidelines included in It is therefore concluded that the proposed accomplished through the use of Fuel Section 5.1.5(1)(a) and 5.1.6. The design of gate lifting does not create the possibility of Building bridge crane and the cask crane at the lifting lugs and associated lifting devices a new or different kind of accident from any the same time to provide the redundancy (chains, slings, shackles, hoists, etc.) will previously analyzed. required to make the lift a single-failure-proof conform to the guidelines of NUREG–0612, 3. Involve a significant reduction in a lift and satisfy NUREG–0612 single-failure- Section 5.1.6, ‘‘Single-Failure Proof Handling margin of safety. proof criteria. The other rigging scheme will System.’’ The auxiliary hook of the cask By following the guidance in NUREG– involve the use of lifting lugs welded to the crane has a rated capacity of 15 tons. The 0612, the movement of the spent fuel pool overhead structural steel members and cask crane is not a single-failure[-]proof gates will have no impact on the analyses of special lifting devices that are designed in crane. However, it meets NUREG–0612 postulated design basis events for RBS. The accordance with NUREG–0612 single-failure- criteria of Section 5.1.1(6) and is designed for NRC guidance provides an acceptable means proof criteria. seismic loading. As discussed above, the cask of ensuring the appropriate level of safety In the first rigging scheme, the fuel crane, alone, will handle the gate only after and protection against load drop accidents. building bridge crane and the cask crane will the gate is located inside the cask pool where Therefore, there is no reduction in the margin be used to perform the gate lifting and drop of the gate above the spent fuel rack is of safety associated with postulated design movement. The intent of NUREG–0612 is no longer a concern. The cask pool area has basis events at RBS in allowing the proposed that in lieu of providing a single-failure-proof been evaluated for an accidental drop of the change to the RBS licensing basis. RBS will crane system, the control of heavy loads spent fuel cask. There is no safety-related continue to meet its commitment to comply guidelines can be satisfied by establishing equipment inside the cask pool. The with NUREG–0612.
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The NRC staff has reviewed the filed in accordance with the hearing. The petitioner must also licensee’s analysis and, based on this Commission’s ‘‘Rules of Practice for provide references to those specific review, it appears that the three Domestic Licensing Proceedings’’ in 10 sources and documents of which the standards of 10 CFR 50.92(c) are CFR Part 2. Interested persons should petitioner is aware and on which the satisfied. Therefore, the NRC staff consult a current copy of 10 CFR 2.714 petitioner intends to rely to establish proposes to determine that the which is available at the Commission’s those facts or expert opinion. Petitioner amendment request involves no Public Document Room, the Gelman must provide sufficient information to significant hazards consideration. Building, 2120 L Street, NW., show that a genuine dispute exists with The Commission is seeking public Washington, DC, and accessible the applicant on a material issue of law comments on this proposed electronically through the ADAMS or fact. Contentions shall be limited to determination. Any comments received Public Electronic Reading Room link at matters within the scope of the within 30 days after the date of the NRC Web site (http://www.nrc.gov). amendment under consideration. The publication of this notice will be If a request for a hearing or petition for contention must be one which, if considered in making any final leave to intervene is filed by the above proven, would entitle the petitioner to determination. date, the Commission or an Atomic relief. A petitioner who fails to file such Normally, the Commission will not Safety and Licensing Board, designated a supplement which satisfies these issue the amendment until the by the Commission or by the Chairman requirements with respect to at least one expiration of the 30-day notice period. of the Atomic Safety and Licensing contention will not be permitted to However, should circumstances change Board Panel, will rule on the request participate as a party. during the notice period such that and/or petition; and the Secretary or the Those permitted to intervene become failure to act in a timely way would designated Atomic Safety and Licensing parties to the proceeding, subject to any result, for example, in derating or Board will issue a notice of hearing or limitations in the order granting leave to shutdown of the facility, the an appropriate order. intervene, and have the opportunity to Commission may issue the license As required by 10 CFR 2.714, a participate fully in the conduct of the amendment before the expiration of the petition for leave to intervene shall set hearing, including the opportunity to 30-day notice period, provided that its forth with particularity the interest of present evidence and cross-examine final determination is that the the petitioner in the proceeding, and witnesses. amendment involves no significant how that interest may be affected by the If a hearing is requested, the hazards consideration. The final results of the proceeding. The petition Commission will make a final determination will consider all public should specifically explain the reasons determination on the issue of no and State comments received. Should why intervention should be permitted significant hazards consideration. The the Commission take this action, it will with particular reference to the final determination will serve to decide publish in the Federal Register a notice following factors: (1) The nature of the when the hearing is held. of issuance and provide for opportunity petitioner’s right under the Act to be If the final determination is that the for a hearing after issuance. The made party to the proceeding; (2) the amendment request involves no Commission expects that the need to nature and extent of the petitioner’s significant hazards consideration, the take this action will occur very property, financial, or other interest in Commission may issue the amendment infrequently. the proceeding; and (3) the possible and make it immediately effective, Written comments may be submitted effect of any order which may be notwithstanding the request for a by mail to the Chief, Rules and entered in the proceeding on the hearing. Any hearing held would take Directives Branch, Division of petitioner’s interest. The petition should place after issuance of the amendment. Administrative Services, Office of also identify the specific aspect(s) of the If the final determination is that the Administration, U.S. Nuclear Regulatory subject matter of the proceeding as to amendment request involves a Commission, Washington, DC 20555– which petitioner wishes to intervene. significant hazards consideration, any 0001, and should cite the publication Any person who has filed a petition for hearing held would take place before date and page number of this Federal leave to intervene or who has been the issuance of any amendment. Register notice. Written comments may admitted as a party may amend the A request for a hearing or a petition also be delivered to Room 6D59, Two petition without requesting leave of the for leave to intervene must be filed with White Flint North, 11545 Rockville Board up to 15 days prior to the first the Secretary of the Commission, U.S. Pike, Rockville, Maryland, from 7:30 prehearing conference scheduled in the Nuclear Regulatory Commission, a.m. to 4:15 p.m. Federal workdays. proceeding, but such an amended Washington, DC 20555–0001, Attention: Copies of written comments received petition must satisfy the specificity Rulemakings and Adjudications Staff, or may be examined at the NRC Public requirements described above. may be delivered to the Commission’s Document Room, the Gelman Building, Not later than 15 days prior to the first Public Document Room, the Gelman 2120 L Street, NW., Washington, DC. prehearing conference scheduled in the Building, 2120 L Street, NW., The filing of requests for hearing and proceeding, a petitioner shall file a Washington, DC, by the above date. A petitions for leave to intervene is supplement to the petition to intervene copy of the petition should also be sent discussed below. which must include a list of the to the Office of the General Counsel, By January 28, 2000, the licensee may contentions which are sought to be U.S. Nuclear Regulatory Commission, file a request for a hearing with respect litigated in the matter. Each contention Washington, DC 20555–0001, and to to issuance of the amendment to the must consist of a specific statement of Mark Wetterhahn, Esq., Winston & subject facility operating license and the issue of law or fact to be raised or Strawn, 1400 L Street, NW., any person whose interest may be controverted. In addition, the petitioner Washington, DC 20005, attorney for the affected by this proceeding and who shall provide a brief explanation of the licensee. wishes to participate as a party in the bases of the contention and a concise Non-timely filings of petitions for proceeding must file a written request statement of the alleged facts or expert leave to intervene, amended petitions, for a hearing and a petition for leave to opinion which support the contention supplemental petitions and/or requests intervene. Requests for a hearing and a and on which the petitioner intends to for hearing will not be entertained petition for leave to intervene shall be rely in proving the contention at the absent a determination by the
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Commission, the presiding officer or the quality and safety in completion of the liquid, and solid waste that might presiding Atomic Safety and Licensing component cooling water (CCW) and contain radioactive material. These Board that the petition and/or request SFPs ‘C’ and ‘D’ cooling and cleanup radioactive waste treatment systems are should be granted based upon a system piping; and (3) an unreviewed discussed in the Final Environmental balancing of the factors specified in 10 safety question for additional heat load Statement (FES, NUREG–0972) dated CFR 2.714(a)(1)(i)–(v) and 2.714(d). on the CCW system. October 1983, and evaluated in the For further details with respect to this The proposed action is in accordance Safety Evaluation Report (SER, NUREG– action, see the application for with the licensee’s application for 1083) dated November 1983. The amendment dated December 16, 1999, amendment dated December 23, 1998, proposal to increase the spent fuel which is available for public inspection as supplemented by letters dated April storage capacity at HNP will not involve at the Commission’s Public Document 30, June 14, July 23, September 3, any change in the waste treatment Room, the Gelman Building, 2120 L October 15, and October 29, 1999. systems described in the FES or SER. Street, NW., Washington, DC, and The Need for the Proposed Action Gaseous Radioactive Wastes accessible electronically through the ADAMS Public Electronic Reading The proposed action is needed for the Gaseous releases from the fuel storage Room link at the NRC web site (http:/ licensee to provide spent fuel storage area are combined with other plant /www.nrc.gov). capacity for all four CP&L nuclear units exhausts. Normally, the contribution (Harris, Brunswick 1 and 2, and from the fuel storage area is negligible Dated at Rockville, Maryland, this 17th day of December 1999. Robinson) through the end of their compared to the other releases and no current licenses. significant increases are expected as a For the Nuclear Regulatory Commission. HNP was originally planned as a four result of the expanded storage capacity. Robert J. Fretz, nuclear unit site and the fuel handling Storing spent fuel in four pools (instead Project Manager, Section 1, Project building (FHB) was designed and of the previous two pools) will result in Directorate IV & Decommissioning, Division constructed with four separate pools an increase in the SFP evaporation rate. of Licensing Project Management, Office of capable of storing spent fuel. HNP Units Nuclear Reactor Regulation. The licensee has determined that the 3 and 4 were canceled in late 1981 and increased evaporation will increase the [FR Doc. 99–33134 Filed 12–20–99; 8:45 am] HNP Unit 2 was canceled in late 1983. relative humidity of the fuel building BILLING CODE 7590±01±P The FHB, all four pools (including atmosphere by less than 10%. This liners), and the cooling and cleanup increase is within the capacity of both NUCLEAR REGULATORY system to support SFPs ‘A’ and ‘B’ were the normal and the Engineered Safety COMMISSION completed. However, construction on Feature (ESF) ventilation systems. The SFPs ‘C’ and ‘D’ was discontinued after net result of the increased heat loss and [Docket No. 50±400] Unit 2 was canceled and the system was water vapor emission to the not completed. HNP, Unit 1 began environment will be negligible. Carolina Power & Light Company; operation in 1987 with SFPs ‘A’ and ‘B’ Solid Radioactive Wastes Shearon Harris Nuclear Power Plant, in service. Unit 1, Environmental Assessment and As permitted by the HNP operating Spent resins are generated by the Finding of No Significant Impact license issued on January 12, 1987, processing of SFP water through the The U.S. Nuclear Regulatory CP&L has implemented a spent fuel SFP purification system. These spent Commission (the Commission) is shipping program. Spent fuel from resins are disposed of as solid considering issuance of an amendment Brunswick (2 BWR units) and Robinson radioactive waste. The necessity for to Facility Operating License No. NPF– (1 PWR unit) is shipped to HNP for pool filtration resin replacement is 63, issued to Carolina Power & Light storage in the HNP SFPs. CP&L ships determined primarily by the Company (CP&L, the licensee), for fuel to HNP in order to maintain full requirement for water clarity, and the operation of the Shearon Harris Nuclear core offload capability at Brunswick and resin is normally expected to be Power Plant, Unit 1, (HNP) located in Robinson. As a result of the operation of changed about once a year. The licensee Wake and Chatham Counties, North HNP, shipping program requirements, does not expect the resin change-out Carolina. and the unavailability of a Department frequency of the SFP purification of Energy (DOE) storage facility, it will system to be permanently increased as Environmental Assessment be necessary to activate SFPs ‘C’ and ‘D’ a result of the expanded storage Identification of the Proposed Action and the associated cooling and cleanup capacity. During racking operations, a system by early in the year 2000. small amount of additional resins may The proposed action would support a Activation of these pools will provide be generated by the pool cleanup system modification to HNP to increase the spent fuel storage capacity for all four on a one-time basis. spent fuel storage capacity by adding CP&L units through the end of their Radiological Impact Assessment rack modules to spent fuel pools (SFPs) current operating licenses. ‘C’ and ‘D’ and placing the pools in For this modification the licensee service. The proposed action consists of: Environmental Impacts of the Proposed plans to install region 2 (non-flux trap (1) A revision to Technical Specification Action style) rack modules in pools ‘C’ and ‘D’ (TS) 5.6 to identify pressurized water The Commission has completed its in incremental phases, on an as-needed reactor (PWR) burnup restrictions, evaluation of the proposed action and basis. The licensee estimates that the boiling water reactor (BWR) enrichment concludes there are no significant collective dose associated with the limits, pool capacities, heat load environmental impacts. The factors proposed fuel rack installation is in the limitations and nominal center-to-center considered in this determination are range of 2–3 person-rem. distances between fuel assemblies in the discussed below. All of the operations involved in racks to be installed in SFPs ‘C’ and ‘D’; racking will use detailed procedures (2) an alternative plan in accordance Radioactive Waste Treatment prepared with full consideration of with the requirements of 10 CFR 50.55a HNP uses waste treatment systems ALARA (as low as reasonably to demonstrate an acceptable level of designed to collect and process gaseous, achievable) principles. The HNP racking
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.290 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71515 project represents low radiological risk Issue 82.’’ The staff also issued NUREG/ Reactor Fuel,’’ NUREG–0575, Volumes because the pools currently contain no CR–5176, entitled ‘‘Seismic Failure and 1–3, was issued by the Commission in spent fuel. The Radiation Protection Cask Drop Analysis of the Spent Fuel August 1979. The finding of the FGEIS Department will prepare Radiation Pools at Two Representative Nuclear is that the environmental costs of Work Permits (RWPs) for the various Power Plants.’’ This report considers the interim storage are essentially jobs associated with the SFP rack structural integrity of the SFP and the negligible, regardless of where such installation operation. These RWPs will pool response to the circumstances spent fuel is stored. The storage of spent instruct the project personnel in the considered. Subsequently, the staff fuel, as evaluated in NUREG–0575, is areas of protective clothing, general issued NUREG/CR–5281, ‘‘Value/Impact considered to be an interim action, not dose rates, contamination levels and Analysis of Accident Preventative and a final solution to permanent disposal. dosimetry requirements. Personnel will Mitigative Options for Spent Fuel One spent fuel storage alternative wear protective clothing and will be Pools,’’ and NUREG–1353, ‘‘Regulatory considered in detail in the FGEIS is the required to wear personnel monitoring Analysis for the Resolution of Generic expansion of the onsite fuel storage equipment including alarming Issue 82: Beyond Design Basis capacity by modification of the existing dosimeters. Accidents in Spent Fuel Pools.’’ In SFPs. The Commission has approved Since the proposed license NUREG–1353, the staff determined that numerous applications for SFP amendment does not involve the no new regulatory requirements were expansion. The finding in each has been removal of any spent fuel racks, the warranted in relation to Generic Issue that the environmental impact of such licensee does not plan on using divers 82. increased storage capacity is negligible. for this project. However, if it becomes The staff believes that the probability However, since there are variations in necessary to use divers to remove any of severe structural damage occurring at storage design and limitations caused by interferences which may impede the HNP is extremely low. This belief is spent fuel already stored in the pools, installation of the new spent fuel racks, based upon the Commission’s the FGEIS recommended that licensing the licensee will equip each diver with requirements for the design and reviews be done on a case-by-case basis, the appropriate monitoring equipment. construction of SFPs and their contents The licensee will monitor and control and on the licensee’s adherence to to resolve plant-specific concerns. work, personnel traffic, and equipment approved industry codes and standards. Specific alternatives to the proposed movement in the SFP area to minimize For example, in the HNP case, the pools action are discussed below. contamination and to assure that are an integral part of the fuel building. Shipment of Fuel to a Permanent exposure is maintained ALARA. The SFPs and the spent fuel storage Federal Fuel Storage/Disposal Facility On the basis of its review of the HNP racks are Seismic Category 1, and thus, proposal, the staff concludes that the are required to remain functional during Shipment of spent fuel to a high-level increase in spent fuel storage capacity at and after a safe shutdown earthquake. In radioactive storage facility is an HNP can be accomplished in a manner the unlikely event of a total loss of the alternative to increasing the onsite spent that will ensure that doses to workers cooling system, makeup water sources fuel storage capacity. However, DOE’s will be maintained ALARA. are available to replace coolant lost high-level radioactive waste repository Accident Considerations through evaporation or boiling. is not expected to begin receiving spent Therefore, the staff concludes that the fuel until approximately 2010, at the In its application, the licensee potential for environmental impact from evaluated the possible consequences of earliest. In October 1996, the severe accidents is negligible. Administration did commit DOE to fuel handling accidents to determine The proposed action will not offsite doses. The proposed SFP rack begin storing wastes at a centralized significantly increase the probability or location by January 31, 1998. However, installation at HNP will not affect any consequences of accidents, no changes of the assumptions or inputs used in no location has been identified and an are being made in the types of any interim federal storage facility has yet to evaluating the dose consequences of a effluents that may be released offsite, fuel handling accident and, therefore, be identified in advance of a decision on and there is no significant increase in a permanent repository. Therefore, will not result in an increase in the occupational or public radiation doses from a postulated fuel handling shipping spent fuel to the DOE exposure. Therefore, there are no repository is not considered an accident. The proposed action will not significant radiological environmental change the procedures or equipment alternative to increased onsite spent fuel impacts associated with the proposed storage capacity at this time. used for, or the frequency of, fuel moves action. at HNP or fuel shipments from the With regard to potential Shipment of Fuel to a Reprocessing Brunswick and Robinson plants. nonradiological impacts, the proposed Facility Therefore, the probability of a action does not involve any historic postulated fuel handling accident will sites. It does not affect nonradiological Reprocessing of spent fuel from HNP not increase from that previously plant effluents and has no other is not a viable alternative since there are evaluated. environmental impact. Therefore, there no operating commercial reprocessing The staff has previously considered are no significant nonradiological facilities in the United States. Therefore, accidents whose consequences might environmental impacts associated with spent fuel would have to be shipped to exceed a fuel handling accident; that is, the proposed action. an overseas facility for reprocessing. beyond design basis events. One such Accordingly, the staff concludes that However, this approach has never been accident evaluated by the staff involves there are no significant environmental used and it would require approval by a structural failure of the SFP, resulting impacts associated with the proposed the Department of State as well as other in loss of all contained cooling water action. entities. Additionally, the cost of spent followed by heatup and a zirconium fuel reprocessing is not offset by the cladding fire. The details of this severe Alternatives to the Proposed Action salvage value of the residual uranium; accident are discussed in NUREG/CR– A ‘‘Final Generic Environmental reprocessing represents an added cost. 4982, entitled ‘‘Severe Accidents in Impact Statement (FGEIS) on Handling Therefore, this alternative is considered Spent Fuel Pools in Support of Generic and Storage of Spent Light Water Power unacceptable.
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Reduction of Spent Fuel Generation clad rupture due to high temperatures, NUCLEAR REGULATORY Improved usage of fuel and/or and high cost. COMMISSION operation at a reduced power level The environmental impacts of the would decrease the amount of fuel being alternative technologies discussed above [Docket Nos. 50±269, 50±270, and 50±287] stored in the pool and thus increase the and the proposed action are similar. Duke Power Company; Notice of amount of time before full core off-load The No-Action Alternative capability is lost. With extended burnup Availability of the Final Supplement 2 of fuel assemblies, the fuel cycle would As an alternative to the proposed to the Generic Environmental Impact be extended and fewer offloads would action, the staff also considered denial Statement for the License Renewal of be necessary. The licensee has already of the proposed action (i.e., the ‘‘no- Oconee Nuclear Station, Unit Nos. 1, 2, increased its fuel enrichment to 5 action’’ alternative). Denial of the and 3 percent and is currently operating on application would result in no change 18-month refueling cycles. Operating in current environmental impacts. Notice is hereby given that the U.S. the plant at a reduced power level Alternative Use of Resources Nuclear Regulatory Commission (the would not make effective use of Commission) has published a final available resources, and would cause This action does not involve the use plant-specific Supplement 2 to the unnecessary economic hardship on of any resources not previously Generic Environmental Impact CP&L and its customers. Therefore, considered in the Final Environmental Statement for License Renewal of reducing the amount of spent fuel Statement for HNP. Nuclear Plants (GEIS) (NUREG–1437) generated by increasing burnup further Agencies and Persons Consulted regarding the renewal of operating or reducing power is not considered a licenses DPR–38, DPR–47, and DPR–55 practical alternative. In accordance with its stated policy, for an additional 20 years of operation Alternative Creation of Additional on December 2 and 3, 1999, the staff at the Oconee Nuclear Station (ONS) Storage Capacity consulted with North Carolina State Units 1, 2, and 3, respectively. ONS is officials, Mr. Richard M. Fry and Mr. located in Oconee County, South Alternative technologies that would Johnny James of the North Carolina Carolina. Possible alternatives to the create additional storage capacity Department of Environment and Natural proposed action (license renewal) include rod consolidation, dry cask Resources, regarding the environmental storage, and modular vault dry storage. include no action and reasonable impact of the proposed action. The State alternative energy sources. Rod consolidation involves officials stated that they had no disassembling the spent fuel assemblies objection to the finding. However, they In Section 9.3 of the report, the staff and storing the fuel rods from two or requested that the staff hold a public concludes: more assemblies in a stainless steel meeting in Raleigh, North Carolina to Based on (1) the analysis and findings in canister that can be stored in the spent discuss the license amendment review the Generic Environmental Impact Statement fuel racks. Industry experience with rod process, the results of the review for for License Renewal of Nuclear Power Plants, consolidation is currently limited, HNP’s proposed amendment, and the NUREG–1437, (2) the ER [Environmental primarily due to concerns for potential analysis that led to this environmental Report] submitted by Duke, (3) consultation gap activity release due to rod breakage, assessment finding. with other Federal, State, and local agencies, the potential for increased fuel cladding (4) the staff’s own independent review, and Finding of No Significant Impact corrosion due to some of the protective (5) the staff’s consideration of public oxide layer being scraped off, and On the basis of the environmental comments, the staff recommends that the because the prolonged consolidation assessment, the Commission concludes Commission determine that the adverse activity could interfere with ongoing that the proposed action will not have environmental impacts of license renewal for plant operations. Dry cask storage is a a significant effect on the quality of the Oconee Nuclear Station, Units 1, 2, and 3 are method of transferring spent fuel, after human environment. Accordingly, the not so great that preserving the option of storage in the pool for several years, to Commission has determined not to license renewal for energy planning high capacity casks with passive heat prepare an environmental impact decisionmakers would be unreasonable. dissipation features. After loading, the statement for the proposed action. casks are stored outdoors on a The final supplement to the GEIS for For further details with respect to the seismically qualified concrete pad. ONS is available for public inspection proposed action, see the licensee’s letter Concerns for dry cask storage include and copying at the Commission’s Public dated December 23, 1998, as the potential for fuel or cask handling Document Room at the Gelman supplemented by letters dated April 30, accidents, potential fuel clad rupture Building, 2120 L Street NW., June 14, July 23, September 3, October due to high temperatures, increased Washington, DC. 15, and October 29, 1999, which are land use, construction impacts, the need available for public inspection at the FOR FURTHER INFORMATION, CONTACT: Mr. for additional security provisions, and Commission’s Public Document Room, James H. Wilson, Generic Issues, high costs. Vault storage consists of The Gelman Building, 2120 L Street, Environmental, Financial, and storing spent fuel in shielded stainless NW., Washington, DC. Rulemaking Branch, Division of steel cylinders in a horizontal Regulatory Improvement Programs, U.S. configuration in a reinforced concrete Dated at Rockville, Maryland, this 15th day Nuclear Regulatory Commission, vault. The concrete vault provides of December 1999. missile and earthquake protection and For the Nuclear Regulatory Commission. Washington, DC 20555. Mr. Wilson can radiation shielding. Concerns for vault Richard P. Correia, be contacted at (301) 415–1108 or by dry storage include the need for Chief, Section 2, Project Directorate II, writing to: James H. Wilson, U.S. additional security provisions, Division of Licensing Project Management, Nuclear Regulatory Commission, MS 0– increased land use, construction Office of Nuclear Reactor Regulation. 11 F1, Washington, DC 20555. impacts, eventual decommissioning of [FR Doc. 99–33023 Filed 12–20–99; 8:45 am] Dated at Rockville, Maryland, this 9th day the new vault, the potential for fuel or BILLING CODE 7590±01±P of December 1999.
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For the Nuclear Regulatory Commission. regarding matters to be considered The request was filed in response to a David B. Matthews, during the balance of the meeting. notice of consideration by the Nuclear Director, Division of Regulatory Improvement The Subcommittee will then hear Regulatory Commission of a request for Programs, Office of Nuclear Reactor presentations by and hold discussions renewal of the 10 CFR Part 70 license Regulation. with representatives of the NRC staff, its for the General Electric Vallecitos [FR Doc. 99–33022 Filed 12–20–99; 8:45 am] consultants, and other interested Nuclear Center. The renewal application BILLING CODE 7590±01±P persons regarding these matters. requests authorization to receive and Further information regarding topics possess special nuclear material and to to be discussed, whether the meeting use special nuclear material in research NUCLEAR REGULATORY has been canceled or rescheduled, the and development activities involving COMMISSION Subcommittee’s ruling on requests for chemical and physical analysis. The the opportunity to present oral notice of consideration of the renewal Advisory Committee on Reactor statements and the time allotted therefor application and opportunity for hearing Safeguards and Advisory Committee can be obtained by contacting the was published in the Federal Register at on Nuclear Waste; Joint Subcommittee cognizant senior fellow, John N. 64 FR 45,289 (Aug. 19, 1999). Meeting; Notice of Meeting Sorensen (telephone 301/415–7372) The Presiding Officer in this proceeding is Administrative Judge The ACRS and ACNW Joint between 8 a.m. and 5:45 p.m. (EST) or Alan S. Rosenthal. Pursuant to the Subcommittee will hold a meeting on by e-mail [email protected] or staff provisions of 10 CFR 2.722, 2.1209, January 13–14, 2000, Room T–2B3, engineer, Michael T. Markley Administrative Judge Thomas D. 11545 Rockville Pike, Rockville, (telephone: 301–415–6885). Persons Murphy has been appointed to assist the Maryland. planning to attend this meeting are The meeting will be open to public urged to contact the above-named Presiding Officer in taking evidence and attendance. individuals one to two working days in preparing a suitable record for The agenda for the subject meeting prior to the meeting to be advised of any review. shall be as follows: potential changes in the proposed All correspondence, documents, and other materials shall be filed with Judge Thursday, January 13, 2000—8:30 a.m. agenda, etc., that may have occurred. Rosenthal and Judge Murphy in until 5 p.m. Dated: December 15, 1999. accordance with 10 CFR 2.1203. Their Friday, January 14, 2000—8:30 a.m. Howard J. Larson, addresses are: until 12 Noon Acting Associate Director for Technical Administrative Judge Alan S. Rosenthal, The Advisory Committee on Reactor Support, ACRS/ACNW. Presiding Officer, Atomic Safety and Safeguards and Advisory Committee on [FR Doc. 99–33019 Filed 12–20–99; 8:45 am] Licensing Board Panel, U.S. Nuclear Nuclear Waste Joint Subcommittee will BILLING CODE 7590±01±P Regulatory Commission, Washington, discuss the defense-in-depth philosophy DC 20555–0001 in the regulatory process, including its Administrative Judge Thomas D. role in the licensing of a high-level NUCLEAR REGULATORY COMMISSION Murphy, Special Assistant, Atomic waste repository, its role in revising the Safety and Licensing Board Panel, regulatory structure for nuclear reactors, [Docket No. 70±754±MLA and ASLBP No. U.S. Nuclear Regulatory Commission, and how the two applications should be 00±774±02±MLA] Washington, DC 20555–0001 related to each other. The discussion will also include the role of defense in General Electric Company; Issued at Rockville, Maryland, this 15th depth in the regulation of nuclear Designation of Presiding Officer day of December 1999. materials applications, and other related G. Paul Bollwerk III, Pursuant to delegation by the matters. The purpose of this meeting is Chief Administrative Judge, Atomic Safety Commission dated December 29, 1972, to gather information, analyze relevant and Licensing Board Panel. published in the Federal Register, 37 FR issues and facts, and formulate [FR Doc. 99–33018 Filed 12–20–99; 8:45 am] 28,710 (1972), and Sections 2.1201 and proposed positions and actions, as BILLING CODE 7590±01±P 2.1207 of Part 2 of the Commission’s appropriate, for deliberation by the full Regulations, a single member of the Committees. Atomic Safety and Licensing Board Oral statements may be presented by NUCLEAR REGULATORY Panel is hereby designated to rule on members of the public with the COMMISSION petitions for leave to intervene and/or concurrence of the Subcommittee; requests for hearing and, if necessary, to Draft Regulatory Guide; Issuance, written statements will be accepted and serve as the Presiding Officer to conduct Availability made available to the Subcommittee. an informal adjudicatory hearing in the Electronic recordings will be permitted The Nuclear Regulatory Commission following proceeding: only during those portions of the has issued for public comment a draft of meeting that are open to the public, and General Electric Company, Vallecitos a new guide in its Regulatory Guide questions may be asked only by Nuclear Center Series. This series has been developed members of the Subcommittee, its The hearing, if granted, will be to describe and make available to the consultants, and staff. Persons desiring conducted pursuant to 10 CFR Part 2, public such information as methods to make oral statements should notify Subpart L, of the Commission’s acceptable to the NRC staff for the cognizant ACRS/ACNW staff Regulations, ‘‘Informal Hearing implementing specific parts of the members named below five days prior Procedures for Adjudications in NRC’s regulations, techniques used by to the meeting, if possible, so that Materials and Operator Licensing the staff in evaluating specific problems appropriate arrangements can be made. Proceedings.’’ This proceeding concerns or postulated accidents, and data During the initial portion of the a request for hearing submitted by Tri- needed by the staff in its review of meeting, the Subcommittee, along with Valley CAREs, the Western States Legal applications for permits and licenses. any consultants who may be present, Foundation, Save Our Sunol, and The draft guide, temporarily may exchange preliminary views Citizens Along the Roads and Tracks. identified by its task number, DG–1086
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(which should be mentioned in all Dated at Rockville, Maryland, this 8th day 2,6 respectively, to the proposed rule correspondence concerning this draft of December 1999. change. This order approves the guide), is titled ‘‘Criterion for Triggering For the Nuclear Regulatory Commission. proposed rule change and grants a Review Under 10 CFR 50.80 for Non- Charles E. Ader, accelerated approval to Amendments Owner Operator Service Companies.’’ Director, Program Management, Policy No. 1 and No. 2. The Commission is also This guide is being developed to Development & Analysis Staff, Office of soliciting comment on Amendments No. provide information so that the nuclear Nuclear Regulatory Research. 1 and No. 2 to the proposed rule change. industry and the NRC staff may have a [FR Doc. 99–33020 Filed 12–20–99; 8:45 am] common understanding for deciding BILLING CODE 7590±01±P II. Description of the Proposed Rule when the use of a non-owner operating Change service company would require NRC A. Background review and approval. SECURITIES AND EXCHANGE This draft guide has not received COMMISSION In February 1999, the Blue Ribbon complete staff approval and does not Committee on Improving the represent an official NRC staff position. [Release No. 34±42232; File No. SR±Amex± Effectiveness of Corporate Audit Comments may be accompanied by 99±38] Committees (‘‘Blue Ribbon Committee’’) relevant information or supporting data. Self-Regulatory Organizations; Order issued a report containing Written comments may be submitted to recommendations aimed at the Rules and Directives Branch, Office Approving Proposed Rule Change by strengthening the independence of the of Administration, U.S. Nuclear the American Stock Exchange LLC audit committee; making the audit Regulatory Commission, Washington, Amending the Exchange's Audit committee more effective; and DC 20555. Copies of comments received Committee Requirements and Notice may be examined at the NRC Public of Filing and Order Granting addressing mechanisms for Document Room, 2120 L Street NW., Accelerated Approval of Amendments accountability among the audit Washington, DC. Comments will be No. 1 and No. 2 Thereto committee, the outside auditors, and 7 most helpful if received by February 29, management. In response to the Blue 2000. December 14, 1999. Ribbon Committee’s recommendations, You may also provide comments via I. Introduction the Exchange proposes to amend its the NRC’s interactive rulemaking listing standards regarding audit website through the NRC home page On September 20, 1999, the American committee requirements. The proposed (http://www.nrc.gov). This site provides Stock Exchange LLC (‘‘Amex’’ or changes cover three general areas: (1) the availability to upload comments as ‘‘Exchange’’) submitted to the Securities The definition of independence; (2) the files (any format), if your web browser and Exchange Commission (‘‘SEC’’ or structure and membership of the audit supports that function. For information ‘‘Commission’’), pursuant to Section committee; and (3) the audit committee about the interactive rulemaking 19(b)(1) of the Securities Exchange Act charter. 1 website, contact Ms. Carol Gallagher, of 1934 (‘‘Act’’) and Rule 19b–4 thereunder,2 a proposed rule change The text of the proposed rule change, (301) 415–5905; e-mail [email protected]. as amended by Amendments No. 1 and For information about the draft guide amending the Exchange’s audit committee requirements. No. 2, is as follows. Language deleted by and the related documents, contact Mr. Amendments No. 1 and No. 2 is in M.J. Davis at (301) 415–1016; e-mail The Federal Register published the brackets. Language added by [email protected]>. proposed rule change for comment on Although a time limit is given for October 13, 1999.3 In response, the Amendments No. 1 and No. 2 is in comments on this draft guide, Commission received 12 comment italics. 4 comments and suggestions in letters. On November 15, 1999 and change required issuers to adopt the required connection with items for inclusion in December 9, 1999, the Exchange charter within eighteen months of the effective date guides currently being developed or submitted Amendments No. 1 5 and No. of the proposed rule change. Amendment No. 1 also improvements in all published guides states that issuers that applied for listing prior to 1 the effective date of the proposed rule change are encouraged at any time. 15 U.S.C. 78s(b)(1). 2 17 CFR 240. 19b–4. would qualify for listing under the listing standards Regulatory guides are available for in force at the time of their application, and receive 3 Securities Exchange Act Release No. 41981 (Oct. inspection at the Commission’s Public the same grace periods provided to currently listed 6, 1999), 64 FR 55505. The Nasdaq Stock Market, issuers. Document Room, 2120 L Street NW., Inc. and The New York Stock Exchange, Inc. have 6 Washington, DC. Requests for single proposed rule changes relating to audit committees. Letter from Sara Nelson Bloom, Associate copies of draft or final guides (which See Securities Exchange Act Release No. 41982 General Counsel, Nasdaq-Amex Market Group, to Richard Strasser, Assistant Director, Division, may be reproduced) or for placement on (Oct. 6, 1999), 64 FR 55510 (Oct. 13, 1999) (‘‘Nasdaq Proposal’’), and Securities Exchange Act Release Commission, dated December 8, 1999 an automatic distribution list for single No. 41980 (Oct. 6, 1999), 64 FR 55514 (Oct. 13, (‘‘Amendment No. 2’’). The Exchange submitted copies of future draft guides in specific 1999) (‘‘NYSE Proposal’’). Amendment No. 2 to revise proposed Section divisions should be made in writing to 4 Most commenters favored the proposed rule 121B(a)(ii) of the Amex Company Guide to provide the U.S. Nuclear Regulatory change but recommended certain modifications to that the audit committee is required to oversee the independence of the outside auditor, rather than Commission, Washington, DC 20555, the proposed rules. The comment letters are discussed in Section III of this order. ensure the independence of the outside auditor. Attention: Reproduction and 5 Letter from Robert E. Aber, Senior Vice Amendment No. 2 also revises the Exchange’s Distribution Services Section; or by fax President and General Counsel, Nasdaq-Amex definition of immediate family found in Section to (301)415–2289, or by e-mail to Market Group, to Richard Strasser, Assistant 121A(c) to include sons-in-law and daughters-in-
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Section 121. INDEPENDENT structure, processes, and membership and its shareholders, and the board DIRECTORS AND AUDIT COMMITTEE requirements; discloses, in the next annual proxy (ii) the audit committee’s A. Independent Directors: statement subsequent to such responsibility for ensuring its receipt The Exchange requires that domestic determination, the nature of the from the outside auditors of a formal listed companies have a sufficient relationship and the reasons for that written statement delineating all number of independent directors to determination. relationships between the auditor and (iii) Exception for Small Business satisfy the audit committee requirement the company, consistent with Filers—Paragraphs (b)(i) and (b)(ii) do set forth below. Independent directors Independence Standards Board not apply to issuers that file reports are not officers of the company and are, Standard 1, and the audit committee’s under SEC Regulation S–B. Such issuers in the view of the company’s board of responsibility for actively engaging in a must establish and maintain an Audit directors, free of any relationship that dialogue with the auditor with respect Committee of at least two members, a would interfere with the exercise of to any disclosed relationships or majority of the members of which shall independent judgment. The following services that may impact the objectivity be independent directors. persons shall not be considered and independence of the auditor and for B. Independence independent: taking, or recommending that the full (a) A director who is employed by the board take, appropriate action to The Exchange proposes to narrow its corporation or any of its affiliates for the [ensure] oversee the independence of current definition of ‘‘independent current year or any of the past three the outside auditor; and director’’ by specifying five new years; (iii) the outside auditor’s ultimate relationships that could repair a (b) A director who accepts any accountability to the board of directors director’s independent judgment as a compensation from the corporation or and the audit committee, as result of financial, familial, or other any of its affiliates in excess of $60,000 representatives of shareholders, and material ties to management or the during the previous fiscal year, other these shareholder representatives’ corporation. The proposed definition than compensation for board service, ultimate authority and responsibility to will apply to all directors, not just those benefits under a tax-qualified retirement select, evaluate, and, where appropriate, serving on audit committees. Under the plan, or non-discretionary replace the outside auditor (or to proposed rule change, directors with compensation; nominate the outside auditor to be any of the following five relationships (c) A director who is a member of the proposed for shareholder approval in will not be considered independent: (1) immediate family of an individual who any proxy statement). Employment by the corporation or any is, or has been in any of the past three of its affiliates for the current year or years, employed by the corporation or (b) Composition any of the past three years; (2) any of its affiliates as an executive (i) Each issuer must have, and certify acceptance of any compensation from officer. Immediate family includes a that it has and will continue to have, an the corporation or any of its affiliates in person’s spouse, parents, children, audit committee of at least three excess of $60,000 during the previous siblings, mother-in-law, father-in-law, members, comprised solely of fiscal year, other than compensation for brother-in-law, sister-in-law, son-in-law, independent directors, each of whom is board service, benefits under a tax- daughter-in-law, and anyone who able to read and understand qualified retirement plan, or non- resides in such person’s home; fundamental financial statements, discretionary compensation; (3) member (d) A director who is a partner in, or including a company’s balance sheet, of the immediate family of an individual a controlling shareholder or an income statement, and cash flow who is, or has been in any of the past executive officer of, any for-profit statement or will become able to do so three years, employed by the business organization to which the within a reasonable period of time after corporation or any of its affiliates as an corporation made, or from which the his or her appointment to the audit executive officer; (4) partnership in, or corporation received, payments (other committee. Additionally, each issuer a controlling shareholder or an than those arising solely from must certify that it has, and will executive officer, or any for-profit investments in the corporation’s continue to have, at least one member business organization to which the securities) that exceed 5% of the of the audit committee that has past corporation made, or from which the corporation’s or business organization’s employment experience in finance or corporation received, payments (other consolidated gross revenues for that accounting, requisite professional than those arising solely from year, or $200,000, whichever is more, in certification in accounting, or any other investments in the corporation’s any of the past three years; comparable experience or background securities) that exceed five percent of (e) A director who is employed as an which results in the individual’s the corporation’s or business executive of another entity where any of financial sophistication, including being organization’s consolidated gross the company’s executives serve on that or having been a chief executive officer, revenues for that year, or $200,000, entity’s compensation committee. chief financial officer or other senior whichever is more, in any of the past B. Audit Committee: officer with financial oversight three years; or (5) employment as an responsibilities. (a) Charter executive of another entity where any of (ii) Notwithstanding paragraph (i), the company’s executives serve on that Each Issuer must certify that it has one director who is not independent as entity’s compensation committee. adopted a formal written audit defined in [Rule 4200] Season 121A, committee charter and that the Audit and is not a current employee or an C. Structure and Membership of the Committee has reviewed and reassessed immediate family member of such Audit Committee the adequacy of the formal written employee, may be appointed to the The Exchange also proposes to change charter on an annual basis. The charter audit committee, if the board, under the structure and membership must specify the following: exceptional and limited circumstances, qualifications of the audit committee. (i) the scope of audit committee’s determines that membership on the Specifically, the Exchange proposes to responsibilities, and how it carries out committee by the individual is required change the required composition of the those responsibilities, including by the best interests of the corporation audit committee from at least two to at
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Charter that issuers listed as of the effective date appropriately conclude that it would be of the rule change be provided six in the best interests of the corporation The Exchange believes that a written months following the date of for a non-independent director to serve charter will help the audit committee as Commission approval of the proposed on the audit committee. In such well as management and the rule change to adopt a formal written exceptional and limited circumstances, corporation’s auditors recognize the audit committee charter as required by a non-independent director can serve on function of the audit committee and the proposed Section 121(B)(a) of the Amex the audit committee, provided that the relationship among these parties. The Company Guide.10 board determines that it is required by proposed rule change requires each Further, for issuers that applied for the best interests of the corporation and issuer to adopt a formal written charter. listing prior to the effective date of the its shareholders, and the board discloses This charter must specify the scope of proposed rule change, the Exchange its reasons for the determination in the the audit committee’s responsibilities, proposes that they be able to qualify for next annual proxy statement. Due to the and how the committee carriers out listing under the listing standards in nature of this exception, however, a those responsibilities, including force at the time of their application, corporation could have no more than structure, processes, and membership and to receive the same grace periods one non-independent director serving requirements. In addition, the charter provided to currently listed issuers, as on its audit committee. Also, current must specify the audit committee’s described above. Also, in order to avoid employees or officers, or their responsibility for ensuring its receipt prejudicing issuers that transfer to the immediate family members, may not from the outside auditors of a formal Exchange from Nasdaq and the New serve on the audit committee under this written statement delineating all York Stock Exchange, the Exchange exception. relationships between the auditor and proposes that these issuers be afforded As a result of the audit committee’s the company, consistent with the same grace periods they would have responsibility for a corporation’s Independence Standards Board 9 received under their previous market’s accounting and financial reporting, the Standard 1. The charter must specify implementation schedule. Exchange believes that audit committee the audit committee’s responsibility for members should have a basic actively engaging in a dialogue with the III. Comments understanding of financial statements. auditor with respect to any disclosed As of December 9, 1999, the Therefore, the proposed rule change relationships or services that may Commission received 12 comment requires each member of the audit impact the objectivity and letters on the proposed rule change.11 In committee to be able to read and independence of the auditor and for general, the commenters favored the understand fundamental financial taking, or recommending that the full proposed rule change but recommended statements, including a company’s board take, appropriate action to oversee certain modifications. One commenter balance sheet, income statement, and the independence of the outside auditor. stated that it does not support the new cash flow statement, or become able to Finally, it must specify the outside rules.12 do so within a reasonable period of time auditor’s ultimate accountability to the In particular, the CII supports the new after his or her appointment to the audit board of directors and the audit requirements, but stated that the committee. Furthermore, in order to committee, as representatives of proposed override provision, which further enhance the effectiveness of the shareholders, and these shareholder allows a company’s board to include a audit committee, at least one member of representatives’ ultimate authority and non-independent director on the audit the audit committee must have past responsibility to select, evaluate, and, committee is not appropriate because employment experience in finance or where appropriate, replace the outside companies should not have a problem accounting, requisite professional auditor (or to nominate an outside for certification in accounting, or any other shareholder approval in any proxy 10 See Amendment No. 1, supra n.5. comparable experience or background statement). The proposed rule change 11 See letters from: Ernst & Young LLP (‘‘E&Y’’) that results in the individuals’ financial requires issuers to review their charter dated November 1, 1999; Dorsey & Whitney LLP on an annual basis. (‘‘Dorsey’’) (on behalf of nine closed-end investment sophistication, including being or management companies whose stock is listed on the having been a chief executive officer, E. Implementation Exchange) dated October 28, 1999; Deloitte & chief financial officer, or other senior Touche LLP (‘‘Deloitte’’) dated November 3, 1999; officer with financial oversight In order to minimize disruption to Council of Institutional Investors (‘‘CII’’) dated responsibilities. existing issuer audit committees, to November 8, 1999; Brian T. Borders on behalf of the permit current audit committee National Venture Capital Association (‘‘NVCA’’) The Exchange is sensitive to the dated November 12, 1999; Investment Company potential burden that the proposed members to serve out their terms, and to Institute (‘‘ICI’’) dated November 3, 1999; American changes to the audit committee allow adequate time to recruit the Federation of Labor and Congress of Industrial composition requirements may place on requisite members, the Exchange Organizations (‘‘AFL–CIO’’) dated November 29, proposes to provide its issuers listed as 1999; Mayer, Brown & Platt on behalf of Morgan small companies. Therefore, the Stanley Dean Witter (‘‘MSDW’’) dated November Exchange proposes to exempt those of the effective date of the proposed rule 29, 1999; Association of Publicly Traded corporations that file under SEC Companies (‘‘APTC’’) dated December 6, 1999; (iii) if a majority owned subsidiary, the parent Robert A. Profusek (‘‘Profusek’’) dated December 3, Regulation S–B from these proposed corporation is a small business issuer. 17 CFR 1999; Stanley Keller and Richard Rowe (‘‘Keller and 8 changes (‘‘Small Business Filers’’). 228.10(a)(1). Rowe’’) dated December 7, 1999; and The 9 Independence Standard No. 1, Independence Committee on Securities Regulation of the Business 8 Small Business Filer is defined by Regulation S– Discussions with Audit Committees (January 1999), Law Section of the New York State Bar Association B as an issuer that: (i) has revenue of less than which can be found on-line at (‘‘NYSBA’’) dated December 1, 1999. $25,000,000; (ii) is a U.S. or Canadian issuer; and www.cpaindependence.org. 12 APTC Letter at 2.
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Discussion five years instead of three years.14 The change will be counter productive to the AFL–CIO also stated that the $60,000 goal of better audit committees.25 In The Commission finds that the threshold to disqualify a candidate addition, APTC stated that the proposed proposed rule change is consistent with because of a significant relationship is rule chnage will disadvantage smaller the requirements of the Act and the not stringent enough.15 Another companies more than larger companies, rules and regulations thereunder commenter, on the other hand, stated but concluded that it is appropriate to applicable to a national securities that a quantitative test is too apply the proposed change to all exchange,35 and, in particular, the inflexible.16 Keller and Rowe stated that companies, regardless of size.26 requirements of Section 6(b)(5) of the former non-executive employment Moreover, APTC is opposed to the Act.36 The Commission believes that the should be treated as a significant proposal’s financial literacy proposed rule change will protect business relationship.17 Keller and requirement.27 APTC believes that the investors by improving the effectiveness Rowe also stated that consultants who financial literacy requirement may of audit committees of companies listed receive from the company more than a deprive audit committees of the service on the Exchange. The Commission also de minimis amount of compensation of individuals with ‘‘exceptional believes that the new requirements will should be treated as employees, while character and/or operation enhance the reliability and credibility of consultants who do not should be experience.’’28 The commenter financial statements of companies to treated as having a business relationship suggested that the Exchange replace this inappropriately distort their true with the company.18 According to this requirement with a requirement that the financial performance. Further, the comment letter, the company’s board committee as a whole possess a certain Commission also notes that the should be permitted to determine that level of financial acumen.29 Exchange is amending its own listing the compensation does not impair the In addition, the NVCA stated that the standards, which is a function within director’s objectivity. Keller and Rowe proposed rule change should exclude the Exchange’s discretion, as long as also objected to the financial expertise venture capital investors from the those changes are consistent with the requirement and stated that no director independence qualifications.30 The Act. will want to be designated the financial NVCA also stated that the proposed rule Specifically, the Commission believes expert because of the added exposure to change should give companies that have that the proposed definition of liability.19 just completed an initial public offering independence will promote the quality Deloitte stated that requiring a eighteen months to comply with the and reliability of a company’s financial company’s board or audit committee to new requirements and that the statements. The Commission believes ‘‘ensure’’ the independence of the exemption for Small Business Filers that directors without financial, outside auditor goes beyond what can should be expanded to apply to familial, or other material personal ties reasonably be expected of the board and companies with less than $50 million in to management will be more likely to the audit committee in their oversight revenue.31 objectively evaluate the propriety of role.20 Deloitte suggested that the Finally, three commenters stated that management’s accounting, internal Exchange replace the word ‘‘ensure’’ the proposed rule change should not control, and financial reporting with ‘‘monitor’’ or ‘‘actively oversee.’’21 apply to closed-end investment practices. For these reasons, the E&Y supported the proposed rule companies.32 ICI and MSDW noted that Commission believes that the proposal’s change, but stated that the Exchange closed-end investment companies are prohibition against employees serving should not exempt Small Business adequately regulated under the 1940 on the audit committee is appropriate Filers from the financial literacy and Act.33 These two commenters also and that the Exchange should not be expertise requirements and also should stated that the potential abuses that the required to distinguish between expand its definition of immediate proposed rule change is designed to executive and non-executive 37 family member to include sons-in-law address do not exist with respect to employees. and daughters-in-law.22 NYSBA stated closed-end investment funds, because The Commission also believes that the that the company’s board should be the assets of closed-end funds consist proposed provision that permits a required to adopt the audit committee exclusively of investment securities and company to appoint one director to its charter, rather than the audit committee audit committee who is not adopting the charter subject to board 24 Id. at 4–5. independent, if the board determines approval.23 NYSBA also opposed 25 APTC Letter at 2. that membership on the committee by requiring the audit committee to 26 Id. at 3. the individual is required by the best 27 Id. at 4–5. interests of the corporation and its 28 13 CII Letter, at 2; see also AFL–CIO Letter at 2. Id. shareholders, adequately balances the 29 14 AFL–CIO Letter at 2. Id. at 5. need for objective, independent 30 15 Id. NVCA Letter at 5. directors with the company’s need for 31 16 Profusek Letter at 2. In addition, Keller and Id. at 4. flexibility in exceptional and unusual Rowe stated that this provision might preclude a 32 ICI Letter at 2; MSDW Letter at 1; Keller and number of highly qualified candidates from serving Rowe letter at 5. In addition, Keller and Rowe stated 34 ICI Letter at 3; MSDW letter at 1. ICI and on audit committees. Keller and Rowe Letter at 3. that the proposed rule change should exempt all MSDW also noted that the independent accountants 17Keller and Rowe Letter at 2. investment companies because their audit committee members are already required not to be of investment funds are selected by the 18Id. at 3. ‘‘interested persons’’ as that term is defined in independent directors of the fund. 19 Id.; see also NYSBA Letter at 6. Section 2(a)(9) of the Investment company Act of 35 In approving the proposal, the Commission has 20 Deloitte Letter, at 1. 1940 (‘‘1940 Act’’). Moreover, Dorsey supported the considered its impact on efficiency, competition, 21 Id. at 2. application of the proposed rule change to and capital formation. 15 U.S.C. 78c(f). 22 E&Y Letter at 4. investment companies. Dorsey Letter at 3. 36 15 U.S.C. 78f(b)(5). 23 NYSBA Letter at 2. 33 ICI Letter at 3–4; MSDW Letter at 2. 37 See Keller and Rowe Letter at 2.
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The Commission believes that company disclose in its next proxy requirement that each issuer have an Amendment No. 1 will enable issuers to statement the nature of the director’s audit committee composed of three determine when they must comply with relationship to the issuer and the independent directors who are able to the new requirements and will enable board’s reasons for determining the read and understand fundamental investors to determine when to rely on appointment was in the best interests of financial statements will enhance the the protections afforded by the proposed the corporation will adequately guard effectiveness of the audit committee and rule change. The Commission notes that against abuse of the proposed exception help to ensure that audit committee Amendment No. 2 simply clarifies that to the independence requirement. members are able to adequately fulfill the audit committee is required to Moreover, the Commission believes that their responsibilities. The Commission oversee, rather than ensure, the the $60,000 threshold to determine if a believes that requiring each audit independence of the company’s outside potential audit committee director has a committee member to satisfy this auditors; makes a technical correction to significant business relationship with standard will help to ensure that the section 121A; and expands the the company is a reasonable measure to committee as a whole is financially Exchange’s definition of ‘‘immediate balance the company’s need to recruit literate.39 Moreover, the Commission family.’’ The Commission believes that audit committee members with the considers that requiring one member of accelerated approval will allow the independence requirement.38 the audit committee to have past Exchange to simultaneously make all The Commission does not believe that employment experience in finance or relevant modifications to the Amex venture capital investors should be accounting, requisite professional Company Guide and will avoid excluded from the Exchange’s definition certification in accounting, or any other potential confusion. Accordingly, the of independence. The Commission does comparable experience or background Commission finds good cause to not view the proposed rule change as that indicates the individual’s financial accelerate approval of Amendments No. posing an undue hardship on venture sophistication, will further enhance the 1 and No. 2 to the proposed rule change, capital firms or companies listed on the effectiveness of the audit committee in consistent with sections 6(b)(5) 41 and Amex. The Commission notes that the carrying out its financial oversight 19(b) 42 of the Act. proposed rule change will only prohibit responsibilities. In addition, the venture capital investors from sitting on Commission does not believe that V. Solicitation of Comments a company’s audit committee if the companies will experience undue Interested persons are invited to investor does not fall within the difficulty recruiting an audit committee submit written data, views and Exchange’s definition of independent. member that satisfies the financial arguments concerning the foregoing, The proposed rule change will not expertise requirements. Moreover, the including whether the proposed rule prohibit previously eligible investors Commission believes that the proposed change is consistent with the Act. from serving on the company’s board. rule change appropriately exempts Persons making written submissions The Commission also notes that a Small Business Filers from the proposed should file six copies thereof with the venture capital investor that is not composition requirements because these Secretary, Securities and Exchange considered independent may serve on companies may experience more Commission, 450 Fifth Street, NW., the company’s audit committee, if the difficulty meeting these enhanced Washington, DC 20549–0609. Copies of board determines it is in the best requirements. The Commission notes the submission, all subsequent interests of the corporation and its that these companies will remain amendments, all written statements shareholders and the company discloses subject to existing Exchange rules on with respect to the proposed rule its reasons for the determination and the audit committees, which require an change that are filed with the nature of the director’s relationship to audit committee to have at least two Commission, and all written the company in its next annual proxy members, a majority of whom are communications relating to the statement. independent. proposed rule change between the Moreover, the Commission has In addition, the Commission believes Co9mmission and any persons, other concluded that the Exchange’s decision that requiring companies to adopt than those that may be withheld from to include investment companies in the formal written charters specifying the the public in accordance with the proposed rule change is warranted. audit committee’s responsibilities, and provisions of 5 U.S.C. 552, will be While the Commission recognizes that how it carries out those responsibilities, available for inspection and copying in the opportunity for some types of will help the audit committee, the Commission’s Public Reference financial reporting abuses may be management, investors, and the Room. Copies of such filing will also be limited by the nature of fund assets,40 it company’s auditors recognize the available for inspection and copying at believes that audit committee do play an function of the audit committee and the the principal office of the Amex. All important role in overseeing the relationship among the parties. submissions should refer to the File No. financial reporting process for Moreover, the Commission believes that SR–Amex–99–38 and should be investment companies. requiring the charter to specify that the submitted by January 11, 2000 audit committee is responsible for The Commission finds good cause for taking, or recommending that the approving Amendments No. 1 and No. VI. Conclusion company’s full board take, appropriate 2 to the proposed rule change prior to the thirtieth day after publication in the For the foregoing reasons, the action to oversee the independence of Commission finds that the Exchange’s the outside auditor will make it more Federal Register. The Commission notes that Amendment No. 1 revises the proposal to amend its audit committee likely that companies will select requirements is consistent with the objective, unbiased auditors. implementation time periods for the proposed rule change solely to provide requirements of the Act and the rule and regulations thereunder. 38 The Commission does not believe that the Exchange should require its listed companies to 39 See APTC Letter at 5. adopt a separate provision on consultants. See 40 See Keller and Rowe Letter at 5; ICI Letter at 41 15 U.S.C. 78f(b)(5). Keller and Rowe Letter at 3. 3; MSDW Letter at 1. 42 15 U.S.C. 78s(b).
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It is therefore ordered, pursuant to 2,5 respectively, to the proposed rule Amendments No. 1 and No. 2 is in section 19(b)(2) of the Act,43 that the change. This order approves the italics. amendment proposed rule change (SR– proposed rule change and grants Rule 4200. Definitions Amex–99–38) is approved. accelerated approval to Amendments For the Commission, by the Division of No. 1 and No. 2. The Commission is also (a) For purposes of the Rule 4000 Market Regulation, pursuant to delegated soliciting comment on Amendments No. Series, unless the context requires authority.44 1 and No. 2 to the proposed rule change. otherwise: Margaret H. McFarland, (1)–(14) No change. Deputy Secretary. II. Description of the Proposed Rule (15) ‘‘Independent director’’ means a Change [FR Doc. 99–33051 Filed 12–20–99; 8:45 am] person other than an officer or employee BILLING CODE 8010±01±M A. Background of the company or its subsidiaries or any other individual having a relationship In February 1999, the Blue Ribbon which, in the opinion of the company’s Committee on Improving the SECURITIES AND EXCHANGE Effectiveness of Corporate Audit board of directors, would interfere with COMMISSION Committees (‘‘Blue Ribbon Committee’’) the exercise of independent judgment in [Release No. 34±42231; File No. SR±NASD± issued a report containing carrying out the responsibilities of a 99±48] recommendations aimed at director. The following persons shall strengthening the independence of the not be considered independent: Self-Regulatory Organizations; Order audit committee; making the audit (a) a director who is employed by the Approving Proposed Rule Change by committee more effective; and corporation or any of its affiliates for the the National Association of Securities addressing mechanisms for current year or any of the past three Dealers, Inc. Amending Its Audit accountability among the audit years; (b) a director who accepts any Committee Requirements and Notice committee, the outside auditors, and compensation from the corporation or of Filing and Order Granting management.6 In response to the Blue any of its affiliates in excess of $60,000 Accelerated Approval of Amendments Ribbon Committee’s recommendations, during the previous fiscal year, other No. 1 and No. 2 Thereto Nasdaq proposes to amend its listing than compensation for board service, standards regarding audit committee December 14, 1999. benefits under a tax-qualified retirement requirements. The proposed changes plan, or non-discretionary I. Introduction cover three general areas: (1) The compensation; definition of independence; (2) the On September 20, 1999, the National (c) a director who is a member of the structure and membership of the audit Association of Securities Dealers, Inc. immediate family of an individual who (‘‘NASD’’ or ‘‘Association’’), through its committee; and (3) the audit committee is, or has been in any of the past three wholly owned subsidiary, the Nasdaq charter. years, employed by the corporation for Stock Market, Inc. (‘‘Nasdaq’’), The text of the proposed rule change, any of its affiliates as an executive submitted to the Securities and as amended by Amendments No. 1 and officer. Immediate family includes a Exchange Commission (‘‘SEC’’ or No. 2, is as follows. Language deleted by person’s spouse, parents, children, ‘‘Commission’’), pursuant to Section Amendments No. 1 and No. 2 is in siblings, mother-in-law, father-in-law, 19(b)(1) of the Securities Exchange Act brackets. Language added by brother-in-law, sister-in-law, son-in-law, of 1934 (‘‘Act’’) 1 and Rule 19b–4 daughter-in law, and anyone who thereunder,2 a proposed rule change audit committee charter within six months of the resides in such person’s home; amending Nasdaq’s audit committee effective date of the proposed rule change. As originally filed, the proposed rule change required (d) a director who is a partner in, or requirements. issuers to adopt the charter within eighteen months a controlling shareholder or an The Federal Register published the of the effective date of the proposed rule change. executive officer, of, any for-profit proposed rule change for comment on Amendment No. 1 also states that issuers that business organization to which the October 13, 1999.3 In response, the applied for listing prior to the effective date of the proposed rule change would qualify for listing corporation made, or from which the Commission received fourteen comment under the listing standards in force at the time of corporation received, payments (other letters. On November 15, 1999 and their application, and receive the same grace than those arising solely from December 9, 1999, the Association periods provided to currently listed issuers. Finally, investments in the corporation’s submitted Amendments No. 1 4 and No. Amendment No. 1 modifies proposed Rule 4320(e)(21) to provide that the requirement that securities) that exceed 5% of the each issuer execute a listing agreement will not be 43 corporation’s or business organization’s 15 U.S.C. 78s(b)(2). construed to require any foreign issuer to do any 44 consolidated gross revenues for that 17 CFR 200.30–3(a)(12). act that is contrary to a law of any public authority 1 15 U.S.C. 78s(b)(1). exercising jurisdiction over the foreign issuer. year, or $200,000, whichever is more, in 2 17 CFR 240.19b–4. 5 Letter from Sara Nelson Bloom, Associate any of the past three years; 3 Securities Exchange Act Release No. 41982 (Oct. General Counsel, Nasdaq-Amex Market Group, to (e) a director who is employed as an 6, 1999), 64 FR 55510. The American Stock Richard Strasser, Assistant Director, Division, executive of another entity where any of Exchange LLC and The New York Stock Exchange, Commission, dated December 8, 1999 Inc. have proposed rule changes relating to audit (‘‘Amendment No. 2’’). The Association submitted the company’s executive’s serve on that committees. See Securities Exchange Act Release Amendment No. 2 to revise proposed Rules entity’s compensation committee. No. 41981 (Oct. 6, 1999), 64 FR 55505 (Oct. 13, 4310(c)(26)(A)(ii), 4320(e)(22)(A)(ii), and (15)–(36) renumbered as (16)–(37). 1999) (‘‘Amex Proposal’’), and Securities Exchange 4460(d)(1)(B) to provide that the audit committee is (b) No change. Act Release No. 41980 (Oct. 6, 1999), 64 FR 55514 required to oversee the independence of the outside (Oct. 13, 1999) (‘‘NYSE Proposal’’). auditor, rather than ensure the independence of the Rule 4310. Qualification Requirements 4 Letter from Robert E. Aber, Senior Vice outside auditor. Amendment No. 2 also revises for Domestic and Canadian Securities President and General Counsel, Nasdaq-Amex Nasdaq’s definition of immediate family found in Market Group, to Richard Strasser, Assistant Rule 4200(a)(15)(c) to include sons-in-law and To qualify for inclusion in Nasdaq, a Director, Division of Market Regulation, daughters-in-law. security of a domestic or Canadian Commission, dated November 12, 1999 6 Report and Recommendations of the Blue issuer shall satisfy all applicable (‘‘Amendment No. 1’’). The Association submitted Ribbon Committee on Improving the Effectiveness Amendment No. 1 to require issuers listed as of the of Corporate Audit Committees (1999). A copy of requirements contained in paragraphs effective date of Commission approval of the this Report can be found on-line at (a) or (b), and (c) hereof. proposed rule change to adopt a formal written www.nasdaqnews.com. (a)–(b) No change.
