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ThursdayNovember 6, 1997Vol. 62 No. 215

Pages 59991–60154

11–6–97

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Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997

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Contents Federal Register

III

Vol. 62, No. 215

Thursday, November 6, 1997

Agriculture DepartmentSee Animal and Plant Health Inspection ServiceSee Rural Housing ServiceNOTICESAgency information collection activities:

Submission for OMB review; comment request, 60062

Animal and Plant Health Inspection ServiceNOTICESReporting and recordkeeping requirements, 60062

Army DepartmentNOTICESPrivacy Act:

Systems of records, 60073

Civil Rights CommissionNOTICESMeetings; Sunshine Act, 60063

Coast GuardPROPOSED RULESMerchant marine officers and seamen:

Towing vessels; manning and licensing requirements forofficers

Correction, 60122

Commerce DepartmentSee Export Administration BureauSee National Institute of Standards and TechnologySee National Oceanic and Atmospheric Administration

Committee for the Implementation of Textile AgreementsNOTICESCotton, wool, and man-made textiles:

Brazil, 60066

Commodity Futures Trading CommissionNOTICESContract market proposals:

Chicago Mercantile Exchange—E-Mini Standard & Poor’s 500 Stock Price Index,

60066–60067Minneapolis Grain Exchange—

Barley, 60067–60068

Defense DepartmentSee Army DepartmentNOTICESAgency information collection activities:

Proposed collection; comment request, 60068–60069Arms sales notification; transmittal letter, etc., 60069–60072

Employment and Training AdministrationNOTICESFederal-State unemployment compensation program:

Federal Unemployment Tax Act; certifications, 60103–60104

Unemployment insurance program letters—Federal unemployment insurance law interpretation,

60104–60108

Energy DepartmentSee Federal Energy Regulatory Commission

Environmental Protection AgencyRULESAir programs:

Fuels and fuel additives—Gasoline deposit control additives; transferred gasoline;

oxygenate content identification requirementremoved, 59998–60001

Oxygenated gasoline program reformulated gasolinecategory elimination from reformulated gasolineregulations, 60132–60136

Air quality implementation plans; approval andpromulgation; various States:

Michigan, 59995–59996Pennsylvania; correction, 59996–59998

Air quality planning purposes; designation of areas:Arizona, 60001–60013

PROPOSED RULESAir programs:

Fuels and fuel additives—Deposit control gasoline detergent additives;

recordkeeping and enforcement requirements,60052–60058

Air quality implementation plans; approval andpromulgation; various States:

Pennsylvania; correction, 60052Superfund program:

National oil and hazardous substances contingencyplan—

National priorities list update, 60058–60060NOTICESAir pollution control; new motor vehicles and engines:

Urban buses (1993 and earlier model years); retrofit/rebuild requirements; equipment certification—

Detroit Diesel Corp., 60077–60079Johnson Matthey Inc., 60079–60090

Hazardous waste:Land disposal restrictions; exemptions—

CECOS International, Inc., 60090Meetings:

National Environmental Justice Advisory Council, 60090–60091

Executive Office of the PresidentSee Presidential Documents

Export Administration BureauNOTICESExport privileges, actions affecting:

Thane-Coat, Inc., et al., 60063–60065

Federal Aviation AdministrationRULESAirworthiness directives:

Pilatus Aircraft Ltd., 59993–59995PROPOSED RULESAirworthiness directives:

Airbus, 60047–60051Class E airspace, 60051–60052

IV Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Contents

NOTICESTechnical standard orders:

Aircraft bearings, 60116Aircraft seals, 60116–60117

Federal Bureau of InvestigationNOTICESMeetings:

DNA Advisory Board, 60101–60102

Federal Communications CommissionRULESCommon carrier services:

Telecommunications Act of 1996; implementation—Pay telephone reclassification and compensation

provisions, 60034–60035Television broadcasting:

Two-way transmissions; multipoint distribution serviceand instructional television fixed service licenseesparticipation, 60025–60034

NOTICESAgency information collection activities:

Proposed collection; comment request, 60091–60092Submission for OMB review; comment request, 60092

Federal Election CommissionPROPOSED RULESRulemaking petitions:

Bopp, James, Jr., 60047

Federal Energy Regulatory CommissionNOTICESApplications, hearings, determinations, etc.:

ANR Pipeline Co., 60074Garden Banks Gas Pipeline, LLC, 60074Howard/Avista Energy, LLC, 60074Illinois Power Co., 60074–60075Indeck Pepperell Power Associates, Inc., 60075Montaup Electric Co., 60075Natural Gas Pipeline Co. of America, 60075New York State Electric & Gas Corp., 60075–60076Tennessee Gas Pipeline Co., 60076Texas Eastern Transmission Corp., 60076West Texas Gas, Inc., 60076Wyoming Interstate Co. Ltd., 60077

Federal Highway AdministrationRULESMotor carrier safety standards:

Safety fitness procedure—Rating methodology, 60035–60046

Federal Housing Finance BoardNOTICESAgency information collection activities:

Proposed collection; comment request, 60093

Federal Maritime CommissionNOTICESAgreements filed, etc., 60093

Food and Drug AdministrationNOTICESFood additive petitions:

Cytec Industries, Inc., 60095Meetings:

Peripheral and Central Nervous System Drugs AdvisoryCommittee, 60095

General Services AdministrationRULESFreedom of Information Act; implementation:

Agency records and informational materials; publicavailability, 60014–60025

Government Ethics OfficeNOTICESElectronic information dissemination:

Ethics bulletin board system termination; Internet WorldWide Web site enhancement; comment request,60093–60094

Health and Human Services DepartmentSee Food and Drug AdministrationSee National Institutes of HealthSee Substance Abuse and Mental Health Services

AdministrationNOTICESAgency information collection activities:

Proposed collection; comment request, 60094–60095

Housing and Urban Development DepartmentRULESMortgage and loan insurance programs:

Single family mortgage insurance—Loss mitigation procedures, 60124–60130

Immigration and Naturalization ServiceRULESImmigration:

Affidavits of support on behalf of immigrantsCorrection, 60122

Nonimmigrant classes:Treaty trader and investor aliens; E classification

Correction, 60122

Interior DepartmentSee Land Management BureauSee Surface Mining Reclamation and Enforcement Office

International Trade CommissionNOTICESImport investigations:

North American Free Trade Agreement (NAFTA)—Mexico, articles from; probable economic effects on

U.S. industries and consumers of acceleratedelimination of U.S. tariffs, Round Two, 60100–60101

Justice DepartmentSee Federal Bureau of InvestigationSee Immigration and Naturalization Service

Labor DepartmentSee Employment and Training AdministrationNOTICESAgency information collection activities:

Submission for OMB review; comment request, 60102Senior Executive Service:

Performance Review Board; membership, 60103

Land Management BureauNOTICESEnvironmental statements; availability, etc.:

Ward Valley, San Bernardino County, CA; tritium andrelated materials testing, 60100

VFederal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Contents

Legal Services CorporationNOTICESMeetings; Sunshine Act, 60108

Merit Systems Protection BoardRULESPractices and procedures:

Appeals and petitions for review of judges’ initialdecisions; time limit changes, 59991–59992

Personnel actions allegedly based on whistleblowing;appeals and stay requests, 59992–59993

National Institute of Standards and TechnologyNOTICESMeetings:

Advanced Technology Visiting Committee, 60065–60066

National Institutes of HealthNOTICESMeetings:

National Cancer Institute, 60095–60097National Heart, Lung, and Blood Institute, 60097National Institute of Diabetes and Digestive and Kidney

Diseases, 60097–60098

National Oceanic and Atmospheric AdministrationPROPOSED RULESFishery conservation and management:

Alaska; fisheries of Exclusive Economic Zone—IFQ survivorship transfer provisions; modification,

60060–60061

National Science FoundationNOTICESAntarctic Conservation Act of 1978; permit applications,

etc., 60108Meetings:

Materials Research Special Emphasis Panel, 60109Social and Political Science Advisory Panel, 60109

Nuclear Regulatory CommissionNOTICESOperating licenses, amendments; no significant hazards

considerations; biweekly notices; correction, 60111Reports and guidance documents; availability, etc.:

Materials licenses; sealed source and device evaluationand registration applications, 60111–60112

Applications, hearings, determinations, etc.:Entergy Operations, Inc., et al., 60109–60111

Nuclear Waste Technical Review BoardNOTICESMeetings, 60112–60113

Presidential DocumentsPROCLAMATIONSSpecial observances:

Adoption Month, National (Proc. 7048), 60153–60154

Public Health ServiceSee Food and Drug AdministrationSee National Institutes of HealthSee Substance Abuse and Mental Health Services

Administration

Rural Housing ServiceNOTICESAgency information collection activities:


Saint Lawrence Seaway Development CorporationNOTICESAgency information collection activities:

Proposed collection; comment request, 60117–60118

Securities and Exchange CommissionNOTICESApplications, hearings, determinations, etc.:

First American Investment Funds, Inc., et al., 60113–60115

Substance Abuse and Mental Health ServicesAdministration

NOTICESFederal agency urine drug testing; certified laboratories

meeting minimum standards, list, 60098–60100

Surface Mining Reclamation and Enforcement OfficeRULESAbandoned mine land reclamation:

Reclamation fund list; fee collection and coal productionreporting—

Coal excess moisture allowance; republication, 60138–60149

Textile Agreements Implementation CommitteeSee Committee for the Implementation of Textile

Agreements

Transportation DepartmentSee Coast GuardSee Federal Aviation AdministrationSee Federal Highway AdministrationSee Saint Lawrence Seaway Development CorporationNOTICESAgency information collection activities:

Submission for OMB review; comment request, 60115–60116

Meetings:Minority Business Resource Center Advisory Committee,

60116

Treasury DepartmentNOTICESAgency information collection activities:

Submission for OMB review; comment request, 60118

United States Information AgencyNOTICESGrants and cooperative agreements; availability, etc.:

Summer institute for study of United States for foreignsecondary school teachers and teacher trainers,60118–60121

Veterans Affairs DepartmentNOTICESAgency information collection activities:


Separate Parts In This Issue

Part IIDepartment of Housing and Urban Development, 60124–

60130

Part IIIEnvironmental Protection Agency, 60132–60136

VI Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Contents

Part IVDepartment of the Interior, Surface Mining Reclamation and

Enforcement Office, 60138–60149

Part VThe President, 60153–60154

Reader AidsAdditional information, including a list of telephonenumbers, finding aids, reminders, and a list of Public Lawsappears in the Reader Aids section at the end of this issue.