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(c) In addition to the requirements income statement, and cash flow authority exercising jurisdiction over contained in paragraph (a) or (b) above, statement or will become able to do so such issuer or that is contrary to and unless otherwise indicated, a within a reasonable period of time after generally accepted business practices in security shall satisfy the following his or her appointment to the audit the issuer’s country of domicile. Nasdaq criteria for inclusion in Nasdaq: committee. Additionally, each issuer shall have the ability to provide (1)–(24) No change. must certify that it has, and will exemptions from the applicability of (25) Corporate Governance continue to have, at least one member these provisions as may be necessary or Requirements. of the audit committee that has past appropriate to carry out this intent. * * * * * employment experience in finance or Nasdaq shall review the issuer’s past (A) No change. accounting, requisite professional corporate governance activities. This (B) Independent Directors. certification in accounting, or any other review may include activities taking Each issuer shall maintain a sufficient comparable experience or background place while the issuer is listed on number of independent directors on its which results in the individual’s Nasdaq or an exchange that imposes board of directors to satisfy the audit financial sophistication, including being corporate governance requirements, as committee requirement set forth in Rule or having been a chief executive officer, well as activities taking place after the 4310(c)(26)(B). chief financial officer or other senior issuer is no longer listed on Nasdaq or (D)–(H) renumbered as (C)–(G). officer with financial oversight an exchange that imposes corporate (26) Audit Committee. responsibilities. governance requirements. Based on (A) Audit Committee Charter. (ii) Notwithstanding paragraph (i), such review, Nasdaq may take any Each Issuer must certify that it has one director who is not independent as appropriate action, including placing of adopted a formal written audit defined in Rule 4200, and is not a restrictions on or additional committee charter and that the Audit current employee or an immediate requirements for listing, or the denial of Committee has reviewed and reassessed family member of such employee, may listing of a security if Nasdaq the adequacy of the formal written be appointed to the audit committee, if determines that there have been charter on an annual basis. The charter the board, under exceptional and violations or evasions of such corporate must specify the following: limited circumstances, determines that governance standards. Determinations (i) the scope of the audit committee’s membership on the committee by the under this subparagraph shall be made responsibilities, and how it carries out individual is required by the best on a case-by-case basis as necessary to those responsibilities, including interests of the corporation and its protect investors and the public interest. structure, processes, and membership shareholders, and the board discloses, (A) No change. requirements; in the next annual proxy statement (B) Independent Directors. (ii) the audit committee’s subsequent to such determination, the Each issuer shall maintain a sufficient responsibility for ensuring its receipt nature of the relationship and the number of independent directors on its from the outside auditors of a formal reasons for that determination. board of directors to satisfy the audit written statement delineating all (iii) Exception for Small Business committee requirement set forth in Rule relationships between the auditor and Filers—Paragraphs (B)(i) and (B)(ii) do 4320(e)(22)(B). the company, consistent with not apply to issuers that file reports (D)–(H) renumbered as (C)–(G). Independence Standards Board under SEC Regulation S–B. Such issuers (22) Audit Committee. Standard 1, and the audit committee’s must establish and maintain an Audit (A) Audit Committee Charter. responsibility for actively engaging in a Committee of at least two members, a Each Issuer must certify that it has dialogue with the auditor with respect majority of the members of which shall adopted a formal written audit to any disclosed relationships or be independent directors. committee charter and that the Audit services that may impact the objectivity (26)–(28) renumbered as (27)–(29). Committee has reviewed and reassessed (d) No change. and independence of the auditor and for the adequacy of the formal written taking, or recommending that the full Rule 4320. Qualification Requirements charter on an annual basis. The charter board take, appropriate action to for Non-Canadian Foreign Securities must specify the following: [ensure] oversee the independence of and American Depositary Receipts (i) the scope of the audit committee’s the outside auditor; and To qualify for inclusion in Nasdaq, a responsibilities, and how it carries out (iii) the outside auditor’s ultimate security of a non-Canadian foreign those responsibilities, including accountability to the board of directors issuer, an American Depositary Receipt structure, processes, and membership and the audit committee, as (ADR) or similar security issued in requirements; representatives of shareholders, and respect of a security of a foreign issuer (ii) the audit committee’s these shareholder representatives’ shall satisfy the requirements of responsibility for ensuring its receipt ultimate authority and responsibility to paragraphs (a), (b) or (c), and (d) and (e) from the outside auditors of a formal select, evaluate, and, where appropriate, of this Rule. written statement delineating all replace the outside auditor (or to (a)–(d) No change. relationships between the auditor and nominate the outside auditor to be (e) In addition to the requirements the company, consistent with proposed for shareholder approval in contained in paragraphs (a), (b) or (c), Independence Standards Board any proxy statement). and (d), the security shall satisfy the Standard 1, and the audit committee’s (B) Audit Committee Composition. following criteria for inclusion in responsibility for actively engaging in a (i) Each issuer must have, and certify Nasdaq: dialogue with the auditor with respect that it has and will continue to have, an (1)–(20) No change. to any disclosed relationships or audit committee of at least three (21) Corporate Governance services that may impact the objectivity members, comprised solely of Requirements—No provisions of this and independence of the auditor and for independent directors, each of whom is subparagraph or of subparagraph (24) taking, or recommending that the full able to read and understand shall be construed to require any foreign board take, appropriate action to fundamental financial statements, issuer to do any act that is contrary to [ensure] oversee the independence of including a company’s balance sheet, a law, rule or regulation of any public the outside auditor; and
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(iii) the outside auditor’s ultimate (c) Independent Directors. which results in individual’s financial accountability to the board of directors Each NNM issuer shall maintain a sophistication, including being or and the audit committee, as sufficient number of independent having been a chief executive officer, representatives of shareholders, and directors on its board of directors to chief financial officer or other senior these shareholder representatives’ satisfy the audit committee requirement officer with financial oversight ultimate authority and responsibility to set forth in Rule 4460(d)(2). responsibilities. select, evaluate, and, where appropriate, (d) Audit Committee. (B) Notwithstanding paragraph (i), replace the outside auditor (or to (1) Audit Committee Charter. one director who is not independent as nominate the outside auditor to be Each Issuer must certify that it has defined in Rule 4200, and is not a proposed for shareholder approval in adopted a formal written audit current employee or an immediate any proxy statement). committee charter and that the Audit family member of such employee, may (B) Audit Committee Composition. Committee has reviewed and reassessed be appointed to the audit committee, if (i) Each issuer must have, and certify the adequacy of the formal written the board, under exceptional and that it has and will continue to have, an charter on an annual basis. The charter limited circumstances, determines that audit committee of at least three must specify the following: membership on the committee by the members, comprised solely of (A) the scope of the audit committee’s individual is required by the best independent directors, each of whom is responsibilities, and how it carries out interests of the corporation and its able to read and understand those responsibilities, including shareholders, and the board discloses, fundamental financial statements, structure, processes, and membership in the next annual proxy statement including a company’s balance sheet, requirements; subsequent to such determination, the income statement, and cash flow (B) the audit committee’s nature of the relationship and the statement or will become able to do so responsibility for ensuring its receipt reasons for that determination. within a reasonable period of time after from the outside auditors of a formal (C) Exception for Small Business his or her appointment to the audit written statement delineating all Filers—Paragraphs (2)(A) and (2)(B) do committee. Additionally, each issuer relationships between the auditor and not apply to issuers that file reports must certify that it has, and will the company, consistent with under SEC Regulation S–B. Such issuers continue to have, at least one member Independence Standards Board must establish and maintain an Audit of the audit committee that has past Standard 1, and the audit committee’s Committee of at least two members, a employment experience in finance or responsibility for actively engaging in a majority of the members of which shall accounting, requisite professional dialogue with the auditor with respect be independent directors. certification in accounting, or any other to any disclosed relationships or (e)–(n) No change. services that may impact the objectivity comparable experience or background B. Independence which results in the individual’s and independence of the auditor and for financial sophistication, including being taking, or recommending that the full Nasdaq proposes to narrow its current or having been a chief executive officer, board take, appropriate action to definition of ‘‘independent director’’ by specifying five new relationships that chief financial officer or other senior [ensure] oversee the independence of could impair a director’s independent officer with financial oversight the outside auditor; and judgment as a result of financial, responsibilities. (C) the outside auditor’s ultimate (ii) Notwithstanding paragraph (i), accountability to the board of directors familial, or other material ties to one director who is not independent as and the audit committee, as management or the corporation. The defined in Rule 4200, and is not a representatives of shareholders, and proposed definition will apply to all current employee or an immediate these shareholder representatives’ directors, not just those serving on audit family member of such employee, may ultimate authority and responsibility to committees. Under the proposed rule be appointed to the audit committee, if select, evaluate, and, where appropriate, change, directors with any of the the board, under exceptional and replace the outside auditor (or to following five relationships will not be limited circumstances, determines that nominate the outside auditor to be considered independent: (1) membership on the committee by the proposed for shareholder approval in Employment by the corporation or any individual is required by the best any proxy statement). of its affiliates for the current year or interests of the corporation and its (2) Audit Committee Composition. any of the past three years; (2) shareholders, and the board discloses, (A) Each issuer must have, and certify acceptance of any compensation from in the next annual proxy statement that it has and will continue to have, an the corporation of any of its affiliates in subsequent to such determination, the audit committee of at least three excess of $60,000 during the previous nature of the relationship and the members, comprised solely of fiscal year, other than compensation for reasons for that determination. independent directors, each of whom is board service, benefits under a tax- (iii) Exception for Small Business able to read and understand qualified retirement plan, or non- Filers—Paragraphs (B)(i) and (B)(ii) do fundamental financial statements, discretionary compensation; (3) member not apply to issuers that file reports including a company’s balance sheet, of the immediate family of an individual under SEC Regulation S–B. Such issuers income statement, and cash flow who is, or has been in any of the past must establish and maintain an Audit statement or will become able to do so three years, employed by the Committee of at least two members, a within a reasonable period of time after corporation or any of its affiliates as an majority of the members of which shall his or her appointment to the audit executive officer; (4) partnership in, or be independent directors. committee. Additionally, each issuer a controlling shareholder or an (22)–(24) renumbered as (23)–(25). must certify that it has, and will executive officer of, any for-profit (f) No change. continue to have, at least one member business organization to which the of the audit committee that has past corporation made, or from which the Rule 4460. Non-Quantitative employment experience in finance or corporation received, payments (other Designation Criteria for Issuers accounting, requisite professional than those arising solely from Excepting Limited Partnerships certification in accounting, or any other investments in the corporation’s (a)–(b) No change. comparable experience or background securities) that exceed five percent of
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.199 pfrm03 PsN: 21DEN1 71526 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices the corporation’s or business chief financial officer, or other senior change requires issuers to review their organization’s consolidated gross officer with financial oversight charter on an annual basis. revenues for that year, or $200,000, responsibilities. E. Implementation whichever is more, in any of the past Nasdaq is sensitive to the potential three years; or (5) employment as an burden that the proposed changes to the In order to minimize disruption to executive of another entity where any of audit committee composition existing issuer audit committees, to the company’s executives serve on that requirements may place on small permit current audit committee entity’s compensation committee. companies. Therefore, Nasdaq proposes members to serve out their terms, and to to exempt those corporations that file allow adequate time to recruit the C. Structure and Membership of the under SEC Regulation S–B (‘‘Small requisite members, Nasdaq proposes to Audit Committee Business Filers’’).7 Small Business provide its issuers listed as of the Nasdaq also proposes to change the Filers will be held to Nasdaq’s existing effective date of the proposed rule structure and membership qualifications requirements with respect to audit change eighteen months after the of the audit committee. Specifically, committee composition. That is, they proposed rule change is approved by the Nasdaq proposes to change the required must maintain an audit committee of at Commission to meet the audit composition of the audit committee least two members, a majority of whom committee structure and membership from at least two to at least three are independent. requirements. members. Furthermore, the audit Additionally, Nasdaq proposes that committee must be comprised solely of D. Charter issuers listed as of the effective date of independent directors rather than a Nasdaq believes that a written charter the rule change be provided six months majority of independent directors. will help the audit committee as well as following the date of Commission Nasdaq is conscious of the fact that in management and the corporation’s approval of the proposed rule change to exceptional circumstances, issuers may auditors recognize the function of the adopt a formal written audit committee appropriately conclude that it would be audit committee and the relationship charter in compliance with proposed in the best interests of the corporation among these parties. The proposed rule Rules 4310(c)(26)(A), 4320(e)(22)(A), or for a non-independent director to serve change requires each issuer to adopt a 4460(d)(1). on the audit committee. In such formal written charter. This charter Further, for issuers that applied for exceptional and limited circumstances, must specify the scope of the audit listing prior to the effective date of the a non-independent director can serve on committee’s responsibilities, and how it proposed rule change, Nasdaq proposes the audit committee, provided that the carries out those responsibilities, that they be able to qualify for listing board determines that it is required by including structure, processes, and under the listing standards in force at the best interests of the corporation and membership requirements. In addition, the time of their application, and to its shareholders, and the board discloses the charter must specify the audit receive the same grace periods provided its reasons for the determination in the committee’s responsibility for ensuring to currently listed issuers, as described next annual proxy statement. Due to the its receipt from the outside auditors of above. Also, in order to avoid nature of this exception, however, a a formal written statement delineating prejudicing issuers that transfer to corporation could have no more than all relationships between the auditor Nasdaq from the American Stock one non-independent director serving and the company, consistent with Exchange and the New York Stock on its audit committee. Also, current Independence Standards Board Exchange, Nasdaq proposed that these employees or officers, or their Standard 1.8 The charter must also issuers be afforded the same grace immediate family members, may not specify the audit committee’s periods they would have received under serve on the audit committee under this responsibility for actively engaging in a their previous market’s implementation exception. dialogue with the auditor with respect schedule. As a result of the audit committee’s to any disclosed relationships or III. Comments responsibility for a corporation’s services that may impact the objectivity accounting and financial reporting, and independence of the auditor and for As of December 9, 1999, the Nasdaq believes that audit committee taking, or recommending that the full Commission received 14 comment members should have a basic board take, appropriate action to oversee letters on the proposed rule change.9 In understanding of financial statements. the independence of the outside auditor. general, the commenters favored the Therefore, the proposed rule change Finally, it must specify the outside requires each member of the audit auditor’s ultimate accountability to the 9 See letters from: Ernst & Young LLP (‘‘E&Y’’) dated November 1, 1999; Deloitte & Touche LLP committee to be able to read and board of directors and the audit (‘‘Deloitte’’) dated November 3, 1999; Council of understand fundamental financial committee, as representatives of Institutional Investors (‘‘CII’’) dated November 8, statements, including a company’s shareholders, and these shareholder 1999; Brian T. Borders on behalf of the National balance sheet, income statement, and representatives’ ultimate authority and Venture Capital Association (‘‘NVCA’’) dated November 12, 1999; PricewaterhouseCoopers LLP cash flow statement, or become able to responsibility to select, evaluate, and, (‘‘Price’’) dated November 1, 1999; Gary P. Kreider do so within a reasonable period of time where appropriate, replace the outside (‘‘Kreider’’) dated November 5, 1999; American after his or her appointment to the audit auditor (or to nominate an outside Federation of Labor and Congress of Industrial committee. Furthermore, in order to auditor for shareholder approval in any Organizations (‘‘AFL–CIO’’) dated November 29, 1999; Mayer, Brown & Platt on behalf of Morgan further enhance the effectiveness of the proxy statement). The proposed rule Stanley Dean Witter (‘‘MSDW’’) dated November audit committee, at least one member of 29, 1999; Investment Company Institute (‘‘ICI’’) the audit committee must have past 7 Small Business Filer is defined by Regulation S– dated November 3, 1999; Arthur Andersen LLP employment experience in finance or B as an issuer that: (i) has revenue of less than (‘‘Arthur Andersen’’) dated December 3, 1999; $25,000,000; (ii) is a U.S. or Canadian issuer; and Association of Publicly Traded Companies accounting, requisite professional (iii) if a majority owned subsidiary, the parent (‘‘APTC’’) dated December 6, 1999; Robert A. certification in accounting, or any other corporation is a small business issuer. 17 CFR Profusek (‘‘Profusek’’) dated December 3, 1999; comparable experience or background 228.10(a)(1). Stanley Keller and Richard Rowe (‘‘Keller and which results in the individual’s 8 Independence Standard No. 1, Independence Rowe’’) dated December 7, 1999; and The Discussions with Audit Committees (January 1999), Committee on Securities Regulation of the Business financial sophistication, including being which can be found on-line at Law Section of the New York State Bar Association or having been a chief executive officer, www.cpaindependence.org. (‘‘NYSBA’’) dated December 1, 1999.
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Two commenters the proposed rule change, but stated Act.31 The commenters also stated that opposed the proposed rule change.10 that Nasdaq should not exempt Small the potential abuses that the proposed In particular, the CII supports the new Business Filers from the financial rule change is designed to address do requirements, but stated that the literacy and expertise requirements and not exist with closed-end investment proposed override provision, which also should expand its definition of funds.32 Finally, the commenters noted allows a company’s board to include a immediate family member to include that because the assets of these funds non-independent director on the audit sons-in-law and daughters-in-law.21 consist exclusively of investment committee is not appropriate because NYSBA stated that the company’s board securities, there is no opportunity to companies should not have a problem should be required to adopt the audit ‘‘manage’’ earnings or results through finding financially literate, truly committee charter, rather than the audit selective application of accounting independent directors.11 In addition, committee adopting the charter subject policies.33 to board approval.22 the AFL–CIO stated that the restriction IV. Discussion period for former employees, or In addition, the NVCA stated that the relatives of former employees, should be proposed rule change should exclude The Commission finds that the five years instead of three years.12 The venture capital investors form the proposed rule change is consistent with 23 AFL–CIO also stated that the $60,000 independence qualifications. The the requirements of the Act and the threshold to disqualify a candidate NVCA also stated that the proposed rule rules and regulations thereunder because of a significant business change should give companies that have applicable to a national securities 34 relationship is not stringent enough.13 just completed an initial public offering association, and, in particular, the Another commenter, on the other hand, eighteen months to comply with the requirements of Section 15(A)(b)(6) of 35 stated that a quantitative test is too new requirements and that the the Act. The Commission believes that inflexible.14 Keller and Rowe stated that exemption for Small Business Filers the proposed rule change will protect former non-executive employment should be expanded to apply to investors by improving the effectiveness should be treated as a significant companies with less than $50 million in of audit committees of companies listed 24 business relationship.15 This revenue. on Nasdaq. The Commission also APTC stated that the proposed rule commenter also stated that consultants believes that the new requirements will change will be counter productive to the who receive from the company more enhance the reliability and credibility of goal of better audit committees.25 In than a de minimis amount of financial statements of companies listed addition, APTC stated that the proposed compensation should be treated as on Nasdaq by making it more difficult rule change will disadvantage smaller employees, while consultants who do for companies to inappropriately distort companies more than larger companies, not should be treated as having a their true financial performance. but concluded that it is appropriate to Specifically, the Commission believes business relationship with the apply the proposed rule change to all that the proposed definition of company.16 According to this comment companies, regardless of size.26 independence will promote the quality letter, the company’s board should be Moreover, APTC is opposed to the and reliability of a company’s financial permitted to determine that the proposal’s financial literacy statements. The Commission believes compensation does not impair the requirement.27 APTC believes that the that directors without financial, director’s objectivity.17 Keller and Rowe financial literacy requirement may familial, or other material personal ties also objected to the financial expertise deprive audit committees of the service to management will be more likely to requirement and stated that no director of individuals with ‘‘exceptional objectively evaluate the propriety of will want to be designated the financial character and/or operational management’s accounting, internal expert because of the added exposure to experience.’’ 28 The commenter control, and financial reporting liability.18 suggested that the Exchange replace this practices. The Commission believes that Deloitte and Price each stated that requirement with a requirement that the the proposal’s prohibition against requiring a company’s board or audit committee as a whole possess a certain employees serving on the audit committee to ‘‘ensure’’ the level of financial acumen.29 committee is appropriate and that the independence of the outside auditor Finally, two commenters stated that Exchange should not be required to goes beyond what can reasonably be the proposed rule change should not distinguish between executive and non- expected of the board and the audit apply to closed-end investment executive employees.36 The 19 committee in their oversight role. companies.30 These commenters noted Commission also believes that the Deloitte suggested that Nasdaq replace that closed-end investment companies proposed provision that permits a the word ‘‘ensure’’ with ‘‘monitor’’ or company to appoint one director to its 20 Id. at 2. audit committee who is not 10 See Kreider Letter; APTC Letter at 2. Kreider 21 E&Y Letter at 4. independent, if the board determines stated that the proposed rule change ‘‘represent[s] 22 NYSBA Letter at 2. that membership on the committee by an awkward attempt to circumvent state corporate 23 NVCA Letter at 5. the individual is required by the best law and micro-manage the functions of audit 24 Id. at 4. committees.’’ Id. at 2. 25 APTC Letter at 2. interests of the corporation and its 11 CII Letter, at 2; see also AFL–CIO Letter at 2. 26 Id. at 3. 12 AFL–CIO Letter at 2. 31 27 Id. at 4–5. ICI Letter at 3–4; MSDW Letter at 2. 13 Id. 32 28 Id. ICI Letter at 3; MSDW Letter at 1. ICI and 14 Profusek Letter at 2. In addition, Keller and 29 Id. at 5. MSDW also noted that the independent accountants Rowe stated that this provision might preclude a of investment funds are selected by the 30 ICI Letter at 2; MSDW Letter at 1. In addition, number of highly qualified candidates from serving independent directors of the fund. Keller and Rowe stated that the proposed rule on audit committees. Keller and Rowe Letter at 3. 33 change should exempt all investment companies ICI Letter at 3; MSDW Letter at 1. 15 Keller and Rowe Letter at 2. 34 because their audit committee members are already In approving the proposal, the Commission has 16 Id. at 3. required not to be ‘‘interested persons’’ as that term considered its impact on efficiency, competition, 17 Id. is defined in Section 2(a)(9) of the Investment and capital formation. 15 U.S.C. 78c(f). 18 Id. Company Act of 1940 (‘‘1940 Act’’). Keller and 35 15 U.S.C. 78o–3(b)(6). 19 Deloitte Letter at 1; Price Letter at 1. Rowe Letter at 5. 36 See Keller and Rowe Letter at 2.
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The Commission independent directors who are able to approving Amendments No. 1 and No. believes that the requirement that the read and understand fundamental 2 to the proposed rule change prior to company disclose in its next annual financial statements will enhance the the thirtieth day after publication in the proxy statement the nature of the effectiveness of the audit committee and Federal Register. The Commission notes director’s relationship with the help to ensure that audit committee that Amendment No. 1 merely revises company and the board’s reasons for members are able to adequately fulfill the implementation time periods for the determining the appointment was in the their responsibilities. The Commission proposed rule change to provide greater best interests of the corporation will believes that requiring each audit clarity to issuers and to investors. The adequately guard against abuse of the committee member to satisfy this Commission believes that Amendment proposed exception to the standard will help to ensure that the No. 1 will enable issuers to determine independence requirement. Moreover, committee as a whole is financially when they must comply with the new the Commission believes that the literate.37 Moreover, the Commission requirements and will enable investors $60,000 threshold to determine if a considers that requiring one member of to determine when to rely on the potential audit committee director has a the audit committee to have past protections afforded by the proposed significant business relationship with employment experience in finance or rule change. The Commission notes that the company is a reasonable measure to accounting, requisite professional Amendment No. 2 simply clarifies that balance the company’s need to recruit certification in accounting, or any other the audit committee is required to audit committee members with the comparable experience or background oversee, rather than ensure, the independence requirement. that indicates the individual’s financial independence of the company’s outside The Commission does not believe that sophistication, will further enhance the auditors, and expands Nasdaq’s venture capital investors should be effectiveness of the audit committee in definition of ‘‘immediate family.’’ The excluded from Nasdaq’s definition of carrying out its financial oversight Commission believes that accelerated independence. The Commission does responsibilities. In addition, the approval will allow Nasdaq to not believe that the proposed rule Commission does not believe that simultaneously make all relevant change will pose an undue hardship on companies will experience undue modifications to its Rules and will avoid venture capital firms or companies difficulty recruiting an audit committee potential confusion. Accordingly, the listed on Nasdaq. The Commission member that satisfies the financial Commission finds good cause to notes that the proposed rule change will expertise requirements. Moreover, the accelerate approval of Amendments No. only prohibit venture capital investors Commission believes that the proposed 1 and No. 2 to the proposed rule change, from sitting on a company’s audit rule change appropriately exempts consistent with Sections 6(b)(5) 40 and committee if the investor does not fall Small Business Filers from the proposed 19(b) 41 of the Act. within Nasdaq’s definition of composition requirements because these V. Solicitation of Comments independent. The proposed rule change companies may experience more will not prohibit previously eligible difficulty meeting these enhanced Interested persons are invited to investors from serving on the company’s requirements. The Commission notes submit written data, views, and board. The Commission also notes that that these companies will remain arguments concerning the foregoing, a venture capital investor that is not subject to Nasdaq’s existing rules on including whether the proposed rule change is consistent with the Act. considered independent may serve on audit committees, which require an Persons making written submissions the company’s audit committee, if the audit committee to have at least two should file six copies thereof with the board determines it is in the best members, a majority of whom are Secretary, Securities and Exchange interests of the corporation and its independent. shareholders and the company discloses Moreover, the Commission does not Commission, 450 Fifth Street, NW, its reasons for the determination and the believe that the proposed rule change Washington, DC 20549–0609. Copies of nature of the director’s relationship to circumvents state law.38 The the submission, all subsequent the company in its next annual proxy Commission notes that Nasdaq is amendments, all written statements statement. amending its own qualification with respect to the proposed rule In addition, the Commission believes requirements governing an issuer’s change that are filed with the that requiring companies to adopt listing on Nasdaq, which is an Commission, and all written formal written charters specifying the appropriate function for Nasdaq as long communications relating to the audit committee’s responsibilities, and as those requirements are consistent proposed rule change between the how the committee carries out those with the Act. Commission and any person, other than responsibilities, will help the audit Moreover, the Commission has those that may be withheld from the committee, management, investors, and concluded that Nasdaq’s decision to public in accordance with the the company’s auditors recognize the include investment companies in the provisions of 5 U.S.C. 552, will be function of the audit committee and the proposed rule change is warranted. available for inspection and copying in relationship among the parties. While the Commission recognizes that the Commission’s Public Reference Moreover, the Commission believes that the opportunity for some types of Room. Copies of such filing will also be requiring the charter to specify that the financial reporting abuses may be available for inspection and copying at audit committee is responsible for limited by the nature of fund assets,39 it the principal office of the NASD. All taking, or recommending that the believes that audit committees do play submissions should refer to the File No. company’s full board take, appropriate SR–NASD–99–48 and should be action to oversee the independence of 37 See APTC Letter at 5. submitted by January 11, 2000. the outside auditor will make it more 38 Kreider Letter at 2. likely that companies will select 39 See Keller and Rowe Letter at 5; ICI Letter at 40 15 U.S.C. 78f(b)(5). objective, unbiased auditors. 3; MSDW Letter at 1. 41 15 U.S.C. 78s(b).
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VI. Conclusion 2,6 respectively, to the proposed rule In response to the Blue Ribbon For the foregoing reasons, the change. This order approves the Committee’s recommendations, the Commission finds that Nasdaq’s proposed rule change and grants Exchange proposes to revise its listing proposal to amend its audit committee accelerated approval to Amendments standards regarding audit committees. requirements is consistent with the No. 1 and No. 2. The Commission is also The proposed rule change specifies four requirements of the Act and the rules soliciting comment on Amendments No. requirements for a qualified audit and regulations thereunder. 1. and No. 2 to the proposed rule committee and defines the terms It is therefore ordered, pursuant to change. ‘‘Immediate Family’’ and ‘‘Affiliate’’ for 42 purposes of the proposed audit Section 19(b)(2) of the Act, that the II. Description of the Proposed Rule committee requirements. amended proposed rule change (SR– Change NASD–99–48) is approved. The text of the proposed rule change, A. Background For the Commission, by the Division of as amended by Amendments No. 1 and Market Regulation, pursuant to delegated In February 1999, the Blue Ribbon No. 2, is as follows. Language deleted by authority.43 Committee on Improving the Amendments No. 1 and No. 2 is in Jonathan G. Katz, Effectiveness of Corporate Audit brackets. Language added by Secretary. Committees (‘‘Blue Ribbon Committee’’) Amendments No. 1 and No. 2 is in italics. [FR Doc. 99–33050 Filed 12–20–99; 8:45 am] issued a report containing BILLING CODE 8010±01±M recommendations aimed at NYSE Listed Company Manual strengthening the independence of the audit committee, making the audit * * * * * SECURITIES AND EXCHANGE committee more effective, and Section 3 COMMISSION addressing mechanisms for accountability among the audit Corporate Responsibility [Release No. 34±42233; File No. SR±NYSE± 99±39] committee, the outside auditors, and 303.00 Corporate Governance management.7 Standards The Exchange distributed to its listed Self-Regulatory Organizations; Order In addition to the numerical listing companies the Exchange staff’s Approving Proposed Rule Change by standards, the Exchange has adopted suggestions for rule changes in response the New York Stock Exchange, Inc. certain corporate governance listing to the Blue Ribbon Committee’s report. Amending the Exchange's Audit standards. These standards apply to all The comments from the Exchange’s Committee Requirements and Notice companies listing common stock on the listed companies were generally of Filing and Order Granting Exchange. However, the Exchange does supportive of the suggestions put forth Accelerated Approval of Amendments not apply a particular standard to a non- by the Exchange, with some No. 1 and No. 2 Thereto U.S. company if the company provides commenters expressing concerns about the Exchange with a written December 14, 1999. ‘‘financial literacy’’ requirement. certification from independent counsel I. Introduction of the company’s country of domicile Director, Division of Market Regulation On September 20, 1999, the New York (‘‘Division’’), Commission, dated October 14, 1999 stating that the company’s corporate Stock Exchange, Inc. (‘‘NYSE’’ or (‘‘Amendment No. 1’’). The Exchange submitted governance practices comply with home ‘‘Exchange’’) submitted to the Securities Amendment No. 1 to require issuers to adopt a country law and the rules of the formal written audit committee charter within six and Exchange Commission (‘‘SEC’’ or months of the effective date of the proposed rule principal securities market for the ‘‘Commission’’), pursuant to section change. As originally filed, the proposed rule company’s stock outside the United 19(b)(1) of the Securities Exchange Act change required issuers to adopt the charter within States. 1 eighteen months of the effective date of the of 1934 (‘‘Act’’) and Rule 19b–4 proposed rule change. Amendment No. 1 also 303.01 Audit Committee 2 thereunder, a proposed rule change extends the definition of ‘‘officer’’ in Rule 16a–1(f) amending the Exchange’s audit under the Act to Paragraph 303 of the Exchange’s (A) Audit Committee Policy. Each committee requirements. Listed Company Manual. Previously, the Exchange company must have a qualified audit The Federal Register published the permitted each company’s by-laws and charter to committee. define this term. proposed rule change for comment on 6 Letter from James E. Buck, Senior Vice President (B) Requirements for a Qualified October 13, 1999.3 In response, the and Secretary, NYSE, to Richard Strasser, Assistant Audit Committee. Commission received 25 comment Director, Division, Commission, dated December 6, (1) Formal Charter. [Each audit letters.4 On October 15, 1999 and 1999 (‘‘Amendment No. 2’’). Amendment No. 2 committee must adopt a formal written revises proposed rule 303.01(B)(1) to require the December 8, 1999, the Exchange board to adopt the audit committee charter. Under charter that is approved by the Board of submitted Amendments No. 1 5 and No. the original proposal, the audit committee adopted Directors.] The Board of Directors must the charter, subject to board approval. Amendment adopt and approve a formal written 42 15. U.S.C. 78s(b)(2). No. 2 also revises proposed Rule 303.01(B)(1)(c) to replace the provision that required the board to take charter for the audit committee. The 43 17. CFR 200.30–3(a)(12). appropriate steps to ensure the independence of the audit committee must review and 1 15 U.S.C. 78s(b)(1). outside auditors. The revised provision requires the reassess the adequacy of the audit 2 17 CFR 240.19b–4. board ‘‘to take appropriate action in response to the committee charter on an annual basis. 3 Securities Exchange Act Release No. 41980 (Oct. outside auditors report to satisfy itself of the outside 6, 1999), 64 FR 55514 (Oct. 13, 1999). The Nasdaq auditor’s independence.’’ Finally, Amendment No. The charter must specify the following: Stock Market, Inc. and The American Stock 2 revises proposed Rule 303.02 to require (a) The scope of the audit committee’s Exchange LLC have proposed rule changes relating companies listing on the Exchange in conjunction responsibilities and how it carries out to audit committees. See Securities Exchange Act with an initial public offering to have two qualified those responsibilities, including Release No. 41982 (Oct. 6, 1999), 64 FR 55510 (Oct. audit committee members in place within three 13, 1999) (‘‘Nasdaq Proposal’’), and Securities months of listing, and a third qualified member structure, processes and membership Exchange Act Release No. 41981 (Oct. 6, 1999), 64 within twelve months of listing. requirements; FR 55505 (Oct. 13, 1999) (‘‘Amex Proposal’’). 7 Report and Recommendations of the Blue 4 (b) That the outside auditor for the The comment letters are discussed in Section III Ribbon Committee on Improving the Effectiveness company is ultimately accountable to of this order. of Corporate Audit Committees (1999). A copy of 5 Letter from James E. Buck, Senior Vice President this Report can be found on-line at the Board of Directors and audit and Secretary, NYSE, to Richard Strasser, Assistant www.nasdaqnews.com. committee of the company, that the
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As part of the auditor (or to nominate the outside relationship with the company, or (ii) initial listing process, and with respect auditor to be proposed for shareholder Who has a direct business relationship to any subsequent changes to the approval in any proxy statement); and with the company (e.g., a consultant) composition of the audit committee, and (c) That the audit committee is may serve on the audit committee only otherwise approximately once each responsible for ensuring that the outside if the company’s Board of Directors year, each company should provide the auditor submits on a periodic basis to determines in its business judgment that Exchange written confirmation the audit committee a formal written the relationship does not interfere with regarding: statement delineating all relationships the director’s exercise of independent (1) Any determination that the between the auditor and the company judgment. In making a determination company’s Board of Directors has made and that the audit committee is regarding the independence of a director regarding the independence of directors responsible for actively engaging in a pursuant to this paragraph, the Board of pursuant to any of the subparagraphs dialogue with the outside auditor with Directors should consider, among other above; respect to any disclosed relationships or things, the materiality of the (2) The financial literacy of the audit services that may impact the objectivity relationship to the company, to the committee members; and independence of the outside auditor director, and, if applicable, to the (3) The determination that at least one and for recommending that the Board of organization with which the director is of the audit committee members has Directors take appropriate action [to affiliated. accounting or related financial management expertise; and ensure the independence of the outside ‘‘Business relationships’’ can include auditor] in response to the outside (4) The annual review and commercial, industrial, banking, reassessment of the adequacy of the auditors’ report to satisfy itself of the consulting, legal, accounting and other outside auditors’ independence. audit committee charter. relationships. A director can have this (D) Independence Requirement of (2) Composition/Expertise relationship directly with the company, Audit Committee Members. Requirement of Audit Committee or the director can be a partner, officer Notwithstanding the requirements of Members. or employee of an organization that has subparagraphs (3)(1) and (3)(d) of para. (a) Each audit committee shall consist such a relationship. The director may 303.01, one director who is no longer an of at least three directors, all of whom serve on the audit committee without employee or who is an Immediate have no relationship to the company the above-referenced Board of Directors’ Family member of a former executive that may interfere with the exercise of determination after three years officer of the company or its affiliates, their independence from management following the termination of, as but is not considered independent and the company (‘‘Independent’’); applicable, either (1) The relationship pursuant to these provisions due to the (b) Each member of the audit between the organization with which three-year restriction period, may be committee shall be financially literate, the director is affiliated and the appointed, under exceptional and as such qualification is interpreted by company, (2) The relationship between limited circumstances, to the audit the company’s Board of Directors in its the director and his or her partnership committee if the company’s board of business judgment, or must become status, shareholder interest or executive directors determines in its business financially literate within a reasonable officer position, or (3) The direct judgment that membership on the period of time after his or her business relationship between the committee by the individual is required appointment to the audit committee; director and the company. by the best interests of the corporation and (c) Cross Compensation Committee and its shareholders, and the company (c) At least one member of the audit Link. A director who is employed as an discloses, in the next annual proxy committee must have accounting or executive of another corporation where statement subsequent to such related financial management expertise, any of the company’s executives serves determination, the nature of the as the Board of Directors interprets such on that corporation’s compensation relationship and the reasons for that qualification in its business judgment. committee may not serve on the audit determination. (3) Independence Requirement of committee. (E) ‘‘Officer’’ shall have the meaning Audit Committee Members. In addition specified in Rule 16a–1(f) under the (d) Immediate Family. A director who to the definition of Independent Securities Exchange Act of 1934, or any is an Immediate Family member of an provided above in (2)(a), the following successor rule. restrictions shall apply to every audit individual who is an executive officer of (F) Initial Public Offering. Companies committee member. the company or any of its affiliates listing in conjunction with their initial (a) Employees. A director who is an cannot serve on the audit committee public offering (including spin-offs and employee (including non-employee until three years following the carve outs) will be required to have two executive officers) of the company or termination of such employment qualified audit committee members in any of its affiliates may not serve on the relationship. See para. 303.02 for place within three months of listing and audit committee until three years definition of ‘‘Immediate Family.’’ a third qualified member in place within following the termination of his or her 303.02 Application Standards twelve months of listing. employment. In the event the employment relationship is with a (A) ‘‘Immediate Family’’ includes a B. Charter former parent or predecessor of the person’s spouse, parents, children, The Exchange proposes to require company, the director could serve on siblings, mothers-in-law and fathers-in- audit committees to adopt a formal the audit committee after three years law, sons and daughters-in-law, brothers written charter that is approved by the following the termination of the and sisters-in-law, and anyone (other company’s board and to review and relationship between the company and than employees) who shares such reassess annually the adequacy of the the former parent or predecessor. person’s home. charter. The charter must specify: (i)
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The scope of the audit committee’s Employees (including non-employee accounting or related financial responsibilities and how they are being executive officers) of the company or its management expertise; and carried out; (ii) the ultimate affiliates may not serve on the audit (iv) The annual review and accountability of the outside auditor to committee until three years following reassessment of the adequacy of the the board and audit committee; (iii) the the termination of employment. audit committee charter. responsibility of the audit committee However, if the relationship is with a F. Definitions and board for selection, evaluation and former parent or predecessor of the replacement of the outside auditor; and company (see definition of ‘‘Affiliate’’ The Exchange proposes to codify two (iv) The responsibility of the audit described in Subsection F below), the long-standing interpretations under the committee for ensuring the three-year bar applies to the time period current audit committee requirements as independence of the outside auditor by following the severance of the follows: reviewing, and discussing with the relationship between the company and (i) ‘‘Immediate Family’’ includes a board if necessary, any relationships the former parent or predecessor. person’s spouse, parents, children, between the auditor and the company or Second, a director: (i) who is a siblings, mother-in-law and fathers-in- any other relationships that may partner, controlling shareholder, or law, sons and daughters-in-law, brothers adversely affect the independence of the executive officer of an organization that and sisters-in-law, and anyone (other auditor. has a business relationship with the than employees) who shares such company, or (ii) who has a direct person’s home; and C. Structure and Membership of the (ii) ‘‘Affiliate’’ includes a subsidiary, Audit Committee business relationship with the company (e.g., a consultant), may serve on the sibling company, predecessor, parent The Exchange also proposes to change audit committee only if the company’s company, or former parent company. the structure and membership board determines in its business G. Implementation qualifications of the audit committee. judgment that the relationship does not The Exchange proposes to implement Under the proposed rule change, each interfere with the director’s exercise of audit committee must have at least three a transition period to provide its issuers independent judgment. Business independent directors, subject to a with sufficient time to comply with the relationships can include commercial, board override for one director. The proposed rule change. Specifically, the industrial, banking, consulting, legal, board may override the three-year bar Exchange proposes to: (i) ‘‘grandfather’’ accounting and other relationships. A for one audit committee member after all public company audit committee director can have this relationship finding that an override is required in members qualified under current NYSE directly with the company, or the the best interests of the company and its rules until they are re-elected or director can be a partner, officer or shareholders. If it exercises the override, replaced; and (ii) give companies that employee of an organization that has the the company must disclose in its next have less than three members on their business relationship. annual proxy statement the nature of the audit committees eighteen months from relationship and the reasons for that Third, a director who is employed as the date of Commission approval of this determination. Potential candidates that an executive of another corporation rule filing to recruit the requisite are not considered independent because where any of the company’s executives members. Issuers listed on the Exchange of a business relationship with the serves on that corporation’s as of the effective date of the proposed company or a cross compensation compensation committee may not serve rule change will have six months to committee link may not be the subject on the audit committee. adopt a formal written audit committee of a board override. Fourth, a director who is ‘‘Immediate charter.8 As a result of the audit committee’s Family’’ (as that term is defined by responsibility for a company’s proposed Exchange Rule III. Comments accounting and financial reporting, the 303.01(B)(3)(d)) of an individual who is As of December 9, 1999, the Exchange believes that audit committee an executive officer of the company or Commission received 25 comment members should have a basic any of its affiliates cannot serve on the letters on the proposed rule change.9 In understanding of financial statements. audit committee until three years Therefore, the proposed rule change following the termination of such 8 See Amendment No. 1, supra n. 5. requires each audit committee member employment relationship. 9 See letters from: Ernst & Young LLP (‘‘E&Y’’) dated November 1, 1999; Deloitte & Touche LLP to be financially literate, or to become E. Written Affirmation (‘‘Deloitte’’) dated November 3, 1999; Council of financially literate within a reasonable Institutional Investors (‘‘CII’’) dated November 8, period of time after his or her To monitor compliance with the 1999; Brian T. Borders (on behalf of the National appointment to the audit committee, as proposed rule change, the Exchange Venture Capital Association (‘‘NVCA’’)) dated such qualification is interpreted by the proposes to incorporate an ongoing November 12, 1999; Investment Company Institute written affirmation requirement. In this (‘‘ICI’’) dated November 3, 1999; company’s board in its business PriceWaterhouseCoopers LLP (‘‘PWC’) dated judgment. Furthermore, in order to regard, as part of the initial listing November 1, 1999; Gary P. Kreider (‘‘Kreider’’) further enhance the effectiveness of the process, and with respect to any dated November 5, 1999; Emerson Electric Co. audit committee, the proposal requires subsequent changes to the composition (‘‘Emerson’’) dated November 1, 1999; Exxon of the audit committee, and otherwise Corporation (‘‘Exxon’’) dated November 3, 1999; at least one member of each audit McDonald’s Corporation (McDonald’s) dated committee to have accounting or related approximately once each year, each November 1, 1999; Connectiv (‘‘Connectiv’’) dated financial management expertise, as the company must provide the Exchange November 2, 1999; Texas Instruments (‘‘TI’’) dated company’s board interprets such written confirmation regarding: November 2, 1999; Dime Bancorp, Inc. (‘‘Dime’’) (i) Any determination that the dated November 3, 1999; Airlease Management qualification in its business judgment. Services, Inc. (‘‘Airlease’’) dated November 3, 1999; company’s board has made regarding The Dun & Bradstreet Corporation (‘‘D&B’’) dated D. Independence the independence of directors; November 3, 1999; EMC Corporation (‘‘EMC’’) dated The proposed rule change places four (ii) The financial literacy of the audit November 1, 1999; Dorsey & Whitney LLP committee members; (‘‘Dorsey’’) (on behalf of nine closed-end investment restrictions on audit committee management companies whose stock is listed on the members for purposes of determining (iii) The determination that at least Exchange) dated October 28, 1999; Massachusetts each member’s independence. First, one of the audit committee members has Continued
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.302 pfrm03 PsN: 21DEN1 71532 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices general, most commenters favored the terms will lead to inconsistencies. In proposal’s financial literacy proposed rule change but recommended addition, several commenters stated that requirement.25 APTC believes that the certain modifications. Three the proposed rule change will financial literacy requirement may commenters opposed the proposed rule discourage qualified candidates from deprive audit committees of the service change.10 serving on audit committees.15 of individuals with ‘‘exceptional In particular, the CII supports the new Moreover, one commenter stated that character and/or operational requirements, but stated that the the restriction that prohibits an experience.’’ 26 The commenter proposed board override provision, individual who is an immediate family suggested that the Exchange replace this which allows a company’s board to member of an executive officer of the requirement with a requirement that the include a non-independent director on company or any of its affiliates from committee as a whole posses a certain an audit committee, is not appropriate serving on the audit committee should level of financial acumen.27 because companies should not have a not be limited to executive officers.16 TI stated that to reduce unrealistic problem finding financially literate, Finally, three commenters stated that expectations, the proposed rule change truly independent directors.11 In the Exchange should adopt a bright line should require or permit a disclaimer in addition, the AFL–CIO stated that the test for identifying when a director has the audit committee charter stating that restriction period for former employees, a significant business relationship with the committee does not provide any or relatives of former employees, should the company, as in the Amex Proposal special assurances with regard to the be three years instead of five years.12 and Nasdaq Proposal.17 On the other company’s financial statements, nor MFSC stated that audit committees hand, another commenter opposed a does the audit committee give a should not be required to describe in bright line test and stated that the professional evaluation of the quality of their charters how they carry out their Exchange should not revise its current the audits performed by the responsibilities.13 test to determine if a significant independent public accountants.28 Many of the commenters pointed to business relationship exists.18 Exxon and NYSBA stated that the differences between the proposed rule In addition, one commenter stated company’s board, not the audit change, on the one hand, and the Amex that past non-executive employment committee, should be required to adopt Proposal and Nasdaq Proposal, on the should be treated as a significant the audit committee charter because other. Specifically, several commenters business relationship.19 This audit committees are created by the stated that the Exchange should adopt commenter also stated that consultants board in its discretion and under the Amex’s and Nasdaq’s definitions of who receive from the company more authority granted by state law.29 financial literacy and expertise.14 These than a de minimis amount of Exxon also stated that proposed Rule commenters noted that allowing compensation should be treated as 303.01(B)(2)(a), which requires audit individual companies to define these employees, while consultants who do committees to have at least three not should be treated as having a directors, all of whom must be Financial Services Company (‘‘MFSC’’) (on behalf business relationship with the independent, should provide a business of six closed-end funds advised by MFSC) dated company.20 According to the November 22, 1999; Meritor Automotive, Inc. judgment standard for independence, as (‘‘Meritor’’) dated November 24, 1999; American commenter, the company’s board subparts (b) and (c) of this Rule do with Federation of Labor and Congress of Industrial should be permitted to determine that respect to financial literary and Organizations (‘‘AFL–CIO’’) dated November 29, the compensation does not impair the expertise.30 Exxon also stated that 1999; Mayer, Brown & Platt on behalf of Morgan director’s objectivity.21 Moreover, the Stanley Dean Witter (‘‘MSDW’’) dated November proposed Rule 303.01(B)(1) should not 29, 1999; Arthur Andersen LLP (‘‘Arthur commenter objected to the financial give both the board and the audit Andersen’’) dated December 3, 1999; Association of expertise requirement and stated that no committee ultimate responsibility to Publicly Traded Companies (‘‘APTC’’) dated director will want to be designated the select, evaluate, and replace the outside December 6, 1999; Robert A. Profusek (‘‘Profusek’’) financial expert because of the added auditor.31 Exxon stated that only one dated December 3, 1999; Stanley Keller and Richard 22 Rowe (‘‘Keller and Rowe’’) dated December 7, 1999; exposure to liability. body can have ultimate authority.32 and The Committee on Securities Regulation of the APTC stated that the proposed rule McDonald’s stated that a yearly written Business Law Section of the New York State Bar change will be counter productive to the confirmation regarding financial Association (‘‘NYSBA’’) dated December 1, 1999. goal of better audit committees.23 In 10 literacy, financial expertise, See Kreider Letter at 2; EMC Letter at 2; APTC addition, APTC stated that the proposed Letter at 2. Kreider stated his belief that the independence of directors, and proposed rule change circumvents state corporate rule change will disadvantage smaller adequacy of the audit committee’s law. EMC stated that the proposed rule change companies more than larger companies, charter is unnecessary.33 substitutes over-generalized restrictions for the but concluded that it is appropriate to Deloitte and PWC each stated that more flexible, traditional standards of good faith, apply the proposed rule change to all candor, care and loyalty that underlie the business requiring a company’s board or audit 24 judgment rule under state law. EMC also stated that companies, regardless of size. committee to ‘‘ensure’’ the the independence standards may deprive audit Moreover, APTC is opposed to the committees of valuable financially-expert directors. 25 Id. at 4–5. 11 CII Letter at 2; see also AFL–CIO Letter at 2. 15 Dime Letter at 2; NVCA Letter at 2; D&B Letter 26 Id. 12 AFL–CIO Letter at 2. at 2; MFSC at 2. 27 Id. at 5. 13 MFSC Letter at 1. 16 Keller and Rowe Letter at 2. 28 TI Letter at 1. 14 Dorsey Letter at 7, 9; E&Y Letter at 3; Connectiv 17 E&Y Letter at 2; Emerson at 2; Arthur Andersen 29 Exxon Letter at 1; NYSBA Letter at 2. Letter at 2; D&B Letter at 2; Emerson Letter at 2; Letter at 1. In addition, the AFL–CIO stated that the 30 Exxon Letter at 2. The Commission notes that NYSBA Letter at 5. In addition, two commenters NYSE should adopt a bright line test, but does not proposed Rule 303.01(B)(2)(b) and (c) require each stated that the terms financial literacy and expertise think the $60,000 threshold adopted by the Amex company’s board to interpret the terms ‘‘financial are too subjective and should be further defined, and Nasdaq is stringent enough. AFL–CIO Letter at literary’’ and ‘‘financial expertise.’’ The business but did not state the Amex/Nasdaq versions should 3. judgment standard therefore applies to the board’s be adopted. See McDonald’s Letter at 1; MFSC 18 Profusek Letter at 2. interpretation of these terms. Subpart (a) of the rule Letter at 2. MFSC Letter at 2. MFSC also stated that 19 Keller and Rowe Letter at 2. it is not reasonable to expect a company’s board to does not require the board to interpret the term 20 Id at 3. request agreement from a potential audit committee ‘‘independence’’ and, thus, there is no need for a 21 candidate that he will become financially literate Id. business judgment standard. because there are no accreditation criteria or 22 Id.; see also NYSBA Letter at 6. 31 Exxon Letter at 1. specific timeframes for completing this 23 APTC Letter at 2. 32 Id. undertaking. MFSC Letter at 2. 24 Id. at 3. 33 McDonald’s Letter at 2.
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The Commission does Deloitte suggested that the Exchange rules and regulations thereunder not view the proposed rule change as replace the word ‘‘ensure’’ with applicable to a national securities posing an undue hardship on venture ‘‘monitor’’ or ‘‘actively oversee.’’ 35 E&Y exchange,43 and, in particular, the capital firms or companies listed on the supports the proposed rule change requirements of section 6(b)(5) of the NYSE. The Commission notes that the overall, but stated that Small Business Act.44 The Commission believes that the proposed rule change will only prohibit Filers should not be exempt from the proposed rule change will protect venture capital investors from sitting on financial literacy and expertise investors by improving the effectiveness a company’s audit committee if the requirements and that the Exchange of audit committees of companies listed investor does not fall within the should expand its definition of on the Exchange. The Commission also Exchange’s definition of independence. immediate family member to include believes that the new requirements will The proposed rule change will not sons-in-law and daughters-in-law.36 enhance the reliability and credibility of prohibit previously eligible investors Airlease stated that smaller companies financial statement of companies listed from serving on the company’s board. should not be required to have three on the Exchange by making it more In addition, the Commission believes independent auditors on their audit difficult for companies to that requiring boards of directors of committees.37 inappropriately distort their true listed companies to adopt formal In addition, the NVCA stated that the financial performance. written charters specifying the audit proposed rule change should exclude Specifically, the Commission believes committee’s responsibilities, and how it venture capital investors from the that the proposed definition of carries out those responsibilities, will independence qualifications.38 The independence will promote the quality help the audit committee, management, NVCA also stated that the proposed rule and reliability of a company’s financial investors, and the company’s auditors change should give companies that have statements. The Commission believes recognize, and understand the function just completed an initial public offering that directors without financial, of the audit committee and the (‘‘IPO’’) eighteen months to comply with familial, or other material personal ties relationship among the parties. the new requirements.39 to management will be more likely to Moreover, the Commission believes that Three commenters stated that the objectively evaluate the propriety of the proposal’s requirement that proposed rule change should not apply management’s accounting, internal companies provide yearly written to closed-end investment companies.40 control, and financial reporting confirmation regarding the ICI and MSDW noted that closed-end practices. The Commission also believes independence, financial literacy, and investment companies are adequately that the proposal’s prohibition against financial expertise of directors, as well regulated under the 1940 Act.41 These employees serving on the audit as the adequacy of the audit committee two commenters also stated that the committee is appropriate and that the charter, will help the Exchange to potential abuses that the proposed rule Exchange should not be required to ensure that listed companies are change is designed to address do not distinguish between executive and non- complying with the proposed rule exist with respect to closed-end executive employees.45 In addition, the change. investment funds because the assets of Commission considers that the The Commission believes that the closed-end funds, consist exclusively of proposed provision permitting a proposed rule change’s requirement that investment securities and thus there is company to appoint one non- each issuer have an audit committee no opportunity to ‘‘manage’’ earnings or independent director to its audit composed of three independent results through the selective application committee, if the board determines that directors who are able to read and of accounting policies.42 membership on the committee by the understand fundamental financial individual is required by the best statements will enhance the 34 Deloitte Letter at 1; PWC Letter at 1; Meritor interests of the corporation and its effectiveness of the audit committee and Letter at 2. shareholders, adequately balances the help to ensure that audit committee 35 Id. at 2. need for objective, independent members are able to adequately fulfill 36 E&Y Letter at 4. In addition, the NVCA stated directors with the company’s need for their responsibilities. The Commission that the exemption for Small Business Filers should believes that requiring each audit be expanded to apply to companies with less than flexibility in exceptional and unusual $50 million in revenue. NVCA Letter at 4. The circumstances. The Commission committee member to satisfy this Commission notes, unlike the Nasdaq Proposal and believes that the proposal’s requirement standard will help to ensure that the the Amex Proposal, there is no exemption for Small that the company disclose in its next committee as a whole is financially Business Filers under the NYSE’s proposed rule literate.47 Moreover, the Commission change. annual proxy statement the nature of the 37 Airlease Letter at 1. relationship and the board’s reasons for believes that requiring one member of 38 NVCA Letter at 5. determining that the appointment was the audit committee to have past 39 Id at 4. in the best interests of the corporation employment experience in financial or 40 ICI Letter at 2; MSDW Letter at 1; Keller and will adequately guard against abuse of accounting, requisite professional Rowe Letter at 3. In addition, Keller and Rowe the proposed exception to the certification in accounting, or any other stated that the proposed rule change should exempt 46 comparable experience or background all investment companies because their audit independence requirement. committee members are already required not to be that indicates the individual’s financial ‘‘interested persons’’ as that term is defined in of investment funds are selected by the sophistication, will further enhance the Section 2(a)(9) of the Investment Company Act of independent directors of the fund. effectiveness of the audit committee in 1940 (‘‘1940 Act’’). Keller and Rowe Letter at 5. 43 In approving the proposal, the Commission has carrying out its financial oversight Moreover, Dorsey supported the application of the considered its impact on efficiency, competition, proposed rule change to investment companies. and capital formation. 15 U.S.C. 78c(f). responsibilities. The Commission does Dorsey Letter at 3. 44 15 U.S.C. 78f(b)(5). 41 ICI Letter at 3–4; MSDW Letter at 2. 45 See Keller and Rowe Letter at 2. adopt a separate provision on consultants. See 42 ICI Letter at 3; MSDW Letter at 1. ICI and 46 The Commission does not believe that the Keller and Rowe Letter at 3. MSDW also noted that the independent accountants Exchange should require its listed companies to 47See APTC Letter at 5.
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.304 pfrm03 PsN: 21DEN1 71534 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices not believe that these requirements will investors. The Commission believes that requirements is consistent with the discourage qualified candidates from Amendment No. 1 will enable issuers to requirements of the Act and the rules serving on audit committees. Rather, the determine when they must comply with and regulations thereunder. Commission believes that these the new requirements and will enable It Is Therefore Ordered, pursuant to requirements will better enable investors to determine when to reply on Section 19(b)(2) of the Act,54 that the companies to identify and select the protections afforded by the proposed amended proposed rule change (SR–NYSE– qualified directors. In addition, the rule change. The Commission notes that 99–39) is approved. Commission does not believe that Amendment No. 2 simply codifies the For the Commission, by the Division of companies will experience undue Exchange’s existing policy on the timing Market Regulation, pursuant to delegated difficulty recruiting an audit committee of audit committee requirements for authority.55 member that satisfies the financial IPO’s; clarifies that the company’s board Margaret H. McFarland, expertise requirements. must take appropriate action to satisfy Deputy Secretary. Moreover, the Commission considers itself of the outside auditor’s [FR Doc. 99–33052 Filed 12–20–99; 8:45 am] the Exchange’s decision to exempt independence, and is not intended to BILLING CODE 8010±01±M Small Business Filers as appropriate.48 provide an absolute guarantee of The Commission notes that relatively independence; and requires the board to few companies that qualify for listing on adopt the audit committee charter, DEPARTMENT OF STATE the Exchange would also qualify as rather than approving the charter Small Business Filers under SEC adopted by the audit committee. The [Public Notice 3180] Regulation S–B.49 Commission believes that accelerated Furthermore, the Commission does approval will allow the Exchange to Culturally Significant Objects Imported not believe that the Exchange should be simultaneously make all relevant for Exhibition Determinations: ``Walker required to adopt the Amex and Nasdaq modifications to its Listed Company Evans'' Manual and will avoid potential proposed definitions of financial DEPARTMENT: United States Department confusion. Accordingly, the literacy and expertise or the test to of State. determine when a potential director has Commission finds good cause to ACTION: Notice. a significant business relationship with accelerate approval of Amendments No. the company. The Commission notes 1 and No. 2 to the proposed rule change, SUMMARY: Notice is hereby given of the that the proposed rule change is not consistent with the Sections 6(b)(5)52 53 following determinations: Pursuant to inconsistent with the Act. and 19(b) of the Act. the authority vested in me by the Act of Moreover, the Commission has V. Solicitation of Comments October 19, 1965 (79 Stat. 985, 22 U.S.C. concluded that the Exchange’s decision Interested persons are invited to 2459), the Foreign Affairs Reform and to include investment companies in the Restructuring Act of 1998 (112 Stat. proposed rule change is warranted. submit written data, views and arguments concerning the foregoing, 2681, et seq.), Delegation of Authority While the Commission recognizes that No. 234 of October 1, 1999, and the opportunity for some types of including whether the proposed rule change is consistent with the Act. Delegation of Authority No. 236 of financial reporting abuses may be October 19, 1999, as amended, I hereby 50 Persons making written submissions limited by the nature of fund assets, it determine that the objects to be believes that audit committees do play should file six copies thereof with the Secretary, Securities and Exchange included in the exhibition ‘‘Walker an important role in overseeing the Evans,’’ imported from abroad for financial reporting process for Commission, 450 Fifth Street, NW, Washington, DC 20549–0609. Copies of temporary exhibition without profit investment companies. within the United States, are of cultural Finally, the Commission does not the submission, all subsequent amendments, all written statements significance. These objects are imported view the proposed rule change as pursuant to loan agreements with the circumventing state law.51 The with respect to the proposed rule change that are filed with the foreign lender. I also determine that the Commission notes that the Exchange is exhibition or display of the exhibit amending its own listing standards, Commission, and all written communications relating to the objects at The Metropolitan Museum of which is a function within the Art, New York, New York, from on or Exchange’s discretion, as long as those proposed rule change between the Commission and any person, other than about January 31, 2000, to on or about changes are consistent with the Act. May 14, 2000; the San Francisco The Commission finds good cause for those that may be witheld from the public in accordance with the Museum of Modern Art, San Francisco, approving Amendments No. 1 and No. California, from on or about June 2, 2 to the proposed rule change prior to provisions of 5 U.S.C. 552, will be available for inspection and copying in 2000, to on or about September 12, the thirtieth day after publication in the 2000, and at the Museum of Fine Arts, Federal Register. The Commission notes the Commission’s Public Reference Room. Copies of such filing will also be Houston, Texas, from on or about that Amendment No. 1 revises the December 17, 2000, to on or about implementation time periods for the available for inspection and copying at the principal office of the Exchange. All March 11, 2001, is in the national proposed rule change solely to provide interest. greater clarity to issuers and to submissions should refer to the File No. SR–NYSE–99–39 and should be FOR FURTHER INFORMATION CONTACT: For 48 See NVCA and Airlease Letters. submitted by January 11, 2000. further information, including a list of 49 Small Business Filer is defined by Regulation exhibit objects, contact Lorie J. S–B as an issuer that: (i) has revenue of less than VI. Conclusion Nierenberg, Attorney-Adviser, Office of $25,000,000; (ii) is a U.S. or Canadian issuer; and For the foregoing reasons, the the Legal Adviser, U.S. Department of (iii) if a majority owned subsidiary, the parent Commission finds that the Exchange’s State (telephone: 202/619–6084). The corporation is a small business issuer. 17 CFR 228.10(a)(1). proposal to amend its audit committee address is U.S. Department of State, SA– 50 See Keller and Rowe Letter at 5; ICI Letter at 3; MSDW Letter at 1. 52 15 U.S.C. 78f(b)(5). 54 15 U.S.C. 78s(b)(2). 51 Kreider Letter at 2. 53 15 U.S.C. 78s(b). 55 17 CFR 200.30–3(a)(12).
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44; 301–4th Street, SW, Room 700, partial funding for linkages between is, there should be an inherent reason Washington, DC 20547–0001. U.S. and NIS schools featuring for the linkage apart from the Dated: December 15, 1999. collaborative substantive projects and availability of grant funds. Organizers and school networks in the U.S. and NIS William B. Bader, reciprocal student and educator exchanges with strong academic should collaborate in planning and Assistant Secretary for Educational and preparation. Applicants must have an Cultural Affairs, U.S. Department of State. content. The long-term goals are to: (1) develop lasting, sustainable institutional NIS organizational partner that has its [FR Doc. 99–33060 Filed 12–20–99; 8:45 am] ties between U.S. and NIS schools and base of operation in the partner country BILLING CODE 4710±08±P communities; (2) support democracy in and not in another country. Proposals the NIS; (3) advance mutual should support a working relationship that will produce something tangible DEPARTMENT OF STATE understanding between the youth and teachers of the U.S. and the NIS; and (4) and lasting in addressing the interests of [Public Notice 3182] promote partnerships developed both sides, beyond the confines of the through governmental, educational, and funded project, such as the development Bureau of Educational and Cultural not-for-profit sector cooperation that of educational materials. The proposal Affairs NIS Secondary School serve the needs and interests of the should specify measurable goals and Partnership Program schools. objectives of the program. In general, the Bureau seeks school NOTICE: Request for proposals. The program has several defining features to help the participating partnerships that target under-served SUMMARY: The Office of Citizen schools develop their partnership: countries or regions. For programs with Exchanges, Youth Programs Division, in —Each partnership has a project Russia and Ukraine, priority will be the Bureau of Educational and Cultural theme and the students and teachers in given to partnerships with schools Affairs of the United States Department the two schools work on a joint project located outside of the Moscow, St. of State announces an open competition throughout the school year related to Petersburg, and Kiev regions. Bureau for the NIS Secondary School this theme; funding may not be used to supplant Partnership Program. Public and private —The two schools develop a existing private sector funding. non-profit organizations meeting the relationship over the course of an Competitive proposals must provisions described in IRS regulation academic year, through the planning demonstrate a solid and comprehensive 26 CFR 1.501(c) may submit proposals process and the work on their joint follow-on plan to continue after the to either enhance or expand existing project, which is highlighted by grant has expired. partnerships or develop new school exchanges from three weeks to ten Proposals must clearly describe and partnership programs with Armenia, months in duration. Exchanges take define substantive thematically-based Azerbaijan, Belarus, Georgia, Moldova, place while the host school is in projects for each school partnership that Russia, or Ukraine. All proposals must session. are the focus of the exchange for both have a thematic focus and feature on- —The student and teacher exchanges students and educators and on-going going joint project activity between the must be reciprocal. joint project activity between the two schools, a student exchange component, —The program includes educators schools. Specific activities, products, and an educator (teacher/administrator) (teachers and/or administrators) in order curriculum materials, and pre-planning exchange component. The maximum to involve them in all aspects of the are areas that can be addressed. grant award will be $125,000 for single- partnership and to provide them access For example, what will the country applications and $200,000 for to resources for curriculum participants be doing and how is it multiple country applications. development and educational training. relevant to the thematic focus of the program? Applicants should present a Program Information —During the exchange, participants attend class, are involved in school- program that succeeds in linking the The Secondary School Partnership based activities, work on their joint greater school community. All Program is funded under the Freedom project, perform community service, participating schools must be identified. Support Act to assist young people in visit educational and cultural sites, and Proposals should describe the selected building an open society and reside with host families. theme, its importance to the schools and developing democratic processes and An applicant may, but is not required communities, the specific academic institutions in the New Independent to, propose one of several optional activities, and the expected outcome or States (NIS). This program provides features in its proposal. Please see these product of the project. Possible themes grants to link schools in the seven three optional features described later in include but are not limited to the countries noted above with schools in this solicitation. following: democracy education, the United States. volunteerism or community service, The U.S. recipient of the grant is Dates conflict resolution, business responsible for recruiting, selecting, and Grants may begin on or about July 15, management, health education, organizing a U.S. network of a minimum 2000, and cover the 2000–2001 environmental issues, youth leadership of two secondary schools; strengthening academic year. The exact starting date of training, computer technology, an existing working relationship with an the grant will be dependent on multicultural education, and organization or agency of government in availability of funds. agriculture. the NIS responsible for a network of at Proposals must clearly present Guidelines least two schools there; and linking the independent educator programs for two networks in one-to-one school A competitive proposal will present a teachers/administrators. These programs partnerships through a thematic project project that builds upon previous could include curriculum development and substantive exchange activities. contacts and interaction between the seminars, shadowing of host peers in proposed schools to help ensure a solid the classroom, university-level courses, Overview foundation for the partnership. or other substantive activities, with an The short-term goal of the school Partnerships should have an existence emphasis on such themes as parent- partnership program is to provide beyond the scope of this initiative; that teacher cooperation, model schools,
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71536 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices teacher training, and collaboration with Responsibilities Budget Guidelines local businesses. A program that relies The U.S. organization receiving the Applicants must submit a on the educator to act as just an escort comprehensive budget for the entire will not be competitive. grant will (1) design the overall plan that integrates the joint project activity project. For single-country applications, awards may not exceed $125,000 or the Optional Features and the exchange components of the country allocation noted below, partnership; (2) ensure quality control An applicant may choose to present whichever is less. Awards for one for all program elements; (3) keep The its proposed program in accordance to school partnership (optional feature the guidelines above or may choose to Bureau informed of its progress; (4) three) may not exceed $50,000. The implement one of the following features. manage all travel arrangements, maximum award for multiple country Clearly indicate if you are including one logistics, passports, visas, etc.; (5) applications is $200,000. The Bureau of these features and, if so, which one, provide competent and informed escorts has set country allocations for this on your application cover sheet. All for student groups; and (6) disburse and competition and all proposals must guidelines outlined in this solicitation account for grant funds. Recipients of a adhere to these maximum amounts per still apply unless noted below. grant are responsible for ensuring the country. Only partnerships between Feature One: Educators travel selection of exchange participants who secondary schools in the United States separately. In lieu of having students are most suited for the program and for and these countries are eligible for this and educators travel to their partner providing them with a meaningful pre- competition. school together, the applicant may departure orientation. Selection of Country allocations (subject to arrange for an escort to accompany the individual participants from the U.S. change): Armenia $97,000; Azerbaijan student group while up to two educators and the NIS in the exchange $97,000; Belarus $97,000; Georgia travel to the partner school at another components of the program must be $97,000; Moldova $68,000; Russia time. This arrangement would apply to open, competitive, and merit-based; the $500,000; Ukraine $330,000. both U.S. to NIS travel and NIS to U.S. proposal should describe the Grants awarded to eligible travel. Travel during the school year is mechanisms used for participant organizations with less than four years preferred, but educators’ travel may take selection. All participants from the U.S. of experience in conducting place during the summer if a significant and the NIS should represent the full international exchange programs will be component of their exchange diversity of their communities (racial, limited to $60,000. contributes to the development of the ethnic, economic status, religious, etc.) There must be a summary budget as partnership between the schools. This to give greater understanding to the well as breakdowns reflecting both design will allow for sustained personal culture and society as a whole. administrative and program budgets. contact throughout the school year and Applicants may provide separate sub- will allow educators to focus on their Preference will be given to proposals budgets for each program component, own professional development during that include schools that have not phase, location, or activity to provide their exchange. received funding under the NIS clarification. All program costs should Feature Two: Grant period spans two Secondary School Initiative for a total of clearly indicate whether they cover U.S. school years. In lieu of having one three years. or NIS participants. Be sure to note the reciprocal exchange during the 2000– Significant cost-sharing is mandatory statement on cost-sharing in the 2001 academic year, the applicant may in all proposals, and those that show Guidelines section. Please refer to the arrange for each school to send and more generous and creative cost-sharing Solicitation Package for complete receive two smaller delegations, once in will be more favorably viewed. budget guidelines and formatting 2000–2001 and again in 2001–2002 for Proposals that contain non-Bureau instructions. a total of four exchange trips. The grant funded items such as additional Announcement Title and Number period would start on or about July 15, students and/or educators on the 2000, and end on or about July 15, 2002. exchange, U.S. participants paying for All correspondence with the Bureau This design allows for longer, sustained some of their own costs, computer concerning this RFP should reference the above title and number ECA/PE/C– interaction between the schools. Grant software purchases, cultural excursions, 00–26. requests, however, may not exceed the capital city civics programs, and other limits noted in this solicitation. significant items will be more FOR FURTHER INFORMATION, CONTACT: The Feature Three: Only one school competitive proposals than those that Youth Programs Division, Office of partnership is formed. In lieu of a do not. However, NIS participants may Citizen Exchanges, ECA/PE/C/PY, Room network of schools in the U.S. and in not be charged to participate in the 568, U.S. Department of State, 301 4th the NIS, an applicant that is a secondary program, aside from paying for home Street, S.W., Washington, D.C. 20547, school or school district may propose to country costs (such as transportation to telephone (202) 619-6299; fax (202) link only one school in the U.S. with 619–5311; E-mail [email protected] to the point of departure), the costs of one school in the NIS. The NIS request a Solicitation Package. The hosting the U.S. students and educators, organizational coordinator may be an Solicitation Package contains detailed and miscellaneous expenses such as individual at the partner school as long award criteria, required application pocket money. as he or she can fulfill the forms, specific budget instructions, and responsibilities outlined in this Please be sure to refer to the Project standard guidelines for proposal solicitation. The grant request that Objectives, Goals, and Implementation preparation. Please specify Bureau accompanies applications with this (POGI) section of the Solicitation Program Officer Carolyn Lantz on all feature may not exceed $50,000. Package for greater detail regarding the other inquiries and correspondence. Applicants that choose one of these design of the component parts as well Please read the complete Federal features should provide a brief as other program information. Also Register announcement before sending explanation of why they have chosen to consult the Proposal Submission inquiries or submitting proposals. Once do so and how they believe it will Instructions (PSI) for information on the RFP deadline has passed, Bureau enhance their program. budget presentation and required forms. staff may not discuss this competition
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.208 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71537 with applicants until the proposal that ‘‘in carrying out programs of are not rank ordered and all carry equal review process has been completed. educational and cultural exchange in weight in the proposal evaluation: countries whose people do not fully To Download a Solicitation Package 1. Quality of the program idea: enjoy freedom and democracy,’’ the Via Internet Proposals should exhibit originality, Bureau ‘‘shall take appropriate steps to substance, precision, and relevance to The entire Solicitation Package may provide opportunities for participation the Bureau’s mission. be downloaded from the Bureau’s in such programs to human rights and 2. Program planning: Detailed agenda website at http://e.usia.gov/education/ democracy leaders of such countries.’’ and relevant work plan should rfps. Please read all information before Proposals should reflect advancement of demonstrate substantive undertakings downloading. this goal in their program contents, to and logistical capacity. Agenda and plan Deadline for Proposals the full extent deemed feasible. should adhere to the program overview and guidelines described above. All proposal copies must be received Year 2000 Compliance Requirement 3. Ability to achieve program at the Bureau of Educational and (Y2K Requirement) objectives: Objectives should be Cultural Affairs by 5 p.m. Washington, The Year 2000 (Y2K) issue is a broad reasonable, feasible, and flexible. D.C. time on Friday, February 11, 2000. operational and accounting problem Proposals should clearly demonstrate Faxed documents will not be accepted that could potentially prohibit how the institution will meet the at any time. Documents postmarked the organizations from processing program’s objectives and plan. due date but received on a later date information in accordance with Federal 4. Multiplier effect/impact: Proposed will not be accepted. Each applicant management and program specific must ensure that the proposals are programs should strengthen long-term requirements including data exchange mutual understanding, including received by the above deadline. with the Bureau. The inability to Applicants must follow all maximum sharing of information and process information in accordance with instructions in the Solicitation Package. establishment of long-term institutional Federal requirements could result in The original proposal, one fully-tabbed and individual linkages. grantees’ being required to return funds copy, and seven copies including tabs 5. Support of Diversity: Proposals that have not been accounted for A–E and appendices should be sent to: should demonstrate substantive support properly. U.S. Department of State, Bureau of of the Bureau’s policy on diversity. Educational and Cultural Affairs, Ref.: The Bureau therefore requires all Achievable and relevant features should ECA/PE/C–00–26, Program organizations use Y2K compliant be cited in both program administration Management, ECA/EX/PM, Room 336, systems including hardware, software, (selection of participants, program 301 4th Street, S.W., Washington, D.C. and firmware. Systems must accurately venue and program evaluation) and 20547. process data and dates (calculating, program content (orientation and wrap- Applicants must also submit the comparing and sequencing) both before up sessions, program meetings, resource ‘‘Executive Summary’’ and ‘‘Proposal and after the beginning of the year 2000 materials and follow-up activities). Narrative’’ sections of the proposal on a and correctly adjust for leap years. 6. Institutional Capacity and Record: 3.5′′ diskette, formatted for DOS. These Additional information addressing the Proposed personnel and institutional documents must be provided in ASCII Y2K issue may be found at the General resources should be adequate and text (DOS) format with a maximum line Services Administration’s Office of appropriate to achieve the program or length of 65 characters. The Bureau will Information Technology website at project’s goals. Proposals should transmit these files electronically to the http://www.itpolicy.gsa.gov. demonstrate an institutional record of successful exchange programs, Public Affairs section at the US Embassy Review Process for its review, with the goal of reducing including responsible fiscal the time it takes to get embassy The Bureau will acknowledge receipt management and full compliance with comments for the Bureau’s grants of all proposals and will review them all reporting requirements for past review process. for technical eligibility. Proposals will Bureau grants as determined by Bureau be deemed ineligible if they do not fully Grant Staff. The Bureau will consider Diversity, Freedom and Democracy adhere to the guidelines stated herein the past performance of prior recipients Guidelines and in the Solicitation Package. All and the demonstrated potential of new Pursuant to the Bureau’s authorizing eligible proposals will be reviewed by applicants. legislation, programs must maintain a the program office, as well as the Public 7. Follow-on Activities: Proposals non-political character and should be Diplomacy section overseas, where should provide a plan for continued balanced and representative of the appropriate. Eligible proposals will be follow-on activity (without Bureau diversity of American political, social, forwarded to panels of Bureau officers support) ensuring that Bureau and cultural life. ‘‘Diversity’’ should be for advisory review. Proposals may also supported programs are not isolated interpreted in the broadest sense and be reviewed by the Office of the Legal events. encompass differences including, but Adviser or by other Bureau elements. 8. Project Evaluation: Proposals not limited to ethnicity, race, gender, Final funding decisions are at the should include a plan to evaluate the religion, geographic location, socio- discretion of the Department of State’s activity’s success, both as the activities economic status, and physical Assistant Secretary for Educational and unfold and at the end of the program. A challenges. Applicants are strongly Cultural Affairs. Final technical draft survey questionnaire or other encouraged to adhere to the authority for assistance awards (grants technique plus description of a advancement of this principle both in or cooperative agreements) resides with methodology to use to link outcomes to program administration and in program the Bureau’s Grants Officer. original project objectives are content. Please refer to the review recommended. Successful applicants Review Criteria criteria under the ‘Support for Diversity’ will be expected to submit intermediate section for specific suggestions on Technically eligible applications will reports after each project component is incorporating diversity into the total be competitively reviewed according to concluded or quarterly, whichever is proposal. Public Law 104–319 provides the criteria stated below. These criteria less frequent.
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9. Cost-effectiveness/cost-sharing: The Dated: December 14, 1999. Authority overhead and administrative Evelyn S. Lieberman, The funding authority for the Ron components of the proposal, including Under Secretary for Public Diplomacy, U.S. Brown Fellowship Program is provided salaries and honoraria, should be kept Department of State. through the Support for East European as low as possible. All other items [FR Doc. 99–33062 Filed 12–20–99; 8:45 am] Democracy (SEED) Act of 1989, targeted should be necessary and appropriate. BILLING CODE 4710±11±P to advance the democratic and Proposals should maximize cost-sharing economic transition of Central and through other private sector support as Eastern Europe. In order to comply with well as institutional direct funding DEPARTMENT OF STATE mandates for this program, the grantee contributions. [Public Notice 3181] organization is required to keep track of the spending for each of the 10. Value to U.S.-Partner Country FY 2000 Ron Brown Fellowship participating countries under the FY Relations: Proposed projects should Program; Request for Proposals 2000 Ron Brown Fellowship Program. receive positive assessments by the U.S. Funds allocated for one country should SUMMARY: Subject to the availability of Department of State’s geographic area not be used to support Fellows from funds for FY 2000, the Office of desk and overseas officers of program other countries. Specific country Academic Programs of the United States need, potential impact, and significance allocations will be provided at the time Department of State’s Bureau of in the partner country(ies). of the award. Educational and Cultural Affairs (ECA) Overall grant making authority for Authority announces an open competition for the this program is contained in the Mutual Ron Brown Fellowship Program. The Educational and Cultural Exchange Act Overall grant making authority for Bureau solicits detailed proposals from of 1961, Public Law 87–256, as this program is contained in the Mutual U.S. public or private non-profit amended, also known as the Fulbright- Educational and Cultural Exchange Act organizations with at least four years of Hays Act. The purpose of the Act is ‘‘to of 1961, Public Law 87–256, as experience in conducting international enable the Government of the United amended, also known as the Fulbright- academic exchange programs and meet States to increase mutual understanding Hays Act. The purpose of the Act is ‘‘to the provisions described in IRS between the people of the United States enable the Government of the United regulation 26 CAR 1.501c to develop and the people of other countries * * *; States to increase mutual understanding and administer the FY 2000 Ron Brown to strengthen the ties which unite us Fellowship Program. Preference will be between the people of the United States with other nations by demonstrating the and the people of other countries * * *; given to organizations that have educational and cultural interests, to strengthen the ties which unite us placement experience at the graduate developments, and achievements of the with other nations by demonstrating the level and a demonstrated ability to people of the United States and other educational and cultural interests, conduct academic exchange programs. nations * * * and thus to assist in the developments, and achievements of the The level of funding for FY 2000 will be development of friendly, sympathetic people of the United States and other approximately $2,500,000. and peaceful relations between the nations * * * and thus to assist in the Organizations are invited to submit a United States and the other countries of development of friendly, sympathetic proposal to conduct the final selection the world.’’ and peaceful relations between the (from a pool of well-qualified Program Information United States and the other countries of candidates), placement, orientation, monitoring, evaluation and follow-on/ the world.’’ The funding authority for Overview alumni activities for approximately 42 the program above is provided through Fellows from Albania, Bosnia and The FY 2000 Ron Brown Fellowship the FREEDOM Support Act of 1992. Herzegovina, Bulgaria, Croatia, the Program will provide funding for Notice Former Yugoslav Republic of approximately 42 fellowships to citizens Macedonia (FYROM), Romania, Federal from Albania, Bosnia and Herzegovina, The terms and conditions published Republic of Yugoslavia (Serbia, Kosovo Bulgaria, Croatia, FYROM, Romania, in this RFP are binding and may not be and Montenegro) (FRY), and Slovenia. FRY, and Slovenia. Fellowships will be modified by any Bureau representative. Participants will be enrolled in two-year distributed according to specified Explanatory information provided by degree programs, or in one-year non- country-quotas. The goal of the Ron the Bureau that contradicts published degree professional development Brown program is to provide an language will not be binding. Issuance programs (except for the one-year degree opportunity for university graduates and of the RFP does not constitute an award programs in law) at accredited U.S. young professionals who are selected commitment on the part of the academic institutions for study at the through open merit-based competition in the aforementioned European Government. The Bureau reserves the Masters’ degree level in the fields of countries to participate in quality right to reduce, revise, or increase business administration, economics, graduate study programs at accredited proposal budgets in accordance with the educational administration, environmental management, universities throughout the United needs of the program and the States. The fields of study are: business availability of funds. Awards made will journalism/mass communication, law, public administration, and public administration, economics, educational be subject to periodic reporting and administration, environmental evaluation requirements. policy. Preference will be given to proposals with budgets that do not management, journalism/mass Notification exceed $2,500,000. communication, law, public administration, and public policy. Final awards cannot be made until Please note: This program will not support Fellowships will be awarded for one- Ph.D. studies. Programs and projects must funds have been appropriated by conform with Bureau requirements and year, non-degree professional Congress, allocated and committed guidelines outlined in the Solicitation development programs, except for one- through internal Bureau procedures. Package. Bureau projects and programs are year degree programs in law, or for two- subject to the availability of funds. year degree granting programs. Program
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.212 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71539 enhancements such as workshops, works with to place scholars should be ability to attain such a level following professional development and cultural included. a limited ESL program prior to the enrichment activities, internships, 3. Notification: describe plans for beginning of their studies). alumni conferences, networking, etc. are notifying applicants who have been Visa/Insurance/Tax Requirements integral components of the Ron Brown selected for an award, including timely Fellowship Program and highly confirmation of placement, scheduling All foreign participants must be encouraged. Internships of up to three of pre-departure orientation, and all sponsored under an Exchange Visitor months for Fellows in both one-year and logistical arrangements. Program on a J visa. Programs must two-year degree programs and from 4. Special programs: describe comply with J–1 visa regulations and three-to-five-months for non-degree provisions for ESL or pre-academic should reference this adherence in the professional development programs are programs, if necessary; proposal narrative. Ron Brown Fellows also key components of the program. 5. Orientation: describe plans for pre- must comply with the two-year home Our goal for FY 2000 is to award a departure, post-arrival and/or pre- residency requirement as stipulated by greater number of Fellowships for two- academic orientation programs. the J-visa guidelines. It is the expressed year degree programs, and to attain 6. Enrichment activities: describe intent of this program that Fellows equitable representation of the eight arrangements for cultural and return immediately to their home eligible fields while achieving wide professional development activities, country following completion of the distribution among the U.S. host internships, and other program academic and practical components of universities. Fast-track placement enhancements including their program. Please refer to program ability is essential to enable the greater recommendations for workshops and specific guidelines in the Application number of Fellows to start their alumni activities. Package for further details. academic program in the fall 2000. 7. Monitoring/evaluating/tracking: Administration of the program must be Clustering of Fellows should be avoided describe methodologies for on-going in compliance with reporting and with no more than three Fellows at any monitoring and evaluation and withholding regulations for federal, one university. The Ron Brown adjustment of program accordingly. state, and local taxes, as applicable. Fellowship Program will not support Mechanisms for alumni networking and Organizations should demonstrate tax Ph.D programs. alumni tracking should also be detailed. regulation adherence in the proposal 8. Alumni Activities: Over 180 narrative and budget. Guidelines Fellows have completed the Ron Brown Participants will be covered by Fellowship Program since it was For FY 2000, as in previous years, Department of State-sponsored Medical established in 1994. Alumni program advertisement and participant Insurance. The administering Associations have been formed in recruitment will be the responsibility of organization will be responsible for several participating countries. Describe the Public Affairs Sections (PAS) of the enrolling the participants in the plans to assist the development and U.S. Embassies and/or the Fulbright insurance program. expansion of these fledgling commissions. PAS and/or commissions associations. Budget Guidelines will screen applications for eligibility, 9. Program Identity: Describe ways to arrange for TOEFL, GMAT and GRE Funding for the FY 2000 Ron Brown ensure that participants and alumni testing where possible, conduct Fellowship Program is anticipated at identify themselves as Ron Brown personal interviews, and compile a $2,500,000. Applicants must submit a Fellows or Ron Brown Alumni. dossier on each qualified applicant. comprehensive line item budget for 10. Personnel: proposals should general program costs, participant Each FAS and/or commission will include curriculum vitae of personnel compile a pool of applicants to be program costs, alumni costs, and assigned to administer the Ron Brown administrative costs. There must be a forwarded to the administering program. organization in early spring for the final summary budget as well as a breakdown selection. Participants reflecting both the administrative Applicants are asked to develop a Fellows will be selected from a pool budget and the program budget. Please program plan to conduct the final of applicants with a variety of refer to the application packet for selection, placement, monitoring, professional and educational complete formatting instructions. follow-on and alumni activities. The backgrounds. Since one of the purposes Administrative costs, including indirect duration of the program should be for of the fellowships is to promote the costs, should not exceed 20% of the two academic years, 2000–2001 and development of professional expertise total request. 2001–2002. The program may not begin among the future leaders of central and The Bureau reserves the right to before May 1, 2000, and must be eastern Europe, grant recipients should reduce, revise, or increase the proposal completed by December 31, 2002. ideally be in the early stages of their budget in accordance with the needs of Proposals should address and discuss in careers, with perhaps a few years of the program. detail the following areas: work experience, a demonstrated ability Allowable costs for the program 1. Final selection: describe in detail for leadership, a clearly expressed include the following: the process for the final selection of purpose for studying in the United (1) General Program Costs Fellows including method of reviewing States, and a commitment to return (2) Participant Program Costs a pool of qualified applications home at the end of their fellowships to (3) U.S. Administrative Costs submitted by PAS’ and/or Fulbright share their knowledge, skills and (4) Overseas Administrative Costs commissions, and specific details about experience in the development of their (5) Alumni Activities the final selection panel. countries. Fellows must be under the Please refer to the Solicitation 2. Placement of Fellows: describe age of forty, possess the equivalent of a Package for complete budget guidelines criteria for selecting host universities bachelor’s degree, and demonstrate and formatting instructions. and measures to ensure participants’ fluency in spoken and written English Medical insurance for participants academic and cultural needs are met. A with a minimum TOEFL score of 550 or will be paid directly by the Bureau of list of universities your organization 213 on the computer-based test (or the Educational and Cultural Affairs and,
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00139 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.214 pfrm03 PsN: 21DEN1 71540 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices therefore, should not be included as a Announcement Title and Number Commissions overseas for their review, line-item cost in the program budget. All correspondence with the Bureau with the goal of reducing the time it However, a modest line-item may be concerning this RFP should refer to: The takes to receive their comments for the included for health insurance for Ron Brown Fellowship Program, grant review process. universities not accepting the ECA reference number ECA/A/E/EUR–00–05. Review Process policy. FOR FURTHER INFORMATION, CONTACT: The The Bureau will acknowledge receipt Diversity, Freedom and Democracy U.S. Department of State, Annex 44, of all proposals and will review them Guidelines Bureau of Education and Cultural for technical eligibility. Proposals will Affairs (ECA), Office of Academic Pursuant to Bureau’s authorizing be deemed ineligible if they do not fully Exchange Programs, European Branch, legislation, programs must maintain a adhere to the guidelines stated herein ECA/A/E/EUR Room 238, 301 4th non-political character and should be and in the Solicitation Package. All Street, S.W., Washington, D.C. 20547; balanced and representative of the eligible proposals will be reviewed by Telephone: (202) 619–4420; Fax: (202) diversity of American political, social, the program office, as well as the 619–4927; E-mail: [email protected] to and cultural life. ‘‘Diversity’’ should be Department of State’s Office of the request a Solicitation Package. The interpreted in the broadest sense and Coordinator for SEED programs and the Solicitation Package contains detailed encompass differences including, but Offices of Public Affairs and Fulbright award criteria, required application not limited to ethnicity, race, gender, commissions overseas where forms, specific budget instructions, and religion, geographic location, socio- appropriate. Proposals may also be standard guidelines for proposal economic status, and physical reviewed by the Department of State, preparation. Please specify Bureau challenges. Applicants are strongly Office of the Legal Adviser or by other Program Officer Ms. Effie Wingate on all encouraged to adhere to the Bureau elements. Final funding inquiries and correspondence. advancement of this principle in the decisions are at the discretion of the Please read the complete Federal program. Please refer to the review Department of State’s Assistant Register announcement before sending criteria under the ‘‘Support for Secretary for Educational and Cultural inquiries or submitting proposals. Once Diversity’’ section for specific Affairs. Final technical authority for the RFP deadline has passed, staff may suggestions on incorporating diversity assistance awards (grants or cooperative not discuss this competition in any way into the total proposal. Public Law 104– agreements) resides with the Bureau’s with applicants until the Bureau 319 provides that in carrying out Grants Officer. proposal review process has been programs of educational and cultural completed. Review Criteria exchange in countries whose people do Technically eligible applications will not fully enjoy freedom and democracy, To Download a Solicitation Package via be competitively reviewed according to the Bureau shall take steps to provide Internet the criteria stated below. These criteria opportunities for participation in such The entire Solicitation Package may are not rank ordered and all carry equal programs to human rights and be downloaded from the following weight in the proposal evaluation: democracy leaders of such countries. website: http://www.usia.gov/ 1. Program Planning and Proposals should reflect advancement of education/rfps. Please read all Management: Proposals should exhibit this goal in their program content, to the information before downloading. substance, precision, innovation, and full extent deemed feasible. relevance to the Bureau’s mission. Deadline For Proposals Year 2000 (Y2K) Compliance Objectives should be reasonable, Requirement All proposal copies must be received feasible, and flexible and proposals at the Bureau of Educational and should clearly demonstrate how the The Year 2000 (Y2K) issue is a broad Cultural Affairs by 5:00 p.m. organization will meet these objectives. operational and accounting problem Washington, D.C. time on Thursday, A detailed agenda and relevant work that could potentially prohibit February 3, 2000. Faxed documents will plan should demonstrate substantive organizations from processing not be accepted at any time. Documents undertakings and logistical capacity. information in accordance with Federal postmarked by the due date but received Agenda and work plan should adhere to management and program specific at a later date will not be accepted. the program overview and guidelines requirements including data exchange Applicants must follow all described above. with the Bureau. The inability to instructions given in the Solicitation 2. Institutional Capacity and Record: process information in accordance with Package. The original and nine copies of Proposals should demonstrate an Federal requirements could result in the completed application, including institutional record of successful grantees being required to return funds required forms, should be sent to: U.S. exchange programs, including that have not been accounted for Department of State, Annex 44, Bureau responsible fiscal management and full properly. of Educational and Cultural Affairs, compliance with all reporting The Bureau therefore requires all Ref.: ECA/A/E/EUR–00–05, Office of requirements for past Bureau grants as organizations use Y2K compliant Program Management, ECA/XE/PM, determined by the grants staff. The systems including hardware, software, Room 336, 301 4th Street, S.W., Bureau will consider the past and firmware. Systems must accurately Washington, D.C. 20547. performance of prior recipients and the process data and dates (calculating, Applicants must also submit the demonstrated potential of new comparing and sequencing) both before ‘‘Executive Summary’’ and ‘‘Proposal applicants. Proposed personnel and and after the year 2000 and correctly Narrative’’ sections of the proposal on a institutional resources should be adjust for leap years. 3.5′′ diskette, formatted for DOS. This adequate and appropriate to achieve the Additional information addressing the material must be provided in ASCII text program or project’s goals. Y2K issue may be found at the General (DOS) formatted with a maximum line 3. Multiplier Effect/Impact: Proposed Services Administration’s Office of length of 65 characters. These files will programs should strengthen long-term Information Technology website at be transmitted electronically to the mutual understanding, including http://www.otpolicy.gsa.gov. Public Affairs Sections and Fulbright maximum sharing of information and
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71541 establishment of long-term institutional right to reduce, revise, or increase Parties: Members of the International Air and individual linkages. proposed budgets in accordance with Transport Association. 4. Cost-effectiveness/Cost-sharing: the needs of the program and the Subject: PTC123 0083 dated 23 November The overhead and administrative availability of funds. 1999 Resolution 015v (r–1), PTC123 0085 components of the proposal, including Awards made will be subject to dated 23 November 1999 Mid Atlantic (r–2 to r–7), PTC123 0086 dated 23 November salaries should be kept as low as quarterly reporting and evaluation 1999 South Atlantic (r–8 to r–20), Fares: possible. All other items should be requirements. PTC123 Fares 0034 dated 3 December 1999 necessary and appropriate. Proposals Final awards cannot be made until (South Atlantic), PTC123 Fares 0035 dated 3 should maximize cost-sharing through funds have been appropriated by December 1999 (Mid Atlantic), Intended other private sector support as well as Congress, allocated and committed effective date: 1 March 2000. institutional direct funding through internal State Department Docket Number: OST–99–6627. contributions. procedures. Date Filed: December 8, 1999. 5. Placement experience: Proposals Parties: Members of the International Air should demonstrate the organization’s Notification Transport Association. ability and experience with graduate All applicants will be notified of the Subject: PTC123 0084 dated 23 November 1999, TC123 North Atlantic Resolutions (r– level, fast-track placements at U.S. results of the review process on or about 1 to r–17), Fares: PTC123 Fares 0033 dated universities. March 31, 2000. 3 December 1999 (North Atlantic), Minutes: 6. Professional and Academic Dated: December 14, 1999. PTC123 0088 dated 7 December 1999, Contacts: Proposals should demonstrate Evelyn S. Lieberman, Intended effective date: 1 March 2000. substantive staff knowledge of the Under Secretary for Public Diplomacy and Dorothy W. Walker, relevant academic fields and professions Public Affairs. Federal Register Liaison. to ensure productive engagement with [FR Doc. 99–33061 Filed 12–20–99; 8:45 am] [FR Doc. 99–33016 Filed 12–20–99; 8:45 am] professional and academic contacts in every phase of program planning and BILLING CODE 4710±11±M BILLING CODE 4910±62±P implementation, including the arrangement of internships and DEPARTMENT OF TRANSPORTATION selection panels. DEPARTMENT OF TRANSPORTATION 7. Support of Diversity: Proposals Office of the Secretary Office of the Secretary should demonstrate the organization’s commitment to promoting the Aviation Proceedings, Agreements Notice of Applications for Certificates awareness and understanding of filed during the week ending December of Public Convenience and Necessity diversity and should include a strategy 10, 1999 and Foreign Air Carrier Permits Filed for achieving diverse group of Fellows Under Subpart Q during the Week and host institutions. The following Agreements were filed Ending December 10, 1999 8. Project Evaluation: Proposals with the Department of Transportation should include a plan to evaluate the under the provisions of 49 U.S.C. The following Applications for project’s success, both during and after sections 412 and 414. Answers may be Certificates of Public Convenience and the program. A draft survey filed within 21 days of date of filing. Necessity and Foreign Air Carrier questionnaire or other technique and a Permits were filed under Subpart Q of Docket Number: OST–99–6602. the Department of Transportation’s description of methodologies that can be Date Filed: December 7, 1999. used to link the outcomes to original Parties: Members of the International Air Procedural Regulations (See 14 CFR project objectives should also be Transport Association. 302.1701 et seq.). The due date for included. Grantee organization will be Subject: PTC23 EUR–SEA 0085 dated 3 Answers, Conforming Applications, or expected to submit quarterly program December 1999; Expedited Europe-South Motions to Modify Scope are set forth and financial reports. East Asia Resolution 002hh Intended below for each application. Following effective date: 1 January 2000. the Answer period DOT may process the 9. Alumni Tracking and Follow-on Docket Number: OST–99–6603. Activities: Proposals should provide a application by expedited procedures. Date Filed: December 7, 1999. Such procedures may consist of the plan for effective tracking of current and Parties: Members of the International Air future Alumni and demonstrate the Transport Association. adoption of a show-cause order, a organization’s willingness to provide Subject: PTC31 N&C/CIRC 0106 dated 3 tentative order, or in appropriate cases data to and coordinate tracking with the December 1999; Expedited TC3–Central a final order without further Bureau, Public Affairs Sections and/or America, South America Resolution 002L; proceedings. Fulbright commissions. Proposals may Intended effective date: 15 January 2000. Docket Number: OST–99–6624. Docket Number: OST–99–6604. Date Filed: December 8, 1999. also include a plan for continued Date Filed: December 7, 1999. Due Date for Answers, Conforming follow-on activity (without Bureau Parties: Members of the International Air Applications, or Motions to Modify Scope: support) which insures that Bureau- Transport Association. January 5, 2000. supported programs are not isolated Subject: PTC31 N&C/CIRC 0103 dated 3 Description: Application of Federal events. December 1999, Expedited Areawide TC31 Express Corporation pursuant to 49 U.S.C. North and Central Pacific Resolution 015v r– Section 41102 and Subpart Q, applies for Notice 1, PTC31 N&C/CIRC 0104 dated 3 December issuance of a new certificate of public The terms and conditions published 1999, Expedited TC3 (except Japan)-North convenience and necessity authorizing in this RFP are binding and may not be America, Caribbean Expedited Resolutions Federal Express to provide scheduled foreign modified by any ECA representative. 002j r–2, 077p r–3, 077r r–4, PTC31 N&C/ air transportation of property and mail Explanatory information provided by CIRC 0105 dated 3 December 1999, between points in the United States, on the Expedited Japan-North American, Caribbean one hand, and points in Italy, on the other the Bureau that contradicts published Expedited Resolutions 001b r–5, 002rr r–6, hand, via intermediate points and beyond language will not be binding. Issuance 073hh r–7, Intended effective date: 15 Italy without limitation. Federal Express of the RFP does not constitute an award January 2000. further requests authority to operate its commitment on the part of the Docket Number: OST–99–6613. services between the U.S. and Italy in Government. The Bureau reserves the Date Filed: December 8, 1999. conjunction with other scheduled all-cargo
VerDate 15-DEC-99 20:08 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00141 Fmt 4703 Sfmt 4703 E:\FR\FM\21DEN1.XXX pfrm08 PsN: 21DEN1 71542 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices services operated by Federal Express between Chairperson, members of the public may Chicago Department of Aviation under the U.S. and points in Europe, the Middle present oral statements at the meeting. section 158.23 of Part 158. East, Africa and the Asia/Pacific region, Persons desiring to attend and persons FOR FURTHER INFORMATION CONTACT: subject to existing bilateral provisions. Mr. desiring to present oral statements Philip M. Smithmeyer, Manager, Dorothy W. Walker, should notify the person listed above Chicago Airports District Office, 2300 Federal Register Liaison. not later than January 7, 2000. The next East Devon Avenue, Room 222, Des [FR Doc. 99–33017 Filed 12–20–99; 8:45 am] quarterly meeting of the FAA ATPAC is Plaines, IL 60018, (847) 294–7335. The BILLING CODE 4910±62±P planned to be held from April 3–6, application may be reviewed in person 2000, in Washington, DC. at this same location. Any member of the public may SUPPLEMENTARY INFORMATION: DEPARTMENT OF TRANSPORTATION The FAA present a written statement to the proposes to rule and invites public Committee at any time at the address Federal Aviation Administration comment on the application to impose given above. and use the revenue from a PFC at Air Traffic Procedures Advisory Issued in Washington, DC, on December Chicago Midway Airport under the Committee 10, 1999. provisions of the Aviation Safety and Eric Harrell, Capacity Expansion Act of 1990 (Title AGENCY: Federal Aviation Executive Director, Air Traffic Procedures IX of the Omnibus Budget Administration (FAA), DOT. Advisory Committee. Reconciliation Act of 1990) (Public Law SUMMARY: The FAA is issuing this notice [FR Doc. 99–33042 Filed 12–20–99; 8:45 am] 101–508) and Part 158 of the Federal to advise the public that a meeting of BILLING CODE 4910±13±M Aviation Regulations (14 CFR Part 158). the Federal Aviation Administration Air On November 24, 1999, the FAA Traffic Procedures Advisory Committee determined that the application to (ATPAC) will be held to review present DEPARTMENT OF TRANSPORTATI0N impose and use the revenue from a PFC air traffic control procedures and submitted by the City of Chicago practices for standardization, Federal Aviation Administration Department of Aviation was clarification, and upgrading of substantially complete within the terminology and procedures. Intent To Rule on Application To Impose and Use the Revenue From a requirements of section 158.24 of Part DATES: The meeting will be held from Passenger Facility Charge (PFC) at 158. The FAA will approve or January 10–13, 2000, from 9 a.m. to 5 Chicago Midway Airport, Chicago, disapprove the application, in whole or p.m. each day. Illinois in part, no later than February 23, 2000. ADDRESSES: The meeting will be held at The following is a brief overview of the Naval Air Station Pensacola, 190 AGENCY: Federal Aviation the application. Radford Blvd., Pensacola, Florida. Administration (FAA), DOT. PFC application number: 00–07–C– FOR FURTHER INFORMATION CONTACT: Mr. ACTION: Notice of Intent to Rule on 00–MDW. Eric Harrell, Executive Director, application. Level of the proposed PFC: $3.00. ATPAC, Terminal and En Route Actual charge effective date: SUMMARY: Procedures Division, 800 Independence The FAA proposes to rule and September 1, 1993. Avenue, SW., Washington, DC 20591, invites public comment on the Revised estimated charge expiration telephone (202) 267–3725. application to impose and use the date: January 1, 2047. revenue from a PFC at Chicago Midway Total estimated PFC revenue: SUPPLEMENTARY INFORMATION: Pursuant Airport under the provisions of the $630,948,770.00. to Section 10(a)(2) of the Federal Aviation Safety and Capacity Expansion Brief description of proposed projects: Advisory Committee Act (Pub. L. 92– Act of 1990 (Title IX of the Omnibus Reconstruct Taxiway P, Service Road 463; 5 U.S.C. App. 2), notice is hereby Budget Reconciliation Act of 1990) Reconstruction Along Taxiway N, given of a meeting of the ATPAC to be (Public Law 101–508) and Part 158 of Taxiway K Rehabilitation Between held January 10 through January 13, the Federal Aviation Regulations (14 Runway 31C and Taxiway V, Taxiway J 2000, at the Naval Air Station CFR Part 158). Rehabilitation Between Taxiway W and Pensacola, 190 Radford Blvd., DATES: Runway 4L, Runway 31C Exit Taxiway Pensacola, Florida. Comments must be received on The agenda for this meeting will or before January 20, 2000. Rehabilitation, Runway 13C Hold Pad cover: a continuation of the Committee’s ADDRESSES: Comments on this Rehabilitation, Taxiway N and Taxiway review of present air traffic control application may be mailed or delivered Q Rehabilitation, Apron Edge Taxiway procedures and practices for in triplicate to the FAA at the following Rehabilitation, Terminal Apron standardization, clarification, and address: Federal Aviation Construction, Additional Residential upgrading of terminology and Administration, Chicago Airports Insulation, Midway Radio Trunking procedures. It will also include: District Office, 2300 East Devon System, Midway Equipment Acquisition 1. Approval of Minutes. Avenue, Room 222, Des Plaines, IL 1998–2003, Blast Fences Northeast and 2. Submission and Discussion of 60018. Northwest Corners, Land Acquisition # Areas of Concern. In addition, one copy of any Parcel 130, Land Acquisition Parcel 3. Discussion of Potential Safety comments submitted to the FAA must #131, Land Acquisition Parcel #132, Items. be mailed or delivered to Mr. Thomas R. Concourse Building, Explosive 4. Report from Executive Director. Walker, Commissioner of the City of Detection System, Taxiway/Taxilane, 5. Items of Interest. Chicago Department of Aviation at the Aircraft Parking Apron Construction, 6. Discussion and agreement of following address: Chicago O’Hare Parking Structure Blast Mitigation, On- location and dates for subsequent International Airport, P.O. Box 66142, Airport Roads, Airline Equipment. meetings. Chicago, IL 60666. Class or classes of air carriers which Attendance is open to the interested Air carriers and foreign air carriers the public agency has requested not be public but limited to the space may submit copies of written comments required to collect PFCs: Air Taxi available. With the approval of the previously provided to the City of operators.
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Any person may inspect the Avenue, SW, Suite 250, Renton, DEPARTMENT OF TRANSPORTATION application in person at the FAA office Washington, 98055–4056. The listed above under FOR FURTHER application may be reviewed in person Federal Aviation Administration INFORMATION CONTACT. at this same location. Certification Basis for Garlick In addition, any person may, upon SUPPLEMENTARY INFORMATION: The FAA Helicopters, Inc. Model GH205A request, inspect the application, notice proposes to rule and invites public Helicopters and other documents germane to the comment on the application (00–05–C– application in person at the City of 00–YKM), to impose and use, and AGENCY: Federal Aviation Chicago Department of Aviation. impose only, PFC revenue at Yakima Administration (FAA), DOT. Issued in Des Plaines, Illinois on December Air Terminal-McAllister Field, under ACTION: Type Certification Basis. 9, 1999. the provisions of 49 U.S.C. 40117 and Benito De Leon, Part 158 of the Federal Aviation SUMMARY: This document establishes the Manager, Planning/Programming Branch, Regulations (14 CFR Part 158). type certification basis for Garlick Airports Division, Great Lakes Region. On December 13, 1999, the FAA Helicopters, Inc. Model GH205A [FR Doc. 99–33041 Filed 12–20–99 8:45 am] determined that the application to helicopters. It is published in the impose and use, and impose only, the interest of keeping the public informed BILLING CODE 4910±13±M revenue from a PFC submitted by and to advise all interested persons of Yakima Air Terminal Board, Yakima, the airworthiness standards applicable DEPARTMENT OF TRANSPORTATION Washington, was substantially complete to Model GH205A helicopters. within the requirements of section FOR FURTHER INFORMATION CONTACT: Federal Aviation Administration 158.25 of Part 158. The FAA will Richard Monschke, Aerospace Engineer, approve or disapprove the application, FAA, Rotorcraft Directorate, Fort Worth, Notice of Intent To Rule on Application in whole or in part, no later than March Texas 76193–0110, telephone (817) (00±05±C±YKM) To Impose and Use, 14, 2000. 222–5116, fax (817) 222–5961. and Impose Only, the Revenue From a The following is a brief overview of Passenger Facility Charge (PFC) at the application. SUPPLEMENTARY INFORMATION: Yakima Air Terminal-McAllister Field, Level of the proposed PFC: $3.00. Background Submitted by the Yakima Air Terminal Proposed charge effective date: June Board, Yakima Air Terminal-McAllister 1, 2000. On December 9, 1993, Garlick Field, Yakima, Washington Proposed charge expiration date: Helicopters, Inc., of Hamilton, Montana, August 1, 2002. applied for a transport category AGENCY: Federal Aviation Total requested for use approval: rotorcraft type certificate under the Administration (FAA), DOT. $297,687. provisions of 14 CFR 21.27, ‘‘Issue of ACTION: Notice of intent to rule on Total requested for collection type certificate: surplus aircraft of the application. authority: $480,000. Armed Forces of the United States,’’ for Brief description of proposed project: former U.S. Army Model UH–1H and SUMMARY: The FAA proposes to rule and Impose and Use: Update Airport Layout UH–1V helicopters, to be redesignated invites public comment on the Plan; Install Visual Navigational Aids; as Garlick Helicopters, Inc. Model application to impose and use, and Purchase Radio Equipment; B Taxiway GH205A helicopters. The later military impose only, PFC revenue at Yakima Rehabilitation. Impose Only: Construct Model UH–1V helicopters contain Air Terminal-Mcallister Field under the West Perimeter Road. avionics and internal equipment provisions of 49 U.S.C. 40117 and Part Class or classes of air carriers, which changes only and is considered 158 of the Federal Aviation Regulations the public agency has requested not be identical to Model UH–1H helicopters (14 CFR part 158). required to collect PFC’s: Air taxi/ for the purposes of FAA certification. DATES: Comments must be received on commercial operators filing FAA Form Section 21.27 provides two methods or before January 20, 2000. 1800–31. for obtaining a type certificate on a ADDRESSES: Comments on this Any person may inspect the military surplus aircraft designed and application may be mailed or delivered application in person at the FAA office constructed in the United States and in triplicate to the FAA at the following listed above or under FOR FURTHER accepted for operational use by the U.S. address: J. Wade Bryant, Manager; INFORMATION CONTACT and at the FAA Armed Forces. The type certificate may Seattle Airports District Office, SEA– Regional Airports Office located at: be obtained if the surplus aircraft (1) is ADO; Federal Aviation Administration; Federal Aviation Administration, a counterpart of a previously type 1601 Lind Avenue SW, Suite 250, Northwest Mountain Region, Airports certificated civil aircraft, or (2) meets Renton, Washington, 98055–4056. Division, ANM–600, 1601 Lind Avenue, the airworthiness standards in effect In addition, one copy of any S.W., Suite 540, Renton, WA 98055– when the particular model was accepted comments submitted to the FAA must 4056. for operational use by the U.S. Armed be mailed or delivered to Mr. Bob Clem, In addition, any person may, upon Forces, subject to any special conditions Airport Manager, at the following request, inspect the application, notice or later amendments necessary to ensure address: 2400 West Washington and other documents germane to the an adequate level of airworthiness for Avenue, Yakima, Washington 98903. application in person at the Yakima Air the aircraft. The U.S. Army procurement Air Carriers and foreign air carriers Terminal-McAllister Field. offices in St. Louis, Missouri, has stated may submit copies of written comments Issued in Renton, Washington on that the UH–1H model helicopter was previously provided to Yakima Air December 13, 1999. first accepted for operational use by the Terminal-McAllister Field, under David A. Field, U.S. Army on September 8, 1966, and section 158.23 of Part 158. Manager, Planning, Programming and no similar civil version was certificated FOR FURTHER INFORMATION CONTACT: Ms. Capacity Branch, Northwest Mountain until June 13, 1968. Hence, no similar Suzanne Lee-Pang; Seattle Airports Region. civil model was certificated prior to the District Office, SEA–ADO; Federal [FR Doc. 99–33040 Filed 12–20–99; 8:45 am] first operational use of the military UH– Aviation Administration; 1601 Lind BILLING CODE 4910±13±M 1H model helicopter. Therefore, the
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Model GH205A helicopter must comply proven aircraft with some 20 million standard category aircraft. These with the airworthiness standards fleet hours. The commenters state that commenters further state that the specified in § 21.27(f) at the regulation this satisfactory service history shows certification of military surplus amendment level in effect on September that the Model UH–1H helicopters are helicopters would ‘‘devalue the civil 8, 1966. safe and reliable. One commenter fleet and the owners of civil-certified Section 21.27(d) permits the FAA to reports that they have flown Model UH– standard category helicopters would be relieve an applicant from strict 1H helicopters in the public-use role for at a competitive disadvantage.’’ They compliance with an airworthiness over 46,000 flight hours of accident-free further emphasized that ‘‘the civil standard in the certification basis, operations. Another commenter reports market has already been damaged provided the stated conditions are that they have flown Model UH–1 enough through national park satisfied. Additionally, § 21.27(e) helicopters accumulating over 16,000 regulations and loss of public-use permits the FAA to adopt special flight hours without an incident or contracts to surplus aircraft. Any further conditions or later airworthiness accident caused by mechanical failure pursuit of an initiative to certify surplus requirements if the FAA finds that the or maintenance problems. aircraft could very well harm the requirements stated in § 21.27(e) and (f) In general, the FAA agrees that Model industry in such a manner that it would would not ensure an adequate level of UH–1H helicopters have demonstrated a not recover.’’ Another commenter airworthiness of the type design. Special satisfactory military service history. stated, ‘‘My concern is trying to make a conditions are airworthiness safety However, for FAA type certification in profit by competing with people with standards promulgated in accordance the civil transport rotorcraft category, lesser standards operating surplus with §§ 11.28 and 21.16, which include more than satisfactory military service government helicopters.’’ public participation, and establish a history is required. In some instances, The FAA is sensitive to both sides of level of safety equivalent to that military qualifications and acceptance the economic issues associated with this contained in the regulations. do not meet the safety requirements project. However, in accordance with 14 A notice that invited public specified in 14 CFR parts 21 and 29. CFR 21.27, an applicant is entitled to a comments on the proposed certification Since the proposed Model GH205A type certificate for a surplus aircraft of basis including the Special Condition helicopters will be flown in accordance an Armed Force of the United States if concerning the T53–L–13 engine for the with 14 CFR parts 91 and 135 operating it complies with certain appropriate Model GH205A helicopters was requirements, those operations must regulations. The FAA’s focus is on published in the Federal Register, on meet the minimum appropriate level of assuring that the minimum level of July 2, 1997 (62 FR 35872). Numerous safety commensurate with the category safety is maintained. comments, both for and against, were for which certification is requested. One commenter states that the sudden received on the proposed certification Therefore, in accordance with 14 CFR expansion of the number of operators in basis. 21.27, the FAA will require Garlick the industry due to the affordability and Helicopters, Inc. to meet the appropriate access to surplus aircraft will result in General Discussion of Public Comments regulation and certain special an increased workload on an already The FAA has carefully reviewed and conditions deemed necessary to ensure overloaded FAA inspection system and considered all comments in the the appropriate minimum level of would necessitate the need for development of the type certification safety. additional manpower to regulate that basis and the regulatory standards Some public aircraft operators growth. contained therein for Model GH205A commented that the proposed Model The FAA continually assesses the helicopters. Because of the volume of GH205A helicopters would benefit the resources needed to regulate the comments, comments of a similar nature taxpayers. They argue that the industry. However, the FAA has no are answered as a group. taxpayers, who must pay for fire fighting basis to deny a type certificate to an After receipt of the comments from and rescue services, have already paid applicant that has met all the the notice of proposed type certification for these helicopters as military aircraft appropriate regulatory requirements. basis, the FAA decided to issue a and should continue to benefit from Several commenters state that the separate Special Condition for the T53– their operation. proposed certification basis will assure L–13 engines. In that Final Special The FAA does not evaluate a proper level of safety for a transport Condition; request for comments, the applications for type certificates based category rotorcraft. These commenters FAA disposed of the comments relating on economic considerations. The type emphasize that the proper level of safety to the engine. Special Condition No. 29– certification basis is established by is generated when the proposed 006–SC, issued and effective on mandating applicable minimum safety regulatory criteria is met during the September 22, 1999 (64 FR 52646 standards. The FAA presumes that the upgrade from military surplus to September 30, 1999), promulgates the type certificate applicant has or will transport category rotorcraft and when additional safety standards that the FAA perform an economic analysis based on the aircraft are properly maintained Administrator considers necessary to the regulatory requirements. during service. establish a level of safety for the T53– Several comments were received The FAA agrees. The type L–13 surplus military aircraft engines concerning the economic impact of the certification basis and special installed in the Model GH205A civil certification of military surplus conditions will provide a high level of helicopters equivalent to that helicopters. One commenter stated that safety for Model GH205A helicopters. established by the existing infusing large numbers of military The airframe, including electrical and airworthiness standards. surplus aircraft into the civil market mechanical systems as well as the would have a much more detrimental engine, will be inspected and Discussion of Comments affect on the industry than any benefits overhauled in accordance with an FAA- Several commenters suggested that that might be realized. Not only would approved procedure. Model GH205A the Model UH–1H helicopters while it affect the major manufacturers and helicopters will be produced in being flown by the U.S. Army had a safe large commercial operators, it would accordance with an FAA-approved type operational record. These commenters also affect small companies and design. A FAA-approved production state that Model UH–1H helicopters are individual owners who have invested in and quality system will be maintained
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The regulatory requirements of the Bell Garlick Helicopters, Inc. will be Rotorcraft Certification Office will Model 205A helicopters, and also required to have a complete set of FAA- review and approve the Airworthiness includes certain requirements imposed approved type design data which Limitations. by later FAR Part 29 and FAR Part 33 defines the configuration and design One commenter states that amendment levels to achieve a level of features of the Model GH205A certification of Model GH205A safety equal to that required of current helicopters’ type design shown to helicopters would cause an irreparable type certificate applicants. The FAA comply with the Model GH205A setback to rotorcraft aviation due to the recognizes that the type, quantity, and helicopters’ type certification basis. A high noise signature of the similar potential civil usage of aircraft now complete drawing package will be Model UH–1 helicopters, which has being declared surplus by the U.S. required including any drawings for already been responsible for a negative Armed Forces has changed significantly replacement or upgraded parts utilized perception and acceptance of since the World War II era, hence the from the original equipment helicopters by the general public. promulgation of NPRM 94–12. NPRM manufacturer or other FAA production Certain helicopter models are currently 94–12 was never adopted. The FAA has approval holders. banned from several geographical areas a rigorous airworthiness compliance FAA-approved procedures will be in the civil sector because of their high plan for the Model GH205A helicopters, utilized to conduct receiving ambient noise level. including provisions for maintaining the inspections on each Model GH205A The Model GH205A helicopter continued airworthiness of these helicopters’ airframe; to purge all certification basis includes 14 CFR part helicopters, such that no unfair breakout parts; to inspect and, if 36, Appendix H, latest Amendment, advantage of Garlick Helicopters, Inc. necessary, overhaul all major systems; ‘‘Noise Requirements for Helicopters over current helicopter manufacturers is to establish criteria for use of life- under Subpart H’’. Further, a prototype intended and the type certification basis limited parts; and to conform the Model GH205A helicopter has been will result in a safe helicopter. helicopter to a FAA-approved tested and found to be in compliance Several commenters state that the configuration. with the current Part 36, Appendix H, surplus Model UH–1 series airframes Since the FAA originally imposed the noise certification requirements. The are similar in appearance to civil- dual servo valve hydraulic flight control Model GH205A helicopters will certified Bell Model 205 helicopters, but actuator requirement on the Bell Model basically have the same noise signature do not meet FAR Part 29 airworthiness 205 helicopters’ type certification, over as existing civil certified Bell Helicopter requirements due to significant 20 million military and civil flight hours Textron, Inc. (Bell) Model 205A differences in the rotor drive systems have been accrued with acceptable helicopters. configuration, control systems design service history on both military Model Several commenters point out that and construction materials. They state UH–1 and civil Bell Model 204 there was a Notice of Proposed that the tail rotor on the Bell Model 205 helicopters, which have single servo Rulemaking (NPRM No. 94–12) helicopters is located on the right side valve hydraulic actuators. Therefore, published in the Federal Register on of the tailboom with a push/pull tube service history for the single servo April 21, 1994, which proposed to type of control system, while on the actuators has proven to be satisfactory. rescind the current rules providing for Model UH–1 series helicopters, the tail However, Model GH205A helicopters the issuance of a type certificate to rotor is located on the left side of the tail will be subjected to extensive ground surplus military aircraft previously boom and controlled via a cable/silent and flight tests to demonstrate the accepted for use by the U.S. Armed chain system. A commenter further acceptability of the single servo Forces. They state that the airworthiness states that the hydraulic boost actuators actuators utilized in the surplus Model standards specified for compliance are for the collective and cyclic main rotor UH–1 series helicopters. If these tests no longer appropriate for normal or primary control systems on the Bell are successful, an equivalent level of transport category helicopter type Model 205 helicopters are required by safety will have been demonstrated for certification and do not offer the same the FAA to have redundant servo valves § 29.695, Power boost and power- levels of safety to the general public as while the corresponding actuators on operated control system. current amendment levels of FAR Parts the Model UH–1 series helicopters Additionally, in accordance with 27 and 29. contain a single servo valve. In addition, § 21.27(e), the FAA has determined that While the FAA agrees that several a commenter states that many airframe the following sections must be included amendments to the normal and components/detail parts on the Model in the Model GH205A helicopters’ type transport helicopter airworthiness UH–1 series helicopters may have been certification basis: standards, FAR Parts 27 and 29, have replaced by the military with breakout • 14 CFR part 29.2, Amendment 29– been incorporated to enhance flight parts. Also, military design 32, Special retroactive requirements. safety since the U.S. military first specifications in some cases allowed the This Section requires each occupant’s accepted delivery of the Model UH–1 substitution of aluminum and seat to be equipped with a safety belt series helicopters, retroactive magnesium in the Model UH–1 series and shoulder harness. compliance to later amendment levels helicopters instead of steel for similar • 14 CFR part 29.785, Amendment for previously-certificated civil parts on the Bell Model 205 helicopters. 29–24, Seats, berths, safety belts, and helicopters has not been required of any While the FAA is aware of these harnesses. This Section describes the type certificate holder. There are differences, it has determined that an loads and other criteria that the seat belt currently many type certificated applicant can conduct a design review and shoulder harness must meet. helicopters on the FAA U.S. Registry, of the Model UH–1H series helicopters • 14 CFR part 29.853, Amendment similar to Model GH205A helicopters, to show compliance and address those 29–18, Compartment interiors. This that were type certificated to the areas which require modification in section describes the requirements for airworthiness standards in existence at order to comply with the Model cabin interiors. Of particular interest are the time the Model UH–1 series GH205A helicopters’ type certification the material burn testing requirements.