Electronic Bulletin BoardFree Electronic Bulletin Board service for Public Lawnumbers, Federal Register finding aids, and a list ofdocuments on public inspection is available on 202–275–1538 or 275–0920.

CFR PARTS AFFECTED IN THIS ISSUE

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

VIIFederal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Contents

3 CFRProclamations:7048.................................60153

5 CFR1201.................................599911209.................................59992

8 CFR213a.................................60122214...................................60122299...................................60122

11 CFRProposed Rules:100...................................60047

14 CFR39.....................................59993Proposed Rules:39 (2 documents) ...........60047,

6004971.....................................60051

24 CFR203...................................60124206...................................60124

30 CFR870...................................60138

40 CFR52 (2 documents) ...........59995,

5999680 (2 documents) ...........59998,

6013281.....................................60001Proposed Rules:52.....................................6005280.....................................60052300...................................60058

41 CFR105–60.............................60014

46 CFRProposed Rules:10.....................................6012215.....................................60122

47 CFR1.......................................6002521.....................................6002564.....................................6003474.....................................60025

49 CFR385...................................60035

50 CFRProposed Rules:679...................................60060

This section of the FEDERAL REGISTERcontains regulatory documents having generalapplicability and legal effect, most of whichare keyed to and codified in the Code ofFederal Regulations, which is published under50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold bythe Superintendent of Documents. Prices ofnew books are listed in the first FEDERALREGISTER issue of each week.

Rules and Regulations Federal Register

59991

Vol. 62, No. 215


MERIT SYSTEMS PROTECTIONBOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems ProtectionBoard.ACTION: Final rule.

SUMMARY: The Merit Systems ProtectionBoard is amending its rules of practiceand procedure to change its time limitsfor filing appeals and petitions forreview of initial decisions issued byMSPB judges. The amendments to thetime limits for filing appeals areintended to ensure that an appellant hasa full 30 days to file after the event fromwhich the time period begins to run.The amendment to the time limit forfiling a petition for review is intendedto ensure that a petitioner has a full 30days to file after the date of receipt ofthe initial decision issued by the judge.The purpose of these amendments is toprovide guidance to the parties to MSPBcases and their representatives regardingfiling requirements. The Board issimultaneously amending its rules at 5CFR part 1209 with respect to the timelimits for filing whistleblower appeals.EFFECTIVE DATE: November 6, 1997.FOR FURTHER INFORMATION CONTACT:Robert E. Taylor, Clerk of the Board,(202) 653–7200.SUPPLEMENTARY INFORMATION: The Boardis authorized by 5 U.S.C. 1204(h) topromulgate regulations to carry out itsfunctions and has used this authoritysince its inception to prescribe timelimits for filing appeals with the Board.Prior to this amendment, the regulationat 5 CFR 1201.22(b), prescribing timelimits for filing an appeal, required thatan appeal of an agency action be filedno later than 30 days after the effectivedate of the action or, where the appealis from a final or reconsiderationdecision that does not set an effective

date, no later than 35 days after the dateof issuance of the agency’s decision. Inestablishing the 35-day time limit wherethe appeal is from a final orreconsideration decision that does notset an effective date, the Board, in effect,was providing the same 30-day timeperiod for filing as in an appeal of anaction with an effective date by allowing5 additional days after the date ofissuance of the decision for it to bemailed and received.

Where the 35-day time limit appliesand there is a delay by the agency inmailing the decision after it is issued,and/or a delay by the U.S. Postal Servicethat results in more than 5 days elapsingbetween issuance of the decision andreceipt by the appellant, an appellantcould have less than 30 days to file anappeal with MSPB. Should an appellantnot receive the agency’s decision untilafter the 35-day time period for filinghas expired, any appeal may bedismissed as untimely.

In order to ensure that each appellant,regardless of the nature of the action ordecision being appealed, has a full 30days to file after the event from whichthe time period begins to run, the Boardis amending its regulation at 5 CFR1201.22(b) to require that an appeal befiled no later than 30 days after theeffective date, if any, of the action beingappealed, or 30 days after the date ofreceipt of the agency’s decision,whichever is later.

The Board is making correspondingamendments to 5 CFR 1201.27(b),regarding the time limit for filingindividual appeals after a judge hasdenied a request for hearing as a classappeal, and 5 CFR 1201.154(a),regarding the time limit for filing anappeal in which discrimination isalleged (a mixed case appeal).