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Several commenters state that the 5. Part 13 of the CAR effective October ACTION: Notice of public meeting. proposed type certification basis will 1, 1959, as amended by Amendment 13– not assure a level of safety equal to other 3. SUMMARY: The Intelligent Transportation transport category helicopters currently 6. 14 CFR Section 33.4 of the FAR Society of America (ITS AMERICA) will certified, that use of obsolete effective October 14, 1980, as amended hold a meeting of its Board of Directors certification regulations will not meet by Amendment 33–9. on Thursday, January 13, 2000. The the same level of safety required of 7. 14 CFR Section 33.14 of the FAR meeting begins at 2:00 p.m. The letter aircraft certified under modern effective March 26, 1984, as amended by designations that follow each item mean certification regulations, and that Model Amendment 33–10. the following: (I) is an ‘‘information UH–1H helicopters were built under 8. Special Condition No. 29–006–SC. item;’’ (A) is an action item; (D) is a military requirements while the Bell discussion item. This meeting includes Additional Special Conditions the following items: (1) Introductions Model 205 helicopters were designed and ITS America Antitrust Policy and for civilian use and therefore meet a The necessity for additional special Conflict of Interest Statements; (2) higher standard. conditions may become evident as more Review and Approval of Board Meeting 14 CFR 21.27 allows a type experience is gained during this type Minutes for August 10, 1999, and certification basis other than the most certification program. Any additional November 7, 1999 (A); (3) US DOT ITS current certification regulations. As special conditions will be promulgated in accordance with §§ 11.28 and 21.16. Federal Report (I/D); (4) Executive previously discussed, retroactive Committee Report (I); (5) Coordinating compliance for previously certificated Post-Certification Activity Council Report (A); (6) National ITS civil helicopters or their derivatives has The design evaluation does not end Deployment Strategy Project (I); (7) State not been required of any type certificate Chapters Council Report (I); (8) ITS holder. Bell Model 205 helicopters were with the issuance of the type certificate. Regulations require type certificate America Association: Business Plan and certificated to CAR 7 rules. The FAA Congressional Tour Report; (9) Report of has determined that the Model GH205A holders to submit various reports and data on the helicopters’ service the ITS World Congress: Toronto World helicopters’ type certification basis at Congress Update; Other International FAR 29, Amendment 1, certain later experience and to perform periodic inspections and maintenance necessary Activities (I/A/D); (10) 2000 ITS Amendments of FAR 29, equivalent America Annual Meeting Update (I); safety finding requirement, CAR 13 at to assure continued airworthiness. The FAA continues to monitor the safety (11) President’s Report (External Issues) Amendments 13–1, 13–2 and 13–3, (I); (12) Other Business; (13) At 3:30 certain later Amendments of FAR 33, performance of a design after the type design is approved and the aircraft is p.m. A Business Session open only to and special conditions provide a Board Members, ITS America Members satisfactory level of safety introduced into service through the various reports and data that the FAA and Staff.); (14) Report of the Finance commensurate with Bell Model 205 Committee: 1999 Budget Status; helicopters. receives, and with post-certification design reviews when necessary. The Resource Allocation Plans; and Type Certification Basis airworthiness standards, such as Part 29 Ratification of Executive Committee Approval of 2000 Budget; (15) Pursuant to the provisions of § 21.27, and Part 33, and the operational standards, such as parts 91 and 135, are President’s Report (Internal Issues); (16) the type certification basis of the Garlick Presentation of Slates of Nominees for Helicopters, Inc. Model GH205A amended from time to time to incorporate new technologies and to Board and Officers; Coordinating helicopters is: Council Officers; At-Large Seats; and 1. 14 CFR part 29 of the Federal upgrade the existing level of safety. If, during an evaluation, an unsafe Committee/Task Force Chairs; and State Aviation Regulations (FAR) effective Chapters Council Officers (A); (17) condition is found as a result of service August 12, 1965, as amended by Other Business: 2000 Board of Directors experience and that condition is likely Amendment 29–1, Category B, except: Meeting Schedule (I); (18) Adjournment to exist or develop in other products of • Section 29.2 of the FAR effective until May 4, 2000, Board of Directors the same type, the FAA issues an AD September 16, 1991, as amended by Meeting #34 held in conjunction with under part 39 to require a change to the Amendment 29–32. the ITS America Annual Meeting in type design or to define special • Section 29.695 through Amendment Boston, MA. 29–1, Category B, Finding of Equivalent inspection or operational limitations. In ITS AMERICA provides a forum for Safety. effect, these are retroactive applications national discussion and • Section 29.785 of the FAR effective of required type design changes. recommendations on ITS activities December 6, 1984, as amended by Issued in Fort Worth, Texas on December including programs, research needs, Amendment 29–24. 9, 1999. strategic planning, standards, • Section 29.853 of the FAR effective Henry A. Armstrong, international liaison, and priorities. March 6, 1980, as amended by Manager, Rotorcraft Directorate, Aircraft The charter for the utilization of ITS Amendment 29–18. Certification Service. AMERICA establishes this organization • Section 29.1529 of the FAR [FR Doc. 99–33039 Filed 12–20–99; 8:45 am] as an advisory committee under the effective October 14, 1980, as amended BILLING CODE 4910±13±P Federal Advisory Committee Act by Amendment 29–20. (FACA) 5 USC app. 2, when it provides 2. 14 CFR part 36 of the FAR, advice or recommendations to DOT Appendix H, latest Amendment in DEPARTMENT OF TRANSPORTATION officials on ITS policies and programs. existence at the time of certification. (56 FR 9400, March 6, 1991). 3. Part 13 of the Civil Air Regulations Federal Highway Administration DATES: The Board of Directors of ITS AMERICA will meet on Thursday, (CAR) effective August 12, 1957, as Intelligent Transportation Society of January 13, 2000, from 2:00 p.m.–6:00 amended by Amendment 13–1. America; Public Meeting 4. Part 13 of the CAR effective May p.m. 17, 1958, as amended by Amendment AGENCY: Federal Highway ADDRESSES: Marriott Wardman Park 13–2. Administration (FHWA), DOT. Hotel, 2660 Woodley Road, NW,
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Washington, DC Phone: (202) 328–2000. of the Secretary, Case Control Unit, 1925 number 202–622–0343, fax number Fax: (202) 234–0015. K Street, NW, Washington, DC 20423– (202) 622–7664. FOR FURTHER INFORMATION CONTACT: 0001. In addition, one copy of each SUPPLEMENTARY INFORMATION: Notice of Materials associated with this meeting pleading must be served on Robert T. these meetings is given under the may be examined at the offices of ITS Opal, Esq., Union Pacific Railroad Federal Advisory Committee Act, 5 AMERICA, 400 Virginia Avenue, SW., Company, 1416 Dodge Street, Room U.S.C. App. 2. 830, Omaha, NE 68179. Suite 800, Washington, D.C. 20024. Agenda of Meetings Persons needing further information or Board decisions and notices are to request to speak at this meeting available on our website at The Commission members will focus should contact Marlene Vence- ‘‘WWW.STB.DOT.GOV.’’ on exchange rate policy, income Crampton at ITS AMERICA by Decided: December 13, 1999. inequality and debt forgiveness. telephone at (202) 484–4847, or by Fax By the Board, David M. Konschnik, Procedure at (202) 484–3483. The DOT contact is Director, Office of Proceedings. These meetings are open to the Kristy Frizzell, ITS JPO FHWA, HOIT, Vernon A. Williams, public. Please note that the meetings Washington, DC 20590, (202) 366–0722. Secretary. may close early if all business is Office hours are from 8:30 a.m. to 5:00 [FR Doc. 99–32904 Filed 12–20–99; 8:45 am] finished. Members of the public may p.m., e.t., Monday through Friday, BILLING CODE 4915±00±P submit written comments. If you wish to except for legal holidays. furnish such comments, please provide (23 U.S.C. 315; 49 CFR 1.48) 16 copies of your written material to the Issued on: December 16, 1999. DEPARTMENT OF THE TREASURY Designated Federal Official. If you wish Jeffrey Paniati, to have your comments distributed to Deputy Director, ITS Joint Program Office. Departmental Offices; International members of the Commission in advance [FR Doc. 99–33038 Filed 12–20–99; 8:45 am] Financial Institution Advisory of the seventh or eighth meeting, 16 Commission BILLING CODE 4910±22±M copies of any written material should be provided to the Designated Federal AGENCY: Department of the Treasury. Official no later than December 28, ACTION: Notice of meetings. DEPARTMENT OF TRANSPORTATION 1999. SUMMARY: Under section 603 of the Dated: December 14, 1999. Surface Transportation Board Foreign Operations, Export Financing William McFadden, [STB Finance Docket No. 33827] and Related Programs Appropriations Designated Federal Official. Act, 1999, the International Financial [FR Doc. 99–33043 Filed 12–20–99; 8:45 am] Union Pacific Railroad CompanyÐ Institution Advisory Commission (the BILLING CODE 4810±25±M Trackage Rights ExemptionÐCBEC ‘‘Commission’’) shall advise and report Railway, Inc. to the Congress on the future role and responsibilities of the international CBEC Railway, Inc. (CBEC) has agreed DEPARTMENT OF THE TREASURY financial institutions (defined as the to grant local trackage rights to Union International Monetary Fund, Office of the Comptroller of the Pacific Railroad Company (UP) over International Bank for Reconstruction Currency approximately 6.2 miles of CBEC and Development, European Bank for trackage extending between CBEC Office of Thrift Supervision Reconstruction and Development, milepost 0.0 and CBEC milepost 6.2, International Development Association, near Council Bluffs, IA. FEDERAL RESERVE SYSTEM International Finance Corporation, The transaction is scheduled to be Multilateral Investment Guarantee consummated on or after the December FEDERAL DEPOSIT INSURANCE Agency, African Development Bank, 14, 1999 effective date of the exemption. CORPORATION The purpose of the trackage rights is African Development Fund, Asian to permit UP to provide direct service to Development Bank, Inter-American Agency Information Collection a major utility customer on CBEC. Development Bank, and Inter-American Activities: Submission for OMB As a condition to this exemption, any Investment Corporation), the World Review; Joint Comment Request Trade Organization, and the Bank for employees affected by the trackage AGENCIES: International Settlements. Office of the Comptroller of rights will be protected by the the Currency (OCC), Office of Thrift conditions imposed in Norfolk and DATES: The seventh meeting of the Supervision (OTS), Treasury; Board of Western Ry. Co.—Trackage Rights—BN, Advisory Commission will be held on Governors of the Federal Reserve 354 I.C.C. 605 (1978), as modified in January 3, 2000, beginning at 4:00 p.m. System (Board); and Federal Deposit Mendocino Coast Ry., Inc.—Lease and and ending at 6:00 p.m. The eighth Insurance Corporation (FDIC). meeting of the Advisory Commission Operate, 360 I.C.C. 653 (1980). ACTION: Submission for OMB Review; will be held on January 4, 2000, This notice is filed under 49 CFR Joint Comment Request. 1180.2(d)(7). If it contains false or beginning at 9:00 a.m. and ending misleading information, the exemption tentatively at 3:00 p.m. The locations for SUMMARY: In accordance with the is void ab initio. Petitions to revoke the both meetings is not yet determined.. requirements of the Paperwork exemption under 49 U.S.C. 10502(d) FOR FURTHER INFORMATION CONTACT: Reduction Act of 1995 (44 U.S.C. may be filed at any time. The filing of Designated Federal Official: William chapter 35), the OCC, the OTS, the a petition to revoke will not McFadden, Senior Policy Advisor, Board, and the FDIC (collectively, the automatically stay the transaction. Office of International Monetary and ‘‘agencies’’) hereby give notice that they An original and 10 copies of all Financial Policy, Room 4444, plan to submit to the Office of pleadings, referring to STB Finance Department of the Treasury, 1500 Management and Budget (OMB) Docket No. 33827, must be filed with Pennsylvania Avenue N.W., requests for review of the information the Surface Transportation Board, Office Washington, D.C. 20220. Telephone collection systems described below. The
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Agencies may not conduct or sponsor, of Governors of the Federal Reserve Executive Secretary, Federal Deposit and the respondent is not required to System, 20th and C Streets, NW, Insurance Corporation, 550 17th Street respond to, an information collection Washington, DC 20551, or delivered to NW, Washington, DC. 20429. that has been extended, revised, or the Board’s mail room between 8:45 implemented on or after October 1, a.m. and 5:15 p.m., and to the security SUPPLEMENTARY INFORMATION: 1995, unless it displays a currently valid control room outside of those hours. Proposal to extend for three years OMB control number. Both the mail room and the security without revision the following currently On September 3, 1999, the agencies, control room are accessible from the approved collections of information under the auspices of the Federal courtyard entrance on 20th Street Report Title: Annual Report of Trust Financial Institutions Examination between Constitution Avenue and C Assets and Annual Report of Council (FFIEC), requested public Street, NW Comments received may be International Fiduciary Activities comment for 60 days on the extension, inspected in room M–P–500 between Form Number: FFIEC 001 and FFIEC without revision, of the following 9:00 a.m. and 5:00 p.m., except as 006 currently approved information provided in section 261.12 of the Frequency of Response: Annual collections: the Annual Report of Trust Board’s Rules Regarding Availability of Affected Public: Business or other for Assets (FFIEC 001) and the Annual Information, 12 CFR 261.12(a). profit Report of International Fiduciary FDIC: Written comments on the FFIEC For OCC: Activities (FFIEC 006). 001 should be addressed to Robert E. OMB Number: 1557–0127. DATES: Comments must be submitted on Feldman, Executive Secretary, Number of Respondents: 809 (FFIEC or before January 20, 2000. Attention: Comments/OES, Federal 001) 100 (FFIEC 006). ADDRESSES: Interested parties are Deposit Insurance Corporation, 550 17th Estimated Average Time per invited to submit written comments to Street, NW, Washington, DC 20429. Response: 4.4 burden hours (FFIEC any or all of the agencies. All comments Comments may be hand-delivered to the 001). 4.0 burden hours (FFIEC 006). should refer to the OMB control guard station at the rear of the 550 17th Estimated Total Annual Burden: number(s) and will be shared among the Street Building (located on F Street), on 3,960 burden hours agencies. business days between 7:00 a.m. and For OTS: OCC: Written comments on the FFIEC 5:00 p.m. [FAX number (202) 898–3838; OMB Number: 1557–0026. 001 and 006 should be submitted to the Internet address: [email protected]]. Number of Respondents: 101 (FFIEC Communications Division, Office of the Comments may be inspected and 001). Comptroller of the Currency, 250 E photocopied in the FDIC Public Estimated Average Time per Street, SW, Third Floor, Attention: Information Center, Room 100, 801 17th Response: 4.08 burden hours (FFIEC 1557–0127 (FFIEC 001 and 006). Street, NW, Washington, DC, between 001). Washington, DC 20219. In addition, 9:00 a.m. and 4:30 p.m. on business Estimated Total Annual Burden: 412 comments may be sent by facsimile days. burden hours. transmission to (202) 874–5274, or by A copy of the comments may also be For Board: electronic mail to submitted to the OMB desk officer for OMB Number: 7100–0031. [email protected]. the agencies: Alexander T. Hunt, Office Number of Respondents: 511 (FFIEC Comments will be available for of Information and Regulatory Affairs, 001), 116 (FFIEC 006). inspection and photocopying at the Office of Management and Budget, New Estimated Average Time per OCC’s Public Reference Room, 250 E Executive Office Building, Room 3208, Response: 3.82 burden hours (FFIEC Street, S.W., Washington, D.C. 20219 Washington, DC 20503. 001), 4.0 burden hours (FFIEC 006). between 9:00 a.m. and 5:00 p.m. on FOR FURTHER INFORMATION CONTACT: Total Annual Burden: 2,416 burden business days. Appointments for Requests for additional information or a hours. inspection of comments may be made copy of an agency’s submission may be For FDIC: by calling (202) 874–5043. obtained by contacting: OMB Number: 3064–0024. OTS: Written comments on the FFIEC OCC: Jessie Gates, OCC Clearance Number of Respondents: 1,602 (FFIEC 001 should be submitted to the Officer, or Camille Dixon, (202) 874– 001). Manager, Dissemination Branch, 5090, Legislative and Regulatory Estimated Average Time per Information Management and Services Activities Division, Office of the Response: 3.55 burden hours (FFIEC Division, Office of Thrift Supervision, Comptroller of the Currency, 250 E 001). 1700 G Street, NW, Washington, DC Street, SW, Washington, DC 20219. Estimated Total Annual Burden: 20552, Attention: 1550–0026. Hand OTS: Mary Rawlings-Milton, OTS 5,683 burden hours (FFIEC 001). deliver comments to Public Reference Clearance Officer, (202) 906–6028, Room 1700 G Street, NW, lower level, Office of Thrift Supervision, 1700 G General Description of Reports from 9:00 a.m. to 4:00 p.m. on business Street, NW, Washington, DC 20552. This information collection (FFIEC days. Send facsimile transmissions to Board: Mary M. West, Chief, Financial 001 and FFIEC 006) is mandatory: 12 FAX Number (202) 906–7755; or (202) Reports Section, (202) 452–3829, U.S.C. 161 and 1817 (for national 906–6956 (if comments are over 25 Division of Research and Statistics, banks), 12 U.S.C. 1464, 1725, 1730 (for pages). Send e-mail to Board of Governors of the Federal thrift institutions), 12 U.S.C. 248(a)(1) ‘‘[email protected]’’, and include Reserve System, 20th and C Streets, and (2) and 1844(c) (for state member your name and telephone number. NW, Washington, D.C. 20551. banks and bank holding companies), Interested persons may inspect Telecommunications Device for the Deaf and 12 U.S.C. 1817 (for insured state comments at the Public Reference (TDD) users may contact Diane Jenkins, nonmember commercial and savings Room, 1700 G St. NW, from 9:00 a.m. (202) 452–3544, Board of Governors of banks). The FFIEC 006, collected by the until 4:00 p.m. on business days. the Federal Reserve System, 20th and C OCC and the Board, and Schedule E– Board: Written comments on the Streets, NW, Washington, DC 20551. Fiduciary Income Statement on the FFIEC 001 and 006 should be addressed FDIC: Steven F. Hanft, FDIC Clearance FFIEC 001, collected by all of the to Jennifer J. Johnson, Secretary, Board Officer, (202) 898–3907, Office of the agencies, are given confidential
VerDate 15-DEC-99 15:09 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 E:\FR\FM\A21DE3.179 pfrm03 PsN: 21DEN1 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71549 treatment (5 U.S.C. 552(b)(8)). Small a. Whether the information minimize burden including the use of businesses (i.e., small banks) are not collections are necessary for the proper automated collection techniques or the affected. performance of the agencies’ functions, use of other forms of information including whether the information has technology as well as other relevant Abstract practical utility; aspects of the information collection These interagency reports collect b. The accuracy of the agencies’ request. estimates of the burden of the information on fiduciary asset totals and Dated: November 19, 1999. information collections, including the activities. They are used to monitor Mark J. Tenhundfeld, changes in the volume and character of validity of the methodology and assumptions used; Assistant Director, Legislative and Regulatory discretionary trust activity and the Activities Division. volume of nondiscretionary trust c. Ways to enhance the quality, Dated: December 14, 1999. activity and to determine resource needs utility, and clarity of the information to for supervisory purposes. The data are be collected; John E. Werner, d. Ways to minimize the burden of also used for statistical and analytical Director, Information & Management, information collections on respondents, purposes. No changes are proposed to Services, Office of Thrift Supervision. including through the use of automated the FFIEC 001 or the FFIEC 006 Board of Governors of the Federal Reserve collection techniques or other forms of reporting forms or instructions. System, December 16, 1999. information technology; and Jennifer J. Johnson, The agencies did not receive any e. Estimates of capital or start up costs Secretary of the Board. comments in response to the notice and costs of operation, maintenance, published in the Federal Register on and purchase of services to provide Dated at Washington, DC, this 15th day of September 3, 1999 (64 FR 48453) information. December, 1999. requesting public comment on the Comments submitted in response to Federal Deposit Insurance Corporation. extension, without revision, of these this notice will be shared among the Robert E. Feldman, information collections. agencies. All comments will become a Executive Secretary. Request for Comment matter of public record. Written [FR Doc. 99–33045 Filed 12–20–99; 8:45 am] comments should address the accuracy BILLING CODE 4810±33±P; 6720±01±P; 6210±01±P; Comments are invited on: of the burden estimates and ways to 6714±01±P
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DEPARTMENT OF EDUCATION regulations, we urge you to identify Negotiated Rulemaking clearly the specific section or sections of Section 492 of the HEA requires that, 34 CFR Part 694 the proposed regulations that each of before publishing any proposed your comments addresses and to arrange RIN 1840±AC82 regulations to implement programs your comments in the same order as the under Title IV of the Act, the Secretary Gaining Early Awareness and proposed regulations. We invite you to obtain public involvement in the Readiness for Undergraduate assist us in complying with the specific development of the proposed Programs requirements of Executive Order 12866 regulations. After obtaining advice and and its overall requirement of reducing recommendations, the Secretary must AGENCY: Office of Postsecondary regulatory burden that might result from conduct a negotiated rulemaking Education, Department of Education. these proposed regulations. Please let us process to develop the proposed ACTION: Proposed regulations. know of any further opportunities we regulations. For fiscal year 1999, we should take to reduce potential costs or SUMMARY: The Secretary proposes to determined that, to make grants under amend the regulations governing the increase potential benefits while this competition before the funds Gaining Early Awareness and Readiness preserving the effective and efficient expired, the use of negotiated for Undergraduate Programs (GEAR UP) administration of the program. rulemaking would be impracticable and program. These amendments are needed During and after the comment period, contrary to the public interest under because the current regulations applied you may inspect all public comments section 492(b)(2) of the HEA. only to the fiscal year 1999 competition. about these proposed regulations in The proposed regulations contained These proposed regulations will apply room 6107, 1990 K Street, NW., in this NPRM were developed through to any future GEAR UP competitions Washington, DC, between the hours of the use of negotiated rulemaking. The and were drafted subject to the 8:30 a.m. and 4 p.m., Eastern time, proposed regulations reflect the final negotiated rulemaking process required Monday through Friday of each week consensus of the GEAR UP negotiating by section 492 of the Higher Education except Federal holidays. committee (committee), which was Act of 1964 (HEA), as amended. made up of the following members: Assistance to Individuals With DATES: We must receive your comments California State University System Disabilities in Reviewing the on or before January 20, 2000. The College Board Rulemaking Record ADDRESSES: Address all comments about Council of the Great City Schools these proposed regulations to Edward On request, we will supply an Ford Foundation Fuentes, U.S. Department of Education, appropriate aid, such as a reader or High School Equivalency Program and 1990 K Street, NW., room 6107, print magnifier, to an individual with a the College Assistance Migrant Washington, DC 20006. If you prefer to disability who needs assistance to Program Association and the National send your comments through the review the comments or other Association for Migrant Education, Inc. (a coalition) Internet, use the following address: documents in the public rulemaking Hispanic Association of Colleges and [email protected]. You must include record for these proposed regulations. If Universities the term GEAR UP in the subject line of you want to schedule an appointment ‘‘I Have a Dream’’ Foundation your electronic message. for this type of aid, you may call (202) National Alliance of Black School If you want to comment on the 205–8113 or (202) 260–9585. If you use Educators information collection requirements you a TDD, you may call the Federal National Association for College must send your comments to the Office Information Relay Service at 1–800– Admission Counseling of Management and Budget at the 877–8339. address listed in the Paperwork National Association for Equal Reduction Act section of this preamble. Background Opportunity in Higher Education You may also send a copy of these National Association of Independent comments to the Department Section 403 of the Higher Education Colleges and Universities representative named in this section. Amendments of 1998 (Amendments), National Association of Secondary FOR FURTHER INFORMATION CONTACT: Lisa (Public Law 105–244), enacted October School Principals and the National Aserkoff, 400 Maryland Ave., SW., 7, 1998, amending the Higher Education Forum on Middle-Grades Reform (a Room 6E205, Washington, DC 20202. Act of 1965 (HEA) established the coalition) Telephone: (202) 401–6296. If you use a Gaining Early Awareness and Readiness National Association of State Student telecommunications device for the deaf for Undergraduate Programs (GEAR UP), Grant and Aid Programs (TDD), you may call the Federal a program designed to give more low- National Coalition of Title I/Chapter I Information Relay Service (FIRS) at 1– income students the skills, Parents 800–877–8339. encouragement, and preparation needed National Collaboration for Youth Individuals with disabilities may to pursue postsecondary education, and National Council of Higher Education obtain this document in an alternate to strengthen academic programs and Loan Programs format (e.g., Braille, large print, student services at participating schools. National Education Association audiotape, or computer diskette) on On March 2, 1999, we published final United States Chamber of Commerce request to the contact person listed in regulations implementing GEAR UP for United States Department of Education the preceding paragraph. fiscal year 1999 (64 FR 10183), using the United States Student Association SUPPLEMENTARY INFORMATION: Department’s authority under section As stated in the committee protocols, 437(d) of the General Education consensus means that there must be no Invitation to Comment Provisions Act to waive rulemaking dissent by any member in order for the We invite you to submit comments requirements for regulations governing committee to be considered to have regarding these proposed regulations. the first grant competition under a new reached agreement. Consensus was To ensure that your comments have the or substantially revised program reached on all of the proposed maximum effect in developing the final authority (20 U.S.C. 1232(d)(1)). regulations in this document.
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Background in regulation. These negotiators not the best way to address those GEAR UP provides two types of mentioned changes in funding from concerns. The committee discussed the competitive grants: State grants and Congress for the program as a potential use of the word ‘‘disadvantaged,’’ and Partnership grants. State grants must reason why there needed to be wanted to be sure that services weren’t provide early college preparation and discretion each year in setting the only targeted at economically awareness activities through the early maximum State grant amount. We disadvantaged students. In addition, negotiators were intervention component of the GEAR therefore changed the regulations so that the maximum amount that the Secretary concerned about the word ‘‘delivery,’’ UP program and scholarships for could award each year for a GEAR UP and whether it meant that the participating students through the State grant would be announced each Partnership had to ensure the student scholarship component of GEAR UP. fiscal year in a notice published in the actually received all of the services. Partnerships must provide early college Federal Register. Several negotiators wondered how the preparation and awareness activities Partnership could ensure that each through the early intervention Section 694.2 Students Served By the disadvantaged student actually receives component and are encouraged to Cohort Approach Under the Early all of the services if a student adamantly provide college scholarships, although Intervention Component refuses, or doesn’t show up, and what they are not required to do so. Statute: Section 404B(g) of the HEA the consequences would be for a Section 694.1 Maximum Grant requires that Partnerships provide Partnership if services were not Amounts services to at least one grade level of delivered. By contrast, under the students, beginning not later than the proposed regulations, Partnerships Current Regulations: The current 7th grade. In addition, Partnerships would be able to provide services to the regulations set a maximum amount that must ensure that those services are entire cohort, tailor services to students’ the Secretary could award each year to provided through the 12th grade to needs, and target additional services a Partnership or a State under GEAR UP. students in the participating grade appropriate to students with the greatest For Partnership grants, the maximum levels. needs. amount that the Secretary could award Current Regulations: The current In addition, several negotiators were each year was calculated by multiplying regulations restate the statutory concerned that the requirement as a the number of students the Partnership language, but also add language that whole could be read to imply that not proposes to serve that year, as stated in would require States that choose to use all students in the cohort needed to the Partnership’s plan, by $800. the cohort approach to follow the same receive services. Several negotiators For State grants, the current rules as Partnerships. The regulations emphasized that one of the most regulations set the maximum dollar also established the word ‘‘cohort’’ as important attributes of the GEAR UP amount that the Secretary could award the term used throughout the program was the whole-grade approach, each year at $5 million. regulations to refer to the entire grade and the negotiators wanted to be sure Proposed regulations: For Partnership levels of students the Partnership (or that the suggested additional language grants, the proposed regulations would State) served. wouldn’t lead to Partnerships providing keep the same maximum amount that Proposed Regulations: The proposed services to only some students in a the Secretary could award each year as regulations would be the same as the grade. under current regulations, an amount current regulations, with one addition. The committee then discussed several calculated by multiplying the number of Partnerships, and States using the wording alternatives to address these students the Partnership proposes to cohort approach, must ensure that concerns. One negotiator suggested serve that year by $800. supplemental appropriate services are changing ‘‘disadvantaged’’ to ‘‘special Reasons: Negotiators agreed that this targeted to the students with the greatest needs.’’ Some other negotiators, is an appropriate maximum average per needs. however, were concerned that the term student, per year, Federal dollar amount Reasons: The committee discussed ‘‘special needs’’ might imply only to spend under GEAR UP. We believe the problems associated with serving an learning or physical disabilities. In that this maximum average Federal entire grade level of students in large addition, some negotiators suggested dollar amount per student will ensure schools. Several negotiators felt that it removing ‘‘delivery,’’ and instead saying that the Department can fund a was important to try to ensure that the that Partnerships must ensure that substantial number of projects students who needed the services the services were ‘‘targeted to’’ certain nationwide each year, while still most didn’t get lost among the many students. To address the concern about providing for a broad range of services other students also served in their the whole-grade approach, the words for those students served. school under GEAR UP. The committee ‘‘supplemental appropriate services’’ Proposed regulations: For State grants discussed how to provide those students were added, so that it was clear that the proposed regulations would state with appropriate services, without while all students should receive that the Secretary establishes the violating the statute, which requires that appropriate services, students with the maximum amount that may be awarded services be provided to entire grade greatest needs should get appropriate each fiscal year for a GEAR UP State levels of students. supplemental services. grant in a notice published in the The negotiating committee discussed The committee then reached final Federal Register. The negotiators several variations of language initially consensus on a provision that requires recognized that a maximum grant offered by several negotiators. The Partnerships, or States using the cohort amount was necessary to ensure that we language originally offered would have approach, to ensure that supplemental could fund a substantial number of required Partnerships to ensure that appropriate services are targeted to the projects each year, while still providing direct services be delivered to the most students with the greatest needs. The the services necessary to ensure a disadvantaged students within a cohort. committee believed that this language successful program. Several other negotiators, including the addresses the concern that, in large Several negotiators, however, Department, while recognizing the cohorts, the neediest students might expressed some concern that the concerns the language was trying to ‘‘get lost,’’ and might need some extra maximum amount for the grant was set address, believed that this language was attention, but still makes clear that the
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 71554 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules attention must be in addition to services Section 694.4 Changes in the Cohort school students under the program’s provided to the entire cohort. The Current regulations: Under current early intervention component. The committee also believed that referring to regulations, a Partnership or State that regulations are based on private school ‘‘students with the greatest needs’’ chooses to use a cohort approach must student participation requirements would be flexible enough to allow serve, as part of the cohort, any generally applicable to most elementary individual school districts to decide additional students who may have and secondary education programs how to determine which students most enrolled in the participating school, at carried out by the Department. Proposed Regulations: The proposed needed the additional services. the grade level of the students in the regulations would keep the language cohort, after the cohort began receiving Section 694.3 Cohort Requirements from current regulations for providing GEAR UP services. The current Statute: Section 404B(g) of the statute services to private school students regulations also provide that if, after under the program’s early intervention requires that Partnerships must provide completing the last grade level offered services to at least one grade level of component. by the school at which the cohort began Reasons: The committee agreed that students, beginning not later than the to receive GEAR UP services, not all the 7th grade, in a participating school that regulations are necessary to ensure that students in the cohort move on to the Federal funds are used for educational has a 7th grade and in which at least 50 same school, the Partnership or the percent of the students are eligible for services that are secular, neutral, and State may, but is not required to, nonideological. free or reduced-price lunch under the provide services to all of those students. National School Lunch Act (or, if a However, the Partnership or State must Section 694.7 Matching Requirements Partnership determines that it would continue to provide GEAR UP services Statute: Under section 404C(b) of the promote the effectiveness of a program, to at least those students in the cohort HEA, the Secretary may not approve a an entire grade level of students, who attend subsequent participating GEAR UP plan unless the plan provides beginning not later than the 7th grade, schools that enroll a substantial majority that the Partnership or State will who reside in public housing as defined of the students in the cohort. provide, from State, local, institutional, in section 3(b)(1) of the United States Proposed Regulations: The proposed or private funds, not less than 50 Housing Act of 1937). regulations would keep the same percent of the cost of the program, in Current Regulations: The current language as in the current regulations to cash or in kind. Section 404C(b) also regulations restate the statute, but address the students a Partnership or gives the Secretary the authority to divide the requirements into individual State must serve when there are changes modify, by regulation, the 50 percent paragraphs, to make statutory language in the cohort. requirement for Partnerships. clearer. Reasons: The committee agreed that Current Regulations: The current Proposed Regulations: The proposed any new student who enrolls in a regulations require a Partnership to state regulations would keep the same participating school and joins a GEAR in its application the percentage of the language as in current regulations. UP cohort before the cohort completes cost of the GEAR UP project for each Reason: The negotiators agreed that the GEAR UP program in that school, year that the Partnership will provide the regulatory language would help should have the opportunity to benefit from non-Federal funds, and then to clarify the statutory requirements. The from the direct services the other cohort comply with the matching percentage committee discussed whether there was students are receiving. The committee stated in the application for each year of any way to provide services to students also agreed that some students who the project period. Under current before they reached schools that include began in the cohort are likely to leave regulations, a Partnership must also a 7th grade. Some negotiators the participating school as well, and provide at least 20% of the cost of the mentioned that in some States there that GEAR UP programs should not be project from non-Federal funds for any were many elementary schools that required to serve those students. year in the project period, and the non- didn’t include a 7th grade, but that they The committee also recognized that as Federal share of the cost of the GEAR felt could still benefit tremendously the cohort moves on to a subsequent UP project must be at least 50% of the from a program like GEAR UP. The participating school (for example, a high total cost over the project period. committee discussed this at length, but school), a single middle-grades school Proposed regulations: The proposed under the statute Partnerships cannot could feed into more than one high regulations would keep the requirement serve students in schools that do not school. Some cohorts may, therefore, that the non-Federal share of the cost of include a 7th grade. Additionally, eventually be distributed among several the GEAR UP project be not less than 50 several negotiators thought that schools. The committee agreed that percent of the total cost over the project although others could certainly benefit Partnerships or States should be period. However, the proposed from GEAR UP services, the emphasis of required to continue providing GEAR regulations would permit a match lower GEAR UP was intended for students in UP services to at least those students in than 50 percent, but not lower than 30 middle grades (i.e. schools that include the cohort that attend participating percent, for Partnerships with three or a 7th grade), and wanted to ensure that schools that enroll a substantial majority fewer institutions of higher education as GEAR UP funds reached the population of the students in the cohort. In doing members, and in which the fiscal agent for which they were intended. Students so, the maximum number of students is (1) eligible to receive funds under benefit most in the middle grades; from the original cohort would continue Title V, Part B of Title III, or section 316 research shows that course and other to receive services, without placing an or 317 of the HEA, or (2) a local decisions in the middle grades are undue burden on Partnerships or States. educational agency. In addition, to critical in determining a student’s qualify for the lower match, the chances of going to college. The Sections 694.5 and 694.6 Serving Partnership would have to include only definition of schools with a 7th grade Private School Students participating schools with a 7th grade in already includes a broad range of school Current Regulations: The current which at least 75 percent of the students configurations without diluting the regulations outline the requirements a are eligible for free or reduced-price program’s unique focus on the middle Partnership or State must meet if it lunch under the National School Lunch grades. chooses to provide services to private Act; and only local educational agencies
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71555 in which at least 50 percent of the A third option presented to the the applicants were in fact eligible for students enrolled are eligible for free or committee would have permitted the the lower match, since the criteria to reduced-price lunch under the National Secretary to give special consideration qualify for the lower match were School Lunch Act. to Partnerships with respect to the subjective and extremely detailed. In Reasons: The committee agreed that match either before the Partnership’s addition, this option would have generally the 50 percent matching application was approved or after a required the Secretary to make requirement over the entire project grant was awarded. For pre-approval individual determinations as to whether period gives Partnerships broad special consideration, a Partnership an applicant qualified for the lower flexibility in terms of the amount of the would apply for special consideration match. project cost that the Partnership must for a match less than 50 percent, and Negotiators, including the provide for each year of the project. The would receive notification from the Department, preferred an approach that success of any project depends in part Secretary as to whether their request provided a lower match for an easily upon strong community support. The 50 was granted within 30 days of the definable group of applicants. percent requirement helps to ensure that application deadline. Whether the Negotiators felt that this approach the GEAR UP project has strong request was pre-approval, or post- would be less burdensome, both for community support, that all members of award, there would be two applicants and for the Department, and the Partnership contribute to the circumstances under which a would still provide a lower match for program, in cash or in kind, and that the Partnership could apply for special the applicants that needed it most. Partnership can be sustained, even after consideration. The first circumstance Federal funds are no longer available, would be if an emergency, such as a One negotiator argued that the group through strong community Partnerships, natural disaster, occurred where the of institutions of higher education with support from all partners. The Partnership was located that would eligible for the lower match in the Department also suggested that the warrant a lower match. proposed regulations should be poorest and very rural communities The other circumstance that could expanded to include institutions eligible were able to meet the match in the fiscal allow a Partnership to apply for a lower to receive funds under all of Part A of year 1999 competition. match would be if there were within the title III of the HEA, instead of just Several negotiators, however, felt that Partnership systemic issues that could sections 316 and 317. Other negotiators, the 50 percent match precluded some of preclude the Partnership from being including the Department, felt that the the poorest communities from applying, able to meet the match. To qualify for proposed regulations were sufficiently because they wouldn’t have the the lower match, the Partnership would broad to allow a significant number of resources to meet the 50 percent match. have to show that, in spite of its limited Partnerships to be eligible for the The committee discussed a variety of resources, it had an ongoing reduced match and further believed that options to address this problem. commitment to serving the educational including the institutions the negotiator One negotiator suggested a waiver of needs of targeted students. The suggested would expand the exception the match. If that wouldn’t be possible, Partnership would also have to show so broadly that it would become the the negotiator suggested a minimum that it had no access to adequate fiscal rule. match of 20 percent throughout the life resources, or that it was geographically Section 694.8 Fiscal Agents for of the grant. The negotiator was isolated. Finally, this would be available Partnerships concerned that many colleges and only in geographic areas in which at universities, especially those that serve least 75 percent of the students were Statute: Section 404B(d) of the statute low-income students, were already eligible for free or reduced-price lunch, requires that a Partnership designate an burdened by matching requirements of or in which there was a high Institution of Higher Education (IHE) or other programs, even where there is unemployment rate. a Local Educational Agency (LEA) as the flexibility to substitute in-kind services The negotiators felt that the provision fiscal agent for the partnership. for dollars. Several other negotiators, that appears in the proposed regulations Current Regulations: The current including the Department, felt that a was the best option available. Several regulations restate the statutory minimum match of 20 percent negotiators didn’t want the first option language and add that the IHE must be throughout the life of the grant was too of either a waiver or a minimum 20 an IHE that is not pervasively sectarian. low, and that other members of the percent match throughout the life of the Partnership could and needed to grant. These negotiators felt that a Proposed Regulations: The proposed provide more. These negotiators waiver would be too logistically regulations would keep the language stressed that Partnerships would not burdensome, both for the Secretary and from the current regulations, but would need to use cash to meet the match, but for the applicant. These negotiators also add language clarifying that although could do so through in-kind felt that a minimum of 20 percent over the IHE or LEA must be the fiscal agent, contributions, which, in spite of the the life of the grant was too low. any member of the Partnership can negotiator’s concerns, should serve to Negotiators also didn’t agree to the organize the project. alleviate the burden. second option, because they felt it could Reasons: Several negotiators wanted Another option presented by some allow too many applicants to take to clarify in the regulations that other negotiators was that Partnerships could advantage of a reduced match, which members of the Partnership, such as be eligible for a 25 percent match if they would weaken the projects and mean community-based organizations, though served only elementary and secondary more Federal money would be spent per not eligible to be the fiscal agent, could schools in which at least 50 percent of project, and fewer projects could be still be a driving force in a Partnership. the students enrolled were eligible for funded. Some negotiators felt that without the free or reduced-price lunch under the Negotiators felt that the third option clarifying language, organizations other National School Lunch Act, and if they was not the best option for a couple of than IHEs and LEAs might think they served only LEAs in which at least 50 reasons. One reason is that this option couldn’t play a significant percent of the students enrolled were would have required both the applicants organizational role in the Partnership eligible for free or reduced-price lunch and the Department to spend significant and might be less inclined to join the under the National School Lunch Act. amounts of time determining whether Partnership.
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Section 694.9 Maximum Indirect Cost Current Regulations: The current a less than full-time basis. The Rates for States and LEAs regulations include the requirements negotiators thought it would be better outlining the minimum scholarship for the student if the State or Current Regulations: Although the amount, and add that cost of attendance Partnership had the discretion as to current regulations don’t address is to be determined under section 472 of whether to reduce the scholarship and indirect cost rates, we addressed the HEA. if so by how much. However, in no case indirect cost rates in the application The current regulations also require a could the percentage reduction in the package for GEAR UP. We determined State, or Partnership that chooses to scholarship be greater than the that GEAR UP projects were educational participate in the scholarship percentage reduction in tuition and fees training grants under 34 CFR 74.562. component under section 404E, to charged to the student. For example, if Consistent with that provision in ensure that it will not award a GEAR UP a student attends an institution less than EDGAR, a recipient was limited to the scholarship to a student in an amount full-time, and the student’s tuition and maximum of eight percent or the rate that, in combination with other student fees are reduced by 25%, then the State permitted by an applicant’s negotiated financial assistance under title IV of the or Partnership could, if it chose, reduce cost rate agreement, whichever was less. HEA, exceeds cost of attendance, again the GEAR UP scholarship by no more This rate did not apply to costs incurred as defined by section 472 of the HEA. than 25%. The negotiators felt this was by State agencies or LEAs. The current regulations further the best way to ensure that students Proposed Regulations: Under the require that a State or Partnership must who decided to attend less than full- proposed regulations, the same rule that reduce the scholarship amount time could still cover at least the same applies to applicants other than State proportionally for any student who amount of their tuition and fees with the agencies or LEAs under 34 CFR 74.562 receives a GEAR UP scholarship and their GEAR UP scholarships. would also apply to State agencies and attends an institution on a less than full- LEAs, so that all grant recipients’ time basis during any academic year. Section 694.10(b) Scholarships and maximum indirect cost rates would be Proposed regulations: The proposed Pell Grant Recipients limited to the lesser of the rate regulations would remain the same as Statute: Section 404E requires the established by the negotiated indirect the current regulations with respect to Secretary to ensure that States place a cost agreement, or eight percent of a the minimum scholarship amount priority on awarding scholarships to modified total direct cost base. required. The proposed regulations students who will receive a Federal Pell Reasons: While both negotiators and would describe the statutory Grant for the academic year for which the Department recognize that indirect requirements, and would keep section the GEAR UP scholarship is awarded. costs are both real and legitimate, they 472 of the HEA as the means of Current Regulations: Under the also believe that having large amounts determining cost of attendance for current regulations, a State, or a of funds compensate partners for their establishing the minimum award Partnership that chooses to participate general overhead and related expenses amount. in the scholarship component under is inconsistent with the purpose of the The proposed regulations would no section 404E of the HEA, must award program. The negotiating committee longer require a reduction in the GEAR UP scholarships to students who agreed that the eight percent maximum scholarship amount for students are eligible for a GEAR UP scholarship, on indirect cost reimbursement is a fair attending institutions on a less than full- and who will receive a Federal Pell percentage that still allows significant time basis during an academic year. Grant for the academic year for which funds to be available for direct grant Instead, the proposed regulations would the GEAR UP scholarship is being services. allow a State or Partnership to reduce awarded. If the State or Partnership still the scholarship amount to students has funds remaining after awarding Section 694.10 Requirements for attending less than full-time, but in no scholarships to those students, it may Awards Under the Scholarship case could the percentage reduction in award scholarships to other eligible Component the scholarship be greater than the students (who will not receive a Federal Section 694.10(a) Amount of percentage reduction in tuition and fees Pell Grant) after considering the need of Scholarship charged to that student. those students for GEAR UP Reasons: The negotiators believed that scholarships. Statute: Section 404E of the HEA the language in the current regulations Proposed Regulations: The proposed requires States that participate in GEAR regarding the reduction of a scholarship regulations would make two substantive UP to establish or maintain a financial award for students who attend an changes to the current regulations. First, assistance program that awards institution on a less than full-time basis the proposed regulations would add scholarships to students. The minimum needed to be changed. The negotiators students ‘‘who are eligible to receive’’ a scholarship amount for each fiscal year didn’t think that the regulations should Federal Pell Grant, rather than just must not be less than the lesser of 75 require that the reduction in scholarship ‘‘who will receive’’ a Federal Pell Grant. percent of the average cost of attendance be proportional. Several negotiators Second, the proposed regulations would for an in-State student, in a 4-year pointed out that, at some institutions, a change ‘‘academic year’’ to ‘‘award program of instruction, at public IHEs in student could attend less than full-time year.’’ With the exception of these two the State, or the maximum Federal Pell but still be required to pay full-time changes, the proposed regulations are Grant funded under section 401 of the tuition and fees. In addition, a student substantively the same as the current HEA for the fiscal year. may attend less than full-time but may regulations. Section 404E also requires that GEAR still have to be on campus each day of Reasons: Under the proposed UP scholarships under this section may the week, so transportation costs could regulations, a State or Partnership not be considered for the purpose of be the same regardless of whether a would have to award GEAR UP awarding Federal grant assistance under student is attending full- or part-time. scholarships first to students who will title IV of the HEA, except that the total The negotiators therefore decided that receive, or are eligible to receive, a amount of student financial assistance a student’s scholarship shouldn’t Federal Pell Grant during the award awarded may not exceed a student’s necessarily be reduced proportionately year in which the GEAR UP scholarship total cost of attendance. when a student attends an institution on is being awarded. Negotiators felt that
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71557 eligibility was crucial because in many students who receive a GEAR UP considered in the determination of a cases it would be very difficult to tell scholarship can be assured that for as student’s eligibility for other grant whether a student would actually long as they remain eligible, they will assistance provided under title IV of the receive a Federal Pell Grant at the time receive GEAR UP scholarship money. HEA, as required by section 404E of the the GEAR UP scholarship award would Additionally, negotiators discussed statute. The second criterion is that an be made. The negotiators felt therefore whether grantees would still be required institution must also have a policy that it was important to include that a to provide continuation scholarships if under which the GEAR UP scholarship student could be eligible to receive a Federal funding was discontinued does not supplant other public or Pell Grant in order to be eligible for the during the life of the grant. We clarified institutional gift aid that the student statutory Pell Grant priority. Negotiators for the negotiators that if Federal would otherwise have been eligible to felt that eligibility for a Pell Grant still funding were discontinued during the receive. showed that the student was life of the grant, we wouldn’t require The final criterion for non-disclosure exceptionally needy and therefore grantees to continue to come up with is that an institution must follow certain deserving of a priority for a GEAR UP their share of the funds. If Federal procedures when a student receives an scholarship. funding is provided throughout the life overaward of student financial aid. A In addition, the negotiators changed of the grant, however, a grantee would GEAR UP scholarship, in combination ‘‘academic year’’ to ‘‘award year.’’ be obligated to provide continuation with other student financial assistance Several negotiators felt that using award scholarships to students who remain awarded under any title IV HEA year would be more appropriate, eligible for scholarships even after the program and any other grant or because student financial aid is grant period has ended. scholarship assistance, may not exceed generally provided based on an award the student’s cost of attendance. If that Section 694.11 Disclosure year, and not an academic year. combination does exceed the student’s Requirements Regarding an Institution’s The committee also agreed that we cost of attendance, the institution must, Treatment of a GEAR UP Scholarship in would not read the language as it before reducing public or institutional Relation to Other Student Financial appears in the proposed regulations (i.e. gift aid, reduce other assistance to zero, Assistance ‘‘first’’ and ‘‘during the award year’’) to by the amount in excess of cost of penalize a State or Partnership that Statute: Under section 404E of the attendance, in a prescribed order. The awarded all of its scholarships at the HEA, scholarships provided under institution must first reduce loans, then appropriate time and subsequently section 404E may not be considered for need-based employment, and then the additional students became eligible for the purpose of awarding Federal grant GEAR UP scholarship before reducing Pell Grants. Although a State or assistance under title IV, except that in public or institutional gift aid, except Partnership must first award no case may the total amount of that the institution may reduce need- scholarships to students they know to financial assistance awarded to a based employment first and loans be eligible for a Pell Grant, they are not student under title IV exceed that second at the election of the student. required to award scholarships later for student’s total cost of attendance. This would mean that both the student students whom they couldn’t have In addition, section 404C of the HEA and the institution would have to agree known would be eligible for a Pell Grant requires that the plan that a State or to reduce the need-based employment at the time the scholarships were Partnership submits to be eligible for a first and loans second. awarded. GEAR UP grant must contain provisions The proposed regulations would designed to ensure that funds provided therefore require an institution to Section 694.10(c) Continuation under GEAR UP will supplement and reduce each category of assistance (i.e. Scholarships not supplant funds expended for loans, need-based employment, the Current Regulations: Under the existing programs. GEAR UP scholarships) to zero, by the current regulations, a State or a Current regulations: The current amount in excess of cost of attendance, Partnership must award continuation regulations essentially reiterate the before reducing the next category. For scholarships in successive award years statutory provision that a GEAR UP example, if a student’s award package to each student who received an initial scholarship must not be considered in exceeds cost of attendance by $500 and scholarship and who continues to be the determination of a student’s the student has $400 in loans, the eligible for a scholarship. eligibility for other grant assistance institution would have to reduce the Proposed Regulations: The proposed provided under title IV of the HEA. In loans to zero and then reduce the need- regulations would remain substantively addition, the current regulations based employment by $100 to ensure the same as the current regulations. established the order in which that the package wouldn’t exceed cost of Reasons: Negotiators felt that it was postsecondary student financial attendance. important to assure students that once assistance must be awarded for each The proposed regulations would they received a scholarship, it would recipient of a GEAR UP scholarship. allow an institution to reduce its remain available to them for as long as Proposed regulations: The proposed institutional aid before reducing a GEAR they remained eligible. Because GEAR regulations would modify the current UP scholarship only if it determines in UP is a program for low-income regulations. Under the proposed writing that there are exceptional students, negotiators wanted to be sure regulations, an institution may have to circumstances related to the GEAR UP that students wouldn’t suddenly need to disclose its policy for the treatment of student’s institutional aid that are find alternate ways to fund their a GEAR UP scholarship in relation to unique to that GEAR UP student. For education after they’d been awarded a other student financial assistance. An example, an exceptional circumstance scholarship. Negotiators felt it was institution would not be required to could occur if it’s clear that allowing the important not to deter these students disclose its policy for the treatment of institution to spend the GEAR UP from going to college because there was a GEAR UP scholarship in relation to money and reduce the student’s no guarantee that there would be money other financial assistance if the institutional award would benefit the available for them after they had institution’s policy meets certain GEAR UP student. What would be key completed a year or more of college. criteria. The first criterion would be that to the determination of whether With these regulations, GEAR UP the GEAR UP scholarship must not be something is an exceptional
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 71558 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules circumstance is the institution’s regardless of whether the institution aiding GEAR UP students, not to alternative use of funds that would was required to disclose its policy. supplant institutional scholarship aid. otherwise be made available to the Reasons: The Department’s initial These negotiators also rejected the GEAR UP student in a financial aid proposal would have required suggestion that putting conditions on package. An exceptional circumstance institutions to treat GEAR UP institutional scholarship aid penalizes could exist if the institution commits scholarships, with respect to other any institutions. All institutions would the institutional aid to make a grant for student financial assistance, in the same be treated the same, wherever Federal the future benefit of that student, such way as the procedures that do not GEAR UP funds were used. They argued as graduate school or if the institution require disclosure in the proposed that it cannot be considered an spends the money on a special regulations as they appear in this NPRM institutional penalty when students curriculum or extra support for that and also to apply this requirement to come to an institution with GEAR UP student. other private scholarship funds. scholarships to help pay for college, in If exceptional circumstances do exist However, one negotiator objected that addition to the other scholarships for and an institution does reduce the those procedures meant that the Federal which they would otherwise qualify. GEAR UP student’s institutional aid government would be putting The fact that some institutions would before the GEAR UP scholarship, the conditions on how institutions and consider the conditions a denial of an institution must document and maintain private charities package or award their opportunity to exchange GEAR UP aid in the GEAR UP student’s file the own scholarship aid. The negotiator was for other aid, which could be used for modification that was made to the concerned that this could set a negative other purposes, is not an institutional GEAR UP student’s gift aid award precedent for future programs and penalty but a prudent measure to package and the reason for the regulations and ultimately penalize prevent misuse of Federal program modification. Finally, the institution schools that do the most for needy funds. would be required to provide written students, such as those that practice These negotiators rejected the notification to the GEAR UP student of need-blind admissions. The negotiator suggestion that supplement-not- the reason for and the specific also argued that the ‘‘supplement not supplant should not apply to individual modification made to the gift aid supplant’’ language in the GEAR UP student aid packages. They agreed with package. legislation applies to programmatic the point that applying this provision to Under the proposed regulations, an funds, not to individual student aid individual student aid packages gives institution would be required to packages funded through private dollars special treatment to GEAR UP students disclose its policy for the treatment of at colleges not part of a GEAR UP (and TRIO and NEISP students who a GEAR UP scholarship in relation to partnership. The negotiator also argued receive a GEAR UP scholarship) above other student financial assistance if it that the Department’s interpretation others, but noted that this is the whole doesn’t follow the procedures already gave special treatment to GEAR UP point of the GEAR UP program. They discussed. The proposed regulations students over other needy students, pointed out that GEAR UP scholarships would require the institution, if it including many in existing early are not a general need-based aid chooses a policy other than that intervention programs. Finally, it was program, or an institutional aid outlined in § 694.11(a), to establish a pointed out that some private program, but a scholarship program to policy for the treatment of GEAR UP scholarship money is ‘‘last-dollar.’’ To motivate individual GEAR UP students scholarships and inform all prospective attempt to make the GEAR UP program and help them pay for college. The students of that policy. Under the last-dollar might have the perverse committee agreed, in response to a proposed regulations, there would be a effect of decreasing a GEAR UP negotiator’s concern, that excess GEAR cross-reference to the definition of student’s overall aid package by UP scholarships would go to other ‘‘prospective student’’ in § 668.41, removing a student’s eligibility for these GEAR UP students and not to the which provides that prospective funds. Federal Treasury. students are individuals who have Other negotiators, including the In an effort to reach consensus, all the contacted an eligible institution Department, agreed that private negotiators agreed to fulfill the intent of requesting information concerning charitable scholarships, other than GEAR UP scholarships through public admission to that institution. This could institutional aid, should be excluded disclosure and public information. By include students who have written a from the regulation. With regard to doing so, the institution would be able letter, called, or notified by email an institutional aid, however, these to treat GEAR UP scholarships as they institution that they’d like information negotiators pointed out that it was not relate to certain other non-Title IV about admission to the institution. unprecedented for the Federal student financial assistance as it sees fit. In addition, the institution would be government to place conditions on such An institution would, however, have to required to notify the Department by aid to protect the Federal fiscal interest. disclose, to both prospective students September 1, 2000 that its treatment of Several negotiators noted that the and the Department, that it has chosen GEAR UP scholarships with respect to Federal Government had a long history not to follow the procedures in the institutional gift aid is different from the of placing maintenance-of-effort, proposed regulations and would have to procedures that would not require supplement-not-supplant, and similar disclose to prospective students its disclosure. The institution also must restrictions on institutional aid as a policy for GEAR UP scholarships. GEAR notify the Department in a timely condition of receiving Federal funds. UP scholarship students would then manner if, after September 1, 2000, it These negotiators also felt that the know how institutions plan to treat elects to treat GEAR UP scholarships Federal Government should ensure that GEAR UP scholarships so that they can differently from the procedures that not only its funds, but also the matching make informed decisions about which would not require disclosure. funds provided in good faith by other institution they want to apply to and Finally, the proposed regulations GEAR UP donors, such as school attend based on the amount and type of would make clear that regardless of the districts, service clubs, businesses, and financial assistance they are likely to disclosure requirements, all institutions SEAs and State higher education receive. must follow the procedures outlined in agencies, are used properly by In addition to the reasons already § 694.11 (a) with respect to title IV aid, institutions for the intended purpose of mentioned, the negotiators felt that
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71559 disclosure requirements were the best Reasons: Several negotiators asked for cases, the Governor of a State will option for several other purposes. A list this clarifying language. Negotiators felt collaborate with the SEA, the Chief of the institutions that report their the regulation could be read to imply State School Officer, and other relevant policies to the Department will be made that any financial assistance provided agencies and people. In addition, available to all GEAR UP Partnership by the Partnership would have to be several negotiators felt that although and State grant programs so that they directly related to, and in support of, many should be involved in the can advise students that a GEAR UP other activities of the Partnership under decision and implementation of the scholarship may not result in any the early intervention component. grant, the final decision needs to rest additional benefits if used at any of the Negotiators wanted it to be clearer that with the State’s chief executive officer, institutions on the list. Also, the Partnerships could also provide the Governor. The Governor is in the Department may use the list to financial assistance using non-Federal best position to ensure that agencies distinguish among institutions in future funds that the Partnership was not using collaborate in the design and GEAR UP program evaluations, because to comply with the matching implementation of the GEAR UP project. GEAR UP scholarships should not be requirement to students that Finally, some negotiators felt that the expected to make a program participated in GEAR UP, and that this Governor was necessary to bridge the performance difference at institutions financial assistance would not be gap between the elementary and where they are packaged not to make subject to the requirements of this secondary education community and such a difference. Finally, any section. We therefore agreed to add the higher education community, both institution that wants to comply with language that would make the of which are involved in GEAR UP. the non-supplantation procedures, but clarification. The proposed regulations remain can’t due to exceptional circumstances, In addition, negotiators, including the unchanged, therefore, with the Governor related to a particular student, could Department, realized that financial responsible for designating the State document the circumstances, rather assistance provided under this section agency that applies for and administers than inform the Department that it isn’t should be subject to similar the GEAR UP State grant. However, we adopting the policy in the proposed requirements as the financial assistance expect that Governors of States applying regulations. For example, if a GEAR UP provided by the scholarship component for GEAR UP grants will collaborate student were eligible for a non-GEAR in section 404E of the HEA. with appropriate agencies and officials UP scholarship and any portion of the Several negotiators wanted to determine which agency should scholarship that wasn’t needed for clarification that in addition to these apply on behalf of the State and how undergraduate education could be saved requirements, there are other, more agencies should collaborate in for graduate education, the institution general principles that apply to implementing the grant. could benefit the student by reducing Partnerships that want to offer financial assistance. For example, there are Section 694.14 21st Century this other scholarship before reducing Certificates the GEAR UP scholarship. principles of obligation law that dictate when and how financial assistance can Statute: Section 404F of the HEA Section 694.12 Financial Assistance be awarded if it is going to be counted requires that the Secretary ensure that for Partnerships That Don’t Participate toward the match in a particular fiscal 21st century scholarship certificates are in the Scholarship Component Under year. The committee agreed that it is not provided to all students participating in Section 404E of the HEA necessary or desirable to have this kind GEAR UP. In addition, the certificate Current regulations: The current of information in regulations, but that must be personalized for each student regulations provide that a GEAR UP there would need to be non-regulatory and indicate the amount of Federal Partnership that does not participate in guidance from the Department on other financial aid for college a student may the GEAR UP scholarship component restrictions that might apply. be eligible to receive. may provide financial assistance for Current Regulations: The current postsecondary education to students Section 694.13 Determination of the regulations provide that a State or who participate in the early intervention State Applicant Partnership must provide, in accordance component only if the financial aid is Current regulations: The current with such procedures as the Secretary directly related to, and in support of, regulations provide that the Governor of may specify, a 21st Century Scholar other activities of the Partnership under a State must designate which State Certificate from the Secretary of the early intervention component of agency applies for, and administers, a Education to each student participating GEAR UP. State grant under GEAR UP. in the early intervention component of Proposed Regulations: The proposed Proposed regulations: The proposed its GEAR UP project. In addition, regulations would keep the language language would keep the language in current regulations require each from the current regulations, with minor the current regulations. certificate to be personalized and to additions. One addition is that the Reasons: Several negotiators indicate the amount of Federal financial proposed regulations would add mentioned that they would prefer a aid for college that a student may be language to clarify that the requirements more collaborative approach to the eligible to receive. in this section apply to Partnerships designation of which State agency will Proposed Regulations: The proposed only if they use either GEAR UP funds, apply for and administer a GEAR UP regulations would keep the language or non-Federal funds used to comply State grant. The negotiating committee that is in the current regulations. with the matching requirement, to therefore discussed whether others, Reasons: The negotiating committee provide the financial assistance for such as the State Educational Agency agreed that the statute requires the postsecondary education. In addition, (SEA), or the Chief State School Officer, Secretary to ensure that the students the proposed regulations would add the should be involved in the decision. participating in GEAR UP each receive requirement that the Partnership Although the negotiating committee an individualized certificate, indicating comply with the provisions in agreed that collaboration was important, the amount of Federal financial aid for §§ 694.10(c) and 694.11, governing the many on the committee felt that there college that a student may be eligible to treatment of student financial assistance was no need to add language to the receive. The regulations make it clear under GEAR UP. regulations, because, in most if not all that the State or Partnership must
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 71560 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules provide the certificate to each student, and because there are also permissible GEAR UP project, several negotiators but that the certificate will be from the priorities in the regulations, and so it were concerned that this priority would Secretary. Since the certificates must be seemed clearer to people to have all the penalize Partnerships that had very personalized, the best and most efficient priorities appear in the same place, strong early intervention components, way to award the certificates is to rather than having to reference both the but no scholarships. These negotiators involve the Partnerships and States, regulations and the statute to know felt that the early intervention since they are the more likely to have what priorities applied. component was crucial to the success of the students’ personal information, such Section 694.17 Permissible Priorities GEAR UP, and that Partnerships as the students’ names and the date the shouldn’t be penalized for concentrating certificate will be presented. Current regulations: The current their efforts and sometimes very limited regulations include two priorities that resources on early intervention. The Section 694.15 NEISP States the Secretary would have the discretion committee discussed the importance of Statute: Section 404A(b)(2) of the to choose for the fiscal year 1999 scholarships, and the need to ensure HEA requires that the Secretary ensure competition. Under those regulations, that the benefits of the early that students served under the chapter the Secretary could give priority to intervention component resulted in 2 of subpart 2 of part A of title IV of the projects by Partnerships or States that more students going to college. The HEA, the National Early Intervention serve a substantial number or committee therefore decided to add Scholarship and Partnership (NEISP) percentage of students who reside in an language to the priority to ensure that Program, on the day before the date of Empowerment Zone, including a the priority wouldn’t be read to mean enactment of the Higher Education Supplemental Empowerment Zone, or that the scholarship component was Amendments of 1998 (Amendments) Enterprise Community designated by more important, or could replace, the continue to receive assistance through the U.S. Department of Housing and early intervention component. The the completion of secondary school. Urban Development or the U.S. priority is not intended to imply that Current regulations: The current Department of Agriculture. In addition, scholarships are more important than regulations basically restate the the Secretary could give priority to the early intervention component, only requirements in statute for any State Partnerships that establish or maintain a that scholarships are an excellent way to that receives a GEAR UP grant that financial assistance program that awards supplement an already strong early served the students referred to in the scholarships to students either in intervention component. statute. accordance with section 404E of the Proposed regulations: The proposed HEA, or in accordance with these Executive Order 12866 regulations. regulations would keep the language in 1. Potential Costs and Benefits the current regulations. Proposed regulations: The proposed Reasons: The negotiators agreed that regulations would keep the language in Under Executive Order 12866, we the statute requires the Secretary to the current regulations, with some have assessed the potential costs and ensure that students served under the minor changes. In the priority for benefits of this regulatory action. NEISP program continue to receive projects in Empowerment Zones or The potential costs associated with assistance through the completion of Enterprise Communities, the proposed the proposed regulations are those secondary school. The regulations regulations would allow a priority for resulting from statutory requirements clarify that the chapter mentioned in the projects that serve a substantial number and those we have determined as statute is NEISP, and that the date of or percentage or students who either necessary for administering this enactment of the Amendments was reside in, or attend a school in, an program effectively and efficiently. October 7, 1998. Empowerment Zone or Enterprise In assessing the potential costs and Community. In addition, the priority for benefits of this regulatory action—both Section 694.16 Mandatory Priority Partnerships that establish or maintain a quantitative and qualitative—we have Statute: Section 404A(b)(2) of the financial assistance program that awards determined that the benefits would HEA requires that the Secretary, in scholarships would include language justify the costs. making awards to States, give priority to that the scholarship program is to We have also determined that this eligible entities that on the date of strengthen the early intervention regulatory action would not unduly enactment of the Amendments, carried component of its GEAR UP project. interfere with State, local, and tribal out successful opportunity programs Reasons: For the priority about governments in the exercise of their under chapter 2 of subpart 2 of part A Empowerment Zones and Enterprise governmental functions. of title IV, and that have a prior, Communities, several negotiators felt We note that, as these proposed demonstrated commitment to early that Partnerships or States that serve a regulations were subject to negotiated intervention leading to college access substantial number of students who rulemaking, the costs and benefits of the through collaboration and replication of attend a school in an Empowerment various requirements were discussed successful strategies. Zone or Enterprise Community should thoroughly by negotiators. The Current regulations: The current be eligible for the priority, even if the consensus reached on a particular regulations essentially restate the students don’t live in an Empowerment requirement generally reflected statute, with language that the date of Zone or Enterprise Community. The agreement on the best possible approach enactment was October 7, 1998, and that committee discussed whether it could to that requirement in terms of cost and the chapter referred to is the NEISP ever occur that students who weren’t benefit. program, which GEAR UP replaced. truly needy would ever attend schools To assist the Department in Proposed regulations: The proposed in Empowerment Zones or Enterprise complying with the specific regulations basically restate the Communities. The Committee decided requirements of Executive Order 12866, proposed regulations, with only small that it was not a concern because the the Secretary invites comments on editorial changes. other eligibility requirements would whether there may be further Reason: The statutory priority still apply. opportunities to reduce any potential remains in the regulations because the For the priority for Partnerships that costs or to increase any potential language is clearer than in the statute, include a scholarship program in their benefits resulting from these proposed
VerDate 15-DEC-99 16:15 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm08 PsN: 21DEP2 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71561 regulations without impeding the Section 694.9 of the proposed benefit of the proposed regulation effective and efficient administration of regulations would set a maximum would exceed the cost because students the program. indirect cost rate of 8 percent for State would be better informed about the and local government agencies. The treatment of their scholarship and the Summary of Potential Costs and potential cost associated with this calculation of their financial assistance Benefits regulation would be the amount of at competing institutions. Sections 694.1, 694.3–694.6, 694.8, indirect costs that a State or local 2. Clarity of the Regulations and 694.12–694.17 of the proposed government agency could not charge to regulations would provide guidance for program funds. This amount would be Executive Order 12866 and the complying with statutory requirements the difference between a State or local President’s Memorandum of June 1, and ensure the proper and effective government agency’s negotiated indirect 1998 on ‘‘Plain Language in Government expenditure of program funds. These cost agreement, if it would exceed 8 Writing’’ require each agency to write regulations would set and clarify: the percent, and the 8 percent maximum regulations that are easy to understand. maximum amount that may be awarded rate allowed. The Department has The Secretary invites comments on to a Partnership or State; the determined that the benefit from this how to make these proposed regulations requirements for serving a cohort of regulation would exceed the potential easier to understand, including answers students; the requirements for serving cost. Setting a maximum indirect cost to questions such as the following: • private school students; the rate would increase the efficiency of Are the requirements in the requirements for Partnerships in program funds by ensuring that the vast proposed regulations clearly stated? • designating a fiscal agent; the conditions majority of funds are used to provide Do the proposed regulations contain under which Partnerships may provide direct services to students. Furthermore, technical terms or other wording that the proposed regulation would support interferes with their clarity? financial assistance to students; the • procedure for designating a State the competitive nature of the program Does the format of the proposed agency; the requirements for providing by setting a maximum indirect cost rate regulations (grouping and order of 21st Century Scholarship Certificates; that reflects the current indirect cost sections, use of headings, paragraphing, rates of the States that have been etc.) aid or reduce their clarity? the requirements for States that served • National Early Intervention Scholarship awarded grants. Would the proposed regulations be and Partnership students; and the Section 694.10 of the proposed easier to understand if we divided them priorities that must and may be regulations would provide guidance for into more (but shorter) sections? (A established by the Secretary. There complying with statutory requirements ‘‘section’’ is preceded by the symbol would be no costs associated with these for scholarships awarded under this ‘‘§ ’’ and a numbered heading; for regulations. program. It would require States and example, § 694.1 What is the maximum Partnerships that participate in the amount that the Secretary may award Section 694.2 of the proposed scholarship component to award each fiscal year to a Partnership or a regulations would clarify those services continuation scholarships to those State under this program?) that a Partnership or State that chooses students who receive an initial • Could the description of the to use the cohort approach must scholarship, as long as those students proposed regulations in the provide. It would require appropriate, remain eligible. The potential cost of SUPPLEMENTARY INFORMATION section of supplemental services to be targeted to this regulation would be the cost of this preamble be more helpful in students with the greatest needs. The scholarships for those students who making the proposed regulations easier Department has determined that the cost continue to remain eligible beyond the to understand? If so, how? to provide these services would be time period for which a State or • What else could we do to make the minimal, and that the benefit would Partnership has budgeted. Given the proposed regulations easier to exceed the cost. This regulation would substantial matching resources of States, understand? ensure that the neediest students in which are required to participate in the Send any comments that concern how programs with large cohorts would scholarship component, the Department the Department could make these receive a level of services sufficient to has determined the potential cost of this proposed regulations easier to succeed in the program. requirement to be minimal. More understand to the person listed in the Section 694.7 of the proposed importantly, this regulation would ADDRESSES section of the preamble. regulations would modify the matching ensure that students receive the Regulatory Flexibility Act Certification requirements for Partnerships. It would continuing financial support that is allow Partnerships to set their own necessary to complete their The Secretary certifies that these matching levels in any year, as long as postsecondary education. proposed regulations would not have a they comply with the matching Section 694.11 of the proposed significant economic impact on a percentage stated in their application regulations would clarify the statutory substantial number of small entities. and provide at least 50 percent of the requirements for scholarships as they Entities that would be affected by total project cost over the total project relate to title IV aid. It would require these regulations are States and State period. It would also allow Partnerships institutions of higher education to agencies, local education agencies that meet certain, specified criteria to disclose their policy for the treatment of (LEAs), local community organizations, provide as low as 30 percent of the total a scholarship under this program, if and institutions of higher education. project cost over the total project period. they choose not to follow the specified States and State agencies are not ‘‘small This regulation would provide greater procedures for determining financial entities’’ under the Regulatory flexibility to Partnerships in meeting assistance eligibility and making Flexibility Act. matching requirements, giving adjustments in the case of an over- Institutions of higher education are Partnerships the ability to reduce costs award. The minimal cost of this defined as ‘‘small entities,’’ according to in any given year and the ability to regulation would be the cost for the U.S. Small Business Administration reduce costs over the total project institutions to disclose their policy or to Size Standards, if they are for-profit or period if they meet the specified follow the procedures in the regulation. nonprofit institutions with total annual criteria. The Department has determined that the revenue below $5,000,000 or if they are
VerDate 15-DEC-99 17:25 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm03 PsN: 21DEP2 71562 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules institutions controlled by governmental each year to enable applicants to Electronic Access to This Document entities with populations below 50,000. compete for Federal funds annually You may view this document, as well Small LEAs and local community appropriated by Congress. The as all other Department of Education organizations are small entities for the Department of Education is requesting documents published in the Federal purposes of the Regulatory Flexibility approval of the information collection Register, in text or Adobe Portable Act. used to apply for new grants under this Document Format (PDF) on the Internet The proposed regulations would not program. at either of the following sites: have a significant economic impact on The total annual public reporting and small entities because the regulations record keeping burden for this http://ocfo.ed.gov/fedreg.htm would not impose excessive regulatory information is 20 hours per application. http://www.ed.gov/news.html burden or require unnecessary Federal We anticipate that there will be 800 To use PDF you must have the Adobe supervision. The regulations would give applications (770 Partnership Grant Acrobat Reader Program with Search, small entities greater flexibility in applications and 30 State Grant which is available free at either of the meeting matching requirements, provide applications), for a total burden of previous sites. If you have questions guidance for complying with statutory 16,000 hours. about using the PDF, call the U.S. provisions, and impose minimal If you want to comment on the Government Printing Office (GPO), toll requirements to ensure the proper information collection requirements, free, at 1–888–293–6498; or in the expenditure of program funds. please send your comments to the Office Washington, DC, area at (202) 512–1530. Paperwork Reduction Act of Information and Regulatory Affairs, Note: The official version of this document OMB, room 10235, New Executive is the document published in the Federal Section 694.7 contains an information Office Building, Washington, DC 20503; Register. Free Internet access to the official collection requirement. In addition, Attention: Desk Officer for U.S. edition of the Federal Register and the Code there is an application package Department of Education. You may also of Federal Regulations is available on GPO associated with the regulations that Access at: http://www.access.gpo.gov/nara/ send a copy of these comments to the contains information collection. Under index.html. Department representative named in the the Paperwork Reduction Act of 1995 (Catalog of Federal Domestic Assistance ADDRESSES section of this preamble. (44 U.S.C. 3507(d)), the Department of Number 84.334 Gaining Early Awareness and Education has submitted a copy of this We consider your comments on this Readiness for Undergraduate Programs) proposed collection of information in— section as well as a copy of the • List of Subjects in 34 CFR Part 694 application package to the Office of Deciding whether the proposed Management and Budget (OMB) for its collection is necessary for the proper Colleges and universities, Elementary review. performance of our functions, including and secondary education, Grant whether the information will have programs-education, Student aid. Collection of Information— practical use; Dated: December 15, 1999. Discretionary Grant Programs— • Evaluating the accuracy of our A. Lee Fritschler, Application Package for the Gear UP estimate of the burden of the proposed Discretionary Grant Program collection, including the validity of our Assistant Secretary for Postsecondary Education. The information collection would methodology and assumptions; apply to two types of grants— • Enhancing the quality, usefulness, For the reasons discussed in the Partnership grants and State grants— and clarity of the information we preamble, the Secretary proposes to awarded to help more low-income collect; and amend title 34 of the Code of Federal students stay in school, study hard, and • Minimizing the burden on those Regulations by revising part 694 to read take the right courses to go to college. who must respond. This includes as follows: exploring the use of appropriate By June 2000, approximately 74 new PART 694±GAINING EARLY automated, electronic, mechanical, or Partnership grants averaging $460,000 a AWARENESS AND READINESS FOR other technological collection year for five years, and 6 new State UNDERGRADUATE PROGRAMS techniques or other forms of information grants averaging $2.1 million per year (GEAR UP) for five years will be awarded. technology; e.g., permitting electronic The likely respondents would be State submission of responses. Sec. agencies; two- and four-year degree OMB is required to make a decision 694.1 What is the maximum amount that granting institutions of higher concerning the collection of information the Secretary may award each fiscal year education; LEAs; businesses and other associated with these proposed to a Partnership or a State under this for-profit entities; nonprofit institutions; regulations between 30 and 60 days program? small businesses or organizations; and after publication of this document in the 694.2 Which students must a Partnership, Federal Register. Therefore, to ensure or a State that chooses to use the cohort public and private schools. approach in its project, serve under the This collection of information is that OMB gives your comments full program’s early intervention component? necessary for applicants to apply for consideration, it is important that OMB 694.3 What are the requirements for a new grants under the GEAR UP receives the comments within 30 days cohort? program. Grants will be awarded on the of publication. This does not affect the 694.4 Which students must a State or basis of competitively reviewed deadline for your comments to us on the Partnership serve when there are applications submitted to the U.S. proposed regulations. changes in the cohort? Department of Education, Office of 694.5 What requirements must be met by a Postsecondary Education (OPE), Policy, Assessment of Educational Impact Partnership or State that chooses to Planning & Innovation (PPI), GEAR UP The Secretary particularly requests provide services to private school students under the program’s early grant competition. Continued support comments on whether these proposed intervention component? for these grants is based on the regulations would require transmission 694.6 Who may provide GEAR UP services availability of funds and substantial of information that any other agency or to students attending private schools? progress in achieving project objectives. authority of the United States gathers or 694.7 What are the matching requirements This application process occurs once makes available. for a GEAR UP Partnership?