Prior to this amendment, theregulation at 5 CFR 1201.114(d),prescribing the time limit for filing apetition for review of a judge’s initialdecision, required that the petition forreview be filed with the Clerk of theBoard within 35 days after the initialdecision is issued. This regulation wasbased on the statutory requirement at 5U.S.C. 7701(e)(1)(A) that a petition forreview be filed no later than 30 daysafter the party’s receipt of the initialdecision. Again, the Board was allowingin its regulation an additional 5 daysfrom the date of issuance of the initial

decision for mailing and receipt by theparties.

To ensure that every party has a full30 days from the date of receipt of aninitial decision to file a petition forreview of that decision, the Board isamending its regulation at 5 CFR1201.114(d) to require that a petition forreview be filed within 35 days after theinitial decision is issued or, if thepetitioner shows that the initial decisionwas received more than 5 days after thedate of issuance, within 30 days afterthe date the petitioner received theinitial decision. The Board is makingconforming amendments to 5 CFR1201.113(a) and (d) by removing thereferences to a 35-day time limit forfiling.

The Board is not amending 5 CFR1201.113 in the material that precedesparagraph (a), which states that theinitial decision of the judge will becomefinal 35 days after issuance. Where nopetition for review of an initial decisionis filed, and the Board does not reopenon its own motion, there must be a datecertain when the case is closed and theinitial decision becomes the finaldecision of the Board. Such a finalitydate is also needed, for example, todetermine when the time starts runningfor the filing of a petition for review ofa final Board decision in a mixed caseby the Equal Employment OpportunityCommission under 5 U.S.C. 7702, apetition for judicial review of a finalBoard decision under 5 U.S.C. 7703, ora motion for attorney fees under 5 CFR1201.203(d).

As a result of these amendments tothe petition for review provisions,initial decisions issued by MSPB judgeswill continue to show a finality date,which will be the date 35 days after thedate of issuance of the initial decision.That date, however, will no longer bethe last day on which a petition forreview can be filed if the petitioner canshow that the initial decision wasreceived more than 5 days after the dateit was issued. In that event, the timelimit of 30 days after the date of receiptwill apply.

The Board is making a correspondingamendment to the regulation at 5 CFR1201.154(d), regarding the time limit forfiling a petition for review of a finaldecision on a grievance in whichdiscrimination is alleged.

The Board is publishing this rule asa final rule pursuant to 5 U.S.C. 1204(h).

59992 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

List of Subjects in 5 CFR Part 1201Administrative practice and

procedure, Civil rights, Governmentemployees.

Accordingly, the Board amends 5 CFRpart 1201 as follows:

PART 1201—[AMENDED]

1. The authority citation for part 1201continues to read as follows:

Authority: 5 U.S.C. 1204 and 7701, and 38U.S.C. 4331, unless otherwise noted.

§ 1201.22 [Amended]2. Section 1201.22 is amended by

revising paragraph (b) to read as follows:* * * * *

(b) Time of filing. An appeal must befiled no later than 30 days after theeffective date, if any, of the action beingappealed, or 30 days after the date ofreceipt of the agency’s decision,whichever is later. The time for filing iscomputed in accordance with §1201.23of this part. A response to an appealmust be filed within 20 days of the dateof the Board’s acknowledgment order.* * * * *

§ 1201.27 [Amended]3. Section 1201.27 is amended at

paragraph (b) by revising the secondsentence to read as follows:* * * * *

(b) * * * If the judge denies therequest, the appellants affected by thedecision may file individual appealswithin 30 days after the date of receiptof the decision denying the request to beheard as a class appeal. * * ** * * * *


revising paragraphs (a) and (d) to readas follows:* * * * *

(a) Exceptions. The initial decisionwill not become final if any party filesa petition for review within the timelimit for filing specified in § 1201.114 ofthis part, or if the Board reopens thecase on its own motion.* * * * *

(d) Extensions. The Board may extendthe time limit for filing a petition forgood cause shown as specified in§ 1201.114 of this part.* * * * *

§ 1201.114 [Amended]5. Section 1201.114 is amended at

paragraph (d) by revising the firstsentence to read as follows:* * * * *

(d) * * * Any petition for reviewmust be filed within 35 days after the

date of issuance of the initial decisionor, if the petitioner shows that the initialdecision was received more than 5 daysafter the date of issuance, within 30days after the date the petitionerreceived the initial decision. * * ** * * * *


revising paragraph (a) and the firstsentence of paragraph (d) to read asfollows:* * * * *

(a) Where the appellant has beensubject to an action appealable to theBoard, he or she may either file a timelycomplaint of discrimination with theagency or file an appeal with the Boardno later than 30 days after the effectivedate, if any, of the action beingappealed, or 30 days after the date ofreceipt of the agency’s decision on theappealable action, whichever is later.* * * * *

(d) If the appellant has filed agrievance with the agency under itsnegotiated grievance procedure inaccordance with 5 U.S.C. 7121, he orshe may ask the Board to review thefinal decision under 5 U.S.C. 7702within 35 days after the date of issuanceof the decision or, if the appellantshows that the decision was receivedmore than 5 days after the date ofissuance, within 30 days after the datethe appellant received the decision.* * ** * * * *

Dated: October 31, 1997.Robert E. Taylor,Clerk of the Board.[FR Doc. 97–29311 Filed 11–5–97; 8:45 am]BILLING CODE 7400–01–U

MERIT SYSTEMS PROTECTIONBOARD

5 CFR Part 1209

Practices and Procedures for Appealsand Stay Requests of PersonnelActions Allegedly Based onWhistleblowing

AGENCY: Merit Systems ProtectionBoard.ACTION: Final rule.