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694.8 What are the requirements that a (a) Provide services to at least one Educational services or other benefits, Partnership must meet in designating a entire grade level (cohort) of students including materials and equipment, fiscal agent for its project under this (subject to § 694.3(b)) beginning not provided under GEAR UP by a program? later than the 7th grade; Partnership or State that chooses to 694.9 What is the maximum indirect cost (b) Ensure that supplemental rate for an agency of a State or local provide those services or benefits to government? appropriate services are targeted to the students attending private schools, must 694.10 What are the requirements for students with the greatest needs; and be secular, neutral, and nonideological. awards under the program’s scholarship (c) Ensure that services are provided (b) Control of funds. In the case of a component under section 404E of the through the 12th grade to those Partnership or State that chooses to Higher Education Act of 1965, as students. provide services under GEAR UP to amended (HEA)? (Authority: 20 U.S.C. 1070a–22) students attending private schools, the 694.11 What are the disclosure fiscal agent (in the case of a Partnership) requirements regarding an institution’s § 694.3 What are the requirements for a or a State agency (in the case of a State) treatment of a GEAR UP scholarship in cohort? relation to other student financial must— assistance? (a) In general. Each cohort to be (1) Control the funds used to provide 694.12 Under what conditions may a served by a Partnership or State must be services under GEAR UP to those Partnership that does not participate in from a participating school— students; the GEAR UP scholarship component (1) That has a 7th grade; and (2) Hold title to materials, equipment, under section 404E of the HEA provide (2) In which at least 50 percent of the and property purchased with GEAR UP financial assistance for postsecondary students are eligible for free or reduced- funds for GEAR UP program uses and education to students under the GEAR price lunch under the National School purposes related to those students; and UP early intervention component? Lunch Act; or 694.13 How does a State determine which (3) Administer those GEAR UP funds (b) Public housing exception. If the and property. State agency will apply for, and Partnership or State determines it would administer, a State grant under this (Authority: 20 U.S.C. 1070a–21 to 1070a–28) program? promote program effectiveness, a cohort 694.14 What requirements must be met by may consist of all of the students in a § 694.6 Who may provide GEAR UP a Partnership or State participating in particular grade level at one or more services to students attending private GEAR UP with respect to 21st Century participating schools who reside in schools? Scholarship Certificates? public housing, as defined in section (a) GEAR UP services to students 694.15 What requirements apply to a State 3(b)(1) of the United States Housing Act attending private schools must be that served students under the National of 1937. provided— Early Intervention Scholarship and Partnership program (NEISP) and that (Authority: 20 U.S.C. 1070a–22) (1) By employees of a public agency; receives a GEAR UP grant? or § 694.4 Which students must a State or (2) Through contract by the public 694.16 What priority must the Secretary Partnership serve when there are changes establish? in the cohort? agency with an individual, association, 694.17 What priorities may the Secretary agency, or organization. establish? (a) At the school where the cohort (b) In providing GEAR UP services to Authority: 20 U.S.C. 1070a–21 to 1070a–28 began. A Partnership or State must students attending private schools, the serve, as part of the cohort, any employee, individual, association, § 694.1 What is the maximum amount that additional students who— agency, or organization must be the Secretary may award each fiscal year to (1) Are at the grade level of the a Partnership or a State under this independent of the private school that students in the cohort; and the students attend, and of any religious program? (2) Begin attending the participating organization affiliated with the school, school at which the cohort began to (a) Partnership grants. The maximum and that employment or contract must receive GEAR UP services. amount that the Secretary may award be under the control and supervision of (b) At a subsequent participating each fiscal year for a GEAR UP the public agency. school. If not all of the students in the Partnership grant is calculated by (c) Federal funds used to provide cohort attend the same school after the multiplying— GEAR UP services to students attending cohort completes the last grade level (1) $800; by private schools may not be commingled offered by the school at which the (2) The number of students the with non-Federal funds. cohort began to receive GEAR UP Partnership proposes to serve that year, services, a Partnership or a State— (Authority: 1070a–21 to 1070a–28) as stated in the Partnership’s plan. (1) May continue to provide GEAR UP (b) State grants. The Secretary § 694.7 What are the matching services to all students in the cohort; requirements for a GEAR UP Partnership? establishes the maximum amount that and may be awarded each fiscal year for a (2) Must continue to provide GEAR (a) In general. A Partnership must— GEAR UP State grant in a notice UP services to at least those students in (1) State in its application the published in the Federal Register. the cohort that attend participating percentage of the cost of the GEAR UP project the Partnership will provide for (Authority: 20 U.S.C. 1070a–23) schools that enroll a substantial majority of the students in the cohort. each year from non-Federal funds, § 694.2 Which students must a subject to the requirements in paragraph Partnership, or a State that chooses to use (Authority: 20 U.S.C. 1070–a22) (b) of this section; and the cohort approach in its project, serve § 694.5 What requirements must be met by (2) Comply with the matching under the program's early intervention a Partnership or State that chooses to percentage stated in its application for component? provide services to private school students each year of the project period. A Partnership, or a State that chooses under the program's early intervention (b) Matching requirements. (1) Except to use a cohort approach in its GEAR UP component? as provided in paragraph (b)(2) of this early intervention component, must, (a) Secular, neutral, and section, the non-Federal share of the except as provided in § 694.4— nonideological services or benefits. cost of the GEAR UP project must be not
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A GEAR UP members may provide less than 50 GEAR UP scholarship attends an scholarship, in combination with other percent, but not less than 30 percent of institution on a less than full-time basis student financial assistance awarded the total cost over the project period if during any award year, the State or under any title IV HEA program and any it includes— Partnership awarding the GEAR UP other grant or scholarship assistance, (i) A fiscal agent that is eligible to scholarship may reduce the scholarship may not exceed the student’s cost of receive funds under Title V, or Part B amount, but in no case shall the attendance. of Title III, or section 316 or 317 of the percentage reduction in the scholarship (3) Overawards. (i) In general. If the HEA, or a local educational agency; be greater than the percentage reduction combination of the GEAR UP (ii) Only participating schools with a in tuition and fees charged to that scholarship and other student financial 7th grade in which at least 75 percent student. assistance under title IV of the HEA and of the students are eligible for free or (b) Pell Grant recipient priority. A any other grant or scholarship assistance reduced-price lunch under the National State, or a Partnership that chooses to exceeds the student’s cost of attendance, School Lunch Act; and participate in the scholarship the institution must, before reducing (iii) Only local educational agencies component under section 404E of the public or institutional gift aid, reduce in which at least 50 percent of the HEA in its GEAR UP project— the assistance to zero, by the amount in students enrolled are eligible for free or (1) Must award GEAR UP excess of cost of attendance, in the reduced-price lunch under the National scholarships first to students who will following order— School Lunch Act. receive, or are eligible to receive, a (A) Loans; (3) The non-Federal share of the cost Federal Pell Grant during the award (B) Need-based student employment; of a GEAR UP project may be provided year in which the GEAR UP scholarship (C) The GEAR UP scholarship; in cash or in-kind. is being awarded and who are eligible (ii) Exception. The institution may reduce need-based employment first (Authority: 20 U.S.C. 1070a–23) for a GEAR UP scholarship under the eligibility requirements in section 404E and loans second at the election of the § 694.8 What are the requirements that a of the HEA; and student. Partnership must meet in designating a (2) May, if GEAR UP scholarship (4) Notwithstanding paragraph (a)(3) fiscal agent for its project under this funds remain after awarding of this section, an institution may program? scholarships to students under reduce its institutional aid before Although any member of a paragraph (b)(1) of this section, award reducing a GEAR UP scholarship only Partnership may organize the project, a GEAR UP scholarships to other eligible if— Partnership must designate as the fiscal students (who will not receive a Federal (i) It determines and documents in agent for its project under GEAR UP— Pell Grant) after considering the need of writing that there are exceptional (a) A local educational agency; or those students for GEAR UP circumstances related to the GEAR UP (b) An institution of higher education scholarships. student’s institutional aid that are that is not pervasively sectarian. (c) Continuation scholarships. A unique to that GEAR UP student; (Authority: 20 U.S.C. 1070a–22) State, or a Partnership that chooses to (ii) It documents and maintains in the participate in the scholarship GEAR UP student’s file the modification § 694.9 What is the maximum indirect cost component in accordance with section that was made to the GEAR UP student’s rate for an agency of a State or local 404E of the HEA in its GEAR UP project, gift aid award package and the reason government? must award continuation scholarships for the modification; and Notwithstanding 34 CFR 75.560– in successive award years to each (iii) It provides written notification to 75.562 and 34 CFR 80.22, the maximum student who received an initial the GEAR UP student of the reason for indirect cost rate that an agency of a scholarship and who continues to be and the specific modification that was State or local government receiving eligible for a scholarship. made to the gift aid package. funds under GEAR UP may use to (b) Disclosure. (1) Disclosure of an charge indirect costs to these funds is (Authority: 20 U.S.C. 1070a–25) institution’s policy for the treatment of the lesser of— § 694.11 What are the disclosure a GEAR UP scholarship in relation to (a) The rate established by the requirements regarding an institution's other student financial assistance is negotiated indirect cost agreement; or treatment of a GEAR UP scholarship in required if the institution does not (b) Eight percent. relation to other student financial follow the procedures set forth in assistance? (Authority: 20 U.S.C. 1070a–21 to 1070a–28) paragraph (a) of this section. (a) No disclosure. No disclosure of an (2) If an institution does not follow § 694.10 What are the requirements for institution’s policy for the treatment of the procedures in paragraph (a) of this awards under the program's scholarship a GEAR UP scholarship in relation to section it must— component under section 404E of the HEA? other student financial assistance is (i) Establish a policy for the treatment (a) Amount of scholarship. (1) Except necessary if the institution’s policy is as of GEAR UP scholarships and inform all as provided in paragraph (a)(2) of this follows: prospective students, as defined in section, the amount of a scholarship (1) Other grant assistance. A GEAR § 668.41 of this chapter; awarded under section 404E of the HEA UP scholarship— (ii) Notify the Department by must be at least the lesser of— (i) Is not considered in the September 1, 2000 that its treatment of (i) 75 percent of the average cost of determination of a student’s eligibility GEAR UP scholarships with respect to attendance, as determined under section for other grant assistance provided institutional gift aid is different from the 472 of the HEA, for in-State students in under title IV of the HEA; and procedures in paragraph (a) of this 4-year programs of instruction at public (ii) Does not supplant other public or section; and institutions of higher education in the institutional gift aid that the student (iii) If, after September 1, 2000, it State; or would otherwise have been eligible to elects to treat GEAR UP scholarships
VerDate 15-DEC-99 17:25 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\21DEP2.XXX pfrm03 PsN: 21DEP2 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Proposed Rules 71565 differently from the procedures in for, and administers, a State grant under Partnership program (as that program paragraph (a) of this section, notify the GEAR UP. was in effect on that date); and Department in a timely manner of that (Authority: 20 U.S.C. 1070a–21 to 1070a–28) (b) Has a prior, demonstrated decision. commitment to early intervention (c) Notwithstanding the disclosure § 694.14 What requirements must be met requirements with respect to GEAR UP by a Partnership or State participating in leading to college access through and its relation to other student GEAR UP with respect to 21st Century collaboration and replication of financial assistance, an institution must Scholarship Certificates? successful strategies. follow the procedures in paragraph (a) (a) A State or Partnership must (Authority: 20 U.S.C. 1070a–21) of this section as they relate to title IV provide, in accordance with procedures aid. the Secretary may specify, a 21st § 694.17 What priorities may the Secretary establish? (Authority: 20 U.S.C. 1070a–25; 20 U.S.C. Century Scholar Certificate from the 3474) Secretary to each student participating For any fiscal year, the Secretary may in the early intervention component of select one or more of the following § 694.12 Under what conditions may a its GEAR UP project. Partnership that does not participate in the priorities: GEAR UP scholarship component under (b) 21st Century Scholarship (a) Projects by Partnerships or States section 404E of the HEA provide financial Certificates must be personalized and that serve a substantial number or assistance for postsecondary education to indicate the amount of Federal financial percentage of students who reside, or students under the GEAR UP early aid for college that a student may be attend a school, in an Empowerment intervention component? eligible to receive. A GEAR UP Partnership that does not Zone, including a Supplemental (Authority: 20 U.S.C. 1070a–26) participate in the GEAR UP scholarship Empowerment Zone, or Enterprise component under section 404E of the § 694.15 What requirements apply to a Community designated by the U.S. HEA may provide financial assistance State that served students under the Department of Housing and Urban for postsecondary education, either with National Early Intervention Scholarship and Development or the U.S. Department of funds under this chapter, or with non- Partnership program (NEISP) and that Agriculture. receives a GEAR UP grant? Federal funds used to comply with the (b) Partnerships that establish or matching requirement, to students who Any State that receives a grant under maintain a financial assistance program participate in the early intervention this part and that served students under that awards scholarships to students, component of GEAR UP if— the NEISP program on October 6, 1998 either in accordance with section 404E (a) The financial assistance is directly must continue to provide services under of the HEA, or in accordance with related to, and in support of, other this part to those students until they § 694.12, to strengthen the early activities of the Partnership under the complete secondary school. intervention component of its GEAR UP early intervention component of GEAR (Authority: 20 U.S.C. 1070a–21) UP; and project. (b) It complies with the requirements § 694.16 What priority must the Secretary (Authority: 20 U.S.C. 1070a–21 to 1070a–28) in §§ 694.10(c) and 694.11. establish? [FR Doc. 99–32918 Filed 12–20–99; 8:45 am] (Authority: 20 U.S.C. 1070a–21 to 1070a–28) For any fiscal year, the Secretary BILLING CODE 4000±01±U § 694.13 How does a State determine selects the following priority for any which State agency will apply for, and State grant applicant that— administer, a State grant under this (a) On October 6, 1998, carried out program? successful educational opportunity The Governor of a State must programs under the National Early designate which State agency applies Intervention Scholarship and
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DEPARTMENT OF EDUCATION Secondary Education Act of 1965, as include effective employment amended by the Improving America’s placement activities; [CFDA No.: 84.195E] Schools Act of 1994 (Pub. L. 103–382, 2. The development of teacher Bilingual Education: Career Ladder enacted October 20, 1994) (the Act) (20 proficiency in English as a second Program U.S.C. 7474 and 7476–7480). language, including demonstrating Funds under this program may be proficiency in the instructional use of AGENCY: Department of Education. used: to develop bilingual education English and, as appropriate, a second ACTION: Notice inviting applications for career ladder program curricula language in classroom contexts; new awards for fiscal year (FY) 2000. appropriate to the needs of consortia coordination with programs for the participants; provide assistance for recruitment and retention of bilingual NOTE TO APPLICANTS: This notice is a stipends and costs related to tuition fees students in secondary and complete application package. Together and books for coursework required to postsecondary programs training to with the statute authorizing the program complete degree and certification become bilingual educators; and the and the applicable regulations requirements for bilingual education applicant’s contribution of additional governing this program, including the teachers; and for programs to introduce student financial aid to participating Education Department General secondary school students to careers in students. Administrative Regulations (EDGAR), bilingual education teaching that are The Secretary selects applications that this notice contains all of the coordinated with other activities meet this priority over applications of information, application forms, and assisted under this program. Activities comparable merit, which do not meet instructions needed to apply for a grant conducted under this program must the priority. under this program. assist educational personnel in meeting Invitational Priority PURPOSE OF PROGRAM: This program State and local certification provides grants to upgrade the requirements for bilingual education The Secretary is also particularly interested in applications that meet the qualifications and skills of noncertified and, wherever possible, must lead to the following invitational priority. educational personnel, especially awarding of college or university credit. However, an application that meets this educational paraprofessionals, to meet Priorities invitational priority receives no high professional standards, including competitive or absolute preference over certification and licensure as bilingual Competitive Priority 1 other applications (34 CFR 75.105(c)(1)). teachers and other educational The Secretary, under 34 CFR Applicants who propose to personnel who serve limited English 75.105(c)(2)(i) and 34 CFR 299.3(b), collaborate with 2-year institutions of proficient students, and to help recruit gives preference to applications that higher education to develop or improve and train secondary students as meet the following competitive priority. teacher preparation programs for bilingual education teachers and other The Secretary awards up to 3 points for bilingual paraprofessionals. educational personnel to serve limited an application that meets this English proficient students. competitive priority. These points are in Selection Criteria ELIGIBLE APPLICANTS: (1) One or more addition to any points the application The Secretary uses the following institutions of higher education (IHEs) earns under the selection criteria for the selection criteria in 34 CFR 75.210 to that have entered into consortia program: evaluate applications for new grants arrangements with local educational Projects that will contribute to a under this competition. agencies (LEAs) or State educational systemic educational reform in an The maximum score for all of these agencies (SEAs), to achieve the purposes Empowerment Zone, including a criteria is 100 points. of this section. Consortia may include Supplemental Empowerment Zone, or The maximum score for each criterion community-based organizations or an Enterprise Community designated by is indicated in parentheses. professional education organizations. the United States Department of (a) Need for project. (10 points) (1) APPLICATIONS AVAILABLE: December 21, Housing and Urban Development or the The Secretary considers the need for the 1999. United States Department of proposed project. Deadline for Transmittal of Agriculture, and are made an integral (2) In determining the need for the Applications: February 14, 2000. part of the Zone’s or Community’s proposed project, the Secretary Deadline for Intergovernmental comprehensive community considers the following factors: Review: April 14, 2000. revitalization strategies. (i) The magnitude or severity of the Available Funds: $5 million. Note: For a list of areas that have been problem to be addressed by the Estimated Range of Awards: designated as Empowerment Zones and proposed project. $150,000–$250,000. Enterprise Communities go to: http:// (ii) The extent to which specific gaps Estimated Average Size of Awards: www.ezec.gov/ezec/mainmap.html and or weaknesses in services, $200,000. http://www.hud.gov/pressrel/ezec/ infrastructure, or opportunities have urban.html Estimated Number of Awards: 25. been identified and will be addressed by Competitive Priority 2 the proposed project, including the Note: The Department of Education is not nature and the magnitude of those gaps bound by any estimates in this notice. Under 34 CFR 75.105(c)(2)(ii) and or weaknesses. Project Period: 60 Months. section 7144(d) of the Act, the Secretary (Authority: 34 CFR 75.210 (a)(2)(i) and (v)) APPLICABLE REGULATIONS: (a) The Education gives a competitive preference to Department General Administrative applications that meet the following (b) Quality of the project design. (55 Regulations (EDGAR) in 34 CFR Parts 74, 75, priority: points) (1) The Secretary considers the 77, 79, 80, 81, 82, 85, and 86. Applications that propose to provide quality of the design of the proposed DESCRIPTION OF PROGRAM: The statutory for: project. authorization for this program, and the 1. Participant completion of (2) In determining the quality of the application requirements that apply to baccalaureate and master’s degree design of the proposed project, the this competition, are in sections 7144 teacher education programs, and Secretary considers the following and 7146–7150 of the Elementary and certification requirements and may factors:
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(i) The extent to which the goals, considers the extent to which the review of proposed Federal financial objectives, and outcomes to be achieved applicant encourages applications for assistance. by the proposed project are clearly employment from persons who are If you are an applicant, you must specified and measurable. members of groups that have contact the appropriate State Single (ii) The extent to which the design of traditionally been underrepresented Point of Contact to find out about, and the proposed project is appropriate to, based on race, color, national origin, to comply with, the State’s process and will successfully address, the needs gender, age, or disability. under Executive Order 12372. If you of the target population or other (3) In addition, the Secretary propose to perform activities in more identified needs. considers the following factor: The than one State, you should immediately (iii) The extent to which the proposed qualifications, including relevant contact the Single Point of Contact for project is designed to build capacity and training and experience, of key project each of those States and follow the yield results that will extend beyond the personnel. procedure established in each State period of Federal financial assistance. (Authority: 34 CFR 75.210(e)(2) and (3)(ii)) under the Executive order. If you want (iv) The extent to which the proposed to know the name and address of any activities constitute a coherent, (e) Quality of the management plan. State Single Point of Contact, see the list sustained program of training in the (5 points) (1) The Secretary considers in the Federal Register on April 28, field. the quality of the management plan for 1999 (64 FR 22960–22963) or you may (v) The extent to which the design of the proposed project. view the latest SPOC list on the OMB the proposed project reflects up-to-date (2) In determining the quality of the website at: http://www,whitehouse.gov/ knowledge from research and effective management plan for the proposed omb/grants practice. project, the Secretary considers the In States that have not established a (vi) The extent to which the proposed following factor: the adequacy of the process or chosen a program for review, project will be coordinated with similar management plan to achieve the State, areawide, regional, and local or related efforts, and with other objectives of the proposed project on entities may submit comments directly appropriate community, State, and time and within budget, including to the Department. clearly defined responsibilities, Federal resources. Any State Process Recommendation timelines, and milestones for (vii) The extent to which the proposed and other comments submitted by a accomplishing project tasks. project is part of a comprehensive effort State Single Point of Contact and any to improve teaching and learning and (Authority: 34 CFR 75.210(g)(2)(i))) comments from State, areawide, support rigorous academic standards for (f) Quality of the project evaluation. regional, and local entities must be students. (15 points) (1) The Secretary considers mailed or hand-delivered by the date (viii) The extent to which fellowship the quality of the evaluation to be indicated in this notice to the following recipients or other project participants conducted of the proposed project. address: The Secretary, E.O. 12372— are to be selected on the basis of (2) In determining the quality of the CFDA #84.195E, U.S. Department of academic excellence. evaluation, the Secretary considers the Education, Room 7E200, 400 Maryland (Authority: 34 CFR 75.210(c)(2)(i), (ii), (iv), following factors: Avenue, SW., Washington, DC 20202– (xii), (xiii),(xvi), (xviii), and (xxiii)) (i) The extent to which the methods 0125. (c) Quality of project services. (10 of evaluation provide for examining the Proof of mailing will be determined points) (1) The Secretary considers the effectiveness of project implementation on the same basis as applications (see 34 quality of the services to be provided by strategies. CFR 75.102). Recommendations or the proposed project. (ii) The extent to which the methods comments may be hand-delivered until (2) In determining the quality of the of evaluation include the use of 4:30 p.m. (Washington, DC time) on the services to be provided by the proposed objective performance measures that are date indicated in this notice. project, the Secretary considers the clearly related to the intended outcomes PLEASE NOTE THAT THE ABOVE quality and sufficiency of strategies for of the project and will produce ADDRESS IS NOT THE SAME ensuring equal access and treatment for quantitative and qualitative data to the ADDRESS AS THE ONE TO WHICH eligible project participants who are extent possible. THE APPLICANT SUBMITS ITS members of groups that have (iii) The extent to which the methods COMPLETED APPLICATION. DO NOT traditionally been underrepresented of evaluation will provide performance SEND APPLICATIONS TO THE ABOVE based on race, color, national origin, feedback and permit periodic ADDRESS. gender, age, or disability. assessment of progress toward achieving INSTRUCTIONS FOR TRANSMITTAL (3) In addition, the Secretary intended outcomes. OF APPLICATIONS: considers the following factor: The (Authority: 34 CFR 75.210(h)(2) (iii), (iv), and (a) If you want to apply for a grant, extent to which the training or (vi)). you must — professional development services to be (1) Mail the original and two copies Intergovernmental Review of Federal of the application on or before the provided by the proposed project are of Programs sufficient quality, intensity, and deadline date to: U.S. Department of duration to lead to improvements in This program is subject to the Education, Application Control Center, # practice among the recipients of those requirements of Executive Order 12372 Attention: (CFDA 84.195E), services. (Intergovernmental Review of Federal Washington, DC 20202–4725, or Programs) and the regulations in 34 CFR (2) Hand-deliver the original and two (Authority: 34 CFR 75.210(d)(2) and (3)(v)) Part 79. copies of the application by 4:30 p.m. (d) Quality of project personnel. (5 One of the objectives of the Executive (Washington, DC time) on or before the points) (1) The Secretary considers the order is to foster an intergovernmental deadline date to: 1U.S. Department of quality of the personnel who will carry partnership and a strengthened Education, Application Control Center, out the proposed project. federalism. The Executive order relies Attention: (CFDA #84.195E), Room (2) In determining the quality of on processes developed by State and #3633, Regional Office Building #3, 7th project personnel, the Secretary local governments for coordination and and D Streets, SW., Washington, DC.
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(b) An applicant must show one of the g. Certifications Regarding Lobbying; questions about using the PDF, call the following as proof of mailing: Debarment, Suspension, and Other U.S. Government Printing Office (GPO) (1) A legibly dated U.S. Postal Service Responsibility Matters; and Drug-Free toll free at 1–888–293–6498; or in the postmark. Workplace Requirements (ED 80–0013) Washington, DC area at (202) 512–1530. (2) A legible mail receipt with the and instructions. Note: The official version of this document date of mailing stamped by the U.S. h. Certification Regarding Debarment, is the document published in the Federal Postal Service. Suspension, Ineligibility and Voluntary Register. Free Internet access to the official (3) A dated shipping label, invoice, or Exclusion—Lower Tier Covered edition of the Federal Register and the Code receipt from a commercial carrier. Transactions (ED 80–0014, 9/90) and of Federal Regulations is available on GPO (4) Any other proof of mailing instructions. Access at: http://www.access.gpo.gov/nara/ acceptable to the Secretary. index.html (Note: This form is intended for the use of (c) If an application is mailed through Program Authority: 20 U.S.C. 7474. the U.S. Postal Service, the Secretary grantees and should not be transmitted to the Department.) Art Love, does not accept either of the following i. Disclosure of Lobbying Activities Acting Director, Office of Bilingual Education as proof of mailing: and Minority Languages Affairs. (1) A private metered postmark. (Standard Form LLL) (if applicable) and (2) A mail receipt that is not dated by instructions. The document has been Instructions for Estimated Public the U.S. Postal Service. marked to reflect statutory changes. Reporting Burden ii. An applicant may submit Notes: (1) The U.S. Postal Service does not According to the Paperwork information on a photostatic copy of the uniformly provide a dated postmark. Before Reduction Act of 1995, no persons are application and budget forms, the relying on this method, an applicant should required to respond to a collection of check with its local post office. assurances, and the certifications. information unless it displays a valid (2) The Application Control Center will However, the application form, the OMB control number. The valid OMB mail a Grant Application Receipt assurances, and the certifications must control number for this information Acknowledgment to each applicant. If an each have an original signature. All collection is OMB No. 1885–0542, Exp. applicant fails to receive the notification of applicants must submit ONE original application receipt within 15 days from the Date: 12/31/00. The time required to signed application, including ink date of mailing the application, the applicant complete this information collection is signatures on all forms and assurances, should call the U.S. Department of Education estimated to average 120 hours per and TWO copies of the application. Application Control Center at (202) 708– response, including the time to review 9495. Please mark each application as original instructions, search existing data (3) The applicant must indicate on the or copy. No grant may be awarded resources, gather the data needed, and envelope and—if not provided by the unless a completed application has been complete and review the information Department—in Item 10 of the Application received. for Federal Assistance (Standard Form 424) collection. If you have any comments FOR FURTHER INFORMATION CONTACT: the CFDA number and suffix letter, if any, of concerning the accuracy of the time the competition under which the application Carol Manitaras l estimate or suggestions for improving is being submitted. carol [email protected] (202) 205– this form, please write to: U.S. 9729 or Darlene Miles Application Instructions and Forms l Department of Education, Washington, darlene [email protected] (202) 205–8259, DC 20202–4651. If you have any The appendix to this notice is divided U.S. Department of Education, 400 into three parts, plus a statement comments or concerns regarding the Maryland Avenue, SW., Room 5090, status of your individual submission of regarding estimated public reporting Switzer Building, Washington, DC burden, a notice to applicants regarding this form, write directly to: Office of 20202–6510. Individuals who use a Bilingual Education and Minority compliance with Section 427 of the telecommunications device for the deaf General Education Provisions Act, Languages Affairs, U.S. Department of (TDD) may call the Federal Information Education, 400 Maryland Avenue, SW., questions and answers on this program Relay Service (FIRS) at 1–800–877– (located at the end of the notice) and Washington, DC 20202–6510. 8339. The following forms and other items various assurances, certifications, and Individuals with disabilities may required documentation. These parts must be included in the application: obtain this notice in an alternate format 1. Application for Federal Assistance and additional materials are organized (e.g., braille, large print, audiotape, or in the same manner that the submitted (SF 424) computer diskette) on request to the 2. Group Application Certification (if application should be organized. The contact persons listed in the preceding applicable) parts and additional materials are as paragraph. Please note, however, that 3. Budget Information (ED Form No. follows: the Department is not able to reproduce 524) Part I: Application for Federal in an alternate format the standard 4. Itemized Budget for each year Assistance (Standard Form 424 (Rev. 4– forms included in the notice. (attached to ED Form No. 524) 88)) and instructions. 5. Participant Data—approximate Part II: Budget Information—Non- Electronic Access to This Document number of participants to be served each Construction Programs (ED Form No. You may view this document, as well year. 524) and instructions. as all other Department of Education 6. Project Documentation—Section Part III: Application Narrative. documents published in the Federal A—Copy of Transmittal Letter to SEA Additional Materials Register, in text or Adobe Portable requesting SEA to comment on Document Format (PDF) on the Internet application; Section B—Documentation a. Estimated Public Reporting Burden. at either of the following sites: b. Group Application Certification. of Empowerment Zone or Enterprise c. Participant Data. http://ocfo.ed.gov/fedreg.htm Community—if applicable d. Project Documentation. http://ocfo.ed.gov/fedreg.html 7. Program Assurances e. Program Assurances. To use the PDF you must have the 8. Assurances—Non-Construction f. Assurances—Non-Construction Adobe Acrobat Reader Program with Programs (SF 424B) Programs (Standard Form 424B) and Search, which is available free at either 9. Certifications Regarding Lobbying; instructions. of the preceding sites. If you have Debarment Suspension and Other
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Responsibility Matters; and Drug-Free not simply paraphrase the criteria. Form contained in this application Workplace Requirements (ED 80–0013) Provide position descriptions for key package. 10. Certification Regarding personnel. This package includes Applicants that do not submit a copy Debarment, Suspension, Ineligibility questions and answers to assist you in of their application to their SEA will not and Voluntary Exclusion—Lower Tier preparing the narrative portion of your be considered for funding. Covered Transactions (ED 80–0014) application. Prepare a one-page single- Questions and Answers 11. Disclosure of Lobbying Activities spaced abstract, which summarizes the (SF-LLL) proposed project activities, the expected Does the Career Ladder Program have 12. Notice to all Applicants (See form outcomes, and how the application specific evaluation requirements? provided below) addresses the invitational priority, if Yes, the evaluation requirements are 13. Table of Contents applicable. described in section 7149 of Title VII of 14. One-page single-spaced abstract ESEA, 20 U.S.C. 7479. 15. Application narrative (Not to Budget What requirements must grantees exceed 30 double-spaced pages, see Budget line items must support the meet related to teacher certification? instructions below) goals and objectives of the proposed The Title VII statute requires grantees 16. One original and two copies of the project and be directly applicable to the to assist educational personnel in application for transmittal to the program design and all other project meeting State and local certification Department’s Application Control components. Prepare an itemized requirements. However, because Center budget for each year of requested certification requirements vary among funding. Indirect costs for institutions of States, applicants are given flexibility in Mandatory Page Limits for the higher education which are the fiscal designing activities that lead to meeting Application Narrative agents for Career Ladder Programs are State and local certification The narrative is the section of the limited to the lower of either 8% of a requirements. application where you address the modified total direct cost base or the May program budgets include costs selection criteria used by reviewers in institution for higher education’s actual for items other than student tuition and evaluating the application. You must indirect cost agreement. A modified fees? limit the narrative to the equivalent of direct cost base is defined as total direct Project budgets should reflect the no more than 30 pages, using the costs less stipends, tuition and related proposed program activities. In addition following standards: fees, and capital expenditures of $5,000 to student support costs, budget items (1) A page is 8.5′′ x 11′′, on one side or more. In describing student support may include costs for personnel, only with 1′′ margins at the top, bottom, costs distinguish costs for tuition and supplies or equipment, and other and both sides. fees from costs for stipends. reasonable and necessary costs to (2) You must double space (no more support developmental activities. than three lines per vertical inch) all Final Application Preparation What information may be helpful in text in the application narrative, Use the above checklist to verify that preparing the application narrative for a including titles, headings, footnotes, all items are addressed. Prepare one Career Ladder Program? quotations, references, and captions, as original with an original signature, and In responding to the selection criteria well as all text in charts, tables figures include three additional copies. Do not applicants may wish to consider the and graphs. use elaborate bindings or covers. The following questions as a guide for If you use a proportional computer application package must be mailed to preparing application narrative. font, you may not use a font smaller the Application Control Center (ACC) • What are the specific than a 12-point font. If you use a non- and postmarked by the deadline date of responsibilities of districts, schools, proportional font or a typewriter, you February 23, 1999. institutions of higher education and may not use more than 12 characters per other partnership organizations in Submission of Application to State inch. planning, implementing and evaluating Educational Agency The page limit does not apply to the the proposed program? How is the Application for Federal Assistance Form Section 7146(a)(4) of the Act program linked to the school district’s (ED 424); the Budget Information Form (Elementary and Secondary Education overall professional development plan? (ED 524) and attached itemization of Act of 1965, as amended by the • What resources and support will costs; the other application forms and Improving America’s Schools Act of each of the consortia members provide? attachments to those forms; the 1994, Pub. L. 103–382) requires all How will resources be integrated to assurances and certifications; or the applicants except schools funded by the ensure maximum effectiveness of the one-page abstract and table of contents. Bureau of Indian Affairs to submit a program and to promote capacity The page limit applies only to item 15 copy of their application to their State building and long-range collaboration? in the Checklist for Applicants provided educational agency (SEA) for review • How does the training curricula above. and comment (20 U.S.C. 7476(a) (4)). reflect high standards for pedagogy, IF, IN ORDER TO MEET THE PAGE Section 75.156 of the Education content, and proficiency in English and LIMIT, YOU USE PRINT SIZE, Department General Administrative a second language to ensure that SPACING, OR MARGINS SMALLER Regulations (EDGAR) requires these participants are effectively prepared to THAN THE STANDARD SPECIFIED IN applicants to submit their application to provide instruction and support to LEP THIS NOTICE, YOUR APPLICATION the SEA on or before the deadline date students? WILL NOT BE CONSIDERED FOR for submitting their application to the • How will the program assist in FUNDING. Department of Education. This section systemically reforming policies and of EDGAR also requires applicants to practices in the target schools and in the Application Narrative and Abstract attach to their application a copy of IHE related to the preparation of new The narrative should address fully all their letter that requests the SEA to teachers, the induction of new aspects of the selection criteria in the comment on the application (34 CFR bilingual/ESL teachers, clinical order listed and should give detailed 75.156). A copy of this letter should be experiences for new bilingual/ESL information regarding each criterion. Do attached to the Project Documentation teachers and other educational
VerDate 15-DEC-99 15:19 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN2.XXX pfrm03 PsN: 21DEN2 71572 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices personnel, or professional development the effectiveness of the program in • Reflects best available research and opportunities for all teachers? meeting its objectives, such as: field practice in teaching, learning, and • What special selection criteria will practice assessments, National or State leadership; enables teachers to develop the applicant adopt to ensure that benchmark tests, surveys of graduates, further expertise in subject content, individuals selected to participate in the mentor teachers, school administrators, teaching strategies, uses of technologies, program hold promise for successfully rates of transfer from 2-year to 4-year and other essential elements in teaching completing program requirements? institutions, graduate rates, placement to high standards; • What special support will be rates? How are needs, objectives, • Promotes continuous inquiry and provided to participants by experienced activities and measures linked? improvement embedded in the daily life bilingual/ESL teachers, higher • How will the program evaluation of schools; education faculty, and school incorporate strategies for assessing the • Is planned collaboratively by those administrators to guide them during progress and performance of who will participate in and facilitate their period of induction? participants; communicating that development; • How will the instructional meaningful, regular and timely feedback • Requires substantial time and other responsibilities of participants be to participants; improving the quality of resources; balanced with appropriate professional the training program; documenting and • Is driven by a coherent long-term development, support and planning identifying exemplary program features plan; time? and successful strategies; and reporting • Is evaluated ultimately on the basis • How will clinical experiences for on specific data related to the number of its impact on teacher effectiveness preservice participants be structured to of participants completing the program and student learning; and uses this ensure that they are well-supervised, of and the number of graduates placed in assessment to guide subsequent sufficient duration and in a setting the instructional setting? professional development efforts. which provides opportunities for In addition, applicants may wish to What other information may be participants to experience a variety of consider the Department of Education helpful in applying for a Career Ladder effective bilingual education Professional Development Principles in Program? instructional methods and approaches? planning a Career Ladder Program. • How is the training curriculum The following are the professional Applicants are reminded that they based on current research related to development principles: must submit a copy of their application effective teaching and learning? What • Focuses on teachers as central to to the SEA for review and comment. In evidence of effectiveness supports the student learning, yet includes all other addition, applicants must submit a copy training model? members of the school community; of their application to the State Single • What are the expected outcomes for • Focuses on individual, collegial and Point of Contact to satisfy the participant learning, effectiveness in the organizational improvement; requirements of Executive Order 12372. instructional setting, reform and • Respects and nurtures the The SEA review requirement and the improvement in the school or the intellectual and leadership capacity of requirements for Executive Order 12372 university? What measures will the teachers, principals, and others in the are two separate requirements. proposed program use to collect data on school community; BILLING CODE 4000±01±p
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[FR Doc. 99–33073 Filed 12–20–99; 8:45 am] BILLING CODE 4000±01±C
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DEPARTMENT OF AGRICULTURE assistance available in our Multi-and III. Farm Labor Housing (LH) Loans and Single-Family Housing programs as Grants Rural Housing Service follows: A. Section 514 Farm LH Loans Multi-Family Housing (MFH) Notice of Availability of Funds; Multi- 1. These loans are funded in Family Housing, Single Family I. General accordance with 7 CFR 1940.579(a). Housing FY 2000 Appropriation ...... $25,001,105 A. This provides guidance on MFH AGENCY: Rural Housing Service, USDA. Available for Off-Farm funding for the Rural Rental Housing Loans ...... 20,501,000 ACTION: Notice. program (RRH) for FY 2000. Allocation Available for On-Farm SUMMARY: The Rural Housing Service computations have been performed in Loans ...... 1,500,000 (RHS) announces the availability of accordance with 7 CFR 1940.575 and National Office Reserve ...... 3,000,105 housing funds for fiscal year 2000 (FY 1940.578. For FY 2000, State Directors, 2. Off-farm loan funds will be made 2000). This action is taken to comply under the Rural Housing Assistance available under a NOFA being with 42 U.S.C. 1490p which requires Grants (RHAG), will have the flexibility published in this Federal Register. that RHS publish in the Federal to transfer their initial allocations of Additional guidance will be provided in Register notice of the availability of any budget authority between the Single the NOFA. housing assistance. Family Housing (SFH) section 504 Rural Housing Grants and section 533 B. Section 516 Farm LH Grants EFFECTIVE DATE: December 21, 1999. Housing Preservation Grant (HPG) 1. Grants are funded in accordance FOR FURTHER INFORMATION CONTACT: Carl programs. Wagner, Director, Multi-Family Housing with 7 CFR 1940.579(b). Unobligated Processing Division, (STOP 0781), or B. MFH loan and grant levels for FY prior year balances and cancellations Scott Barringer, Senior Loan Officer, 2000 are as follows: will be added to the amount shown. Single Family Housing Processing MFH Loan Programs Credit FY 2000 Appropriation (in- Division, (STOP 0783), U.S. Department Sales ...... $1,250,000 cludes carryover) ...... $13,990,844 of Agriculture, 1400 Independence Ave., Section 514 Farm Labor Available for LH Grants for SW., Washington, DC, 20250, Housing (LH) loans ...... 25,001,005 off-farm ...... 9,150,000 Section 515 Rural Rental telephones (202) 720–1604, and (202) Available for Technical As- Housing (RRH) loans ...... 114,322,076 sistance Grants ...... 1,350,000 720–1474, respectively. (These are not Section 521 Rental Assist- National Office Reserve ...... 3,490,844 toll free numbers). ance (RA) ...... 634,100,000 SUPPLEMENTARY INFORMATION: Section 516 LH grants ...... 1 13,990,844 2. Labor Housing grant funds for off- Sections 525 Technical farm will be made available under a Programs Affected and Supervisory Assist- NOFA being published in this Federal The following programs are subject to ance grants: (TSA) and Register. Additional guidance will be the provisions of Executive Order 12372 509 Housing Application provided in the NOFA. that requires intergovernmental Packaging grants (HAPG) 3. Technical assistance grants will be (Shared between single consultation with State and local and multi-family housing) 1 2,033,563 made available under a NOFA being officials. These programs or activities Section 533 Housing Pres- published in this Federal Register. are listed in the Catalog of Federal ervation grants (HPG) ...... 1 5,515,344 Additional guidance will be provided in Domestic Assistance under Nos. Section 538 Guaranteed the NOFA. Rural Rental Housing pro- 10.405 Farm Labor Housing (LH) C. Rental Assistance for LH Loans and Grants gram ...... 100,000,000 10.410 Very Low to Moderate Income Natural Disaster Funds (sec- Labor Housing RA will be held in the Housing Loans tion 514 loans) ...... 4,974,574 National office for use with LH loan and Natural Disaster Funds (sec- grant applications. RA is only available 10.411 Rural Housing Site Loans and tion 516 grants) ...... 3,000,000 Self-Help Housing Land with an LH loan of at least 5 percent of 1 Includes carryover. Development Loans the total development cost. Projects 10.415 Rural Rental Housing Loans II. Funds Not Allocated to States without a LH loan cannot receive RA. 10.417 Very Low Income Housing IV. Section 515 RRH Loan Funds Repair Loans and Grants A. Credit Sales Authority FY 2000 section 515 Rural 10.420 Rural Self-Help Housing For FY 2000, $1,250,000 will be set Technical Assistance Rental Housing allocation aside for credit sales to program and (Total) ...... $114,322,076 10.427 Rural Rental Assistance nonprogram buyers. Credit sale funding New Construction funds Payments will not be allocated by State. and set-asides ...... 49,783,694 10.433 Rural Housing Preservation New construction loans 22,500,000 Grants B. Section 538 Guaranteed Rural Rental Set-aside for nonprofits 10,288,987 10.442 Housing Application Packaging Housing Program Set-aside for under- Grants served counties and Guaranteed loan funds will be made colonias ...... 5,716,104 Discussion of Notice available under a Notice of Funding Earmark for EZ, EC, or Part 1940, subpart L of 7 CFR contains Availability (NOFA) being published in REAP Zones ...... 9,778,603 the ‘‘Methodology and Formulas for this Federal Register. Additional State RA designated re- Allocation of Loan and Grant Program guidance will be provided at that time. serve ...... 1,500,000 Rehab and repair funds Funds.’’ The following guidance has C. Natural Disaster Funds and equity ...... 55,000,000 been provided to our State offices on FY Rehab and repair loans 50,000,000 2000 appropriations and access to Funds are available until exhausted to Designated equity loan funds. Separate guidance has been those States that have received a reserve ...... 5,000,000 provided to our State offices for Presidential Declaration. General reserve ...... 9,538,382
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A. New Construction Loan Funds facilitate the transfer of properties from Section 509 Compensa- New construction loan funds will be for-profit owners to nonprofit tion for construction corporations and public bodies. Funds defects ...... 1 1,297,169 made available using a national NOFA Section 523 Mutual being published in this Federal for such transfers would be authorized only for for-profit owners who are and Self-Help Tech- Register. Upon closing of the NOFA, nical Assistance and States will submit a list, in rank order currently on the pending funding list grants ...... 1 29,215,509 of the eligible projects. who agree to transfer to nonprofit Section 523 Self-Help corporations or public bodies rather Site loans ...... 5,008,912 B. National Office New Construction than to remain on the pending list. If Section 524 RH Site Set-Asides insufficient transfer requests are loans ...... 5,000,000 The following legislatively mandated generated to utilize the full $1 million Section 306C Water set-asides of funds are part of the set aside for nonprofit and public body and Waste Disposal National office set-aside: transfers, the balance will revert to the (WWD) grants ...... 1,889,621 1. Nonprofit Set-aside An amount of existing pending equity loan funding Sections 525 Technical and Supervisory As- $10,288,987 has been set aside for list. sistance grants: (TSA) nonprofit applicants. All Nonprofit loan G. General Reserve and 509 Housing Ap- proposals must be located in designated plication Packaging places as defined in RD Instruction There is one general reserve fund of grants (HAPG) (Shared 1944–E. $9,538,382. Some examples of Between Single and 2. Underserved Counties and Colonias immediate allowable uses include, but Multi-Family Hous- Set-Aside. An amount of $5,716,104 has are not limited to hardships and ing) ...... 1 2,033,563 been set aside for loan requests to emergencies, RH cooperatives or group Natural Disaster Funds develop units in one of the underserved homes, or RRH preservation. (section 502 loans) ..... 60,716,817 Natural Disaster Funds 100 most needy counties or colonias as V. Section 533 Housing Preservation (section 504 loans) ..... 15,619,877 defined in section 509(f) of the Housing Grants (HPG). Natural Disaster Funds Act of 1949 as amended. Priority will be Total Available ...... $5,515,344 (section 504 grants) .... 11,591,985 given to proposals to develop units in Less General Reserve ...... 550,000 1 Includes carryover. colonias or tribal lands. Less Earmark for EZ, EC or 3. EZ, EC or REAP Zone Earmark. An C. SFH funding not allocated to States REAP Zones ...... 600,000 are: amount of $9,778,603 has been Total Available for Distribu- earmarked for loan requests to develop tion ...... 4,365,344 1. Credit Sale Authority. States will use loan funds to finance program Real units in EZ or EC communities or REAP Amount available for allocation. See Zones until June 30, 2000. Estate Owned (REO) sales to program end of this Notice for HPG State applicants when all credit sale authority C. Rental Assistance (RA) allocations. Fund availability will be is exhausted. Limited new construction RA will be announced in a NOFA being published 2. Section 509 Compensation for held in the National office for use with in this Federal Register. Construction Defects. All claims for The amount of $600,000 is earmarked section 515 Rural Rental Housing loans. compensation for construction defects for EZ, EC or REAP Zones until June 30, must be submitted to the National office D. Designated Reserves for State RA 2000. for authorization prior to approval. An amount of $1.5 million of section Single Family Housing (SFH) 3. Section 523 Mutual and Self-Help 515 loan funds has been set aside for Technical Assistance Grants. $28 matching with projects in which an I. General million has been appropriated for active State sponsored RA program is A. This notice provides SFH section 523 Mutual and Self-Help available. The State RA program must allocations for FY 2000. Allocation Technical Assistance Grants. Of these be comparable to the RHS RA program. computations have been made in funds, $1 million is earmarked for EZ, accordance with 7 CFR 1940.563 EC or REAP Zones until June 30, 2000. E. Repair and Rehabilitation Loans through 1940.568. Information on basic The State Director must request funding Tenant health and safety continues to formula criteria, data source and weight, approval from the National office for all be a top priority. Repair and administrative allocation, pooling of requests. A technical review and rehabilitation funds must be first funds, and availability of the allocation analysis must be completed by the targeted to RRH facilities that have are located on a chart at the end of this Technical and Management Assistance physical conditions that effect the notice. (T&MA) contractor on all health and safety of tenants and then B. The SFH levels authorized for FY predevelopment, new, and existing made available to facilities that have 2000 are as follows: (refunding) grant applications. deferred maintenance. All funds will be Section 502 Guaran- 4. Section 523 Mutual and Self-Help held in the National office and will be teed Rural Housing Site Loans and Section 524 RH Site distributed based upon indicated (RH) loans: Non- Loans. The State Director must request rehabilitation needs in the MFH survey subsidized guarantees $3,200,000,000 funding authority from the National conducted in September 1999. Section 502 Direct RH office prior to obligating loan funds. loans: 5. Section 306C WWD Grants to F. Designated Reserve for Equity Loans Very Low-Income Individuals in Colonias. The objective of An amount of $5 million has been loans ...... 484,000,000 the section 306C WWD individual grant designated for the equity loan Low-Income loans .. 616,000,000 Credit Sales (program program is to facilitate the use of preservation incentive described in RD and non program) ...... 6,254,888 community water or waste disposal Instruction 1965–E. The $5 million will Section 504 Housing systems for the residents of the colonias be further divided into $4 million for Repair loans ...... 32,395,288 along the U.S.-Mexico border. equity loan requests currently on the Section 504 Housing The total amount available to Arizona, pending funding list and $1 million to Repair grants ...... 1 25,650,573 California, New Mexico, and Texas will
VerDate 15-DEC-99 15:39 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm03 PsN: 21DEN3 71594 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices be $1,889,621 for FY 2000. This amount proposals from potential applicants to funding provided for deferred mortgage includes the carryover unobligated the National office for review and authority or loans for deferred mortgage balance of $389,621 and the transferred concurrence prior to authorizing an assumptions. amount of $1.5 million from the Rural application. The 29 eligible States under 9. Section 502 Direct Funds for Utilities Service (RUS) to RHS for HAPG that have active grantees Families Not Qualifying for Payment processing individual grant operating will be able to access up to Assistance. Funds from State’s applications. These States will have $5,000 for section 502 or 504 loan and allocation may be used for qualified access to the equal quarterly allocation grant programs in order to continue distributions. operations. Reserve requests will be very low- and low-income applicants 6. Section 525 Technical and considered on a first-come, first-served when the payment assistance formula Supervisory Assistance (TSA) and basis. shows there is no need for the subsidy. Section 509 Housing Application 7. Natural Disaster Funds. Funds are II. State Allocations Packaging Grants (HAPG). $1 million of available until exhausted to those States new funds and $1,033,563 of carry-over that have received a Presidential A. Section 502 Nonsubsidized funds from previous years remain Declaration. Guaranteed RH (GRH) Loans available for the TSA and HAPG 8. Deferred Mortgage Payment programs. State Directors should submit Demonstration. There is no FY 2000 1. Amount Available for Allocation.
Total Available ...... $3,200,000,000 Less National Office General Reserve ...... 630,000,000 Less Special Outreach Area Reserve ...... 270,000,000
Basic Formula—Administrative Allocation ...... 2,300,000,000
2. National Office General Reserve. Hardships & Home- trust and restricted land, and tribal The Administrator may restrict access to lessness ...... 3,500,000 allotted lands. The remaining reserves this reserve for States not meeting their Homeownership Part- will be distributed as follows: goals in special outreach areas. nership ...... 60,000,000 (ii) Hardship and Homelessness 3. Reservation of Funds. Because it is Rural Housing Dem- Reserve. $3.5 million has been set aside onstration Program 3,000,000 anticipated that demand will exceed for hardships and homeless. Less Designated Reserve (iii) Homeownership Partnership. $25 available funds, States must use the for Self-Help ...... 110,000,000 reservation of funds system per Basic Formula Adminis- million has been set aside for § 1980.351 of RD Instruction 1980–D. trative Allocation ...... 778,000,000 Homeownership Partnerships. These 4. Special Outreach Areas. FY 2000 funds will be used to expand existing 2. Reserves. partnerships and create new GRH funding is allocated to States in a. State Office Reserve. State Directors two funding streams (80/20) similar to partnerships, such as the following: must maintain an adequate reserve to (A) Department of the Treasury, the 60/40 income split for direct SFH fund the following applications: funds. Eighty percent of GRH funds may Community Development Financial (i) Hardship and homeless applicants Institutions (CDFI)—Funds will be be used in any eligible area. Twenty based upon historical data and projected percent of GRH funds are to be used in available to fund leveraged loans made demand. This shall include the direct in partnership with the Department of special outreach areas. Special outreach section 502 loan and section 504 loan areas are counties with median incomes the Treasury CDFI participants. and grant programs. (B) Rural Home Loan Partnership at or below the State’s nonmetropolitan (ii) The State’s 25 percent portion of (RHLP). Partnership initiatives median income. Each funding stream funds for Mutual Self-Help loans. established to carry out the objectives of will independently be subject to (iii) Subsequent loans for essential the National Partners in pooling. improvements or repairs and transfers Homeownership including the RHLP 5. National Office Special Area with assumptions. and other strategies or initiatives. Outreach Reserve. A special outreach (iv) Financing for the purchase of (iv) Rural Housing Demonstration area reserve fund has been established program REOs when credit sale Program. $3 million has been set aside at the National office. Funds from this authority has been exhausted. for innovative demonstration initiatives. reserve may only be used in special (v) State Directors must ensure that c. Designated Reserve for Self-Help. outreach areas. not less than 25 percent of the initial $110 million has been set aside for 6. Suballocation by the State Director. low-income allocation and 5 percent of matching funds to assist participating The State Director may retain funds at the initial very low-income allocation Self-Help applicants. The matching the State office level or suballocate to are utilized for participation in funds were established on the basis of the Area or Field office level. leveraging section 502 direct loan funds. the National office contributing 75 B. Section 502 Direct RH Loans (vi) Areas targeted by the State. percent from the National office reserve b. National Office Reserves. and States contributing 25 percent of 1. Amount Available for Allocation. (i) General Reserve. The National their allocated section 502 RH funds. Total Available ...... $1,100,000,000 office has a general reserve of $96.5 d. Underserved Counties and Less Required Set Aside million. Of this amount, the Colonias. $55,000,000 has been set aside for: Administrator’s reserve is $30 million. for the 100 underserved counties and Underserved Counties and Colonias ...... 55,000,000 One of the purposes of the colonias. EZ, EC and REAP Ear- Administrator’s reserve will be for loans e. Empowerment Zone (EZ) and mark ...... 60,500,000 in Indian Country. Indian Country is Enterprise Community (EC) Earmark. Less General Reserve ..... 96,500,000 defined as land inside the boundaries of These funds are earmarked until June Administrator’s Re- Indian reservations, communities made 30, 2000 for loans in EZ, EC or REAP serve ...... 30,000,000 up mainly of Native Americans, Indian Zones. Further information will follow.
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f. Reserve Requests. All National program (RHAG) in the FY 2000 b. Underserved Counties and office reserve requests should be appropriation. Colonias. $1,620,000 and $1,250,000, submitted by the State Director to the 1. Amount available for allocation. respectively, have been set aside for the National office on a case-by-case basis. Section 504 Loans: 100 underserved counties and colonias g. State Office Pooling. If pooling is Total Available ...... $32,395,287 until June 30, 2000 for the section 504 conducted within a State, it must not Less 5% for 100 Under- loan and grant programs. take place within the first 30 calendar served Counties and c. Empowerment Zone (EZ) and Colonias ...... 1,620,000 days of the first, second, or third EZ, EC or REAP Zone Enterprise Community (EC) Earmark quarter. (There are no restrictions on Earmark ...... 7,000,000 (Loan Funds Only). $7 million and pooling in the fourth quarter.) Less General Reserve ...... 1,500,000 $600,000, respectively, have been h. Suballocation by the State Director. Basic Formula—Administra- earmarked until June 30, 2000 for EZ, The State Director may suballocate to tive Allocation ...... 22,276,000 EC or REAPs for the section 504 loan each area office using the methodology Section 504 Grants: and grant programs. and formulas required by 7 CFR part Total Available ...... 25,650,573 d. National Office Reserve. $1.5 Less 5% for 100 Under- million for section 504 loan hardships 1940, subpart L. If suballocated to the served Counties and area level, the Rural Development Colonias ...... 1,250,000 and $1.5 million for section 504 grant Manager will make funds available on a Less EZ, EC or REAP Ear- extreme hardships have been set-aside first-come, first-served basis to all mark ...... 600,000 in the general reserve. For section 504 offices at the field or area level. No field Less General Reserve ...... 1,500,000 grants, an extreme hardship case is one office will have its access to funds Basic Formula—Administra- requiring a significant priority in restricted without the prior written tive Allocation ...... 21,650,000 funding, ahead of other requests, due to approval of the Administrator. 2. Reserves and Set-asides. severe health or safety hazards, or a. State Office Reserve. State Directors physical needs of the applicant. C. Section 504 Housing Loans and must maintain an adequate reserve to Information on basic formula criteria, Grants handle all anticipated hardship data source and weight, administrative Section 504 grant funds are included applicants based upon historical data allocation, pooling of funds, and in the Rural Housing Assistance Grant and projected demand. availability of the allocation:
Number and Section 502 Nonsubsidized guar- Section 504 Loans and description anteed RH loans Section 502 Direct RH loans grants
1. Basic formula criteria, data See 7 CFR 1940.563(b) ...... See 7 CFR 1940.565(b) ...... See 7 CFR 1940.566(b) source, and weight. and 1940.567(b). 2. Administrative allocation: Western $1,000,000 ...... $1,000,000 ...... $1,000,000 Loan. Pacific Area. $500,000 Grant. 3. Pooling of funds: a. Mid year pooling ...... If Necessary ...... None Anticipated ...... None Anticipated. b. Year-end pooling ...... July 14, 2000 ...... August 18, 2000 ...... August 18, 2000. c. Underserved Counties & N/A ...... June 30, 2000 ...... June 30, 2000. Colonias. d. EZ & EC ...... N/A ...... June 30, 2000 ...... June 30, 2000. e. Credit Sales ...... N/A ...... June 30, 2000 ...... N/A. 4. Availability of the allocation: a. first quarter ...... 50 percent ...... 50 percent ...... 50 percent. b. second quarter ...... 75 percent ...... 70 percent ...... 70 percent. c. third quarter allocation ...... 100 percent ...... 90 percent ...... 90 percent. a. first quarter ...... 50 percent ...... 50 percent ...... 50 percent. b. second quarter ...... 75 percent ...... 70 percent ...... 70 percent. c. third quarter ...... 100 percent ...... 90 percent ...... 90 percent. d. fourth quarter ...... N/A ...... 100 percent ...... 100 percent.
1. Data derived from the 1990 U.S. will be placed in the National office Dated: December 10, 1999. Census was provided to each State by reserve and made available Eileen M. Fitzgerald, the National office on August 12, 1993. administratively. Acting Administrator, Rural Housing Service. 2. Due to the absence of census data. 4. Funds will be distributed 3. All dates are tentative and are as of cumulatively through each quarter until close of business (COB). Pooled funds the year-end pooling date.
RURAL HOUSING SERVICE FY2000 MULTI-FAMILY HOUSING, SECTION 533, HOUSING PRESERVATION GRANT
Formula Total State factor allocation
AL ...... 0.02957 $129,083 AK ...... 0.00587 25,625 AZ ...... 0.01780 77,703 AR ...... 0.02310 100,839 CA ...... 0.04653 203,119 CO ...... 0.00840 36,669 DE ...... 0.00190 8,294
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RURAL HOUSING SERVICE FY2000 MULTI-FAMILY HOUSING, SECTION 533, HOUSING PRESERVATION GRANTÐContinued
Formula Total State factor allocation
MD ...... 0.00880 38,415 FL ...... 0.02890 126,158 GA ...... 0.03867 168,808 HI ...... 0.00790 34,486 WPA ...... 0.00647 28,244 ID ...... 0.00743 32,435 IL ...... 0.02250 98,220 IN ...... 0.02157 94,160 IA ...... 0.01340 58,496 KS ...... 0.01130 49,328 KY ...... 0.03483 152,045 LA ...... 0.03170 138,381 ME ...... 0.00913 39,856 MA ...... 0.00793 34,617 CT ...... 0.00453 19,776 RI ...... 0.00100 4,365 MI ...... 0.02977 129,956 MN ...... 0.01673 73,032 MS ...... 0.03180 138,818 MO ...... 0.02460 107,387 MT ...... 0.00620 27,065 NE ...... 0.00713 31,125 NV ...... 0.00263 11,481 NJ ...... 0.00657 28,680 NM ...... 0.01437 62,730 NY ...... 0.02753 120,178 NC ...... 0.04497 196,310 ND ...... 0.00413 18,029 OH ...... 0.03450 150,604 OK ...... 0.01917 83,684 OR ...... 0.01423 62,119 PA ...... 0.03687 160,950 PR ...... 0.04923 214,906 SC ...... 0.02690 117,428 SD ...... 0.00597 26,061 TN ...... 0.02973 129,782 TX ...... 0.07645 333,731 UT ...... 0.00430 18,771 VT ...... 0.00403 17,592 NH ...... 0.00503 21,958 VI ...... 0.00273 11,917 VA ...... 0.02660 116,118 WA ...... 0.01743 76,088 WV ...... 0.01937 84,557 WI ...... 0.01873 81,763 WY ...... 0.00307 13,402
DISTR ...... 1.00000 4,365,344 N/O RES ...... 550,000 EZ/EC/REAP ...... 600,000
TTL AVAIL ...... 5,515,344
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, DIRECT RURAL HOUSING LOANS
State basic Total FY 2000 States formula factor allocation
Alabama ...... 0.0267275 $20,767 Alaska ...... 0.0055160 4,286 Arizona ...... 0.0145422 11,299 Arkansas ...... 0.0208104 16,170 California ...... 0.0454819 35,339 Colorado ...... 0.0091766 7,130 Delaware ...... 0.0024571 1,909 Maryland ...... 0.0115334 8,961 Florida ...... 0.0312406 24,274 Virgin Islands ...... 0.0020058 1,559 Georgia ...... 0.0374586 29,105
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RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, DIRECT RURAL HOUSING LOANSÐContinued
State basic Total FY 2000 States formula factor allocation
Hawaii ...... 0.0067195 5,221 W Pac Islands ...... N/A 1,000 Idaho ...... 0.0076722 5,961 Illinois ...... 0.0266774 20,728 Indiana ...... 0.0270785 21,040 Iowa ...... 0.0163474 12,702 Kansas ...... 0.0127369 9,897 Kentucky ...... 0.0288838 22,443 Louisiana ...... 0.0246715 19,170 Maine ...... 0.0108314 8,416 Massachusetts ...... 0.0109818 8,533 Connecticut ...... 0.0066693 5,182 Rhode Island ...... 0.0015545 1,208 Michigan ...... 0.0353525 27,469 Minnesota ...... 0.0199077 15,468 Mississippi ...... 0.0250226 19,443 Missouri ...... 0.0252733 19,637 Montana ...... 0.0063685 4,948 Nebraska ...... 0.0086752 6,741 Nevada ...... 0.0028583 2,221 New Jersey ...... 0.0097784 7,598 New Mexico ...... 0.0110320 8,572 New York ...... 0.0359041 27,898 North Carolina ...... 0.0484405 37,638 North Dakota ...... 0.0045131 3,507 Ohio ...... 0.0390131 30,313 Oklahoma ...... 0.0174005 13,520 Oregon ...... 0.0154949 12,040 Pennsylvania ...... 0.0467857 36,352 Puerto Rico ...... 0.0239695 18,624 South Carolina ...... 0.0258249 20,066 South Dakota ...... 0.0062682 4,870 Tennessee ...... 0.0291846 22,676 Texas ...... 0.0660415 51,314 Utah ...... 0.0040618 3,156 Vermont ...... 0.0052653 4,091 New Hampshire ...... 0.0072711 5,650 Virginia ...... 0.0289841 22,521 Washington ...... 0.0187042 14,533 West Virginia ...... 0.0175008 13,598 Wisconsin ...... 0.0237188 18,429 Wyoming ...... 0.0036105 2,805
State Totals ...... 1.0000000 778,000 General Reserve ...... 96,500 EZ/EC/Reap Earmark ...... 60,500 100 Underserved Counties/Colonias ...... 55,000 Self Help ...... 110,000
Total ...... 1,100,000
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, DIRECT RURAL HOUSING LOANS
Very low-in- Total FY 2000 come alloca- Low-income States allocation tion allocation 40 percent 60 percent
Alabama ...... $20,767 $8,307 $12,460 Alaska ...... 4,286 1,714 2,572 Arizona ...... 11,299 4,520 6,780 Arkansas ...... 16,170 6,468 9,702 California ...... 35,339 14,136 21,204 Colorado ...... 7,130 2,852 4,278 Delaware ...... 1,909 764 1,146 Maryland ...... 8,961 3,585 5,377 Florida ...... 24,274 9,710 14,564 Virgin Islands ...... 1,559 623 935 Georgia ...... 29,105 11,642 17,463
VerDate 15-DEC-99 17:49 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm11 PsN: 21DEN3 71598 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, DIRECT RURAL HOUSING LOANSÐContinued
Very low-in- Total FY 2000 come alloca- Low-income States allocation tion allocation 40 percent 60 percent
Hawaii ...... 5,221 2,088 3,133 W Pac Islands ...... 1,000 400 600 Idaho ...... 5,961 2,385 3,577 Illinois ...... 20,728 8,291 12,437 Indiana ...... 21,040 8,416 12,624 Iowa ...... 12,702 5,081 7,621 Kansas ...... 9,897 3,959 5,938 Kentucky ...... 22,443 8,977 13,466 Louisiana ...... 19,170 7,668 11,502 Maine ...... 8,416 3,366 5,050 Masschusetts ...... 8,533 3,413 5,120 Connecticut ...... 5,182 2,073 3,109 Rhode Island ...... 1,208 483 725 Michigan ...... 27,469 10,988 16,481 Minnesota ...... 15,468 6,187 9,281 Mississippi ...... 19,443 7,777 11,666 Missouri ...... 19,637 7,855 11,782 Montana ...... 4,948 1,979 2,969 Nebraska ...... 6,741 2,696 4,044 Nevada ...... 2,221 888 1,333 New Jersey ...... 7,598 3,039 4,559 New Mexico ...... 8,572 3,429 5,143 New York ...... 27,898 11,159 16,739 North Carolina ...... 37,638 15,055 22,583 North Dakota ...... 3,507 1,403 2,104 Ohio ...... 30,313 12,125 18,188 Oklahoma ...... 13,520 5,408 8,112 Oregon ...... 12,040 4,816 7,224 Pennsylvania ...... 36,352 14,541 21,811 Puerto Rico ...... 18,624 7,450 11,175 South Carolina ...... 20,066 8,026 12,040 South Dakota ...... 4,870 1,948 2,922 Tennessee ...... 22,676 9,071 13,606 Texas ...... 51,314 20,526 30,789 Utah ...... 3,156 1,262 1,894 Vermont ...... 4,091 1,636 2,455 New Hampshire ...... 5,650 2,260 3,390 Virginia ...... 22,521 9,008 13,512 Washington ...... 14,533 5,813 8,720 West Virginia ...... 13,598 5,439 8,159 Wisconsin ...... 18,429 7,372 11,058 Wyoming ...... 2,805 1,122 1,683
State Totals ...... 778,000 311,200 466,800 General Reserve ...... 96,500 44,100 52,400 100 Counties/Colonias ...... 55,000 33,000 22,000 EZ/EC/Reap Earmark ...... 60,500 36,300 24,200 Self Help ...... 110,000 59,400 50,600
Total ...... 1,100,000 484,000 616,000
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, GUARANTEED LOANS (NONSUBSIDIZED)
State basic Total FY 2000 States formula factor allocation
Alabama ...... 0.0253847 $58,360 Alaska ...... 0.0061561 14,153 Arizona ...... 0.0155290 35,701 Arkansas ...... 0.0213661 49,121 California ...... 0.0524861 120,666 Colorado ...... 0.0100701 23,151 Delaware ...... 0.0024043 5,527 Maryland ...... 0.0104750 24,082 Florida ...... 0.0308357 70,891 Virgin Islands ...... 0.0027236 6,262
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RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 502, GUARANTEED LOANS (NONSUBSIDIZED)ÐContinued
State basic Total FY 2000 States formula factor allocation
Georgia ...... 0.0385293 88,579 Hawaii ...... 0.0083323 19,156 W Pac Islands ...... N/A 1,000 Idaho ...... 0.0077774 17,880 Illinois ...... 0.0256395 58,945 Indiana ...... 0.0236023 54,261 Iowa ...... 0.0151422 34,812 Kansas ...... 0.0123032 28,285 Kentucky ...... 0.0286790 65,933 Louisiana ...... 0.0256223 58,906 Maine ...... 0.0113916 26,189 Massachusetts ...... 0.0117468 27,006 Connecticut ...... 0.0065708 15,106 Rhode Island ...... 0.0017216 3,958 Michigan ...... 0.0337181 77,518 Minnesota ...... 0.0184738 42,471 Mississippi ...... 0.0259670 59,698 Missouri ...... 0.0253687 58,323 Montana ...... 0.0067138 15,435 Nebraska ...... 0.0083216 19,131 Nevada ...... 0.0029735 6,836 New Jersey ...... 0.0091825 21,111 New Mexico ...... 0.0117200 26,944 New York ...... 0.0369739 85,003 North Carolina ...... 0.0471742 108,453 North Dakota ...... 0.0040847 9,391 Ohio ...... 0.0378081 86,921 Oklahoma ...... 0.0175713 40,396 Oregon ...... 0.0166212 38,212 Pennsylvania ...... 0.0438367 100,781 Puerto Rico ...... 0.0250931 57,689 South Carolina ...... 0.0249510 57,362 South Dakota ...... 0.0065435 15,043 Tennessee ...... 0.0276859 63,650 Texas ...... 0.0665018 152,888 Utah ...... 0.0039861 9,164 Vermont ...... 0.0057475 13,214 New Hampshire ...... 0.0075234 17,296 Virginia ...... 0.0278404 64,005 Washington ...... 0.0200905 46,188 West Virginia ...... 0.0172518 39,662 Wisconsin ...... 0.0222867 51,237 Wyoming ...... 0.0035006 8,048
State Totals ...... 1.0000000 2,300,000 General Reserve ...... 630,000 Special Outreach Areas Reserve ...... 270,000
Total ...... 3,200,000
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCTION IN THOUSANDS, SECTION 504, RURAL HOUSING LOANS
State basic Total FY 2000 States formula factor allocation
Alabama ...... 0.0300207 $612 Alaska ...... 0.0082816 169 Arizona ...... 0.0207039 422 Arkansas ...... 0.0232919 475 California ...... 0.0548654 1,118 Colorado ...... 0.0087992 179 Delaware ...... N/A 100 Maryland ...... 0.0098344 200 Florida ...... 0.0305383 622 Virgin Islands ...... N/A 100 Georgia ...... 0.0408903 833 Hawaii ...... 0.0103520 211 W Pac Islands ...... N/A 1,000 Idaho ...... 0.0077640 158
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RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCTION IN THOUSANDS, SECTION 504, RURAL HOUSING LOANSÐ Continued
State basic Total FY 2000 States formula factor allocation
Illinois ...... 0.0232919 475 Indiana ...... 0.0227743 464 Iowa ...... 0.0134576 274 Kansas ...... 0.0119048 243 Kentucky ...... 0.0331263 675 Louisiana ...... 0.0305383 622 Maine ...... 0.0103520 211 Massachusetts ...... 0.0082816 169 Connecticut ...... N/A 100 Rhode Island ...... N/A 100 Michigan ...... 0.0300207 612 Minnesota ...... 0.0181159 369 Mississippi ...... 0.0310559 633 Missouri ...... 0.0248447 506 Montana ...... 0.0062112 127 Nebraska ...... 0.0072464 148 Nevada ...... N/A 100 New Jersey ...... 0.0072464 148 New Mexico ...... 0.0155280 316 New York ...... 0.0295031 601 North Carolina ...... 0.0491718 1,002 North Dakota ...... N/A 100 Ohio ...... 0.0341615 696 Oklahoma ...... 0.0181159 369 Oregon ...... 0.0155280 316 Pennsylvania ...... 0.0383023 780 Puerto Rico ...... 0.0351967 717 South Carolina ...... 0.0289855 591 South Dakota ...... 0.0062112 127 Tennessee ...... 0.0305383 622 Texas ...... 0.0807453 1,645 Utah ...... N/A 100 Vermont ...... N/A 100 New Hampshire ...... 0.0056936 116 Virginia ...... 0.0305383 622 Washington ...... 0.0191511 390 West Virginia ...... 0.0186335 380 Wisconsin ...... 0.0201863 411 Wyoming ...... N/A 100
State Totals ...... 1.0000000 22,275 General Reserve ...... 1,500 EZ/EC/Reap Earmark ...... 7,000 100 Underserved Counties/Colonias ...... 1,620
Total ...... 32,395
RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 504, RURAL HOUSING GRANTS
State basic Total FY 2000 States formula factor allocation
Alabama ...... 0.0288363 $605 Alaska ...... 0.0058359 122 Arizona ...... 0.0175007 367 Arkansas ...... 0.0230003 482 California ...... 0.0494336 1,037 Colorado ...... 0.0085822 180 Delaware ...... N/A 100 Maryland ...... 0.0102987 216 Florida ...... 0.0350154 734 Virgin Islands ...... N/A 100 Georgia ...... 0.0377618 792 Hawaii ...... 0.0078957 166 W Pac Islands ...... N/A 500 Idaho ...... 0.0075524 158 Illinois ...... 0.0271198 569 Indiana ...... 0.0250601 525 Iowa ...... 0.0168211 353
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RURAL HOUSING SERVICE FISCAL YEAR 2000 ALLOCATION IN THOUSANDS, SECTION 504, RURAL HOUSING GRANTSÐ Continued
State basic Total FY 2000 States formula factor allocation
Kansas ...... 0.0137315 288 Kentucky ...... 0.0305527 641 Louisiana ...... 0.0267765 561 Maine ...... 0.0106419 223 Massachusetts ...... 0.0099554 209 Connecticut ...... 0.0054926 115 Rhode Island ...... N/A 100 Michigan ...... 0.0326124 684 Minnesota ...... 0.0202540 425 Mississippi ...... 0.0278064 583 Missouri ...... 0.0264332 554 Montana ...... 0.0061792 130 Nebraska ...... 0.0089255 187 Nevada ...... N/A 100 New Jersey ...... 0.0085822 180 New Mexico ...... 0.0127017 266 New York ...... 0.0332990 698 North Carolina ...... 0.0484037 1,015 North Dakota ...... N/A 100 Ohio ...... 0.0370752 777 Oklahoma ...... 0.0188809 396 Oregon ...... 0.0161346 338 Pennsylvania ...... 0.0449708 943 Puerto Rico ...... 0.0271199 569 South Carolina ...... 0.0267765 561 South Dakota ...... 0.0065225 137 Tennessee ...... 0.0302094 633 Texas ...... 0.0734638 1,540 Utah ...... N/A 100 Vermont ...... N/A 100 New Hampshire ...... 0.0061792 130 Virginia ...... 0.0291795 612 Washington ...... 0.0188809 396 West Virginia ...... 0.0185376 389 Wisconsin ...... 0.0230003 482 Wyoming ...... N/A 100
State Totals ...... 1.000000 22,267 General Reserve ...... 1,500 EZ/EC/Reap Earmark ...... 600 100 Underserved Counties/Colonias ...... 1,283
Total ...... 25,650
[FR Doc. 99–32957 Filed 12–20–99; 8:45 am] Guaranteed Rural Rental Housing this NOFA for more information on this BILLING CODE 3410±XV±U Program (GRRHP). Eligible lenders are topic. invited to submit NOFA proposals for The final deadline for a FY 2000 the development of affordable rental NOFA response will be 4:00 PM Eastern DEPARTMENT OF AGRICULTURE housing to serve rural America. Lenders Time on May 8, 2000. No NOFA may submit their application responses will be accepted after 4:00 PM Rural Housing Service concurrently with their NOFA response. Eastern Time on May 8, 2000, unless Notice of Availability of Funding and This document also describes the that date and time is extended by Notice Requests for Proposals for Guaranteed overall application process, including published in the Federal Register. Loans Under the Section 538 the selection of NOFA responses and Lenders intending to mail a NOFA Guaranteed Rural Rental Housing the allocation of interest credits. response must provide sufficient time to Program permit delivery on or before the closing DATES: Fiscal Year (FY) 2000 program deadline date and time. Acceptance by AGENCY: Rural Housing Service, USDA. dollars will be divided into two a post office or private mailer does not selection pools: an ‘‘early selection constitute delivery. Facsimile (FAX) and ACTION: Notice. pool’’ of $40 million which will close at postage due NOFA responses or 4:00 PM Eastern Time on February 21, SUMMARY: This Notice of Fund applications will not be accepted. Availability (NOFA or Notice) 2000 and the ‘‘standard selection pool’’ ADDRESSES: Responses for participation announces the timeframe to submit of $60 million which will close at 4:00 in the program must be identified as proposals in the form of ‘‘NOFA PM Eastern Time, on May 8, 2000. See ‘‘Section 538 Guaranteed Rural Rental responses’’ for the section 538 paragraph III., ‘‘Application Process’’ of Housing Program’’ on the envelope and
VerDate 15-DEC-99 18:51 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm08 PsN: 21DEN3 71602 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices be submitted to: Director, Multi-Family acquisition with rehabilitation of at least above NOFA closing deadlines unless Housing Processing Division, Rural $15,000 per unit. RHS may guarantee those deadlines are extended by notice Housing Service, U.S. Department of such loans upon presentation and published in the Federal Register. Agriculture, Room 1263 (STOP 0781), review of appropriate certifications, In the event that there are insufficient 1400 Independence Ave. SW, project information and satisfactory funds available in either selection pool, Washington, DC 20250–0781. completion of the appropriate level of priorities will be assigned to the NOFA FOR FURTHER INFORMATION CONTACT: environmental review by RHS. Lenders responses on the basis of the criteria Joyce Allen, Senior Loan Officer, will be responsible for the full range of assigned in 7 CFR 3565.5(b) and in Guaranteed Loans, Multi-Family loan management, servicing, and paragraph VI., ‘‘Selection Criteria’’ of Housing Processing Division, U.S. property disposition activities this NOFA. In the event that there are Department of Agriculture, South associated with these projects. The insufficient funds available to fully fund Agriculture Building, Room 1271 (STOP lender will be expected to provide the next NOFA proposal in the ranking 0781), 1400 Independence Ave. SW, servicing or contract for servicing of list, the Agency will offer the lender the Washington, DC 20250–0781. E-mail: each loan it underwrites. In turn, RHS opportunity to accept a loan note [email protected]. will guarantee the lender’s loan up to 90 guarantee for less than the requested Telephone: (202) 690–4499. This percent of total development cost and amount. If the lender declines, the same number is not toll-free. Hearing or commits to pay up to a maximum of 90 offer will be made to the next lender on speech impaired persons may access percent of the outstanding principal and the ranking list, until all the funds are that number by calling the Federal interest balance of such loan in the case expended. In the event of ties, selection Information Relay Service toll-free at of default of the loan and filing of a will be by lot. (800) 877–8339. claim. In no event will the Agency pay In the interest of time, lenders have SUPPLEMENTARY INFORMATION: The more than 90 percent of the original the option of submitting a combined GRRHP will be operated under the principal amount. This means that the NOFA response and application. direction of Title 7 CFR Code of Federal Agency will have a risk exposure under However, the Agency will not give Regulations part 3565 (7 CFR part 3565). the GRRHP of approximately 80 percent preference to a submission with both In addition, this NOFA will identify any of the total development cost. Any the NOFA response and application. priorities for selection of proposed losses would be split on a pro-rata basis Lenders who submit complete applications, and the process by which between the lender and the Agency from applications are encouraged, but not the Agency will score and rank the the first dollar lost. required, to include a checklist and to have their applications indexed and proposals. Information will also be II. Allocation included about submission forms and tabbed to facilitate the review process. Fiscal Year (FY) 2000 budget deadlines. RHS will base its determination of the The Guaranteed Rural Rental Housing authority provides approximately $100 completeness of the application and the Program Origination and Servicing million in program dollars. All FY 2000 eligibility of the lender on the Handbook (HB–1–3565) is available to funds will be held in the National office. information provided in the application. provide lenders and Agency personnel There are no set-asides or demonstration Upon notice of selection, lenders with with the ‘‘how to’’ administrative purposes for the GRRHP for FY 2000. the top ranked NOFA responses will be guidance needed to administer the III. Application Process requested to submit the required application fee of $2,500.00 and full program. As a service to our customers, FY 2000 budget authority will provide copies of HB–1–3565, which contains a application if not already submitted. approximately $100 million in program When the conditions of the conditional copy of 7 CFR part 3565 in Appendix dollars. In order to better assist lenders 1, may be obtained from the Rural commitment are met, the lender will who are currently working with an submit the required information with a Housing Service Multi-Family Housing applicant, the FY 2000 program dollars Processing Division at 202–720–1604. separate guarantee fee of 1% of the total will be divided into two selection pools; guarantee amount. This is not a toll-free number. Hearing- an ‘‘early selection pool’’ of $40 million, or speech-impaired persons may access which will close 4 p.m. Eastern IV. Submission Requirements that number by calling the Federal Standard Time, February 21, 2000 and All NOFA responses for the GRRHP Information Relay Service toll-free at a ‘‘standard selection pool’’ of $60 must meet the requirements of 7 CFR (800) 877–8339. million, which will close 4 p.m. Eastern part 3565 and this NOFA. Incomplete Discussion of Notice Daylight Time, May 8, 2000. Any funds submissions will not be considered, and not used in the early selection pool will the lender will be notified of the reason I. Purpose and Program Summary be transferred to the standard selection the response was incomplete. On March 28, 1996, President Clinton pool. Assistance can include both loan signed the ‘‘Housing Opportunity To be eligible for early selection, guarantees and interest credits. For at Program Extension Act of 1996,’’ Public NOFA responses must have a minimum least 20 percent of the loans made under Law 104–120, authorizing the section score of 20 points and must be received the program, RHS shall provide the 538 Guaranteed Rural Rental Housing prior to 4:00 PM, Eastern Standard Time borrower with interest credits to reduce Program (GRRHP). The program is on February 21, 2000. NOFA responses the interest rate of the loan by a designed to increase the supply of not scoring a minimum of 20 points, maximum of 250 basis points. However, affordable multifamily housing through responses received after the deadline for in no instance will the lender’s interest partnerships between Rural Housing the early pool, and responses not rate be reduced to lower than the Service (RHS) and major lending selected due to insufficient funds in this applicable Federal Rate as such term is sources, as well as State and local pool will be retained for the standard used in section 42(i)(2)(D) of the housing finance agencies and bond selection pool with the closing deadline Internal Revenue Code of 1986. issuers. Qualified lenders will be of May 8, 2000. The final deadline for RHS will provide interest credit on authorized to originate, underwrite, and a FY 2000 NOFA response will be 4 loans up to $1.5 million. Lenders with close loans for multifamily housing p.m., Eastern Daylight Time on May 8, proposals that could be viable with or projects requiring new construction or 2000. No exceptions will be made to the without interest credits are encouraged
VerDate 15-DEC-99 15:39 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm03 PsN: 21DEN3 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71603 to submit a NOFA response reflecting COLONIA OR TRIBAL LANDS—Is be assigned to eligible proposals on the financial and market feasibility under the project in a Colonia or on tribal basis of the following criteria as both funding options. A request in the lands? (Yes or No) described in 7 CFR 3565.5(b), and NOFA response to be considered under PRESIDENTIAL DECLARED points will be assigned as follows: both options will not affect the rating of DISASTER AREA—Is the project in a (A) Projects located in rural the response for Interest Credit Presidentially declared Disaster Area? communities with the smallest selection. However, once the interest (Yes or No) population will receive priority. All credit funds are exhausted, only those POPULATION—What is the proposals will be ranked in order of NOFA responses requesting population of the community in which their population. The proposals will be consideration under both funding the project is located? (Note: Population given a point score starting with the options or the Non-Interest Credit must be in an eligible rural area as project located in the area with the option will be further considered. defined in HB–1–3565, paragraph 1.6, lowest population receiving 20 points, NOFA responses requesting interest ‘‘Eligible Rural Area.’’) the next 19 points and so forth, until up credit will be ranked and scored MEDIAN INCOME FOR to 20 projects have received points. separately using the same selection COMMUNITY—Provide median income (B) The most needy communities as criteria for non-interest credit responses. for the project community. determined by the median income from In the event that there are insufficient LOAN AMOUNT—Insert the loan the most recently available census data. funds available to fully fund the next amount. The proposals will be given a point interest credit response in the ranking PERCENTAGE OF GUARANTEE— score starting with the community list, the Agency will offer the lender the Percentage guarantee requested. having the lowest median income opportunity to accept a loan note IS A GUARANTEE FOR receiving 20 points, the next 19 points guarantee for less than the requested CONSTRUCTION ADVANCES BEING and so forth until up to 20 proposals amount. If the lender declines, the same REQUESTED?—(Yes or No) (Note: have received points. offer will be made to the next rated Agency will guarantee construction (C) Partnering and leveraging in order response on the list until all the funds advances, only as part of a combination to develop the maximum number of are expended. In the event of ties, construction and permanent loan.) housing units and promote partnerships selection will be by lot. TOTAL PROJECT DEVELOPMENT with state and local communities, COST—Enter amount for total project. including other partners with similar V. Sample NOFA Response TAX CREDITS—Are tax credits to be housing goals. Leveraging points will be In order to expedite the review of the provided to project? awarded as follows: applications, RHS suggests using the LOAN TERM—Provide the loan term. (Note: Term may be up to 40 years.) following NOFA response guidelines. Loan to value ratio Points The NOFA response should be on the INTEREST RATE—Provide the (percentage %) interest rate. (Note: Max. rate is 250 lender’s letterhead, signed by both the 75±84 ...... 10 lender and the applicant, and be basis points over treasury bond yield. Rate must be fixed rate and fully 70±74 ...... 15 submitted by the lender to the Agency. 69 or less ...... 20 Sample NOFA Response: amortizing, i.e., balloon mortgages are LENDER NAME—Lender organization not eligible.) (D) Loans with interest rates less than name. BASIS POINTS OVER 30 YEAR the maximum allowable 250 basis LENDER CONTACT NAME—Name of TREASURY—Insert number. points over the 30 Year Treasury Rate OTHER SOURCES OF FUNDS—List the lender contact for loan. will be awarded points as follows: all funding sources. MAILING ADDRESS—Complete NUMBER OF UNITS—What is the mailing address for lender. Interest rate Points total number of units in the project? PHONE NUMBER—Phone number for BEDROOM MIX—Number of units by lender contact. 250 to 201 basis points, inclusive .. 0 number of bedrooms. 200 to 151 basis points, inclusive .. 5 FAX NUMBER—Fax number. INTEREST CREDIT (IC)—Is interest 150 to 100 basis points, inclusive .. 10 E-MAIL ADDRESS—E-mail address. credit requested for this loan (Yes or 99 to 50 basis points, inclusive ...... 15 APPLICANT NAME—Show official No)? Less than 50 basis points ...... 20 name, list any trade name as ‘‘d/b/a.’’ IF ABOVE IS ‘‘YES,’’ SHOULD APPLICANT TAX ID NUMBER— PROPOSAL BE CONSIDERED UNDER (E) Preference will be given to Insert number. NON–IC SELECTION, IF IC FUNDS proposals having a higher percent of 3– NEW CONSTRUCTION OR REPAIR/ ARE EXHAUSTED?—(Yes or No) (Note: 5 bedroom units to total units. The REHAB. OF AT LEAST $15,000/ If ‘‘Yes,’’ proposal must show financial proposals will be ranked in order of this UNIT.—State whether the project is new feasibility for NON–IC consideration.) percent with the proposal with the construction or repair/rehab. RENT—What is the proposed rent highest percent receiving 20 points, the PROJECT LOCATION TOWN—Town structure? next 19 points and so forth until up to in which the project is located. COST PER UNIT—Total development 20 projects have received points. PROJECT COUNTY—County in cost divided by number of units. (F) Proposals to be developed in a which the project is located. DEBT COVERAGE RATIO—Net colonia, on tribal land, in an PROJECT STATE—State in which the Operating Income divided by debt Empowerment Zone or Enterprise project is located. payments. Community, or in a place identified in PROJECT ZIP CODE—Project zip LOAN TO VALUE—Guarantee loan the State consolidated plan or State code. divided by value. needs assessment as a high need PROJECT CONGRESSIONAL community for multifamily housing (20 DISTRICT—Congressional District for VI. Selection Criteria points). project location. NOFA proposals will be reviewed as (G) Projects will be ranked by the EZ/EC—Is the project in EZ/EC received. In the event that demand length of the amortization period, with community? (Yes or No) exceeds available funds, priorities will the longest receiving priority as follows:
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Amortization (Yrs.) Points D. Program Fees for FY 2000 communities. This document describes (1) There is an initial guarantee fee of the methodology that will be used to 40 ...... 20 1% of the total guarantee amount which distribute funds, the application At least 35 ...... 15 process, submission requirements, and At least 30 ...... 10 will be due when the loan guarantee is issued. For purposes of calculating this areas of special emphasis or At least 20 ...... 5 consideration. Less than 20 ...... 0 fee, the guarantee amount is the product of the percentage of the guarantee times DATES: The closing deadline for receipt VII. Additional Information the initial principal amount of the of all applications, including those for guaranteed loan. the set-asides, in response to this NOFA A. National Environmental Policy Act (2) There is an annual renewal fee of is 5:00 p.m., local time for each Rural (NEPA) 0.5% of the guaranteed outstanding Development State office on February 22, 2000. The application closing The lender will provide the principal balance charged each year or deadline is firm as to date and hour. applicant’s completed Form RD 1940– portion of the year that the guarantee is RHS will not consider any application 20, ‘‘Request for Environmental in effect. This fee will be collected that is received after the closing Information,’’ available by contacting prospectively on January 1, of the deadline. Applicants intending to mail the Rural Development State calendar year. (3) There is no site assessment and applications must provide sufficient Environmental Coordinator (SEC) at any market analysis or preliminary time to permit delivery on or before the RD State office and submit it with the feasibility fee in FY 2000. closing deadline date and time. NOFA response. A description of any (4) There is a non-refundable Acceptance by a post office or private known environmental issues that may application fee of $2,500 when the mailer does not constitute delivery. affect the project must also be included. application is submitted following Facsimile (FAX) and postage due This step is necessary in order for the proposal selection under the NOFA. applications will not be accepted. NOFA response to be complete. (5) There is no lender application fee ADDRESSES: Applicants wishing to apply The Agency’s environmental review for lender approval in FY 2000. for assistance must contact the Rural of the property, as required under NEPA (6) There is a flat fee of $500 when a Development State office serving the and 7 CFR part 1940, subpart G will be lender requests RHS to extend the term place in which they desire to submit an initiated as early as possible, but no of a guarantee commitment. application for rural rental housing to later than the selection of the proposal (7) There is a flat fee of $500 when a receive further information and copies for further processing. This lender requests RHS to reopen a of the application package. Rural environmental impact review must be guarantee commitment after the period Development will date and time stamp completed prior to the Agency’s of the commitment lapses. incoming applications to evidence issuance of a conditional commitment. (8) There is a flat fee of $1,250 when timely receipt, and, upon request, will The environmental review is considered a lender requests RHS to approve the provide the applicant with a written complete when the environmental transfer of property and assumption of acknowledgment of receipt. A listing of documents have been properly the loan to an eligible applicant. Rural Development State offices, their executed, when all applicable public Dated: December 10, 1999. addresses, telephone numbers, and notices have been published, the Eileen M. Fitzgerald, person to contact follows: associated public comment periods have Acting Administrator, Rural Housing Service. expired, and the Agency has taken any Note: Telephone numbers listed are not [FR Doc. 99–32958 Filed 12–20–99; 8:45 am] necessary actions to address the toll-free. comments received. BILLING CODE 3410±XV±U Alabama State Office, Suite 601, Sterling Centre, 4121 Carmichael Road, Lenders have a responsibility to Montgomery, AL 36106–3683, (334) 279– become familiar with Federal DEPARTMENT OF AGRICULTURE 3455, TDD (334) 279–3495, James B. Harris environmental requirements so that they Alaska State Office, 800 West Evergreen, can advise applicants and reduce the Rural Housing Service Suite 201, Palmer, AK 99645, (907) 745– probability of unacceptable NOFA 2176, TDD (907) 745–6494, Ron Abbott Notice of Funding Availability (NOFA) responses being submitted to the Arizona State Office, Phoenix Corporate Agency. Lenders are also expected to for the section 515 Rural Rental Center, 3003 N. Central Ave., Suite 900, cooperate in the collection of any Housing Program for Fiscal Year 2000 Phoenix, AZ 85012–2906, (602) 280–8765, TDD (602) 280–8706, Johnna Vargas environmental data which the Agency AGENCY: Rural Housing Service (RHS), determines is necessary and in the USDA. Arkansas State Office, 700 W. Capitol Ave., resolution of potential environmental Rm. 3416, Little Rock, AR 72201–3225, ACTION: Notice. problems. (501) 301–3250, TDD (501) 301–3279, Cathy Jones SUMMARY: This NOFA announces the B. Surcharges for Guarantee of California State Office, 430 G Street, Agency Construction Advances timeframe to submit applications for section 515 Rural Rental Housing (RRH) 4169, Davis, CA 95616–4169, (530) 792– There is no surcharge for guarantee of 5819, TDD (530) 792–5848, Millie loan funds and section 521 Rental Manzanedo construction advances for FY 2000. Assistance (RA) for new construction, Colorado State Office, 655 Parfet Street, C. Maximum Interest Rate including applications for the nonprofit Room E100, Lakewood, CO 80215, (303) set-aside for eligible nonprofit entities, 236–2801 (ext. 122), TDD (303) 236–1590, The maximum allowable interest rate the set-aside for the most Underserved ‘‘Sam’’ Mitchell on a loan submitted for a guarantee is Counties and Colonias (Cranston- Connecticut 250 basis points over the 30-year Gonzalez National Affordable Housing Served by Massachusetts State Office Treasury Bond Yield as published in the Act), and the set-aside for Delaware and Maryland State Office, 5201 Wall Street Journal as of the business Empowerment Zones and Enterprise South Dupont Highway, PO Box 400, day prior to the business day the rate is Communities (EZ/ECs) and Rural Camden, DE 19934–9998, (302) 697–4353, set. Economic Area Partnership (REAP) TDD (302) 697–4303, Pat Baker
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Florida & Virgin Islands State Office, 4440 NE 68508, (402) 437–5567, TDD (402) 437– Vermont State Office, City Center, 3rd Floor, N.W. 25th Place, PO Box 147010, 5093, Byron Fischer 89 Main Street, Montpelier, VT 05602, Gainesville, FL 32614–7010, (352) 338– Nevada State Office, 1390 South Curry Street, (802) 828–6028, TDD (802) 223–6365, 3465, TDD (352) 338–3499, Joseph P. Fritz Carson City, NV 89703–9910, (775) 887– Sandra Mercier Georgia State Office, Stephens Federal 1222 (ext. 13), TDD (775) 885–0633, Virgin Islands Building, 355 E. Hancock Avenue, Athens, William L. Brewer Served by Florida State Office GA 30601–2768, (706) 546–2164, TDD New Hampshire State Office, Concord Virginia State Office, Culpeper Building, (706) 546–2034, Wayne Rogers Center, Suite 218, Box 317, 10 Ferry Street, Suite 238, 1606 Santa Rosa Road, Guam Concord, NH 03301–5004, (603) 223–6046, Richmond, VA 23229, (804) 287–1582, Served by Hawaii State Office TDD (603) 229–0536, Jim Fowler TDD (804) 287–1753, Carlton Jarratt Hawaii, Guam, & Western Pacific Territories New Jersey State Office, Tarnsfield Plaza, Washington State Office, Suite B, 1835 Black State Office, Room 311, Federal Building, Suite 22, 790 Woodland Road, Mt. Holly, Lake Boulevard, SW, Olympia, WA 98512– 154 Waianuenue Avenue, Hilo, HI 96720, NJ 08060, (609) 265–3631, TDD (609) 265– 5715, (360) 704–7707, TDD (360) 704– (808) 933–8316, TDD (808) 933–8321, 3687, George Hyatt, Jr. 7760, Deborah Davis Abraham Kubo New Mexico State Office, 6200 Jefferson St., Western Pacific Territories Idaho State Office, Suite A1, 9173 West NE, Room 255, Albuquerque, NM 87109, Served by Hawaii State Office Barnes Dr., Boise, ID 83709, (208) 378– (505) 761–4944, TDD (505) 761–4938, West Virginia State Office, Federal Building, 5630, TDD (208) 378–5644, Roni Atkins Carmen N. Lopez 75 High Street, Room 320, Morgantown, Illinois State Office, Illini Plaza, Suite 103, New York State Office, The Galleries of WV 26505–7500, (304) 291–4793, TDD 1817 South Neil Street, Champaign, IL Syracuse, 441 S. Salina Street, Suite 357, (304) 284–5941, Sue Snodgrass 61820, (217) 398–5412 (ext. 256), TDD Syracuse, NY 13202, (315) 477–6419, TDD Wisconsin State Office, 4949 Kirschling (217) 398–5396, Barry L. Ramsey (315) 477–6447, George N. Von Pless Court, Stevens Point, WI 54481, (715) 345– Indiana State Office, 5975 Lakeside North Carolina State Office, 4405 Bland 7620 (ext. 7145), TDD (715) 345–7614, Boulevard, Indianapolis, IN 46278, (317) Road, Suite 260, Raleigh, NC 27609, (919) Sherry Engel 290–3100 (ext. 423), TDD (317) 290–3343, 873–2062, TDD (919) 873–2003, Eileen Wyoming State Office, 100 East B, Federal John Young Nowlin Building, Room 1005, PO Box 820, Casper, Iowa State Office, 873 Federal Building, 210 North Dakota State Office, Federal Building, WY 82602, (307) 261–6315, TDD (307) Walnut Street, Des Moines, IA 50309, (515) Room 208, 220 East Rosser, PO Box 1737, 261–6333, Charles Huff 284–4493, TDD (515) 284–4858, Bruce Bismarck, ND 58502, (701) 530–2049, TDD McGuire (701) 530–2113, Kathy Lake FOR FURTHER INFORMATION CONTACT: For general information, applicants may Kansas State Office, 1200 SW Executive Ohio State Office, Federal Building, Room Drive, PO Box 4653, Topeka, KS 66604, 507, 200 North High Street, Columbus, OH contact Linda Armour, Senior Loan (785) 271–2718, TDD (785) 271–2767, Gary 43215–2477, (614) 469–5165, TDD (614) Officer, Multi-Family Housing Schumaker 469–5757, Gerald Arnott Processing Division, Rural Housing Kentucky State Office, 771 Corporate Drive, Oklahoma State Office, 100 USDA, Suite 108, Service, United States Department of Suite 200, Lexington, KY 40503, (606) 224– Stillwater, OK 74074–2654, (405) 742– Agriculture, Stop 0781, 1400 2500, TDD (606) 224–7422, Paul Higgins 1070, TDD (405) 742–1007, Phil Reimers Independence Avenue, SW, Louisiana State Office, 3727 Government Oregon State Office, 101 SW Main, Suite Washington, DC, 20250, telephone (202) Street, Alexandria, LA 71302, (318) 473– 1410, Portland, OR 97204–3222, (503) 414– 720–1753 (voice) (this is not a toll free 7962, TDD (318) 473–7655 Yvonne R. 3325, TDD (503)414–3387, Dan Streng number) or (800) 877–8339 (TDD- Emerson Pennsylvania State Office, One Credit Union Federal Information Relay Service). Maine State Office, 444 Stillwater Ave., Suite Place, Suite 330, Harrisburg, PA 17110– SUPPLEMENTARY INFORMATION: 2, PO Box 405, Bangor, ME 04402–0405, 2996, (717) 237–2281, TDD (717) 237– (207) 990–9110, TDD (207) 942–7331, Dale 2261, Gary Rothrock Programs Affected D. Holmes Puerto Rico State Office, New San Juan Office The Rural Rental Housing program is Maryland Bldg., Room 501, 159 Carlos E. Chardon listed in the Catalog of Federal Domestic Served by Delaware State Office Street, Hato Rey, PR 00918–5481, (787) Assistance under Number 10.415, Rural Massachusetts, Connecticut, & Rhode Island 766–5095 (ext. 254), TDD 1–800–274–1572, State Office, 451 West Street, Amherst, MA Lourdes Colon Rental Housing Loans. Rental 01002, (413) 253–4333, TDD (413) 253– Rhode Island Assistance is listed in the Catalog under 7068, Donald Colburn Served by Massachusetts State Office Number 10.427, Rural Rental Assistance Michigan State Office, 3001 Coolidge Road, South Carolina State Office, Strom Payments. Suite 200, East Lansing, MI 48823, (517) Thurmond Federal Building, 1835 Explanation of 60-Day NOFA 324–5192, TDD (517) 337–6795, Philip Assembly Street, Room 1007, Columbia, SC Application Deadline Wolak 29201, (803) 765–3432, TDD (803) 765– Minnesota State Office, 410 AgriBank 5697, Larry D. Floyd The Agency is using a 60-day Building, 375 Jackson Street, St. Paul, MN South Dakota State Office, Federal Building, application period so that the NOFA 55101–1853, (651) 602–7820, TDD (651) Room 210, 200 Fourth Street, SW, Huron, process will coincide with the time 602–3799, Jackie Goodnough SD 57350, (605) 352–1132, TDD (605) 352– constraints placed upon our customers Mississippi State Office, Federal Building, 1147, Dwight Wullweber by participating lenders and state Suite 831, 100 W. Capitol Street, Jackson, Tennessee State Office, Suite 300, 3322 West housing finance agencies (SHFA). MS 39269, (601) 965–4325, TDD (601) 965– End Avenue, Nashvile, TN 37203–1084, Participating lenders such as 5850, Danny Ivy (615) 783–1300, TDD (615) 783–1397, G. commercial banks leverage their funds Missouri State Office, 601 Business Loop 70 Benson Lasater with RHS funds. State organizations can West, Parkade Center, Suite 235, Columbia, Texas State Office, Federal Building, Suite MO 65203, (573) 876–0990, TDD (573) provide Community Development Block 102, 101 South Main, Temple, TX 76501, Grants (CDBG) and HOME funds as 876–9301, Gary Frisch (254) 742–9755, TDD (254) 742–9712, Montana State Office, Unit 1, Suite B, 900 Eugene G. Pavlat another means of leveraging RHS funds, and SHFAs have certain timeframes Technology Blvd., Bozeman, MT 59715, Utah State Office, Wallace F. Bennett Federal (406) 585–2515, TDD (406) 585–2562, Building, 125 S. State Street, Room 4311, whereby applicants can apply for tax MaryLou Affleck Salt Lake City, UT 84147–0350, (801) 524– credits. Therefore, to assist as many of Nebraska State Office, Federal Building, 4324, TDD (801) 524–3309, Robert L. our customers as possible in obtaining room 152, 100 Centennial Mall N, Lincoln, Milianta leveraged funds and to participate with
VerDate 15-DEC-99 15:39 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm03 PsN: 21DEN3 71606 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices other funding sources, a 60-day Percentage of leveraging Points 1. Nonprofit set-aside. An amount of application period is provided. $10,288,987 has been set aside for 65±69 ...... 18 nonprofit applicants. All loan proposals Discussion of Notice 60±64 ...... 17 must be in designated places in I. Authority and Distribution 55±59 ...... 16 accordance with 7 CFR part 1944, Methodology 50±54 ...... 15 subpart E. A State or jurisdiction may 45±49 ...... 14 receive one proposal from this set-aside, A. Authority 40±44 ...... 13 35±39 ...... 12 which cannot exceed $1 million. A State Section 515 of the Housing Act of 30±34 ...... 11 could get additional funds from this set- 1949 (42 U.S.C. 1485) provides RHS 25±29 ...... 10 aside if any funds remain after funding with the authority to make loans to any 20±24 ...... 9 one proposal from each participating individual, corporation, association, 15±19 ...... 8 State. If there are insufficient funds to trust, Indian tribe, public or private 10±14 ...... 7 fund one loan request from each nonprofit organization, consumer 5±9 ...... 6 participating State, selection will be cooperative, or partnership to provide 0±4 ...... 5 made by point score. If there are any rental or cooperative housing and funds remaining, they will revert to the related facilities in rural areas for very- (b) The units to be developed are in National office reserve. Funds from this low, low, or moderate income persons a colonia, tribal land, EZ, EC, or REAP set-aside will be available only to or families, including elderly persons community, or in a place identified in nonprofit entities, which may include a and persons with disabilities. Rental the State Consolidated Plan or State partnership that has as its general assistance (RA) is a tenant subsidy for Needs Assessment as a high need partner a nonprofit entity or the very-low and low-income families community for multifamily housing. (20 nonprofit entity’s for-profit subsidiary residing in rural rental housing facilities points) which will be receiving low-income with RHS financing and may be (c) In states where RHS has an on- housing tax credits authorized under requested with applications for such going formal working relationship, section 42 of the Internal Revenue Code facilities. agreement, or Memorandum of of 1986. To be eligible for this set-aside, Understanding (MOU) with the State to B. Distribution Methodology the nonprofit entity must be an provide State resources (State funds, organization that: The total amount available for FY State RA, HOME funds, CDBG funds, or (a) Will own an interest in the project 2000 for section 515 is $114,322,076, of Low-Income Housing Tax Credits) for to be financed and will materially which $49,783,694 is available for new RHS proposals; or where the State participate in the development and the construction as follows: provides preference or points to RHS operations of the project; Section 515 new construc- proposals in awarding such State (b) Is a private organization that has tion funds ...... $ 22,500,000 resources, 20 points will be provided to nonprofit, tax exempt status under Set-aside for nonprofits ...... $ 10,288,987 loan requests that include such State section 501(c)(3) or section 501(c)(4) of Set-aside for Underserved resources. (National office initiative) the Internal Revenue Code of 1986; Counties and Colonias ..... $ 5,716,104 (d) The loan request includes donated (c) Has among its purposes the Set-aside for EZ, EC, and land meeting the provisions of 7 CFR planning, development, or management REAP zones ...... 9,778,603 1944.215(r)(4). (5 points) of low-income housing or community State Rental Assistance (RA) 2. The National office will rank all designated reserve ...... $ 1,500,000 development projects; and requests nationwide and distribute (d) Is not affiliated with or controlled C. Section 515 New Construction Funds funds to States in rank order, within by a for-profit organization. For fiscal year 2000, the funding and RA limits. If insufficient 2. Underserved counties and colonias Administrator has determined that it funds or RA remain for the next ranked set-aside. An amount of $5,716,104 has would not be practical to allocate funds proposal, the Agency will select the been set aside for loan requests to to States because of funding limitations; next ranked proposal that falls within develop units in the 100 most needy therefore, section 515 new construction the remaining levels. underserved counties or colonias as funds will be distributed to States based D. Applications That Do Not Require defined in section 509(f) of the Housing on a National competition, as follows: New Construction Rental Assistance Act of 1949. 3. EZ, EC, and REAP set-aside. An 1. States will accept, review, score, (RA) and rank requests in accordance with 7 amount of $9,778,603 has been set aside For fiscal year 2000, limited new CFR part 1944, subpart E. The scoring to develop units in EZ, EC, or REAP construction RA is available. Therefore, factors are: communities. Loan requests that are (a) The presence and extent of the Agency is inviting applications to eligible for this set-aside may also be leveraged assistance for the units that develop units in markets that do not eligible for regular section 515 funds as will serve RHS income-eligible tenants require RA. The market study for non- a high-need community. The state must at basic rents comparable to those if RA proposals must clearly demonstrate indicate on the list submitted to the RHS provided full financing, computed a need and demand for the units by National office if the request is eligible as a percentage of the RHS total prospective tenants at income levels for the EZ, EC, and REAP set-aside and development cost (TDC). RHS TDC that can support the proposed rents regular section 515 funds. If requests for excludes non-RHS eligible costs such as without tenant subsidies. The proposed this set-aside exceed available funds, a developer’s fee. Points will be units must offer amenities that are selection will be made by point score. typical for the market area at rents that awarded in accordance with the F. Prior Year Applications following table. (0 to 20 points) are comparable to conventional rents in the market for similar units. The Rural Housing Service published Percentage of leveraging Points a final rule in the Federal Register (62 E. Set-asides FR 67216) on December 23, 1997 75 or more ...... 20 Loan requests will be accepted for the outlining its application and review 70±74 ...... 19 following set-asides: process for section 515 Rural Rental
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Housing new construction program. The B. Applicants are advised to contact DEPARTMENT OF AGRICULTURE implementation proposal for those the Rural Development State office regulations provided that some serving the place in which they desire Rural Housing Service applicants who filed acceptable loan to submit an application for the Notice of Funds Availability (NOFA) requests in prior years could proceed following: with their loan requests provided they For Section 533 Housing Preservation 1. Application information; were in compliance with the newly Grants 2. Any restrictions on funding published regulations, until the AGENCY: availability (applications that exceed the Rural Housing Service (RHS), beginning of FY 2000. Therefore, USDA. effective this fiscal year, prior year National limit of $1 million will be applications will no longer be returned to the applicant); and ACTION: Notice. processed. All loan requests must be 3. List of designated places for which SUMMARY: submitted under this NOFA. The Rural Housing Service applications for new section 515 (RHS) announces that it is soliciting II. Funding Limits facilities may be submitted. competitive applications under its A. Individual loan requests may not VI. Areas of Special Emphasis or Housing Preservation Grant (HPG) exceed $1 million. This applies to Consideration program. The HPG program is a grant regular section 515 funds and set-aside program which provides qualified funds. The Administrator may make an A. The selection criteria contained in public agencies, private nonprofit exception to this limit in cases where a 7 CFR part 1944, subpart E includes two organizations, and other eligible entities State’s average total development costs optional criteria, one set by the National grant funds to assist very low- and low- exceed the National average by 50 office and one by the State office. This income homeowners repair and percent or more. fiscal year, the National office initiative rehabilitate their homes in rural areas, B. No State may receive more than will be used in the selection criteria as and to assist rental property owners and $2.5 million from regular section 515 follows: In states where RHS has an on- cooperative housing complexes to repair funds. Reserve funds, including set- going formal working relationship, and rehabilitate their units if they agree aside funds, are not included in this agreement, or Memorandum of to make such units available to low- and cap. Understanding (MOU) with the State to very low-income persons. This action is taken to comply with Agency provide State resources (State funds, III. Rental Assistance (RA) regulations found in 7 CFR part 1944, State RA, HOME funds, CDBG funds, or New construction RA will be held in subpart N, which requires the Agency to the National office for use with section LIHTC) for RHS proposals; or where the announce the opening and closing dates 515 Rural Rental Housing loans. RA State provides preference or points to for receipt of preapplications for HPG may be requested by applicants, except RHS proposals in awarding these State funds from eligible applicants. The for non-RA requests in accordance with Resources, 20 points will be provided to intended effect of this Notice is to section I.D. above. loan requests that include such State provide eligible organizations notice of resources. No State selection criteria these dates. IV. Application Process will be used this fiscal year. DATES: The closing deadline for receipt All applications for section 515 new B. $10,288,987 is available of all applications in response to this construction funds must be filed with nationwide in a set-aside for eligible NOFA is 5:00 p.m., local time for each the appropriate Rural Development nonprofit organizations as defined in 42 Rural Development State office on State office and must meet the U.S.C. 1485(w). March 22, 2000. The application closing requirements of 7 CFR part 1944, deadline is firm as to date and hour. subpart E and section V of this NOFA. C. $5,716,104 is available nationwide RHS will not consider any application Incomplete applications will not be in a set-aside for the 100 most that is received after the closing reviewed and will be returned to the Underserved Counties and Colonias. deadline. Applicants intending to mail applicant. No application will be D. $9,778,603 is available nationwide applications must provide sufficient accepted after 5:00 p.m., local time, on in a set-aside for EZ, EC, and REAP time to permit delivery on or before the the application deadline previously communities. closing deadline date and time. mentioned unless that date and time is Acceptance by a post office or private extended by a Notice published in the E. $1,500,000 million is available mailer does not constitute delivery. Federal Register. nationwide in a set-aside for States with viable State Rental Assistance (RA) Facsimile (FAX) and postage due V. Application Submission programs. In order to participate, States applications will not be accepted. Requirements are to submit specific written ADDRESSES: Applicants wishing to apply A. Each application shall include all information about the State RA program, for assistance must contact the Rural of the information, materials, forms and i.e., a memorandum of understanding, Development State office serving the exhibits required by 7 CFR part 1944, documentation from the provider, etc., place in which they desire to submit an subpart E as well as comply with the to the National office. application to receive further provisions of this NOFA. Applicants are information and copies of the Dated: December 10, 1999. encouraged, but not required, to include application package. Rural Development a checklist and to have their Eileen M. Fitzgerald, will date and time stamp incoming applications indexed and tabbed to Acting Administrator, Rural Housing Service. applications to evidence timely receipt, facilitate the review process. The Rural [FR Doc. 99–32959 Filed 12–20–99; 8:45 am] and, upon request, will provide the Development State office will base its BILLING CODE 3410±XV±U applicant with a written determination of completeness of the acknowledgment of receipt. A listing of application and the eligibility of each Rural Development State offices, their applicant on the information provided addresses, telephone numbers, and in the application. person to contact follows:
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Note: Telephone numbers listed are not Kansas State Office, 1200 SW Executive North Carolina State Office, 4405 Bland toll-free. Drive, PO Box 4653, Topeka, KS Road, Suite 260, Raleigh, NC 27609, Alabama State Office, Suite 601, 66604, (785) 271–2718, TDD (785) (919) 873–2062, TDD (919) 873–2003, Sterling Centre, 4121 Carmichael 271–2767, Gary Schumaker Eileen Nowlin Road, Montgomery, AL 36106–3683, Kentucky State Office, 771 Corporate North Dakota State Office, Federal (334) 279–3455, TDD (334) 279–3495, Drive, Suite 200, Lexington, KY Building, Room 208, 220 East Rosser, James B. Harris 40503, (606) 224–2500, TDD (606) PO Box 1737, Bismarck, ND 58502, Alaska State Office, 800 West Evergreen, 224–7422, Paul Higgins (701) 530–2049, TDD (701) 530–2113, Suite 201, Palmer, AK 99645, (907) Louisiana State Office, 3727 Kathy Lake 745–2176, TDD (907) 745–6494, Ron Government Street, Alexandria, LA Ohio State Office, Federal Building, Abbott 71302, (318) 473–7962, TDD (318) Room 507, 200 North High Street, 473–7655, Yvonne R. Emerson Arizona State Office, Phoenix Corporate Columbus, OH 43215–2477, (614) Maine State Office, 444 Stillwater Ave., Center, 3003 N. Central Ave., Suite 469–5165, TDD (614) 469–5757, Suite 2, PO Box 405, Bangor, ME 900, Phoenix, AZ 85012–2906, (602) Gerald Arnott 04402–0405, (207) 990–9110, TDD Oklahoma State Office, 100 USDA, Suite 280–8765, TDD (602) 280–8706, (207) 942–7331, Dale D. Holmes Johnna Vargas 108, Stillwater, OK 74074–2654, (405) Maryland served by Delaware State 742–1070, TDD (405) 742–1007, Phil Arkansas State Office, 700 W. Capitol Office Ave., Rm. 3416, Little Rock, AR Reimers Massachusetts, Connecticut, & Rhode Oregon State Office, 101 SW Main, Suite 72201–3225, (501) 301–3250, TDD Island State Office, 451 West Street, (501) 301–3279, Cathy Jones 1410, Portland, OR 97204–3222, (503) Amherst, MA 01002, (413) 253–4333, 414–3325, TDD (503) 414–3387, Dan California State Office, 430 G Street, TDD (413) 253–7068, Donald Colburn Agency 4169, Davis, CA 95616–4169, Streng Michigan State Office, 3001 Coolidge Pennsylvania State Office, One Credit (530) 792–5819, TDD (530) 792–5848, Road, Suite 200, East Lansing, MI Union Place, Suite 330, Harrisburg, Millie Manzanedo 48823, (517) 324–5192, TDD (517) PA 17110–2996, (717) 237–2281, TDD Colorado State Office, 655 Parfet Street, 337–6795, Philip Wolak (717) 237–2261, Gary Rothrock Room E100, Lakewood, CO 80215, Minnesota State Office, 410 AgriBank Puerto Rico State Office, New San Juan (303) 236–2801 (ext. 122), TDD (303) Building, 375 Jackson Street, St. Paul, Office Bldg., Room 501, 159 Carlos E. 236–1590, ‘‘Sam’’ Mitchell MN 55101–1853, (651) 602–7820, Chardon Street, Hato Rey, PR 00918– Connecticut served by Massachusetts TDD (651) 602–3799, Jackie 5481, (787) 766–5095 (ext. 254), TDD State Office Goodnough Mississippi State Office, Federal 1–800–274–1572, Lourdes Colon Delaware & Maryland State Office, 5201 Rhode Island served by Massachusetts Building, Suite 831, 100 W. Capitol South Dupont Highway, PO Box 400, State Office Street, Jackson, MS 39269, (601) 965– Camden, DE 19934–9998, (302) 697– South Carolina State Office, Strom 4325, TDD (601) 965–5850, Danny Ivy 4353, TDD (302) 697–4303, Pat Baker Thurmond Federal Building, 1835 Florida & Virgin Islands State Office, Missouri State Office, 601 Business Loop 70 West, Parkade Center, Suite Assembly Street, Room 1007, 4440 N.W. 25th Place, PO Box Columbia, SC 29201, (803) 765–3432, 147010, Gainesville, FL 32614–7010, 235, Columbia, MO 65203, (573) 876– 0990, TDD (573) 876–9301, Gary TDD (803) 765–5697, Larry D. Floyd (352) 338–3465, TDD (352) 338–3499, South Dakota State Office, Federal Joseph P. Fritz Frisch Montana State Office, Unit 1, Suite B, Building, Room 210, 200 Fourth Georgia State Office, Stephens Federal Street, SW, Huron, SD 57350, (605) Building, 355 E. Hancock Avenue, 900 Technology Blvd., Bozeman, MT 59715, (406) 585–2515, TDD (406) 352–1132, TDD (605) 352–1147, Athens, GA 30601–2768, (706) 546– Dwight Wullweber 2164, TDD (706) 546–2034, Wayne 585–2562, MaryLou Affleck Nebraska State Office, Federal Building, Tennessee State Office, Suite 300, 3322 Rogers West End Avenue, Nashville, TN Guam served by Hawaii State Office room 152, 100 Centennial Mall N, Lincoln, NE 68508, (402) 437–5567, 37203–1084, (615) 783–1300, TDD Hawaii, Guam, & Western Pacific (615) 783–1397, G. Benson Lasater Territories State Office, Room 311, TDD (402) 437–5093, Byron Fischer Nevada State Office, 1390 South Curry Texas State Office, Federal Building, Federal Building, 154 Waianuenue Street, Carson City, NV 89703–9910, Suite 102, 101 South Main, Temple, Avenue, Hilo, HI 96720, (808) 933– (775) 887–1222 (ext. 13), TDD (775) TX 76501, (254) 742–9755, TDD (254) 8316, TDD (808) 933–8321, Abraham 885–0633, William L. Brewer 742–9712, Eugene G. Pavlat Kubo New Hampshire State Office, Concord Utah State Office, Wallace F. Bennett Idaho State Office Suite A1, 9173 West Center, Suite 218, Box 317, 10 Ferry Federal Building, 125 S. State Street, Barnes Dr., Boise, ID 83709, (208) Street, Concord, NH 03301–5004, Room 4311, Salt Lake City, UT 378–5630, TDD (208) 378–5644, Roni (603) 223–6046, TDD (603) 229–0536, 84147–0350, (801) 524–4324, TDD Atkins Jim Fowler (801) 524–3309, Robert L. Milianta Illinois State Office, Illini Plaza, Suite New Jersey State Office, Tarnsfield Vermont State Office, City Center, 3rd 103, 1817 South Neil Street, Plaza, Suite 22, 790 Woodland Road, Floor, 89 Main Street, Montpelier, VT Champaign, IL 61820, (217) 398–5412 Mt. Holly, NJ 08060, (609) 265–3631, 05602, (802) 828–6028, TDD (802) (ext. 256), TDD (217) 398–5396, Barry TDD (609) 265–3687, George Hyatt, Jr. 223–6365, Sandra Mercier L. Ramsey New Mexico State Office, 6200 Jefferson Virgin Islands, served by Florida State Indiana State Office, 5975 Lakeside St., NE, Room 255, Albuquerque, NM Office Boulevard, Indianapolis, IN 46278, 87109, (505) 761–4944, TDD (505) Virginia State Office, Culpeper Building, (317) 290–3100 (ext. 423), TDD (317) 761–4938, Carmen N. Lopez Suite 238, 1606 Santa Rosa Road, 290–3343, John Young New York State Office, The Galleries of Richmond, VA 23229, (804) 287– Iowa State Office, 873 Federal Building, Syracuse, 441 S. Salina Street, Suite 1582, TDD (804) 287–1753, Carlton 210 Walnut Street, Des Moines, IA 357, Syracuse, NY 13202, (315) 477– Jarratt 50309, (515)284–4493, TDD (515) 6419, TDD (315) 477–6447, George N. Washington State Office, Suite B, 1835 284–4858, Bruce McGuire Von Pless Black Lake Boulevard, SW, Olympia,
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WA 98512–5715, (360) 704–7707, grant levels have been established at the place in which they desire to locate off- TDD (360) 704–7760, Deborah Davis National level. You should contact the farm labor housing to receive further Western Pacific Territories served by State office to determine the allocation information and copies of the Hawaii State Office and the State maximum grant level, if application package. Rural Development West Virginia State Office, Federal any. For FY 2000, $5,515,344 is will date and time stamp incoming Building, 75 High Street, Room 320, available for the Housing Preservation applications to evidence timely receipt, Morgantown, WV 26505–7500, (304) Grant Program. A set aside of $600,000 and, upon request, will provide the 291–4793, TDD (304) 284–5941, Sue has been established for grants located applicant with a written Snodgrass in Empowerment Zones, Enterprise acknowledgment of receipt. A listing of Wisconsin State Office, 4949 Kirschiling Communities, and REAP Zones and Rural Development State offices, their Court, Stevens Point, WI 54481, (715) $4,365,344 has been distributed under a addresses, telephone numbers, and 345–7620 (ext. 7145), TDD (715) 345– formula allocation to States pursuant to person to contact follows: 7614, Sherry Engel 7 CFR part 1940, subpart L, Wyoming State Office, 100 East B, Note: Telephone numbers listed are not ‘‘Methodology and Formulas for toll-free. Federal Building, Room 1005, PO Box Allocation of Loan and Grant Program 820, Casper, WY 82602, (307) 261– Alabama State Office, Suite 601, Funds’’. Decisions on funding will be Sterling Center 4121 Carmichael 6315, TDD (307) 261–6333, Charles based on preapplications. Huff Road, Montgomery, AL 36106–3683, December 10, 1999. (334) 279–3455, TDD (334) 279–3495, FOR FURTHER INFORMATION CONTACT: For Eileen M. Fitzgerald, James B. Harris general information, applicants may Acting Administrator, Rural Housing Service. Alaska State Office, 800 West Evergreen, contact Tracee Lilly, Senior Loan Suite 201, Palmer, AK 99645, (907) Officer, Multi-Family Housing [FR Doc. 99–32960 Filed 12–20–99; 8:45 am] BILLING CODE 3410±XV±U 745–2176, TDD (907) 745–6494, Ron Processing Division, Rural Housing Abbott Service, United States Department of Arizona State Office, Phoenix Corporate Agriculture, Stop 0781, 1400 DEPARTMENT OF AGRICULTURE Center 3003 N. Central Ave., Suite Independence Avenue, SW, 900, Phoenix, AZ 85012–2906, (602) Washington, DC, 20250, telephone (202) Rural Housing Service 280–8706, TDD (602) 280–8770, 720–1604 (voice) (this is not a toll free Johnna Vargas number) or (800) 877–8339 (TDD- Notice of Funds Availability (NOFA) for Arkansas State Office, 700 W. Capitol Federal Information Relay Service). Section 514 Farm Labor Housing Ave., Rm. 3416, Little Rock, AR SUPPLEMENTARY INFORMATION: Loans and Section 516 Farm Labor 72201–3225, (501) 301–3250, TDD Housing Grants for Off-Farm Housing Programs Affected (501) 301–3279, Clinton King for Fiscal Year 2000 California State Office, 430 G Street, This program is listed in the Catalog Agency 4169, Davis, CA 95616–4169, AGENCY: Rural Housing Service (RHS), of Federal Domestic Assistance under (530) 792–5819, TDD (530) 792–5848, USDA. Number 10.433, Rural Housing Millie Manzanedo Preservation Grants. This program is ACTION: Notice. Colorado State Office, 655 Parfet Street, subject to the provisions of Executive SUMMARY: This NOFA announces the Room E100, Lakewood, CO 80215, Order 12372 which requires timeframe to submit applications for (303) 236–2801 (ext. 124), TDD (303) intergovernmental consultation with section 514 Farm Labor Housing loan 236–1590, Mary Summerfield State and local officials (7 CFR part funds and section 516 Farm Labor Connecticut served by Massachusetts 3015, subpart V). Applicants are Housing grant funds for new State Office referred to 7 CFR 1944.674 and construction of off-farm units for Delaware & Maryland State Office, 5201 1944.676(f), (g), and (h) for specific farmworker households. Applications South Dupont Highway, PO Box 400, guidance on these requirements relative may also include requests for section Camden, DE 19934–9998, (302) 697– to the HPG program. 521 rental assistance (RA). This 4353, TDD (302) 697–4303, Pat Baker document describes the method used to Florida & Virgin Islands State Office, Application Requirements 4440 N.W. 25th Place, PO Box 7 CFR part 1944, subpart N provides distribute funds, the application process, and submission requirements. 147010, Gainesville, FL 32614–7010, details on what information must be (352) 338–3465, TDD (352) 338–3499, DATES: contained in the preapplication The closing deadline for receipt Joseph P. Fritz package. Entities wishing to apply for of all applications in response to this Georgia State Office, Stephens Federal assistance should contact the Rural NOFA is 5:00 p.m., local time for each Building, 355 E. Hancock Avenue, Development State office to receive Rural Development State office on June Athens, GA 30601–2768, (706) 546– further information, the State allocation 19, 2000. The application closing 2164, TDD (706) 546–2034, Wayne of funds, and copies of the deadline is firm as to date and hour. Rogers preapplication package. Eligible entities RHS will not consider any application Guam served by Hawaii State Office, for these competitively awarded grants that is received after the closing Hawaii, Guam, & Western Pacific include state and local governments, deadline. Applicants intending to mail Territories State Office, Room 311, nonprofit corporations, Federally applications must provide sufficient Federal Building, 154 Waianuenue recognized Indian Tribes, and consortia time to permit delivery on or before the Avenue, Hilo, HI 96720, (808) 933– of eligible entities. closing deadline date and time. 8316, TDD (808) 933–8321, Abraham Acceptance by a post office or private Kubo Funding Information mailer does not constitute delivery. Idaho State Office, Suite A1, 9173 West The funding instrument for the HPG Facsimile (FAX) and postage due Barnes Dr., Boise, ID 83709, (208) program will be a grant agreement. The applications will not be accepted. 378–5630, TDD (208) 378–5644, term of the grant can vary from 1 to 2 ADDRESSES: Applicants wishing to apply Ladonn McElligott years, depending on available funds and for assistance must contact the Rural Illinois State Office, Illini Plaza, Suite demand. No maximum or minimum Development State office serving the 103, 1817 South Neil Street,
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Champaign, IL 61820, (217) 398–5412 Mt. Holly, NJ 08060, (609) 265–3631, 05602, (802) 828–6028, TDD (802) (ext. 256), TDD (217) 398–5396, Barry TDD (609) 265–3687, George Hyatt, Jr. 223–6365, Sandra Mercier L. Ramsey New Mexico State Office, 6200 Jefferson Virgin Islands served by Florida State Indiana State Office, 5975 Lakeside St., NE, Room 255, Albuquerque, NM Office Boulevard, Indianapolis, IN 46278, 87109, (505) 761–4944, TDD (505) Virginia State Office, Culpeper Building, (317) 290–3100 (ext. 423), TDD (317) 761–4938, Carmen N. Lopez Suite 238, 1606 Santa Rosa Road, 290–3343, John Young New York State Office, The Galleries of Richmond, VA 23229, (804) 287– Iowa State Office, 873 Federal Building, Syracuse 441 S. Salina Street, Suite 1582, TDD (804) 287–1753, Carlton 210 Walnut Street, Des Moines, IA 357, Syracuse, NY 13202, (315) 477– Jarratt 50309, (515) 284–4493, TDD (515) 6419, TDD (315) 477–6447, George N. Washington State Office, Suite B, 1835 284–4858, Julie Brown Von Pless Black Lake Boulevard, SW, Olympia, Kansas State Office, 1200 SW Executive North Carolina State Office, 4405 Bland WA 98512–5715, (360) 704–7707, Drive, PO Box 4653, Topeka, KS Road, Suite 2120, Raleigh, NC 271209, TDD (360) 704–7760, Deborah Davis 661204, (785) 271–2721, TDD (785) (919) 873–2062, TDD (919) 873–2003, Western Pacific Territories served by 271–2767, Virginia Hammersmith Eileen Nowlin Hawaii State Office Kentucky State Office, 771 Corporate North Dakota State Office, Federal West Virginia State Office, Federal Drive, Suite 200, Lexington, KY Building, Room 208, 220 East Rosser, Building, 75 High Street, Room 320, 40503, (606) 224–7300, TDD (606) PO Box 1737, Bismarck, ND 58502, Morgantown, WV 26505–7500, (304) 224–7422, Paul Higgins (701) 530–2049, TDD (701) 530–2113, 291–4793, TDD (304) 284–5941, Sue Louisiana State Office, 3727 Kathy Lake Snodgrass Government Street, Alexandria, LA Ohio State Office, Federal Building, Wisconsin State Office, 4949 Kirschiling 71302, (318) 473–7962, TDD (318) Room 507, 200 North High Street, Court, Stevens Point, WI 54481, (715) 473–7655, Yvonne R. Emerson Columbus, OH 43215–2477, (614) 345–7620 (ext. 7145), TDD (715) 345– Maine State Office, 444 Stillwater Ave., 255–2401, TDD (614) 255–5757, 7614, Sherry Engel Suite 2, PO Box 405, Bangor, ME Gerald Arnott Wyoming State Office, 100 East B, 04402–0405, (207) 990–9110, TDD Oklahoma State Office, 100 USDA, Suite Federal Building, Room 1005, PO Box (207) 942–7331, Dale D. Holmes 108, Stillwater, OK 74074–2654, (405) 820, Casper, WY 82602, (307) 261– Maryland served by Delaware State 742–1070, TDD (405) 742–1007, Phil 6315, TDD (307) 261–6333, Charles Office Reimers Huff Massachusetts, Connecticut, & Rhode Oregon State Office, 101 SW Main, Suite FOR FURTHER INFORMATION CONTACT: For Island State Office, 451 West Street, 1410, Portland, OR 97204–3222, (503) general information, applicants may Amherst, MA 01002, (413) 253–4333, 414–3325, TDD (503) 414–3387, contact Sue Harris-Green, Deputy TDD (413) 253–7068, Donald Colburn Director, Multi-Family Housing Michigan State Office, 3001 Coolidge Margo Donelin Processing Division, Rural Housing Road, Suite 200, East Lansing, MI Pennsylvania State Office, One Credit Service, United States Department of 48823, (517) 324–5192, TDD (517) Union Place, Suite 330, Harrisburg, Agriculture, Stop 0781, 1400 337–6795, Philip Wolak PA 17110–2996, (717) 237–2281, TDD Minnesota State Office, 410 AgriBank (717) 237–2261, Gary Rothrock Independence Avenue, SW, Building, 375 Jackson Street, St. Paul, Puerto Rico State Office, New San Juan Washington, DC, 20250, telephone (202) MN 55101–1853, (651) 602–7820, Office Bldg., Room 501, 159 Carlos E. 720–1604 (voice) (this is not a toll free TDD (651) 602–3799, Jackie Chardon Street, Hato Rey, PR 00918– number) or (800) 877–8339 (TDD– Goodnough 5481, (787) 766–5095 (ext. 254), TDD Federal Information Relay Service). Mississippi State Office, Federal 1–800–274–1572, Lourdes Colon SUPPLEMENTARY INFORMATION: Rhode Island, served by Massachusetts Building, Suite 831, 100 W. Capitol Programs Affected Street, Jackson, MS 39269, (601) 965– State Office 4325, TDD (601) 965–5850, Danny Ivy South Carolina State Office, Strom The Farm Labor Housing Program is Missouri State Office, 1201 Business Thurmond Federal Building 1835 listed in the Catalog of Federal Domestic Loop 70 West, Parkade Center, Suite Assembly Street, Room 1007, Assistance under Number 10.405, Farm 235, Columbia, MO 65203, (573) 876– Columbia, SC 29201, (803) 765–3432, Labor Housing Loans and Grants. Rental 0990, TDD (573) 876–9301, Gary TDD (803) 765–5697, Larry D. Floyd Assistance is listed in the Catalog under Frisch South Dakota State Office, Federal Number 10.427, Rural Rental Assistance Montana State Office, Unit 1, Suite B, Building, Room 210, 200 Fourth Payments. Street, SW, Huron, SD 57350, (605) 900 Technology Blvd., Bozeman, MT Discussion of Notice 59715, (406) 585–2515, TDD (406) 352–1132, TDD (605) 352–1147, 585–2562, MaryLou Affleck Dwight Wullweber I. Authority and Distribution Nebraska State Office, Federal Building, Tennessee State Office, Suite 300, 3322 Methodology West End Avenue, Nashvile, TN room 152, 100 Centennial Mall N, A. Authority Lincoln, NE 68508, (402) 437–5567, 37203–1084, (615) 783–1300, TDD TDD (402) 437–5093, Byron Fischer, (615) 783–1397, G. Benson Lasater The farm labor housing program is Nevada State Office, 1390 South Curry Texas State Office, Federal Building, authorized by the Housing Act of 1949: Street, Carson City, NV 89703–9910, Suite 102, 101 South Main, Temple, section 514 (42 U.S.C. 1484) for loans (775) 887–1222 (ext. 13), TDD (775) TX 76501, (254) 742–9755, TDD (254) and section 516 (42 U.S.C. 1486) for 885–0633, William L. Brewer 742–9712, Eugene G. Pavlat grants. Tenant subsidies (rental New Hampshire State Office, Concord Utah State Office, Wallace F. Bennett assistance (RA)) are available through Center, Suite 218, Box 317, 10 Ferry Federal Building 125 S. State Street, section 521 (42 U.S.C. 1490a). Sections Street, Concord, NH 03301–5004, Room 4311, Salt Lake City, UT 514 and 516 provide RHS the authority (603) 223–6046, TDD (603) 229–0536, 84147–0350, (801) 524–4324, TDD to make loans and grants for financing Jim Fowler (801) 524–3309, Robert L. Milianta off-farm housing to broad-based New Jersey State Office, Tarnsfield Vermont State Office, City Center, 3rd nonprofit organizations, nonprofit Plaza, Suite 22, 790 Woodland Road, Floor, 89 Main Street, Montpelier, VT organizations of farmworkers, federally
VerDate 15-DEC-99 18:51 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN3.XXX pfrm08 PsN: 21DEN3 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71611 recognized Indian tribes, agencies or Percentage Points B. No State may receive more than 30 political subdivisions of State or local percent of the total available funds. government, and public agencies (such 75 or more ...... 20 C. New construction RA will be held as local housing authorities). In 60±74 ...... 18 in the National Office for use with 50±59 ...... 16 addition, RHS is authorized under section 514 loans and section 516 40±49 ...... 12 grants. section 514 to make loans to finance off- 30±39 ...... 10 farm housing to limited partnerships in 20±29 ...... 8 III. Application Process which the general partner is a nonprofit 10±19 ...... 5 entity. 0±9 ...... 0 All applications for sections 514 and Donated land in proposals with 516 new construction funds must be B. Distribution Methodology less than ten percent total lever- filed with the appropriate Rural aged assistance ...... 2 Development State office and must meet The amounts available for fiscal year the requirements of 7 CFR part 1944, (FY) 2000 for off-farm new construction (b) Seasonal, temporary, migrant subpart D, and section IV of this NOFA. are: Section 514 loans—$20,501,000; housing. (5 points for up to and Incomplete applications will not be Section 516 grants—$9,150,000. including 50 percent of the units; 10 reviewed and will be returned to the C. Section 514 and section 516 new points for 51 percent or more) applicant. No application will be construction funds (c) For FY 2000, outstanding accepted after 5:00 p.m., local time, on applications or requests that were the application deadline previously Section 514 new construction loan issued an AD–622, ‘‘Notice of mentioned unless that date and time is funds and section 516 new construction Preapplication Review Action,’’ inviting extended by another Notice published grant funds will be distributed to States a formal application, or that had been in the Federal Register. based on a national competition, as reviewed and authorized by the IV. Application Submission follows: National Office prior to October 29, Requirements 1. States will accept, review, score, 1998 (63 FR 57932) (the publication date of the proposed rule changing from A. Each application shall include all and rank requests in accordance with 7 of the information, materials, forms and CFR part 1944, subpart D. The scoring a first-come, first-served basis to an annual competitive funding cycle). (15 exhibits required by 7 CFR part 1944, factors are: points) subpart D, as well as comply with the provisions of this NOFA. Applicants are (a) The presence and extent of 2. States will rank preapplications by encouraged, but not required, to include leveraged assistance, including donated point score. For point-score ties within a checklist and to have their land, for the units that will serve the State, rank order will be determined applications indexed and tabbed to program-eligible tenants, calculated as a by giving first preference to the facilitate the review process. The Rural percentage of the RHS total application with the greatest actual Development State office will base its development cost (TDC). RHS TDC percentage of leveraged assistance. In determination of completeness of the excludes non-RHS eligible costs such as case of further same-State ties, rank application and the eligibility of each a developer’s fee. Leveraged assistance order will be determined by lottery. includes, but is not limited to, funds for applicant on the information provided 3. The National office will rank all in the application. hard construction costs, Section 8 or requests nationwide and distribute other non-RHS tenant subsidies, and B. Applicants are advised to contact funds to States in rank order, within the Rural Development State office state or federal funds. A minimum of funding and RA limits. If insufficient serving the place in which they desire ten percent leveraged assistance is funds or RA remain for the next ranked to submit an application for application required to earn points; however, if the proposal, the Agency will select the information. total percentage of leveraged assistance next ranked proposal that falls within is less than ten percent and the proposal the remaining levels. Dated: December 10, 1999. includes donated land, two points will Eileen M. Fitzgerald, II. Funding Limits be awarded for the donated land. Points Acting Administrator, Rural Housing Service. will be awarded in accordance with the A. Individual requests may not exceed [FR Doc. 99–32961 Filed 12–20–99; 8:45 am] following table. (0 to 20 points) $2.5 million (total loan and grant). BILLING CODE 3410±XV±U
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ENVIRONMENTAL PROTECTION CERCLA section 103 requires the IV. Hazardous Substance & Extremely AGENCY person in charge of a facility or vessel Hazardous Substance Releases that are to immediately notify the National Not Controlled [FRL±6513±2] Response Center (NRC) of any release of A. Sources that are Exempt from Clean Air Act Regulation Interim Guidance on the CERCLA a hazardous substance in an amount B. Accidents & Malfunctions Section 101(10)(H) Federally Permitted equal to or greater than its reportable C. Start-up & Shut-down Release Definition for Certain Air quantity. EPCRA section 304 requires D. Volatile Organic Compound/Ozone Emissions the owner or operator of a facility to Controls & Particulate Matter Controls notify the State Emergency Response —VOCs as Ozone Precursors ACTION: Notice, request for comments. Commissions (SERC) and Local —Particulate Matter Emergency Planning Committees (LEPC) V. Continuous Releases SUMMARY: The Environmental Protection Conclusion Agency (EPA) is seeking comments on of any release of a CERCLA hazardous its interim guidance on the CERCLA substance or an EPCRA designated Summary section 101(10)(H) federally permitted extremely hazardous substance (EHS) in Section 103 of the Comprehensive release definition for certain air an amount equal to or greater than its Environmental Response, emissions. The interim guidance is reportable quantity. These statutes, Compensation, and Liability Act of 1980 published as an Appendix to this notice. however, do not require notification for (CERCLA), as amended, 42 U.S.C. 9603, a ‘‘federally permitted release’’ as DATES: Submit comments on or before requires the person in charge of a defined in CERCLA section 101(10). facility or vessel to immediately report February 22, 2000. The attached guidance discusses the ADDRESSES: Send comments to EPA, any release of a hazardous substance in CERCLA section 101(10)(H) notification an amount equal to or greater than its CERCLA Federally Permitted Release exemption for certain air emissions. The Definition, Docket Number EC–G–1999– reportable quantity (RQ) to the National guidance will assist EPA regional Response Center (NRC). Section 304 of 029, Mail Code 2201–A, and mail to: offices, state and local emergency 401 M Street, SW, Washington DC, the Emergency Planning and response and other authorities, as well Community Right to Know Act 20460, or fax to: (202) 501–1011 or as the regulated community, to email to: [email protected]. (EPCRA), 42 U.S.C. 11004, requires the determine whether or not a particular owner or operator of a facility to Submitters who want EPA to release meets that definition. Whether acknowledge receipt of their comments immediately notify the State Emergency the exemption applies to a particular Response Commissions (SERC) and must mail a self-addressed, stamped release often depends upon the language envelope. Local Emergency Planning Committees and purposes of a facility’s permits and (LEPC) of any release of a CERCLA FOR FURTHER INFORMATION: Visit the control regulations. EPA recognizes that hazardous substance or an EPCRA OECA Docket Web Site at additional questions may arise regarding designated extremely hazardous www.epa.gov/oeca/polguid/ the scope of the federally permitted substance (EHS) in an amount equal to enfdock.html or contact the RCRA/UST, release exemption, and will address or greater than its RQ and provide Superfund and EPCRA Hotline at 1– those circumstances on a case by case written followup notice as soon as 800–424–9346 (703–412–9810 in basis. For additional guidance on practicable thereafter.1 When a release is Washington, DC area). For general specific questions regarding whether to continuous and stable in quantity and questions about this guidance, please report a release, the person in charge, rate, the facility may submit a report on contact Lynn Beasley at (703) 603–9086 owner or operator should contact EPA’s the circumstances of the continuous and for enforcement related questions, Office of Emergency and Remedial release that complies with the please contact Cheryl Rose at (202) 564– Response (OERR). applicable regulations. For those 4136. The Office of Solid Waste and releases that qualify, continuous release SUPPLEMENTARY INFORMATION: Emergency Response (OSWER) and the reporting eliminates the burden of Purpose of this Notice Office of Enforcement and Compliance having to report each release as it Assurance (OECA) jointly issue this occurs. The immediate and continuous This notice publishes interim guidance. guidance on the federally permitted release notifications provide important release exemption to section 103 of the Dated: December 3, 1999. information for numerous activities. Comprehensive Environmental Timothy Fields, Jr., They help government agencies and Response, Compensation, and Liability Assistant Administrator for Solid Waste and regulated industries to: Act of 1980 (CERCLA), as amended, 42 Emergency Response. 1. Respond to releases; 2. Assess future risks and cumulative U.S.C. 9603 and section 304 of the Dated: December 12, 1999. Emergency Planning and Community effects; Sylvia K. Lowrance, 3. Identify chronic problems; Right-to-Know Act (EPCRA), 42 U.S.C. Acting Assistant Administrator for 4. Develop pollution prevention and 11004. The guidance responds to Enforcement and Compliance Assurance. pollution reduction plans; and specific questions raised by industry Appendix—Interim Guidance on the 5. Educate local communities and the groups. It discusses EPA’s interpretation public. of the federally permitted release CERCLA Section 101(10)(H) Federally CERCLA and EPCRA, however, do not exemption as it applies to some air Permitted Release Definition for Certain emissions. Air Emissions require notification to the NRC, SERC, The notice also solicits public Table of Contents 1 This guidance refers to the CERCLA ‘‘person in comment on the issues discussed in the Summary charge’’ and EPCRA ‘‘owner or operator’’ interim guidance and EPA intends to I. Notification Requirements: CERCLA 103/ collectively as ‘‘the facility.’’ This document does conduct a public meeting on the not provide a detailed discussion of the distinctions EPCRA 304 guidance. EPA will revise the guidance between the two statutes, such as the different II. Federally Permitted Release: Controlled & definitions of ‘‘facility’’ and reporting exemptions if, after reviewing the comments, the In Compliance that may apply to one and not the other. Each Agency believes that the guidance III. Hazardous Air Pollutant Releases that are facility should review the statutes and regulations warrants modification. Controlled Under CAA Section 112 in order to determine its obligations.
VerDate 15-DEC-99 16:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm01 PsN: 21DEN4 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71615 and LEPC of ‘‘federally permitted In all of these examples, hazardous sets the quantities for hazardous releases,’’ as defined in CERCLA section substances and EHSs are not controlled substances that, when released, require 101(10). An air emission is a federally and may be released directly to the reporting. If the Administrator has not permitted release under the CERCLA environment without any limits or other established a quantity, section 102(b) definition when it is subject to a permit control requirements. These provides for a default RQ. A table at 40 or control regulation that is issued uncontrolled releases can involve, for CFR section 302.4 lists the CERCLA under section 112, section 111, Title I example, highly toxic materials like hazardous substances with their RQs. part C or Title I part D of the Clean Air chromic acid, mercury, methyl The Superfund Amendments and Act (CAA) or under a CAA section 110 isocyanate or 1,3 butadiene, and may Reauthorization Act of 1986 (SARA) State Implementation Plan (SIP), occur near sensitive populations, such revised and extended the authorities including any schedule or waiver as elementary schools or senior citizen established under CERCLA. Title III of granted, promulgated or approved under homes. The law gives emergency SARA, also known as the Emergency these sections. response authorities and the public the Planning and Community Right-to- This guidance document resolves right to receive information about these Know Act of 1986 (EPCRA), 42 U.S.C. some commonly asked questions hazardous releases so that they can take 11001 et seq., established new regarding the CERCLA federally steps to avoid or minimize exposure, authorities for emergency planning and permitted release exemption as it develop responsible emergency preparedness, emergency release applies to air emissions. This document response planning and respond to notification, community right-to-know does not specifically address every emergencies. reporting and toxic chemical release possible application of the definition. A reporting. One purpose of EPCRA is to I. Notification Requirements: CERCLA provide communities and the public facility should use this document as a 103/EPCRA 304 general guide to determine whether its with information on potential chemical individual releases of hazardous CERCLA establishes broad federal hazards and to foster state and local substances and EHSs, on a case by case authority to respond to releases or planning efforts to control hazardous basis, are subject to a CAA permit or threats of releases of hazardous substance releases. substances from vessels and facilities. In control regulation and, therefore, qualify EPCRA section 304 requires the order to alert federal officials of for the CERCLA federally permitted facility where a hazardous chemical is potentially dangerous releases of release exemption. produced, used or stored to immediately hazardous substances, CERCLA section report the release of reportable This guidance document explains 103 requires the facility to immediately quantities of CERCLA hazardous why a release is generally subject to a notify the National Response Center substances to state and local emergency permit or control regulation, as defined (NRC) of any release of a hazardous planning authorities (i.e., the SERC and in CERCLA section 101(10)(H), and substance in an amount equal to or LEPC) for each area that the release is therefore exempt from the CERCLA/ greater than the reportable quantity (RQ) likely to affect. In addition, the facility EPCRA notification requirement when for that substance. Section 103(a) states, must notify the SERC and LEPC of any the release is controlled by and in in part, as follows: release of a reportable quantity of any compliance with provisions issued Any person in charge of a vessel or an EPCRA extremely hazardous substance under CAA section 112, including limits (EHS). These substances are listed in 40 and other controls under that section offshore or an onshore facility shall, as soon as he has knowledge of any release (other CFR Part 355 Appendices A & B. EPCRA that are technology-based and than a federally permitted release) of a section 304(c) also requires the facility, provisions under that section that hazardous substance from such vessel or as soon as practicable after a reportable control hazardous air pollutants (HAPs) facility in quantities equal to or greater than release, to provide a written followup individually or as a class of compounds. those determined pursuant to Section 9602 of notice that includes information on the This guidance document also explains this title, immediately notify the National Response Center.... release, response actions, risks and why, in the situations discussed herein, medical advice. a release is generally not subject to a 42 U.S.C. 9603(a). CERCLA section 103(f) establishes an permit or control regulation, as defined This notification provides release alternative reporting scheme for releases in CERCLA section 101(10)(H), and information to the government so that that are continuous and stable in therefore does not qualify for the government personnel can evaluate the quantity and rate. CERCLA and EPCRA CERCLA federally permitted release need for a response and undertake any recognize that it is not necessary for the exemption when the release is: necessary action in a timely fashion. facility to immediately notify the NRC, 1. An unpermitted or unregulated CERCLA section 104 authorizes the SERC and LEPC every time such a release, including releases from federal government to respond release occurs in an amount equal to or facilities that are exempt from CAA whenever there is a release or a greater than its RQ. Instead, the facility permits or control regulations, such as substantial threat of a release of a should report these releases in grandfathered or some minor sources; hazardous substance. compliance with EPA’s regulations at 40 2. Caused by an accident or CERCLA section 101(14) defines the CFR sections 302.8 and 355.40(a)(2)(iii). malfunction; term ‘‘hazardous substance’’ by Reporting releases of hazardous 3. Released during start-up or shut- reference to provisions in other substances and EHSs to federal, state, down of a facility and there is no limit environmental statutes that identify and local emergency planning and or other control on the release of the substances as hazardous and to CERCLA response authorities serves several hazardous substance or EHS during the section 102, which instructs the EPA functions. It provides these authorities start up or shut down period; Administrator to designate additional with important information to respond 4. Regulated solely to address volatile hazardous substances, as appropriate, to the release as quickly as possible in organic compound contributions to when a release of such substances into order to minimize the danger to human ozone ambient air quality problems; or the environment may present health and the environment—in 5. Regulated solely to address substantial danger to the public health particular to that of children, other particulate matter ambient air quality or welfare or the environment. Pursuant sensitive populations and sensitive concerns. to section 102, the Administrator also ecosystems. The reports also alert
VerDate 15-DEC-99 18:10 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm03 PsN: 21DEN4 71616 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices emergency planning personnel to the EPA Administrative Law Judge exempts only those releases that are potential for future risks so that local explained that a release is only a subject to emission limits and other communities can work with facilities to federally permitted release if the controls that are specifically designed to minimize harm. Emergency planning regulation imposes an emission limit or address hazardous impacts from the agencies also use the reports to assess otherwise controls the release. The release of the hazardous substance or emergency planning needs, to identify judge concluded that a relief valve EHS at issue. and develop appropriate responses to discharge was not controlled and, III. Hazardous Air Pollutant Releases acute as well as chronic exposure and therefore not federally permitted, by a That Are Controlled Under CAA to assess cumulative effects from many NESHAP regulation that prohibited any Section 112 different sources in local areas. These discharge from relief valves on agencies and other local authorities may equipment in vinyl chloride service Releases of hazardous substances and use this information to develop plans except for an emergency relief valve EHSs that are controlled by and in for pollution prevention, pollution discharge.3 compliance with a permit or control reduction, zoning and land use Congress did not intend for CAA regulation under CAA section 112 planning. EPCRA also emphasizes that permit or regulatory provisions to qualify for the CERCLA section members of the public, including local provide a loophole for facilities to avoid 101(10)(H) federally permitted release communities and individuals, have a notifying the NRC, SERC and LEPC of exemption and do not have to be right to know the types and amounts of potentially dangerous releases of reported under CERCLA section 103 and releases of hazardous substances and hazardous substances. The Senate EPCRA section 304. CAA section 112 EHSs in their communities. Report by the Committee on provides authority for EPA, by Environment and Public Works that regulation, to establish National II. Federally Permitted Release: accompanied the 1980 CERCLA bill Emission Standards for Hazardous Air Controlled and In Compliance explained that ‘‘[t]he federally permitted Pollutants (NESHAPs). The emission The CERCLA section 103 and EPCRA release exceptions are not directed at limits and other control provisions in section 304 notification requirements do avoiding notice, but rather to make it the NESHAPs control releases of not apply to ‘‘federally permitted clear which provisions of law apply to hazardous air pollutants (HAPs), as releases’’ of hazardous substances, as discharging sources.’’ Senate Rep. No. defined in CAA section 112(a)&(b). CAA defined in CERCLA section 101(10). The 848, 96th Cong., 2d Sess. 50 (1980). section 112 also provides some authority, for example in subsections CERCLA definition of a federally Congress drafted the federally 112(g) and 112(j), to set HAP emission permitted release is incorporated by permitted release exemption to apply limits on a case by case basis in permits. reference into EPCRA and, therefore, only to releases of CERCLA hazardous applies to the notification requirements Pursuant to CERCLA section 101(14), substances or EPCRA EHSs that are all HAPs are also CERCLA hazardous of both statutes. The CERCLA section controlled by a CAA permit or 101(10) definition of federally permitted substances. A HAP emission is generally regulation. The Senate Report a CERCLA/EPCRA federally permitted release lists eleven categories of releases explained, ‘‘Subparagraph (H) of the that are subject to permits or release if the release is in compliance definition covers several sections of the with all of a NESHAP’s limits and other authorizations under enumerated Clean Air Act, as amended, where they provisions of specific environmental control provisions for the specific HAPs result in the control of air emissions of (or groups of HAPs) and methods of statutes. With respect to air releases, hazardous substances....Whether control release (i.e., the particular emission section 101(10)(H) exempts: of hazardous substance emissions is points) at issue. EPA typically identifies any emission into the air subject to a permit achieved directly or indirectly, the the HAPs and emissions points that or control regulation under section 111, means must be specifically designed to each NESHAP provision controls in the section 112, Title I part C, Title I part D, or limit or eliminate emissions of a NESHAP and/or the preamble to the State implementation plans submitted in designated hazardous pollutant or a final rule promulgating the NESHAP. accordance with section 110 of the Clean Air criteria pollutant.’’ Senate Rep. No. 96– Act (and not disapproved by the The pre-1990 health-based, as well as 848 at 49. post-1990 NESHAP controls that are Administrator of the Environmental The Senate Committee Report also Protection Agency), including any schedule often technology-based, upon maximum or waiver granted, promulgated, or approved explained that ‘‘[w]hile the exemptions achievable control technology (MACT), under these sections[.] from liability for federally permitted are designed to limit or eliminate releases are provided to give regulated CERCLA 101(10)(H); 42 U.S.C. emissions of HAPs—substances that parties clarity in their legal duties and were listed because of their individual 9601(10)(H)(internal citations omitted). responsibilities, these exemptions are EPA administrative rulings have hazardous qualities and impacts. not to operate to create gaps in actions clarified that a release is a federally Releases of hazardous substances or necessary to protect the public or the permitted release only if it is in EHSs that are controlled by and in environment.’’ Senate Rep. No. 96–848 compliance with and controlled by one compliance with health-based and at 47. In order to avoid the ‘‘gaps’’ in of the CAA provisions identified in MACT-based NESHAP limits and other protection of public health and the CERCLA section 101(10)(H). The EPA control provisions that are directed at environment that concerned Congress, Environmental Appeals Board (EAB) controlling those substances, therefore, the federally permitted release provision concluded that an air emission must be qualify for the CERCLA/ EPCRA in compliance with a permit limitation federally permitted release exemption. 1994), is available at the following internet address: CAA section 112(l) authorizes EPA to in order to qualify for the federally http://www.epa.gov/eab/alpha.htm, or by permitted release exemption and that a contacting the Clerk of the Board, (202) 501–7060. delegate to states the authority to facility must report a release of a 3 The ALJ’s decision, In re Borden Chemicals & implement and enforce the federal hazardous substance that exceeds a Plastics, Co., [CERCLA] EPCRA 003–1992 (Order NESHAPs. Under section 112(l), EPA 2 Granting Partial Accelerated Decision Concerning may approve state programs to permit limit by the RQ or more. An Liability, Feb. 18, 1993), is available by contacting the EPA Hearing Clerk at Headquarters, (202) 260– implement and enforce emissions 2 The EAB’s decision, In re Mobil Oil Corp., 4865, and is also available through legal research standards and other HAP requirements EPCRA Appeal No. 94–2, 5 EAD 490 (EAB Sept. 29, services such as Lexis or Westlaw. in place of federal NESHAPs, provided
VerDate 15-DEC-99 16:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm01 PsN: 21DEN4 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71617 the state requirements are no less CAA controls because they emit an accident or malfunction can result in an stringent than federal requirements. annual, cumulative amount of pollution extremely large and/or extremely toxic State programs that EPA approves under below a stated threshold, such as release. Many accidents or malfunctions CAA section 112(l) are federally unpermitted minor sources. The require immediate responses, which enforceable pursuant to section hazardous substance and EHS releases could include shutting down the 112(l)(7). Releases of CERCLA from these facilities are not controlled facility, evacuating the local population hazardous substances and EPCRA EHSs or limited by, and therefore are not or sealing off the affected area. that are controlled by and in compliance subject to, a permit or control A fundamental purpose of CERCLA with these EPA-approved state programs regulation. Without CERCLA and section 103 and EPCRA section 304 is also qualify for the CERCLA and EPCRA EPCRA notification, emergency to ensure that emergency response federally permitted release exemption. response authorities would not learn of personnel are immediately alerted of potentially dangerous releases that are unanticipated releases. Once notified, IV. Hazardous Substance and exempt from CAA requirements. emergency response experts can assess Extremely Hazardous Substance A facility that is exempt from CAA the dangers from the release and initiate Releases That Are Not Controlled permits and control regulations could appropriate action to ensure that the A release of a hazardous substance is release a dangerous amount of a harm is minimized, the release is not subject to a permit or control hazardous substance that requires a brought under control as quickly as regulation when the facility does not federal, state or local emergency possible and any remaining damage is have a permit or regulation that controls response action. Even a very small cleaned up or repaired. the release at issue. The following source could have a release of a Congress did not intend to exempt provides a few examples of releases that hazardous substance that has unanticipated releases from CERCLA do not qualify for the CERCLA/EPCRA catastrophic consequences and requires section 103 and EPCRA section 304. As federally permitted release exemption. an immediate response. Information explained in the Senate Report, In these situations, the facility must about emissions from exempt sources ‘‘Accidents—whatever their cause— immediately notify the NRC, SERC and may also be crucial to emergency and which result in, or can reasonably be LEPC when it releases a hazardous pollution prevention planning. It would expected to result in releases of substance or EHS release in an amount frustrate the notification purposes of hazardous pollutants would not be that is equal to or greater than the RQ CERCLA and EPCRA to interpret the exempt from the requirements and or file a continuous release report for its federally permitted release exemption to liabilities of this bill. Thus, fires, releases that are continuous and stable authorize these releases without alerting ruptures, wrecks and the like invoke the in quantity and rate. the NRC, SERC and LEPC. response and liability provisions of the The CERCLA definition of federally bill.’’ Senate Rep. No. 96–848 at 48. A. Sources That Are Exempt From CAA permitted release includes releases that Some CAA programs recognize that Regulation are subject to any schedule or waiver accidents and malfunctions may happen Air emissions of hazardous granted, promulgated or approved under even when the facility has implemented substances or EHSs that are not subject the CAA sections identified in the reasonable measures to avoid them. A to a permit or control regulation issued definition. The terms ‘‘schedule’’ and release caused by an accident or under CAA sections 111, 112, Title I— ‘‘waiver’’ have specific meanings under malfunction, therefore, may not violate part C, Title I—part D, or a section 110 the CAA. CERCLA’s reference to CAA the facility’s CAA obligations if the SIP are not CERCLA federally permitted schedules and waivers covers only those facility develops, maintains and is releases. A CAA exemption from these specific meanings and does not include operating in compliance with an CAA provisions does not exempt a exempt sources. Under section 111(j)(1) accident and malfunction plan. The facility from its obligation to comply of the CAA, for example, EPA may grant CAA requires accident and malfunction with CERCLA and EPCRA notification a waiver from a New Source plans in order to prevent accidental requirements. Emissions that are exempt Performance Standard (NSPS) in order releases, identify accidents and from CAA requirements are not subject to encourage the use of an innovative malfunctions when they occur, bring to a permit or control regulation, do not technological system or systems of accidental releases under control as qualify for the CERCLA/EPCRA continuous emission reduction. If a quickly as possible and clean up any federally permitted release notification technology does not result in an damage. Accident and malfunction exemption, and must comply with emission reduction that equals or plans, however, do not control CERCLA and EPCRA notification exceeds the applicable standard, the unanticipated releases. Even when a requirements. Pursuant to CERCLA and regulator will terminate the waiver and facility is in compliance with its EPCRA, the facility must notify the establish a schedule for compliance. A accident and malfunction plan, an NRC, SERC and LEPC of hazardous release of a hazardous substance or EHS unanticipated release of hazardous substance or EHS releases that are that is controlled by and in compliance substances or EHSs could result in exempt from CAA permits or control with a schedule or waiver issued severe impacts that require immediate regulations when the releases are equal pursuant to a CAA section listed in response. Unless the facility prevents a to or greater than the applicable RQs, or CERCLA section 101(10)(H) is a release, or until it brings an file a continuous release report for its CERCLA/EPCRA federally permitted unanticipated release under control releases that are continuous and stable release, provided the schedule or waiver through repairs or other means, the in quantity and rate. includes and authorizes a release of that release is uncontrolled and does not Releases that are not subject to CAA hazardous substance. qualify for the CERCLA/EPCRA permits or control regulations may federally permitted release notification include emissions from facilities that B. Accidents and Malfunctions exemption. An unanticipated release of are exempt from CAA controls because Unanticipated releases, such as a hazardous substance or EHS that is they existed prior to enactment of the accidents or malfunctions, are the most due to an accident, malfunction or CAA requirement, such as unmodified obvious types of releases that concerned otherwise, is not subject to a permit or ‘‘grandfathered’’ sources, or releases Congress when it enacted CERCLA control regulation and must be reported from facilities that are exempt from section 103 and EPCRA section 304. An under CERCLA section 103 and EPCRA
VerDate 15-DEC-99 16:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm01 PsN: 21DEN4 71618 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices section 304 when the amount of the D. Volatile Organic Compound/Ozone emissions of different types of release is equal to or greater than the Controls and Particulate Matter Controls substances. The different CAA programs applicable RQ. An independent, unrelated focus on the particular harms from the substances that they are designed to C. Start-Up and Shut-Down requirement for ozone or particulate matter does not qualify a release of a regulate and impose permit and Start-up and shut-down releases can hazardous substance or EHS for the regulatory limits and other controls to be large and/or toxic and may cause CERCLA/EPCRA federally permitted achieve the specific purposes of the harm to human health and the release exemption. Limits or other individual program. EPA and environment. It is important for federal, controls on volatile organic compounds authorized states control hazardous state and local emergency response (VOCs) as ozone precursors or on small emissions through NESHAPs or other hazardous emission controls that they personnel to have information about particles as particulate matter (PM) do issue pursuant to sections 112, 111 or uncontrolled emissions during start-up not exempt hazardous substance and 110 or Title I Parts C or D of the CAA. and shut-down periods for analysis of EHS releases from the CERCLA and A release of a hazardous substance or chronic and cumulative impacts, proper EPCRA notification provisions. To EHS is only exempt from the CERCLA/ planning and emergency response. conclude otherwise would frustrate the EPCRA notification requirements when Some CAA regulations do not require purposes of the CERCLA and EPCRA the release is subject to a permit or sources to meet emission limits during release notification requirements and control regulation under a CAA program start-up and shut-down. A regulation potentially allow thousands of pounds that is specifically designed to control may exempt a release from CAA of highly toxic chemicals to be the hazardous substance or EHS release. emission limits or other controls released—perhaps next to a schoolyard, because, for example, it may not be Limits and other controls on VOCs as nursing home or other sensitive ozone precursors or on small particles technologically feasible for the source to population, without any notice to achieve the requirement during start-up as PM do not control releases for this federal, state or local response and purpose. and shut-down. emergency planning authorities or to the If a permit or control regulation public. These releases could potentially VOCs as Ozone Precursors contains explicit emission limits or endanger surrounding populations and Permit provisions and regulations that other controls on the releases of listed have a significant impact on human regulate ozone through VOCs are not hazardous substances or EHSs during health and the environment. directed at controlling releases of start-up or shut-down, then releases of Hazardous substances and EHSs have hazardous substances and EHSs. These those substances qualify for the RQs that range from one pound to 5,000 limits are based upon VOC CERCLA/EPCRA federally permitted pounds per 24 hour period. The RQ is contributions to ozone formation, not release notification exemption up to the based upon the intrinsic physical, upon the toxicity of individual controlled amount. If, however, a chemical and toxicological properties of substances. Particularly in areas that release of a hazardous substance or EHS the substance. Facilities must report a have attained the ozone national is exempt from CAA regulation, or is release of CERCLA hazardous ambient air quality standard (NAAQS), otherwise not subject to emission limits substances or EPCRA EHSs when the Ozone-control limits on VOCs may be or technology controls during the start- release amount is equal to or greater very large, are often expressed in annual up or shut-down of an operation, then than the substance’s RQ. Emergency terms, may apply to numerous these uncontrolled releases do not response personnel and local emergency substances with various toxicity levels qualify for the CERCLA/EPCRA planning officials need to have complete and are unrelated to the risks posed by federally permitted release notification and accurate information regarding the individual hazardous substances. exemption and must comply with releases of these different hazardous Ozone-control limits on VOCs are CERCLA and EPCRA notification substances in order to evaluate the typically not designed to control the requirements. impact on human health and the facility’s releases of hazardous In many instances, facilities must environment from the release amount. substances or EHSs. Specific hazardous have a start-up, shut-down and The manner in which EPA and releases are often dangerous to human malfunction (SSM) plan that sets forth authorized states regulate VOCs/ozone health and the environment in much procedures for operating and precursors and PM is inconsistent with smaller amounts than general VOC maintaining a source during those the CERCLA and EPCRA notification emissions. A facility could have a periods. See, for example, 40 CFR requirements. The EPA and authorized dangerous peak release of an individual 63.6(e)(3). Even when a facility is in state ambient air quality programs that hazardous substance that is consistent compliance with its SSM plan, it may regulate VOCs as ozone precursors or with a VOC limit for ozone control, but experience uncontrolled or that regulate small particles as PM are that may require an immediate response unanticipated releases of a hazardous not designed to control releases of in order to protect human health and substance or EHS that require a hazardous substances and EHSs and do the environment. response. To the extent that an SSM not address the hazardous impacts that Formaldehyde, 1,3 butadiene or plan does not incorporate permit or concerned Congress when it enacted the ethylene oxide, for example, are VOCs regulation requirements for specific CERCLA and EPCRA release notification that, along with less hazardous VOCs, emission limits or other technology requirements. The CAA provisions in such as dimethyl ether or ethylene, controls on the facility’s releases of CERCLA section 101(10)(H) that control contribute to ozone formation. hazardous substances and EHSs during hazardous emissions, and not CAA Formaldehyde and ethylene oxide, start-up or shut-down, then those provisions directed at ozone or however, are HAPs that are subject to releases are not controlled by the SSM particulate ambient air quality, regulate controls under section 112 and other plan and must comply with CERCLA hazardous substances and EHSs CAA provisions that Congress and EPCRA notification requirements, consistently with CERCLA and EPCRA. established within the CAA to control even when the uncontrolled releases Congress established separate CAA HAPs. EPA controls formaldehyde and occur while the facility is operating in programs with independent control ethylene oxide through the HAP accordance with its CAA SSM plan. schemes for the different impacts from programs and not through limits that are
VerDate 15-DEC-99 16:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm01 PsN: 21DEN4 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Notices 71619 designed to address ambient ozone V. Continuous Releases The continuous release notification levels. Unlike general VOC limits, a In CERCLA section 103(f)(2), Congress requirements do not impose new, HAP limit imposes controls on specific established an alternative notification independent emissions limits. They do, substances and often provides a list of method for hazardous substance however, offer a less burdensome way to hazardous substances and hourly releases that do not qualify for the report predictable releases while also emission limits for each. Hazardous federally permitted release exemption providing government agencies and substance and EHS releases qualify for under CERCLA section 101(10)(H), but local communities with information that the CERCLA/EPCRA federally permitted that are ‘‘continuous’’ and ‘‘stable in may be critical to managing risks and releases notification exemption when quantity and rate.’’ The continuous reducing exposure to sensitive they are controlled by and in release reporting program provides populations. compliance with provisions to control response authorities with important Conclusion HAP releases. Hazardous substances information regarding the quantity, CERCLA section 103 and EPCRA and EHSs, therefore, are not subject to nature and potential impact of these section 304 require facilities to provide a permit or control regulation under releases, while reducing the notification important information about hazardous CERCLA section 101(10)(H), when the burden. Response agencies maintain the substances and EHSs that are released immediate and continuous release facility has a general emission limit or into the environment to the NRC, notification information and use it for other control for VOCs as ozone SERCs, LEPCs, and indirectly to EPA, emergency planning and cumulative precursors in order to address ozone the Coast Guard, other agencies and the impact analysis. ambient air quality. public. The continuous release reporting Continuous release notifications option provides a less burdensome Particulate Matter perform, for example, the following method for facilities to notify these important functions: (1) They provide PM is a designation that identifies federal, state and local authorities of information on releases into the particles of a certain size, mass or certain hazardous substance and EHS environment that is often not otherwise amount. CAA permits and control releases. available to emergency response The federally permitted release regulations for PM address the impacts personnel and the public; (2) they may exemption to CERCLA 103 and EPCRA on human health and the environment alert government officials and the public 304 notification requirements eliminates from these particles, taking into account as to when releases are expected to the notification requirement, including the particles’ size and mass and the increase; and (3) they help government the continuous release reporting option, dangers presented by the inhalation of officials and emergency planning for certain air emissions of hazardous small particles. The EPA program for personnel to predict when peak substances and EHSs when the release PM is not designed to address the exposures to nearby populations may is subject to a permit or control independent impacts from hazardous occur. Local planners may use the regulation issued pursuant to CAA, substances or EHSs that may be released continuous release applications to plan sections 112 and 111, Title I part C, in small particles. PM permits and outdoor activities in the community; to Title I part D, or a section 110 SIP. This control regulations control the emission assist with urban planning decisions, guidance document discusses the amounts of small particles of any such as where to locate buildings that federally permitted release exemption as substance. They typically apply to may house or provide services to it would be applied in the specific hazardous and non-hazardous sensitive populations (e.g., senior situations described herein. A brief substances alike. Releases of hazardous citizen centers, day care centers and statement of the guidance’s conclusions substances and EHSs are subject to schools); and to assess the risk from is set forth in the Summary section, specific CAA provisions that are total emissions in a community. above. intended to address these releases. Facilities who believe a release could qualify as ‘‘continuous’’ must: The facility must determine whether Chromium, for example, which may its hazardous substance and EHS be released as small particles, is a HAP (1) Make an initial telephone call to the NRC, SERC and LEPC; releases qualify for the notification that has many severe hazardous effects (2) Provide an initial written exemption. In order to overcome the independent of any impact due to small notification describing the release to the presumption that a release of a particle size. Chromium is extremely EPA Region, SERC and LEPC within 30 hazardous substance or EHS is not toxic and may be found in its acid mist days of the telephone call; and federally permitted and that a facility form, chromic acid. Some forms of (3) Provide a one-time written follow- must immediately notify the NRC, SERC chromium, such as hexavalent up notification to the EPA Region and LEPC when the amount of release chromium, are also considered to be within 30 days of the first anniversary is equal to or greater than the carcinogenic. EPA and authorized of filing the initial written report. substance’s RQ, the facility must states’ particulate matter provisions do Thereafter, no further notification is demonstrate that the CERCLA federally not control releases of chromium or required, unless there is a change in the permitted release definition exempts the chromic acid as hazardous substance or information submitted or there is a hazardous substance or EHS release EHS releases. These hazardous statistically significant increase in the from the notification requirements. substances are subject to permits and release. If there is a change in the This guidance does not impose any control regulations that specifically composition or source of a release that new reporting obligations or burdens limit or otherwise control chromium did qualify as continuous, the change and does not recommend new forms or releases under the CAA’s HAP must be treated as a new release.4 reporting mechanisms. CAA permit programs. Releases of hazardous modifications are not required as a substances or EHSs, therefore, are not 4 The above description of the continuous release result of this guidance. When a facility’s subject to a permit or control regulation reporting requirements is a summary of the under CERCLA section 101(10)(H), requirements and is not intended to modify or how to comply, use the continuous release replace the continuous release regulations. In order reporting regulations at 40 CFR section 302.8 , 40 when the facility has a general emission to determine whether a release qualifies for CFR 355.40(a)(2)(iii) and 55 FR 30,166 (July 24, limit or other control for PM. continuous release reporting and for instructions on 1990).