SUMMARY: The Merit Systems ProtectionBoard is amending its rules of practiceand procedure for whistleblowerappeals to change the time limits forfiling. The amendment to the time limitfor filing an individual right of action(IRA) appeal is intended to ensure thatan appellant has the full 60 daysrequired by law to file after being

provided notification by the SpecialCounsel that an investigation has beenterminated. The amendment to the timelimit for filing a whistleblower appealafter a judge’s ruling on a stay requestis intended to ensure that an appellanthas a full 30 days to file after receipt ofthe ruling. The purpose of theseamendments is to provide guidance tothe parties to MSPB cases and theirrepresentatives regarding filingrequirements. The Board issimultaneously amending its rules at 5CFR part 1201 with respect to the timelimits for filing other appeals andpetitions for review.EFFECTIVE DATE: November 6, 1997.FOR FURTHER INFORMATION CONTACT:Robert E. Taylor, Clerk of the Board,(202) 653–7200.SUPPLEMENTARY INFORMATION: Theprovisions of the WhistleblowerProtection Act of 1989 (Pub. L. 101–12)governing a whistleblower’s filing of anindividual right of action (IRA) appealwith the Board require that such anappeal be filed no more than 60 daysafter notification by the Special Counselthat an investigation into thewhistleblower’s allegations has beenterminated. 5 U.S.C. 1214(a)(3)(A)(ii)and 1221(a). The statutory languagedoes not specify whether the 60-dayperiod begins to run from the date of theSpecial Counsel’s notice or the date ofthe whistleblower’s receipt of thatnotice.

Prior to this amendment, the Board’simplementing regulation at 5 CFR1209.5(a) required that an IRA appeal befiled no later than 65 days after the dateof issuance of the Office of SpecialCounsel’s written notification that itwas terminating its investigation of theappellant’s allegations. This establisheda clear date on which the time for filingbegan to run and allowed an additional5 days for the notice to be mailed andreceived by an appellant before the 60-day statutory period began.

Delay by the Office of Special Counselin mailing the notice and/or a delay bythe U.S. Postal Service could result inan appellant having less than 60 days tofile an appeal with MSPB. If anappellant did not receive the SpecialCounsel’s notice until after the 65-daytime period for filing expired, an IRAappeal might be dismissed as untimely.

To ensure that each IRA appellant hasa full 60 days for filing with the Boardafter receipt of a notice from the SpecialCounsel, the Board is amending itsregulation at 5 CFR 1209.5(a)(1) torequire that an IRA appeal be filed nolater than 65 days after the date ofissuance of the Office of SpecialCounsel’s written notification or, if the

59993Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

appellant shows that the SpecialCounsel’s notification was receivedmore than 5 days after the date ofissuance, within 60 days after the datethe appellant received the SpecialCounsel’s notification.

This regulatory action does not affectthe provisions of law and regulationpermitting an appellant to file an IRAappeal with the Board anytime after 120days have passed since filing with theSpecial Counsel if he or she has notreceived notification that the SpecialCounsel will seek corrective action fromthe Board. 5 U.S.C. 1214(a)(3)(B) and 5CFR 1209.5(a)(2).

A whistleblower affected by an actionthat is directly appealable to the Boardmay choose to seek corrective actionfrom the Special Counsel first or mayfile an otherwise appealable action(OAA) appeal directly with the Board. 5U.S.C. 1221(b) and 5 CFR 1209.5(b). Anappellant who chooses to go to theSpecial Counsel first is subject to thesame time limit for filing as an IRAappellant under the amended 5 CFR1209.5(a)(1). An appellant who appealsdirectly to the Board is subject to thesame time limit that applies to otherappeals under the Board’s regulation at5 CFR 1201.22(b), which is beingamended simultaneously with thisamendment. Under the amended 5 CFR1201.22(b), an appellant must file nolater than 30 days after the effectivedate, if any, of the action beingappealed, or 30 days after the date ofreceipt of the agency’s decision,whichever is later.

The Board is also amending itsregulation at 5 CFR 1209.5(c) to ensurethat an appellant who has filed a stayrequest before filing a whistleblowerappeal (IRA or OAA) has a full 30 daysto file after the date the appellantreceives the judge’s ruling on the stayrequest. This amendment correspondsto the amendments being madesimultaneously to various filingrequirements in 5 CFR part 1201.