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CAA permit or control regulations do considered its experience in ‘‘meaningful and timely input by State not control a release as the release of a implementing the reporting and local officials in the development of particular hazardous substance or EHS, requirements under CERCLA section regulatory policies that have federalism or when the release is not in compliance 103 and EPCRA section 304 and the implications.’’ ‘‘Policies that have with such a permit or control, then the success of the CERCLA and EPCRA federalism implications’’ is defined in facility must comply with CERCLA programs in providing information to the Executive Order to include section 103 and EPCRA section 304 communities about releases of regulations and regulatory policies that notification requirements. hazardous substances and EHSs. have ‘‘substantial direct effects on the This guidance is consistent with This guidance document provides States, on the relationship between the statements that the Agency has notice of EPA’s interpretation of the national government and the States, or previously made regarding the federally CERCLA term ‘‘federally permitted on the distribution of power and permitted release exemption. EPA release’’ as it applies in the situations responsibilities among the various issued two Notices of Proposed described herein. It does not modify, levels of government.’’ This interim Rulemaking (NPRMs) and one amend or in any way change current guidance document does not have Supplemental Notice regarding the law regarding release notification federalism implications. It will not have application of the federally permitted requirements under CERCLA and substantial direct effects on the States, release exemption in CERCLA section EPCRA. This guidance document does on the relationship between the national 101(10).5 Subsequent administrative not impose new legally-binding government and the States, nor on the adjudications have provided additional requirements on EPA, states or the distribution of power and guidance, and EPA has published regulated community. EPA may revise responsibilities among the various regulations to explain the reduced this guidance in the future. levels of government, as specified in reporting option for continuous releases. EPA intends to apply the Executive Order 13132. This guidance When developing this guidance, EPA interpretations set forth in this guidance does not impose any new requirements considered the public comments on air in enforcement actions, but retains the nor modify existing law. It explains a emissions that were submitted in discretion to adopt approaches that CERCLA provision that defines an response to the two NPRMs and the differ from this guidance when exemption to notification requirements Supplemental Notice. Some of those appropriate. When setting priorities to that are imposed by statute. The comments are no longer applicable determine whether to pursue an guidance does not preempt any State or because EPA has already addressed the enforcement action, EPA generally local law, and does not impose any issues discussed in those comments considers the potential for significant mandate on State and local through administrative adjudications or risks and adverse impacts on human governments. The requirements of other Agency statements. EPA also health and the environment, as well as section 6 of the Executive Order, the integrity of the federal program. therefore, do not apply to this interim Executive Order 13132, entitled 5 Notice of Proposed Rulemaking, 48 FR 23,552 guidance. (May 25, 1983); Notice of Proposed Rulemaking, 53 ‘‘Federalism’’ (64 FR 43255, August 10, FR 27,268 (July 19, 1988); Supplemental Notice, 54 1999), requires EPA to develop an [FR Doc. 99–33030 Filed 12–20–99; 8:45 am] FR 29,306 (July 12, 1989). accountable process to ensure BILLING CODE 6560±50±P
VerDate 15-DEC-99 16:02 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 E:\FR\FM\21DEN4.XXX pfrm01 PsN: 21DEN4 eDt 5DC9 54 e 0 99Jt100 O000Fm001Ft41 ft41 :F\M2DR.X fm4PsN:21DER2 pfrm04 E:\FR\FM\21DER2.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 15:47Dec20, 1999 VerDate 15-DEC-99 federal register December 21,1999 Tuesday Reports; FinalRule Labor OrganizationAnnualFinancial 29 CFRPart403 Office ofLabor-ManagementStandards Department ofLabor Part VI 71622 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations
DEPARTMENT OF LABOR rescind rules prescribing the form and The changes made in this final rule to publication of the information and Forms LM–2/3/4, prescribed in the Office of Labor-Management annual financial reports required by regulations at 29 CFR 403.3 and Standards sections 201(a) and 201(b), and to 403.4(a), do not require any change in provide simplified reports for labor the text of the regulations. 29 CFR Part 403 organizations for whom the Secretary This final rule also makes several RIN 1215±AB29 finds that by virtue of their size a changes to the regulations at 29 CFR detailed report would be unduly 403.4(b). That regulation provides that a Labor Organization Annual Financial burdensome. Part 403 of title 29 of the parent body may fulfill the reporting Reports Code of Federal Regulations contains obligation of any of its subordinate local the regulations implementing these AGENCY: Office of Labor-Management labor organizations which have no reporting requirements and prescribing Standards, Employment Standards assets, liabilities, receipts, or the reporting forms. The Secretary of Administration, Labor. disbursements, and which meet certain Labor has delegated authority under the other conditions. It also sets out a ACTION: Final rule. LMRDA to the Assistant Secretary for simplified format for the parent body to SUMMARY: This final rule makes several Employment Standards. See Secretary’s follow in reporting the required minor and technical revisions to the Order No. 5–96 (62 FR 107, January 2, information. annual financial reporting forms which 1997). This final rule makes several changes labor organizations are required to file The regulations, at 29 CFR 403.3 and to the information required to be under the Labor-Management Reporting 403.4(a), prescribe Form LM–2 for labor reported by a parent national or and Disclosure Act of 1959, as amended organizations with total annual receipts international labor organization to fulfill (LMRDA). It also makes several of $200,000 or more, simplified Form the reporting obligations of its local technical amendments to the LM–3 for labor organizations with total labor organizations. First, this rule Department of Labor’s regulations in annual receipts of less than $200,000, eliminates the requirement to report the which those reporting forms are and simplified Form LM–4 for labor location in which the local labor prescribed. These changes are being organizations with total annual receipts organization is chartered to operate. The made in order to enable the Department of less than $10,000. The regulations at requirement to report this information to optically scan the reports and make 29 CFR 403.4(b) also provide a in Forms LM–2/3/4 was eliminated them available on its Internet Web site, simplified reporting format which a when those forms were revised on and to make the reports more uniform. parent national or international labor December 21, 1993 (58 FR 67594). This organization may submit on behalf of a EFFECTIVE DATE: January 1, 2000. change will therefore make the reporting subordinate local labor organization requirement for the simplified format FOR FURTHER INFORMATION CONTACT: Kay which has no assets, liabilities, receipts, the same as the requirement for Forms H. Oshel, Chief, Division of or disbursements. Interpretations and Standards, Office of The Department has redesigned LM–2/3/4 with regard to the reporting of Labor-Management Standards, Forms LM–2/3/4 so that they can be charter location. Employment Standards Administration, optically scanned and made available In addition, this rule eliminates the U.S. Department of Labor, Room N– on the Internet. The major changes to requirement that the simplified 5605, Washington, DC 20210, (202) 693– the forms are in their appearance. The reporting format be submitted in 0123 (this is not a toll-free number). most important of these changes are (1) duplicate. This change will also make SUPPLEMENTARY INFORMATION: Section the reporting forms are now landscape the report filing requirement uniform 201(b) of the Labor-Management rather than portrait orientation, (2) they with Forms LM–2/3/4. Reporting and Disclosure Act of 1959, as have pre-printed green boxes for This rule also eliminates the amended (LMRDA), 29 U.S.C. 431(b), entering information for most of the requirement to report the names and requires that each covered labor items, and (3) the spaces for entering titles of all officers of the local labor organization file an annual report with information are larger and, organizations for which the parent body the Secretary of Labor disclosing its consequently, the forms have more files reports under 29 CFR 403.4(b). financial condition and operations. The pages (twelve pages instead of six for Only the names and titles of the requirements of LMRDA section 201(b) Form LM–2, eight pages instead of four president and treasurer, or apply to all labor organizations in the for Form LM–3, and two pages instead corresponding principal officers, will private sector. In addition, section of one for Form LM–4). In addition, have to be reported. This will make the 1209(b) of the Postal Reorganization labor organizations will have to file only simplified format reporting requirement Act, 39 U.S.C. 1209(b), makes the one copy of the report rather than the the same as the requirements for Form LMRDA applicable to labor two that are now required. LM–4 with regard to the reporting of organizations which represent The only change in the content of officers. employees of the U.S. Postal Service. Forms LM–2/3/4 is that item 3 has been Finally, this rule changes the Finally, the Department’s regulations, at expanded. Currently, labor regulations so that the information 29 CFR 458.3, which implement the organizations are asked in item 3 to reported by parent national and provisions of the Civil Service Reform indicate whether the report is a terminal international unions on behalf of their Act of 1978 and the Foreign Service Act report. In the revised Forms LM–2 and local labor organizations will have to be of 1980 relating to standards of conduct LM–3, labor organizations are also asked submitted on letter-size paper. Forms for federal sector labor organizations, 5 to indicate whether the report is an LM–2/3/4 are letter-size, and the U.S.C. 7120 and 22 U.S.C. 1017, amended report or a separate report for instructions for those forms provide that respectively, apply the LMRDA a subsidiary organization; in the revised any attached additional sheets should reporting requirements to labor Form LM–4, labor organizations are also be letter-size. This change will, organizations which represent certain asked to indicate whether the report is therefore, make the simplified format employees of the federal government. an amended report. This information reports the same size as Forms LM–2/3/ Section 208 of the LMRDA authorizes will facilitate the processing and 4, and will facilitate the processing and the Secretary to issue, amend, and scanning of the reports. scanning of the reports.
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The changes made by this rule will be C. Paperwork Reduction Act Adoption of Amendments of effective January 1, 2000. Thus, labor This rule contains no additional Regulations organizations will file the new reporting information collection requirements. In consideration of the foregoing, the forms and format for fiscal years The information collection requirements Office of Labor-Management Standards, beginning on and after January 1, 2000. in the regulations to which this rule Employment Standards Administration, Publication in Final makes technical amendments have been Department of Labor hereby amends The undersigned has determined that approved by the Office of Management Chapter IV of title 29 of the Code of this rulemaking need not be published and Budget (OMB control number 1215– Federal Regulations as follows. as a proposed rule, as generally required 0188). CHAPTER IVÐOFFICE OF LABOR- by the Administrative Procedure Act D. Small Business Regulatory MANAGEMENT STANDARDS, (APA), 5 U.S.C. 553. This rulemaking Enforcement Fairness Act DEPARTMENT OF LABOR makes technical and nonsubstantive amendments to facilitate wider The Department has determined that PART 403ÐLABOR ORGANIZATION availability of public information, and this final rule is not a ‘‘major rule’’ ANNUAL FINANCIAL REPORTS imposes no additional burden on the requiring prior approval by the Congress and the President pursuant to the Small 1. The authority citation for part 403 public. Consequently, there is good continues to read as follows: cause for finding that notice and public Business Regulatory Enforcement procedure is unnecessary and contrary Fairness Act of 1996 (5 U.S.C. 804), Authority: Secs. 201, 207, 208, 301, 73 to the public interest, pursuant to because it is not likely to result in (1) Stat. 524, 529, 530 (29 U.S.C. 431, 437, 438, 461); Secretary’s Order No. 5–96 (62 FR 107, section 553(b)(B) of the APA. an annual effect on the economy of $100 million or more, (2) a major increase in January 2, 1997). Effective Date costs or prices for consumers, 2. Section 403.4(b) is revised to read The undersigned has determined that individual industries, Federal, State, or as follows: good cause exists for waiving the local government agencies, or customary requirement for delay in the geographic regions, or (3) significant § 403.4 Simplified annual reports for smaller labor organizations. effective date of a final rule for 30 days adverse effects on competition, following its publication since this rule employment, investment, productivity, * * * * * is technical and nonsubstantive. innovation, or the ability of United (b) A local labor organization not in Therefore, these amendments shall be States-based enterprises to compete trusteeship, which has no assets, no effective January 1, 2000. See 5 U.S.C. with foreign-based enterprises in liabilities, no receipts and no 553(d). domestic and export markets. disbursements during the period covered by the annual report of the Administrative Requirements Further, since the Department has determined, for good cause, that national organization with which it is A. Executive Order 12866 publication of a proposed rule and affiliated need not file the annual report required by § 403.2 if the following The Department of Labor has solicitation of comments on this rule is conditions are met: determined that this rule is not a not necessary, under 5 U.S.C. 808(2), (1) It is governed by a uniform significant regulatory action as defined this final rule is effective immediately constitution and bylaws filed on its in section 3(f) of Executive Order 12866 upon publication as stated previously in in that it will not (1) have an annual this notice. behalf pursuant to § 402.3(b) of this chapter, and does not have governing effect on the economy of $100 million E. Unfunded Mandates Reform Act or more, or adversely affect in a material rules of its own; way the economy, a sector of the For purposes of section 2 of the (2) Its members are subject to uniform economy, productivity, competition, Unfunded Mandates Reform Act of fees and dues applicable to all members jobs, the environment, public health or 1995, 2 U.S.C. 1532, as well as of the local labor organizations for safety, or State, local, or tribal Executive Order 12875 (58 FR 58093, which such simplified reports are governments or communities, (2) create October 28, 1993), this rule does not submitted; a serious inconsistency or otherwise include any federal mandate that may (3) The national organization with interfere with an action taken or result in increased expenditures by which it is affiliated assumes planned by another agency, (3) State, local and tribal governments, or responsibility for the accuracy of, and materially alter the budgetary impact of increased expenditures by the private submits with its annual report, a entitlements, grants, user fees, or loan sector of more than $100 million. separate letter-size sheet for each local labor organization containing the programs or the rights and obligations of F. Federalism recipients thereof, or (4) raise novel following information with respect to legal or policy issues arising out of legal The Department has reviewed this each local organization in the format mandates, the President’s priorities, or rule in accordance with Executive Order illustrated below as part of this the principles set forth in Executive 13132 regarding federalism, and has regulation: Order 12866. determined that it does not have (i) The name and designation number ‘‘federalism implications.’’ The rule or other identifying information; B. Regulatory Flexibility Act does not ‘‘have substantial direct effects (ii) The file number which the Office Because a notice of proposed on the States, on the relationship of Labor-Management Standards has rulemaking is not required for this rule between the national government and assigned to it; under 5 U.S.C. 553(b), the requirements the States, or on the distribution of (iii) The mailing address; of the Regulatory Flexibility Act, 5 power and responsibilities among the (iv) The beginning and ending date of U.S.C. 601 et seq., pertaining to various levels of government.’’ the reporting period which must be the regulatory flexibility analysis do not same as that of the report for the apply. See 5 U.S.C. 601(2). Therefore, a List of Subjects in 29 CFR Part 403 national organization; regulatory flexibility analysis is not Labor unions, Reporting and (v) The names and titles of the required. recordkeeping requirements. president and treasurer or
VerDate 15-DEC-99 15:47 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.XXX pfrm04 PsN: 21DER2 71624 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations corresponding principal officers as of organization’s fiscal year] through [ending lllllllllllllllllllll the end of the reporting period; date of national organization’s fiscal year], Designation name and number: (4) At least thirty days prior to first namely: lllllllllllllllllllll (1) they are local labor organizations; (2) submitting simplified annual reports in Unit name: they are not in trusteeship; (3) they have no accordance with this section, the lllllllllllllllllllll assets, liabilities, receipts, or disbursements; national organization notifies the Office (4) they are governed by a uniform Mailing address: of Labor-Management Standards in constitution and bylaws, and fifty copies of lllllllllllllllllllll writing of its intent to begin submitting the most recent uniform constitution and Name of person: simplified annual reports for affiliated bylaws have been filed with the Office of lllllllllllllllllllll local labor organizations; Labor-Management Standards; (5) they have (5) The national organization files the no governing rules of their own; and (6) they Number and street: terminal report required by 29 CFR are subject to the following uniform schedule lllllllllllllllllllll 403.5(a) on Form LM–3 or LM–4, as may of fees and dues: [specify schedule for dues, City, State and zip: be appropriate, clearly labeled on the initiation fees, fees required from transfer lllllllllllllllllllll form as a terminal report, for any local members, and work permit fees, as File number: applicable]. lllllllllllllllllllll labor organization which has lost its Each document attached contains the identity through merger, consolidation, specific information called for in 29 CFR Period covered: or otherwise if the national organization 403.4(b)(3)(i)–(vi), namely: (i) the local labor lllllllllllllllllllll filed a simplified annual report on organization’s name and designation number; From Through behalf of the local labor organization for (ii) the file number assigned the organization lllllllllllllllllllll by the Office of Labor-Management its last reporting period; and Names and Titles of president and treasurer Standards; (iii) the local labor organization’s (6) The national organization with or corresponding principal officers mailing address; (iv) the beginning and which it is affiliated assumes lllllllllllllllllllll responsibility for the accuracy of, and ending date of the reporting period; (v) the names and titles of the president and For certification see NHQ file folder file submits with its annual report and the treasurer or corresponding principal officers number: simplified annual reports for the of the local labor organization as of [the President llllllllllllllll affiliated local labor organizations, the ending date of the national organization’s Where signed llllllllllllll following certification properly fiscal year]. Date llllllllllllllllll completed and signed by the president Furthermore, we certify that the terminal Treasurer llllllllllllllll reports required by 29 CFR 403.4(b)(5) and 29 and treasurer of the national Where signed llllllllllllll CFR 403.5(a) have been filed for any local organization: Date llllllllllllllllll labor organizations which have lost their Certification identity through merger, consolidation, or Signed in Washington, D.C. this 15th day We, the undersigned, duly authorized otherwise on whose behalf a simplified of December, 1999. officers of [name of national organization], annual report was filed for the last reporting Bernard E. Anderson, hereby certify that the local labor period. Assistant Secretary for Employment organizations individually listed on the (Format for Simplified Annual Reporting) Standards. attached documents come within the purview of 29 CFR 403.4(b) for the reporting SIMPLIFIED ANNUAL REPORT [FR Doc. 99–33044 Filed 12–20–99; 8:45 am] period from [beginning date of national Affiliation name: BILLING CODE 4510±46±P
VerDate 15-DEC-99 15:47 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\21DER2.XXX pfrm04 PsN: 21DER2 eDt 5DC9 55 e 0 99Jt100 O000Fm001Ft41 ft41 :F\M2DR.X fm4PsN:21DER3 pfrm04 E:\FR\FM\21DER3.XXX Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt190000 15:50Dec20, 1999 VerDate 15-DEC-99 federal register December 21,1999 Tuesday Period; FinalRule Final Rule,andAdditionalComment Network; FinalRuleAmendment,Stayof Organ ProcurementandTransplantation CFR Part121 Services Health andHuman Department of Part VII 71626 Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Rules and Regulations
DEPARTMENT OF HEALTH AND SUPPLEMENTARY INFORMATION: On April the rule as amended of November 19, HUMAN SERVICES 2, 1998 (63 FR 16296), the Secretary of 1999. Health and Human Services published It is this amended rule that is subject 42 CFR Part 121 in the Federal Register as 42 CFR part to the provisions of section 413 of the 121 a final rule governing the operation Ticket to Work and Work Incentives Organ Procurement and of the Organ Procurement and Improvement Act of 1999. The rule is Transplantation Network; Final Rule Transplantation Network. not to become effective before March 16, Amendment, Stay of Final Rule, and 2000. As provided in section 413(b)W, Additional Comment Period As a result of the enactment of section 4002 of the Fiscal Year 1998 comments may be submitted for a AGENCY: Health Resources and Services Supplemental Appropriations Act, period ending on February 22, 2000. Administration, HHS. Public Law 105–174, the comment The Department will consider any ACTION: Final Rule Amendment, Stay of period was extended until August 31, revisions that may be appropriate based Final Rule, and Additional Comment 1998, and the final rule was not to on our review of the comments. Period. become effective before October 1, 1998. Section 121.8(e)(2) within part 121, as On July 1, 1998, the Department amended on October 20, 1999, SUMMARY: Section 413 of the Ticket to published a document in the Federal established a compliance deadline of Work and Work Incentives Register announcing the extension of February 15, 2000, for the OPTN to Improvement Act of 1999, signed into the comment period and the delay until transmit to the Secretary revised law by the President on December 17, October 1, 1998, of the effective date of policies and supporting documentation 1999, provides that the Organ the final rule. (63 FR 35847.) In for liver allocation. Because we do not Procurement and Transplantation addition, several of the dates contained seek to have the deadline occur during Network (OPTN) Final Rule published in provisions of the final rule were also the period when the regulation is on April 2, 1998, together with the amended in the July 1, 1998, document. stayed, we have decided to extend the amendments published on October 20, deadline to March 16, 2000. 1999, shall not become effective before On October 21, 1998, Public Law 105– March 16, 2000. This document 277, the Omnibus Consolidated and List of Subjects in 42 CFR Part 121 announces a stay of the final rule, Emergency Supplemental Health care, Hospitals, Organ consistent with section 413, announces Appropriations Act, 1999, became transplantation, Reporting and that the public may submit comments effective. Section 101(f) of Division A of recordkeeping requirements. on the final rule, as amended, for a 60- the public law enacted the Department Dated: December 16, 1999. day period, and amends a compliance of Labor, Heath and Human Services, deadline in the final rule, as amended. Education, and Related Agencies Claude Earl Fox, Administrator, Health Resources and Services DATES: Under Section 413 of the Ticket Appropriations Act for Fiscal Year 1999. Administration. to Work and Work Incentives Section 213 of that Act provided that Improvement Act of 1999 (H.R. 1180, the final rule at 42 CFR part 121 was not Approved: December 17, 1999. signed into law by the President on to become effective before the expiration Donna E. Shalala, December 17, 1999 published on April of the 1-year period beginning on the Secretary. 2, 1998 (63 FR 16296), as amended by date of enactment of that Act. Section Accordingly, 42 CFR Part 121 is the final rule published on October 20, 213 also called for the Institute of amended as follows: 1999 (64 FR 56650), is stayed effective Medicine to study several aspects of the December 17, 1999 through March 15, final rule and of the organ transplant PART 121ÐORGAN PROCUREMENT 2000. The amendment to 42 CFR 121.8 system generally and encouraged the AND TRANSPLANTATION NETWORK is effective on March 16, 2000. To Department to meet with representatives ensure consideration, comments on the of the OPTN. The Institute’s report, 1. The authority citation for part 121 final rule as amended must be received issued in July 1999, the public continues to read as follows: by February 22, 2000. comments received on the April 2, 1998, Authority: Sections 215, 371–376 of the ADDRESSES: Written comments should rule, and extensive consultation with Public Health Service Act (42 U.S.C. 216, be submitted to Lynn Rothberg representatives of the OPTN. The 273–274d); sections 1102, 1106, 1138 and Wegman, Acting Director, Division of Institute’s report, issued in July 1999, 1871 of the Social Security Act (42 U.S.C. Transplantation, Office of Special the public comments received on the 1302, 1306, 1320b–8 and 1395hh). Programs, HRSA, 5600 Fishers Lane, April 2, 1998, rule, and extensive § 121.8 [Amended] Room 7C–22, Rockville, Maryland consultation with representatives of the 2. Effective March 16, 2000, in 20857. The comments submitted will be OPTN informed the Department’s § 121.8, paragraph (e)(2) is amended by available for public inspection and deliberations on possible revisions to revising the words ‘‘February 15, 2000’’ copying at the address listed above. the rule. The result was the to read ‘‘March 16, 2000’’. FOR FURTHER INFORMATION CONTACT: Department’s issuance on October 20, Lynn Rothberg Wegman, at the address 1999 (64 FR 56650), of amendment sot [FR Doc. 99–33276 Filed 12–20–99; 10:11am] listed above, telephone 301–443–7577. the final rule, with an effective date for BILLING CODE 4160±15±M
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Federal Register Presidential Documents Vol. 64, No. 244
Tuesday, December 21, 1999
Title 3— Proclamation 7261 of December 16, 1999
The President 55th Anniversary of the Battle of the Bulge
By the President of the United States of America
A Proclamation By the winter of 1944, the United States and our Allies had turned the tide of the Second World War. Allied forces had liberated the Italian penin- sula and were gaining ground in France and the Low Countries. In mid- December, in a desperate attempt to halt this steady advance, Adolf Hitler launched a furious and massive counteroffensive. On December 16, 29 Ger- man divisions flooded the Allied line in the Ardennes Forest region of Belgium and Luxembourg. The Battle of the Bulge had begun. Facing superior enemy numbers, rugged terrain, and bitter weather, the American troops at first fell back. But their determination to defeat the Nazis never wavered. For 6 weeks, U.S. soldiers responded to fierce German offensives with equally determined counterattacks, refusing to succumb to the Nazi onslaught. The siege of Bastogne in Belgium remains an enduring symbol of their indomitable spirit. At that strategic crossroads, a small detachment of the 101st Airborne Division and other attached troops were encircled. When called upon to surrender by the much larger German force, Brigadier General Anthony McAuliffe dismissed the demand with his leg- endary one-word reply: ‘‘Nuts.’’ Against all odds, he and his men held firm during the siege until reinforcements arrived and helped halt the German offensive at a critical point in the Battle. Inevitably, the spirit, toughness, valor, and resolve of the U.S. forces led to victory. By late January of 1945, the American and Allied counterattack had succeeded in pushing back the Nazi forces, eliminating the threat of further German offensives and ultimately sealing the fate of the Nazi regime. But this victory was costly. At the end of the Battle of the Bulge, some 19,000 Americans lay dead, and thousands more were wounded, captured, or missing in action. Now, more than half a century later, we still stand in awe of the courage and sacrifice of the more than 600,000 U.S. soldiers and airmen who fought that epic battle. These seemingly ordinary Americans achieved extraordinary things. Leaving their homes, their families, and their civilian lives behind them, they stepped forward to wage a crusade for freedom. They laid the foundations of the peace and security we enjoy today and planted the seeds of democracy that now are bearing fruit throughout Europe. Many of these heroes and patriots have gone to their final rest; but their service, their sacrifice, and their achievements will live forever in the memories and hearts of their fellow Americans. The Congress by House Joint Resolution 65, has authorized and requested the President to issue a proclamation honoring the veterans of the Battle of the Bulge. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, do hereby proclaim the period of December 16, 1999, to January 25, 2000, as a time to commemorate the 55th anniversary of the Battle of the Bulge. I call upon the people of the United States to express our profound gratitude to the veterans of the Battle of the Bulge and to honor them with appropriate programs, ceremonies, and activities.
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IN WITNESS WHEREOF, I have hereunto set my hand this sixteenth day of December, in the year of our Lord nineteen hundred and ninety-nine, and of the Independence of the United States of America the two hundred and twenty-fourth. œ–
[FR Doc. 99–33277 Filed 12–20–99; 10:59 am] Billing code 3195–01–P
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Proclamation 7262 of December 16, 1999
Wright Brothers Day, 1999
By the President of the United States of America
A Proclamation We stand at a rare moment in human history: the end of a century and the birth of a new millennium. The arrival of the 21st century presents all Americans with an opportunity to reflect on where we have been as a Nation and to dream about where we will go in the future. At the dawn of this century, Orville and Wilbur Wright found themselves poised at such a moment. Behind them lay years of painstaking effort and experimen- tation, trial and failure, in their pursuit of the dream of powered human flight. Ahead of them stretched the sands of Kitty Hawk in North Carolina and yet another attempt to fly in the aircraft they had built by hand. On December 17, 1903, for 12 seconds and 120 feet, they achieved their dream and forever changed the destiny of humankind. That first brief flight showed that the sky was no longer a limit but a new horizon; it ignited new dreams in our people. Each succeeding genera- tion of Americans, building on the Wright brothers’ achievement and fired by the same vision, energy, and determination, has refined the science of flight, increased the range, efficiency, and safety of aircraft, and created a modern air transportation system and aviation industry that have energized our economy and helped transform the world into a truly global community. And, while they could never have foreseen it, the Wright brothers also brought us to the threshold of space. A scant six decades after that first flight, Americans left the Earth’s atmosphere and orbited our planet. By 1969, Neil Armstrong had left the first human footprint on the dusty surface of the Moon. Today’s astronauts fly space shuttle missions that are helping us meet the challenge of global climate change, bringing the International Space Station closer to completion, and expanding our knowledge of Earth and the universe. Yet even now the Wright brothers’ achievement continues to fire our dreams and beckons us to make new discoveries. The Congress, by a joint resolution approved December 17, 1963 (77 Stat. 402; 36 U.S.C. 169), has designated December 17 of each year as ‘‘Wright Brothers Day’’ and has authorized and requested the President to issue annually a proclamation inviting the people of the United States to observe that day with appropriate ceremonies and activities. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, do hereby proclaim December 17, 1999, as Wright Brothers Day.
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IN WITNESS WHEREOF, I have hereunto set my hand this sixteenth day of December, in the year of our Lord nineteen hundred and ninety-nine, and of the Independence of the United States of America the two hundred and twenty-fourth. œ–
[FR Doc. 99–33278 Filed 12–20–99; 10:59 am] Billing code 3195–01–P
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Reader Aids Federal Register Vol. 64, No. 244 Tuesday, December 21, 1999
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 the revision date of each title. Laws 523±5227 3 CFR 1000...... 70868 1001...... 70868 Presidential Documents Proclamations: 1002...... 70868 Executive orders and proclamations 523±5227 7256...... 67691 1004...... 70868 7257...... 68269 The United States Government Manual 523±5227 1005...... 70868 7258...... 69161 1006...... 70868 7259...... 69163 Other Services 1007...... 70868 7260...... 70563 1012...... 70868 Electronic and on-line services (voice) 523±4534 7261...... 71629 1013...... 70868 Privacy Act Compilation 523±3187 7262...... 71631 1030...... 70868 Public Laws Update Service (numbers, dates, etc.) 523±6641 Executive Orders: 1032...... 70868, 70985 TTY for the deaf-and-hard-of-hearing 523±5229 June 24, 1914 1033...... 70868 (Revoked in part by 1036...... 70868 PLO 7416)...... 67295 1040...... 70868 ELECTRONIC RESEARCH April 28, 1917 1044...... 70868 World Wide Web (Revoked in part by 1046...... 70868 PLO 7416)...... 67295 1049...... 70868 Full text of the daily Federal Register, CFR and other February 11, 1918 1050...... 70868 publications: (Revoked in part by 1064...... 70868 http://www.access.gpo.gov/nara PLO 7416)...... 67295 1065...... 70868 Federal Register information and research tools, including Public July 10, 1919 1068...... 70868 Inspection List, indexes, and links to GPO Access: (Revoked in part by 1076...... 70868 PLO 7416)...... 67295 1079...... 70868 http://www.nara.gov/fedreg May 25, 1921 1106...... 70868 E-mail (Revoked in part by 1124...... 70868 PLO 7416)...... 67295 1126...... 70868 PENS (Public Law Electronic Notification Service) is an E-mail April 17, 1926 1131...... 70868 service for notification of recently enacted Public Laws. To (Revoked in part by 1134...... 70868 subscribe, send E-mail to PLO 7416)...... 67295 1135...... 70868 [email protected] February 7, 1930 1137...... 70868 1138...... 70868 with the text message: (Revoked in part by PLO 7416)...... 67295 1139...... 70868 subscribe PUBLAWS-L your name 13143...... 68273 1407...... 67470 Use [email protected] only to subscribe or unsubscribe to Administrative Orders: 1703...... 69937 PENS. We cannot respond to specific inquiries. Memorandums: Proposed Rules: 272...... 70920 Reference questions. Send questions and comments about the November 29, 1999...... 68275 273...... 70920 Federal Register system to: 5 CFR 301...... 71322 [email protected] 410...... 69165 955...... 69419 The Federal Register staff cannot interpret specific documents or 530...... 69165 985...... 69421 regulations. 531...... 69165 989...... 69204 532...... 69183 1032...... 67201 1703...... 69937 FEDERAL REGISTER PAGES AND DATE, DECEMBER 534...... 68931 536...... 69165 1744...... 69946 67147±67468...... 1 550...... 69165, 69936 1980...... 70124 67469±67692...... 2 551...... 69165 3555...... 70124 4280...... 69937 67693±67996...... 3 575...... 69165 591...... 69165 67997±68274...... 6 8 CFR 610...... 69165 68275±68614...... 7 1205...... 71267 103...... 69983 68615±68930...... 8 1630...... 67693 235...... 68616 68931±69164...... 9 6801...... 68615 Proposed Rules: 69165±69370...... 10 100...... 68638 69371±69628...... 13 7 CFR 103...... 71323 69629±69882...... 14 29...... 67469 214...... 71323 69883±70172...... 15 246...... 67997, 70173 299...... 71323 301...... 71267 70173±70562...... 16 9 CFR 70563±70984...... 17 319...... 68001, 69629 78...... 67695 70985±71266...... 20 457...... 71270 761...... 69322 94...... 67695 71267±71632...... 21 905...... 69371 130...... 67697, 67699 906...... 69375 Proposed Rules: 915...... 69380 54...... 70608
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79...... 70608 70181, 70997, 71001, 71003, 179...... 69190 938...... 70644 301...... 70200 71004, 71006, 71007, 71009, 203...... 67720 318...... 70200 71010, 71012, 71278, 71280, 205...... 67720 31 CFR 320...... 70200 71282 510...... 69188, 69191 285...... 71228 65...... 68916 520...... 68289 Proposed Rules: 10 CFR 71 ...... 67712, 67713, 67714, 558...... 70576 28...... 69432 51...... 68005 67715, 67716, 68007, 68008, 1401...... 69901 285...... 71233 72...... 67700 68009, 68010, 68931, 68932, Proposed Rules: 32 CFR 709...... 70962 69631, 69632, 70565, 70566, 10...... 69209 710...... 70962 70567, 70568, 70570, 71014 12...... 69209 287...... 67166 711...... 70962 91...... 70571 16...... 70202, 70203 296...... 71297 850...... 68854 254...... 70573 314...... 67207 299...... 71299 Proposed Rules: 97 ...... 67473, 67476, 71015, 330...... 71062 Proposed Rules: 26...... 67202 71017 510...... 69209 199...... 67220, 69981 Proposed Rules: 601...... 67207 71...... 71331 33 CFR 73...... 71331 11...... 69856 807...... 71347 431...... 69598 25...... 67804, 69425 1309...... 67216 26...... 69633 39 ...... 67206, 67806, 67807, 100 ...... 67168, 67169, 69192, 960...... 69963 23 CFR 963...... 69963 68056, 68058, 68060, 68062, 70184 68296, 68297, 68300, 68302, 130...... 71284 117 ...... 67169, 67773, 68291 11 CFR 68639, 68640, 68642, 68644, 480...... 71284 127...... 67170 620...... 71284 154...... 67170 Proposed Rules: 68646, 68956, 68959, 68960, 630...... 71284 155...... 67170 100...... 68951 68963, 69206, 69208, 69428, 69674, 69964, 69967, 70201, 635...... 71284 159...... 67170 12 CFR 71333, 71336 645...... 71284 161...... 69633 710...... 71284 164...... 67170 22...... 71272 71 ...... 67525, 67810, 69430, 69431, 70610, 70611, 70612 712...... 71284 165...... 70587, 71023 24...... 70986 713...... 71284 183...... 67170 203...... 70991 450...... 69628 Proposed Rules: 207...... 69402 208...... 71272 1261...... 71339 1267...... 71339 655...... 71354, 71358 Proposed Rules: 327...... 70178 100...... 70650 339...... 71272 15 CFR 24 CFR 140...... 68416 503...... 69183 985...... 67982 141...... 68416 505...... 69183 303...... 67148 806...... 67716 142...... 68416 557...... 69183 26 CFR 143...... 68416 559...... 69183 902 ...... 68228, 68932, 69888 2015...... 67152 1...... 67763, 69903 144...... 68416 563...... 69183 20 ...... 67763, 67767, 71021 Proposed Rules: 145...... 68416 572...... 69183 25...... 67767 280...... 69969 146...... 68416 614...... 71272 301...... 67767 147...... 68416 760...... 71272 16 CFR 601...... 69398 165...... 70650 932...... 71275 602...... 67767, 69903 934...... 71275 0...... 71283 34 CFR 4...... 69397 Proposed Rules: 935...... 71275 304...... 69138 305...... 71019 1...... 71082 Proposed Rules: 606...... 70146 202...... 69963 28 CFR 17 CFR 607...... 70146 205...... 69963 0...... 68307 Proposed Rules: 3...... 68011 213...... 69963 91...... 71022 694...... 71552 226...... 69963 32...... 68011 551...... 68264 230...... 69963 211...... 67154, 68936 36 CFR 270...... 68019 29 CFR 7...... 71025 13 CFR Proposed Rules: 403...... 71622 1220...... 67662 107...... 70992 Ch. II ...... 69074 4011...... 67163 1222...... 67662 300...... 69868 4...... 68304 4022...... 67163 1228 ...... 67662, 67634, 68945 240...... 69975, 70613 301...... 69868 4044...... 67165, 69922 Proposed Rules: 250...... 71341 302...... 69868 Proposed Rules: 217...... 69446, 70204 303...... 69868 19 CFR 2520...... 67436 219...... 69446, 70204 304...... 69868 2700...... 68649 251...... 70204 305...... 69868 12...... 67479 306...... 69868 132...... 67481 30 CFR 37 CFR 307...... 69868 163...... 67481 250...... 69923 1...... 67486, 67774 308...... 69868 740...... 70766 2...... 67486, 67774 20 CFR 314...... 69868 745...... 70766 253...... 67187 316...... 69868 404...... 67719 761...... 70766, 70838 Proposed Rules: 317...... 69868 Proposed Rules: 762...... 70766 201...... 71086 318...... 69868 222...... 68647 772...... 70766 Proposed Rules: 325...... 67811 773...... 70766 38 CFR 120...... 67205, 69964 330...... 67811 778...... 70766 Proposed Rules: 335...... 67811 780...... 70766 3...... 67528 14 CFR 336...... 67811 784...... 70766 25 ...... 67147, 67701, 67705, 604 ...... 67811, 67972, 71346 913...... 68024 39 CFR 69383 914...... 70578 3001...... 67487 39 ...... 67471, 67706, 67708, 21 CFR 918...... 68289 Proposed Rules: 67710, 68277, 68618, 68620, 10...... 69188 936...... 70584 111...... 68965 68623, 68625, 68628, 69185, 12...... 69188 946...... 69399 69386, 69389, 69390, 69392, 176...... 68629, 69898 Proposed Rules: 40 CFR 69394, 69629, 69964, 69967, 178...... 67483 280...... 68649 9 ...... 68546, 68722, 69636
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51...... 71026 Proposed Rules: 125...... 67170 22...... 67986, 52 ...... 67188, 67491, 67495, 68c ...... 69213 151...... 67170 67992 67781, 67784, 67787, 68031, 433...... 67223 153...... 67170 25...... 67446 68034, 68292, 68293, 69404, 438...... 67223 154...... 67170 30...... 67814 70589, 70592, 70593, 71026, 1001...... 69217 160...... 67170 37...... 70158 71027, 71031, 71035, 71038, 161...... 67170 52 ...... 67446, 67986, 67992 71304 44 CFR 162...... 67170 919...... 68072 62...... 70595 61...... 71317 163...... 67170 952...... 68072 63 ...... 67789, 67793, 69637 64...... 71317 164...... 67170 1815...... 70208 70...... 71038 65 ...... 69644, 69646, 69647, 170...... 67170 1819...... 70208 82...... 68039 69649 174...... 67170 1852...... 70208 122...... 68722 67 ...... 69652, 69655, 69657 175...... 67170 123...... 68722 Proposed Rules: 182...... 67170 49 CFR 124...... 68722 67...... 69676 190...... 67170 141...... 67450 193...... 67170 192...... 69660 143...... 67450 45 CFR 195...... 67170 195...... 69660 144...... 68546, 70316 211...... 70193 61...... 71041 199...... 67170 145...... 68546 219...... 69193 1302...... 69924 146...... 68546 47 CFR 225...... 69193 1641...... 67501 180 ...... 68044, 68046, 68631, Ch. 1 ...... 68053 235...... 70193 Proposed Rules: 69407, 69409, 70184, 70599 1...... 68946, 69926 238...... 70193 160...... 69981 243...... 70602 2...... 69926 240...... 70193 161...... 69981 300...... 68052 36...... 67372, 571...... 69665 162...... 69981 Proposed Rules: 67416 Proposed Rules: 163...... 69981 2...... 71366 51...... 68637 40...... 69076 164...... 69981 50...... 68659 54...... 67372, 106...... 71098 270...... 68202 52 ...... 67222, 67534, 67535, 67416 107...... 71098 68065, 68066, 69211, 69448, 2522...... 67235 69...... 67372 171...... 71098 70205, 70207, 70318, 70319, 2525...... 67235 73...... 70606, 71041 571...... 70672, 71377 70332 70347, 70364, 70380, 76...... 67193, 46 CFR 67198 70397, 70412, 70428, 70443, 50 CFR 70459, 70478, 70496, 70514, 28...... 67170 90...... 67199, 71042 70531, 70548, 70652, 70659, 30...... 67170 95...... 69926 17...... 68508, 69195 70660, 71086, 71087 32...... 67170 Proposed Rules: 20...... 71236 62...... 70665 34...... 67170 0...... 71369 21...... 71236 70...... 68066 35...... 67170 1...... 71088 222...... 69416, 70196 80...... 70121 38...... 67170 2...... 71088 223...... 69416, 70196 81...... 68659, 70660 39...... 67170 73 ...... 67236, 67535, 68662, 300...... 69672 85...... 68310, 70121 54...... 67170 68663, 68664, 68665, 70670, 600...... 67511 86 ...... 68310, 70121, 70665 56...... 67170 70671, 70672, 71097, 71098 622...... 68932, 71056 141...... 71366 58...... 67170 80...... 71369 635...... 70198 142...... 71367 61...... 67170 90...... 71369 648...... 71060, 71320 165...... 71367 63...... 67170 101...... 71088, 71373 649...... 68228 194...... 68661 76...... 67170 660...... 69888 48 CFR 243...... 70666 77...... 67170 679 ...... 68054, 68228, 68949, 260...... 68968 78...... 67170 808...... 69934 69673, 70199 372...... 68311 92...... 67170 812...... 69934 Proposed Rules: 761...... 69358 95...... 67170 813...... 69934 17 ...... 67814, 69324, 70209 96...... 67170 852...... 69934 18...... 68973 41 CFR 97...... 67170 853...... 69934 216...... 70678 Ch. 301 ...... 67670 105...... 67170 1815...... 69415 226...... 67536, 69448 300-3...... 67670 108...... 67170 Proposed Rules: 622...... 70678, 71388 301-10...... 67670 109...... 67170 1...... 67986 635...... 69982 110...... 67170 2...... 70158 648...... 67551 42 CFR 111...... 67170 12...... 67992 660...... 70679 121...... 71317 114...... 67170 13...... 67992 679 ...... 67555, 69219, 69458, 1001...... 71626 119...... 67170 16...... 70158 71390, 71396
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REMINDERS kickback statute for Scrapie in sheep and goats; TRICARE programÐ The items in this list were shared risk movement restrictions and Family member dental editorially compiled as an aid arrangements; statutory indemnity program; plan; comments due by to Federal Register users. exception; correction; comments due by 12-30- 12-27-99; published 11- Inclusion or exclusion from published 12-21-99 99; published 11-30-99 24-99 this list has no legal MERIT SYSTEMS COMMERCE DEPARTMENT Education programs and significance. PROTECTION BOARD Education programs and activities receiving Federal Privacy Act; implementation; activities receiving Federal financial assistance; published 12-21-99 financial assistance; nondiscrimination on basis nondiscrimination on basis of sex; comments due by RULES GOING INTO NATIONAL CREDIT UNION of sex; comments due by 12-28-99; published 10-29- EFFECT DECEMBER 21, ADMINISTRATION 12-28-99; published 10-29- 99 1999 Credit unions: 99 Federal Acquisition Regulation Special flood hazards loans; COMMERCE DEPARTMENT (FAR): FARM CREDIT published 12-21-99 ADMINISTRATION Export Administration Indian organizations and TRANSPORTATION Bureau Indian-owned economic Farm credit system: DEPARTMENT Export administration enterprises; utilization; Loan policies and Federal Aviation regulations: comments due by 12-27- operationsÐ Administration Foreign policy-based export 99; published 10-27-99 Special flood hazards Airworthiness directives: controls; effects; ENERGY DEPARTMENT loans; published 12-21- Boeing; published 11-16-99 comments due by 12-30- Western Area Power 99 Eurocopter France; 99; published 11-30-99 Administration FEDERAL published 11-16-99 Export licensing: Energy Planning and Commerce control listÐ COMMUNICATIONS Learjet; published 11-16-99 Management Program: COMMISSION Microprocessors controlled TREASURY DEPARTMENT Integrated resource planning Radio and television by ECCN 3A001 and approval criteria; Comptroller of the Currency broadcasting: graphics accelerators comments due by 12-30- Media applications, rules, Special flood hazards loans; controlled by ECCN 99; published 11-17-99 and processes published 12-21-99 4A003; License Exception CIV eligibility ENVIRONMENTAL streamlining; mass media PROTECTION AGENCY facilities, minority and COMMENTS DUE NEXT level expansion; comments due by 12- Air programs: female ownership policies WEEK Transportation conformity and rules; biennial 27-99; published 11-26- 99 rule; grace period regulatory review; AGENCY FOR deletion; comments due published 10-22-99 COMMERCE DEPARTMENT INTERNATIONAL National Oceanic and by 12-30-99; published FEDERAL DEPOSIT DEVELOPMENT Atmospheric Administration 11-30-99 INSURANCE CORPORATION Education programs and Fishery conservation and Air quality implementation Special flood hazards loans; activities receiving Federal management: plans; approval and published 12-21-99 financial assistance; Caribbean, Gulf, and South promulgation; various FEDERAL HOUSING nondiscrimination on basis Atlantic fisheriesÐ States: FINANCE BOARD of sex; comments due by South Atlantic snapper- California; comments due by 12-28-99; published 10-29- Federal home loan bank grouper; comments due 12-27-99; published 11- 99 system: by 12-27-99; published 26-99 AGRICULTURE Corporate governance 10-26-99 Massachusetts; comments DEPARTMENT responsibilities devolution; West Coast States and due by 12-30-99; published 12-21-99 Agricultural Marketing Western Pacific published 11-30-99 Service fisheriesÐ Confidential business FEDERAL RESERVE Agricultural and vegetable Pacific Coast groundfish; information; elimination of SYSTEM seeds; inspection and comments due by 12- special treatment for certain Membership of State banking certification: 27-99; published 11-24- category; comments due by institutions in Federal Fee increase; comments 99 12-27-99; published 10-25- Reserve System (Regulation due by 12-28-99; COMMODITY FUTURES 99 H): published 10-29-99 TRADING COMMISSION Education programs and Special flood hazards loans; Olives grown inÐ Contract markets: activities receiving Federal published 12-21-99 financial assistance; California; comments due by Contract market designation nondiscrimination on basis FEDERAL TRADE 12-27-99; published 10- applicationsÐ of sex; comments due by COMMISSION 26-99 Fee schedule; comments 12-28-99; published 10-29- Organization, functions, and Onions grown inÐ due by 12-27-99; published 11-26-99 99 authority delegations: Texas; comments due by Miscellaneous rules; CORPORATION FOR FEDERAL 12-27-99; published 11- COMMUNICATIONS published 12-21-99 26-99 NATIONAL AND COMMUNITY SERVICE COMMISSION HEALTH AND HUMAN Tomatoes grown inÐ Common carrier services: SERVICES DEPARTMENT Education programs and Florida; comments due by activities receiving Federal Local exchange carrier price Inspector General Office, 12-27-99; published 10- financial assistance; cap productivity offset (X- Health and Human Services 25-99 nondiscrimination on basis factor); prescription; Department AGRICULTURE of sex; comments due by comments due by 12-30- Health care programs; fraud DEPARTMENT 12-28-99; published 10-29- 99; published 11-26-99 and abuse: Animal and Plant Health 99 Radio stations; table of Health Insurance Portability Inspection Service DEFENSE DEPARTMENT assignments: and Accountability ActÐ Interstate transportation of Civilian health and medical Kentucky; comments due by Medicare and State health animals and animal products program of uniformed 12-27-99; published 12-2- care programs; anti- (quarantine): services (CHAMPUS): 99
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FEDERAL EMERGENCY system; comments due by Rescission guidelines; Freedom of Information Act MANAGEMENT AGENCY 12-27-99; published 10- comments due by 12-31- and Privacy Act; Education programs and 28-99 99; published 11-3-99 implementation; comments activities receiving Federal HEALTH AND HUMAN LABOR DEPARTMENT due by 12-27-99; published 11-24-99 financial assistance; SERVICES DEPARTMENT Education programs and nondiscrimination on basis Quarantine, inspection, and activities receiving Federal NUCLEAR REGULATORY of sex; comments due by licensing: financial assistance; COMMISSION 12-28-99; published 10-29- Interstate shipmentsÐ nondiscrimination on basis Education programs and 99 Centers for Disease of sex; comments due by activities receiving Federal FEDERAL HOUSING Control; infectious 12-28-99; published 10-29- financial assistance; FINANCE BOARD substances and select 99 nondiscrimination on basis Agency regulations agents; packaging and NATIONAL AERONAUTICS of sex; comments due by reorganization; comments handling; comments due AND SPACE 12-28-99; published 10-29- due by 12-27-99; published by 12-27-99; published ADMINISTRATION 99 10-28-99 9-27-99 Acquisition regulations: POSTAL RATE COMMISSION HOUSING AND URBAN Federal home loan bank International mail services; DEVELOPMENT Export controlled technology; system: cost, revenue, and volume DEPARTMENT standard clause; Financial management and comments due by 12-27- data analysis; comments Education programs and mission achievement; 99; published 10-28-99 due by 12-27-99; published activities receiving Federal comments due by 12-27- Education programs and 11-26-99 99; published 9-27-99 financial assistance; nondiscrimination on basis activities receiving Federal SECURITIES AND GENERAL SERVICES of sex; comments due by financial assistance; EXCHANGE COMMISSION ADMINISTRATION 12-28-99; published 10-29- nondiscrimination on basis Securities: Education programs and of sex; comments due by 99 Short sales; limits lifted, activities receiving Federal 12-28-99; published 10-29- INTERIOR DEPARTMENT etc.; comments due by financial assistance; 99 Indian Affairs Bureau 12-27-99; published 10- nondiscrimination on basis Federal Acquisition Regulation Land and water: 28-99 of sex; comments due by (FAR): Land held in trust for benefit SMALL BUSINESS 12-28-99; published 10-29- Indian organizations and 99 of Indian Tribes and ADMINISTRATION individual Indians; title Indian-owned economic Federal Acquisition Regulation Education programs and acquisition; comments due enterprises; utilization; (FAR): comments due by 12-27- activities receiving Federal by 12-29-99; published financial assistance; Indian organizations and 11-30-99 99; published 10-27-99 Indian-owned economic nondiscrimination on basis INTERIOR DEPARTMENT NATIONAL ARCHIVES AND of sex; comments due by enterprises; utilization; RECORDS ADMINISTRATION comments due by 12-27- Fish and Wildlife Service 12-28-99; published 10-29- Education programs and 99; published 10-27-99 Endangered and threatened 99 species: activities receiving Federal HEALTH AND HUMAN Government contracting Findings on petitions, etc.Ð financial assistance; programs: SERVICES DEPARTMENT nondiscrimination on basis Columbian sharp-tailed Contract bundling and Food and Drug grouse; comments due of sex; comments due by Administration 12-28-99; published 10-29- SBA's authority to appeal by 12-27-99; published adverse decisions made Human cellular and tissue- 10-26-99 99 based products: by procuring agency; INTERIOR DEPARTMENT ARTS AND HUMANITIES, comments due by 12-27- Donors suitability Education programs and NATIONAL FOUNDATION 99; published 10-25-99 determination; comments National Foundation on the activities receiving Federal SOCIAL SECURITY due by 12-29-99; Arts and the Humanities financial assistance; ADMINISTRATION published 9-30-99 nondiscrimination on basis Education programs and Medical devices: of sex; comments due by activities receiving Federal Social security benefits: General hospital and 12-28-99; published 10-29- financial assistance; Federal old age, survivors, personal use devicesÐ 99 nondiscrimination on basis and disability insuranceÐ Subcutaneous, implanted, INTERIOR DEPARTMENT of sex: Title II benefits under intravascular infusion Surface Mining Reclamation Institute for Museum and family maximum port and catheter, and and Enforcement Office Library Services; provisions; reduction in percutaneous, implanted Permanent program and comments due by 12-28- cases of dual long-term intravasuclar abandoned mine land 99; published 10-29-99 entitlement; comments catheter; classification; reclamation plan National Endowment for the due by 12-27-99; comments due by 12- submissions: Arts; comments due by published 10-27-99 30-99; published 10-1- Pennsylvania; comments 12-28-99; published 10- STATE DEPARTMENT 99 due by 12-29-99; 29-99 Education programs and HEALTH AND HUMAN published 11-29-99 National Endowment for the activities receiving Federal SERVICES DEPARTMENT JUSTICE DEPARTMENT Humanities; comments financial assistance; Health Care Financing Education programs and due by 12-28-99; nondiscrimination on basis Administration activities receiving Federal published 10-29-99 of sex; comments due by Medicare: financial assistance; NATIONAL SCIENCE 12-28-99; published 10-29- Carrier determinations that noneiscrimination on basis FOUNDATION 99 supplier fails to meet of sex; comments due by Education programs and Visas; immigrant and requirements for Medicare 12-28-99; published 10-29- activities receiving Federal nonimmigrant billing privileges; appeals; 99 financial assistance; documentation: comments due by 12-27- JUSTICE DEPARTMENT nondiscrimination on basis Immigrant visa fees; change 99; published 10-25-99 Parole Commission of sex; comments due by in payment procedures; Home health agencies; Federal prisoners; paroling 12-28-99; published 10-29- comments due by 12-27- prospective payment and releasing, etc.: 99 99; published 10-28-99
VerDate 15-DEC-99 20:26 Dec 20, 1999 Jkt 190000 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\21DECU.XXX pfrm11 PsN: 21DECU vi Federal Register / Vol. 64, No. 244 / Tuesday, December 21, 1999 / Reader Aids
TENNESSEE VALLEY Dornier; comments due by financial assistance; the 106th Congress, which AUTHORITY 12-27-99; published 11- nondiscrimination on basis convenes on January 24, Education programs and 26-99 of sex; comments due by 2000. A cumulative list of activities receiving Federal General Electric Co.; 12-28-99; published 10-29- Public Laws will be published financial assistance; comments due by 12-27- 99 in the Federal Register on nondiscrimination on basis 99; published 10-26-99 VETERANS AFFAIRS December 31, 1999. of sex; comments due by Pratt & Whitney; comments DEPARTMENT 12-28-99; published 10-29- due by 12-27-99; Education programs and H.R. 1180/P.L. 106±170 99 published 10-27-99 activities receiving Federal TRANSPORTATION Airworthiness standards: financial assistance; Ticket to Work and Work DEPARTMENT Special conditionsÐ nondiscrimination on basis Incentives Improvement Act of 1999 (Dec. 17, 1999; 113 Coast Guard Piper Cheyenne PA-31T2 of sex; comments due by Stat. 1860) Vessel inspection: airplane; comments due 12-28-99; published 10-29- Frequency, passenger by 12-30-99; published 99 Last List December 17, 1999 vessel alternate hull 11-30-99 examination program, and Raytheon Model 390 LIST OF PUBLIC LAWS passenger, nautical airplane; comments due school, and sailing school by 12-30-99; published This is a completes the listing Public Laws Electronic vessel underwater 11-30-99 Notification Service surveys; comments due of public laws enacted during Class C airspace; comments the first session of the 106th (PENS) by 12-30-99; published due by 12-27-99; published 11-15-99 of Congress. It may be used 11-15-99 in conjunction with ``PLUS'' TRANSPORTATION Class D airspace; comments (Public Laws Update Service) PENS is a free electronic mail DEPARTMENT due by 12-30-99; published on 202±523±6641. This list is notification service of newly Education programs and 11-15-99 also available online at http:// enacted public laws. To activities receiving Federal Class E airspace; comments www.nara.gov/fedreg. financial assistance; subscribe, go to www.gsa.gov/ due by 12-27-99; published archives/publaws-l.html or nondiscrimination on basis 11-24-99 The text of laws is not of sex; comments due by published in the Federal send E-mail to 12-28-99; published 10-29- TRANSPORTATION Register but may be ordered [email protected] with 99 DEPARTMENT in ``slip law'' (individual the following text message: TRANSPORTATION National Highway Traffic pamphlet) form from the Safety Administration Superintendent of Documents, SUBSCRIBE PUBLAWS-L DEPARTMENT Your Name. Federal Aviation Motor vehicle safety U.S. Government Printing standards: Office, Washington, DC 20402 Administration Note: PENS will resume Occupant crash protectionÐ (phone, 202±512±1808). The Airworthiness directives: service when bills are enacted BMW Rolls-Royce GmbH; Air bag requirements for text will also be made available on the Internet from into law during the second comments due by 12-27- passenger cars and session of the 106th 99; published 11-19-99 light trucks; upgrade; GPO Access at http:// www.access.gpo.gov/nara/ Congress. This service is Boeing; comments due by comments due by 12- index.html. Some laws may strictly for E-mail notification of 12-27-99; published 11- 30-99; published 11-5- not yet be available. new laws. The text of laws is 12-99 99 not available through this British Aerospace; TREASURY DEPARTMENT The list will resume when bills service. PENS cannot respond comments due by 12-27- Education programs and are enacted into public law to specific inquiries sent to 99; published 11-24-99 activities receiving Federal during the second session of this address.
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