The Board is publishing this rule asa final rule pursuant to 5 U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1209

Administrative practice andprocedure, Civil rights, Governmentemployees.

Accordingly, the Board amends 5 CFRpart 1209 as follows:

PART 1209—[AMENDED]


Authority: 5 U.S.C. 1204, 1221, 2302(b)(8),and 7701.

§1209.5 [Amended]

2. Section 1209.5 is amended byrevising paragraph (a)(1) and the firstsentence of paragraph (c) to read asfollows:* * * * *

(a) * * *(1) No later than 65 days after the date

of issuance of the Office of SpecialCounsel’s written notification to theappellant that it was terminating itsinvestigation of the appellant’sallegations or, if the appellant showsthat the Special Counsel’s notificationwas received more than 5 days after thedate of issuance, within 60 days afterthe date the appellant received theSpecial Counsel’s notification; or,* * * * *

(c) * * * Where an appellant hasfiled a request for a stay with the Boardwithout first filing an appeal of theaction, the appeal must be filed within30 days after the date the appellantreceives the order ruling on the stayrequest. * * *

Dated: October 31, 1997.Robert E. Taylor,Clerk of the Board.[FR Doc. 97–29312 Filed 11–5–97; 8:45 am]BILLING CODE 7400–01–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–CE–95–AD; Amendment 39–10192; AD 97–23–04]

RIN 2120–AA64

Airworthiness Directives; PilatusAircraft Ltd. Models PC–12 and PC–12/45 Airplanes

AGENCY: Federal AviationAdministration, DOT.ACTION: Final rule; request forcomments.

SUMMARY: This amendment adopts anew airworthiness directive (AD) thatapplies to Pilatus Aircraft Ltd. (Pilatus)Models PC–12 and PC–12/45 airplanes.This AD requires replacing the fuel tankvent valves with modified fuel tank ventvalves. This AD is the result ofmandatory continued airworthinessinformation (MCAI) issued by theairworthiness authority for Switzerland.The actions specified by this AD areintended to prevent the fuel tank inwardvent valve from freezing, which, iffollowed by a cold soak at altitude,could result in wing airfoil distortionand structural damage with consequent

degradation of the airplane’s handlingqualities.DATES: Effective December 1, 1997.

The incorporation by reference ofcertain publications listed in theregulations is approved by the Directorof the Federal Register as of December1, 1997.

Comments for inclusion in the RulesDocket must be received on or beforeDecember 8, 1997.ADDRESSES: Submit comments intriplicate to the Federal AviationAdministration (FAA), Central Region,Office of the Regional Counsel,Attention: Rules Docket 97–CE–95–AD,Room 1558, 601 E. 12th Street, KansasCity, Missouri 64106.

Service information that applies tothis AD may be obtained from PilatusAircraft Ltd., CH–6370 Stans,Switzerland. This information may alsobe examined at the Federal AviationAdministration (FAA), Central Region,Office of the Regional Counsel,Attention: Rules Docket 97–CE–95–AD,Room 1558, 601 E. 12th Street, KansasCity, Missouri 64106; or at the Office ofthe Federal Register, 800 North CapitolStreet, NW., suite 700, Washington, DC.FOR FURTHER INFORMATION CONTACT: Mr.Roman T. Gabrys, Aerospace Engineer,FAA, Small Airplane Directorate, 1201Walnut, suite 900, Kansas City, Missouri64106; telephone (816) 426–6934;facsimile (816) 426–2169.

SUPPLEMENTARY INFORMATION:

DiscussionThe Federal Office for Civil Aviation

(FOCA), which is the airworthinessauthority for Switzerland, recentlynotified the FAA that an unsafecondition may exist on Pilatus ModelsPC–12 and PC–12/45 airplanes. TheFOCA reports an instance of abnormalautomatic engagement of the fuelbooster pumps during normal operationof a Pilatus Model PC–12 airplane. TheFOCA’s investigation reveals that thefuel tank inward vent valves may fail inthe closed position under certainconditions. Moisture ingestion, followedby cold soak, can lead to the fuel tankinward vent valve freezing. Thiscondition, if not corrected, could resultin wing airfoil distortion and structuraldamage with consequent degradation ofthe airplane’s handling qualities.

Relevant Service InformationPilatus issued Service Bulletin No.

28–003, Revision 1, dated September 30,1997, which specifies procedures forreplacing the fuel tank vent valves withmodified fuel tank vent valves.

The FOCA of Switzerland classifiedthis service bulletin as mandatory and


issued Swiss AD HB 97–432A, datedOctober 3, 1997, in order to assure thecontinued airworthiness of theseairplanes in Switzerland.

The FAA’s DeterminationThis airplane model is manufactured

in Switzerland and is type certificatedfor operation in the United States underthe provisions of section 21.29 of theFederal Aviation Regulations (14 CFR21.29) and the applicable bilateralairworthiness agreement. Pursuant tothis bilateral airworthiness agreement,the FOCA of Switzerland has kept theFAA informed of the situation describedabove.

The FAA has examined the findingsof the FOCA of Switzerland; reviewedall available information, including theservice bulletin referenced in thisdocument; and determined that ADaction is necessary for products of thistype design that are certificated foroperation in the United States.

Explanation of the Provisions of ThisAD

Since an unsafe condition has beenidentified that is likely to exist ordevelop in other Pilatus Models PC–12and PC–12/45 airplanes of the sametype design registered for operation inthe United States, the FAA is issuing anAD. This AD requires replacing the fueltank vent valves with modified fuel tankvent valves. Accomplishment of thereplacement is required in accordancewith Pilatus Service Bulletin No. 28–003, Revision 1, dated September 30,1997.

Determination of the Effective Date ofthe AD

Since a situation exists (possible wingairfoil distortion and structural damagewith consequent degradation of theairplane’s handling qualities) thatrequires the immediate adoption of thisregulation, it is found that notice andopportunity for public prior commenthereon are impracticable, and that goodcause exists for making this amendmenteffective in less than 30 days.

Comments InvitedAlthough this action is in the form of

a final rule that involves requirementsaffecting immediate flight safety and,thus, was not preceded by notice andopportunity to comment, comments areinvited on this rule. Interested personsare invited to comment on this rule bysubmitting such written data, views, orarguments as they may desire.Communications should identify theRules Docket number and be submittedin triplicate to the address specifiedabove. All communications received on

or before the closing date for commentswill be considered, and this rule may beamended in light of the commentsreceived. Factual information thatsupports the commenter’s ideas andsuggestions is extremely helpful inevaluating the effectiveness of the ADaction and determining whetheradditional rulemaking action would beneeded.

Comments are specifically invited onthe overall regulatory, economic,environmental, and energy aspects ofthe rule that might suggest a need tomodify the rule. All commentssubmitted will be available, both beforeand after the closing date for comments,in the Rules Docket for examination byinterested persons. A report thatsummarizes each FAA-public contactconcerned with the substance of this ADwill be filed in the Rules Docket.

Commenters wishing the FAA toacknowledge receipt of their commentssubmitted in response to this rule mustsubmit a self-addressed, stampedpostcard on which the followingstatement is made: ‘‘Comments toDocket No. 97–CE–95–AD.’’ Thepostcard will be date stamped andreturned to the commenter.

Regulatory ImpactThe regulations adopted herein will

not have substantial direct effects on theStates, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this final rule doesnot have sufficient federalismimplications to warrant the preparationof a Federalism Assessment.

The FAA has determined that thisregulation is an emergency regulationthat must be issued immediately tocorrect an unsafe condition in aircraft,and is not a significant regulatory actionunder Executive Order 12866. It hasbeen determined further that this actioninvolves an emergency regulation underDOT Regulatory Policies and Procedures(44 FR 11034, February 26, 1979). If itis determined that this emergencyregulation otherwise would besignificant under DOT RegulatoryPolicies and Procedures, a finalregulatory evaluation will be preparedand placed in the Rules Docket(otherwise, an evaluation is notrequired). A copy of it, if filed, may beobtained from the Rules Docket.

List of Subjects in 14 CFR Part 39Air transportation, Aircraft, Aviation

safety, Incorporation by reference,Safety.

Adoption of the AmendmentAccordingly, pursuant to the

authority delegated to me by theAdministrator, the Federal AviationAdministration amends part 39 of theFederal Aviation Regulations (14 CFRpart 39) as follows:

PART 39—AIRWORTHINESSDIRECTIVES


Authority: 49 USC 106(g), 40113, 44701.


adding a new airworthiness directive(AD) to read as follows:97–23–04 Pilatus Aircraft, LTD.:

Amendment 39–10192; Docket No. 97–CE–95–AD.

Applicability: Models PC–12 and PC–12/45airplanes; serial numbers 101 through 186,certificated in any category.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenmodified, altered, or repaired in the areasubject to the requirements of this AD. Forairplanes that have been modified, altered, orrepaired so that the performance of therequirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (c) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.

Compliance: Required within the next 10hours time-in-service (TIS) after the effectivedate of this AD, unless already accomplished.

To prevent the fuel tank inward vent valvefrom freezing, which, if followed by a coldsoak at altitude, could result in wing airfoildistortion and structural damage withconsequent degradation of the airplane’shandling qualities, accomplish the following:

(a) Replace the fuel tank vent valves withmodified fuel tank vent valves in accordancewith the Accomplishment Instructionssection of Pilatus Service Bulletin No. 28–003, Revision 1, dated September 30, 1997.

(b) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

(c) An alternative method of compliance oradjustment of the compliance time thatprovides an equivalent level of safety may beapproved by the Manager, Small AirplaneDirectorate, FAA, 1201 Walnut, suite 900,Kansas City, Missouri 64106. The requestshall be forwarded through an appropriateFAA Maintenance Inspector, who may addcomments and then send it to the Manager,Small Airplane Directorate.

Note 2: Information concerning theexistence of approved alternative methods of


compliance with this AD, if any, may beobtained from the Small AirplaneDirectorate.

(d) The replacement required by this ADshall be done in accordance with PilatusService Bulletin No. 28–003, Revision 1,dated September 30, 1997. Thisincorporation by reference was approved bythe Director of the Federal Register inaccordance with 5 U.S.C. 552(a) and 1 CFRpart 51. Copies may be obtained from PilatusAircraft Ltd., CH–6370 Stans, Switzerland.Copies may be inspected at the FAA, CentralRegion, Office of the Regional Counsel, Room1558, 601 E. 12th Street, Kansas City,Missouri, or at the Office of the FederalRegister, 800 North Capitol Street, NW., suite700, Washington, DC.

Note 3: The subject of this AD is addressedin Swiss AD HB 97–432A, dated October 3,1997.

(e) This amendment (39–10192) becomeseffective on December 1, 1997. Issued inKansas City, Missouri, on October 29, 1997.Mary Ellen A. Schutt,Acting Manager, Small Airplane Directorate,Aircraft Certification Service.[FR Doc. 97–29236 Filed 11–5–97; 8:45 am]BILLING CODE 4910–13–U

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 52

[MI38–01–6734; FRL–5884–1]

Approval and Promulgation ofImplementation Plans; Michigan

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: The Environmental ProtectionAgency (EPA) is approving requestedState Implementation Plan (SIP)revisions submitted by the State ofMichigan for the purpose of transferringthe authority of the Michigan AirPollution Control Commission(Commission) to the Director of theMichigan Department of NaturalResources (MDNR) and subsequentlytransferring the authority of the Directorof MDNR to the Director of the MichiganDepartment of Environmental Quality(MDEQ). Nothing in this action shouldbe construed as permitting, allowing, orestablishing a precedent for any futurerequest for revision to any SIP. The EPAshall consider each request for revisionto the SIP in light of specific technical,economic, and environmental factorsand in relation to relevant statutory andregulatory requirements.DATES: This rule is effective: December8, 1997.ADDRESSES: Copies of the Michigan SIPrevision request and EPA’s analysis are

available for inspection during normalbusiness hours at the following location:EPA Region 5, Air and RadiationDivision (AR–18J), 77 West JacksonBoulevard, Chicago, Illinois 60604.FOR FURTHER INFORMATION CONTACT:Laura Gerleman, Air Programs Branch,Permits and Grants Section (AR–18J),U.S. Environmental Protection Agency,Region 5, 77 West Jackson Boulevard,Chicago, Illinois 60604, (312) 353–5703.

Copies of the State of Michigan’s finalauthorization revision application areavailable during normal business hoursat the following addresses for inspectionand copying: Library of Michigan,Government Documents Section, 717West Allegan, Lansing, Michigan; OlsonLibrary, Northern Michigan University,Harden Circle Drive, Marquette,Michigan; Detroit Public Library MainBranch, Sociology and EconomicsDepartment, 5201 Woodward Avenue,Detroit, Michigan. To arrange for accessto the materials in Lansing, call (517)373–9489 between 9 a.m. and 6 p.m. onMondays through Saturdays andbetween 12 p.m. and 4 p.m. on Sundays(Eastern time); in Marquette, call (906)227–2260 between 8 a.m. and 12 a.m. onMondays through Thursdays, between 8a.m. and 9 p.m. on Fridays, and between10 a.m. and 6 p.m. on Sundays (Easterntime); in Detroit, call (313) 833–1440between 9:30 a.m. and 5:30 p.m. onTuesdays and Thursdays throughSaturdays, and between 1 p.m. and 9p.m. on Wednesdays (Eastern time).


A. Executive Order 1991–31

On November 8, 1991, Governor JohnEngler of Michigan signed ExecutiveOrder 1991–31 which, inter alia,abolished the Commission andtransferred the authority of theCommission to the Director of MDNR.The State of Michigan submitted to EPAunder a December 13, 1994 cover letter,a SIP revision request containing thetransfer of authority of the Commissionto the Director of MDNR. The EPAdeemed the submittal complete in aFebruary 16, 1995 letter to RolandHarmes, Director, MDNR.

B. Executive Order 1995–18

On July 31, 1995, Governor Englersigned Executive Order 1995–18 which,inter alia, elevated eight programdivisions and two program offices fromwithin MDNR to the MDEQ, effectiveOctober 1, 1995. The authority given tothe Director of MDNR in ExecutiveOrder 1991–31 was conferred upon theDirector of MDEQ in Executive Order1995–18, with the exception ofadministrative appeals decisions.

The State of Michigan submittedExecutive Order 1995–18 to EPA undera January 19, 1996 cover letter as asupplement to the December 13, 1994SIP revision.

C. Authority

On March 28, 1997, EPA proposed toapprove Michigan’s requested SIPrevisions as reorganizations ofMichigan’s environmental agencieswherein the authorities of the Directorof the Commission under the SIP havebeen conferred upon the Director ofMDEQ by Executive Order. See 62 FR14843. The EPA did not receive anypublic comment on the proposal. In thisnotice, EPA is taking final action toapprove these transfers of authority forthe State of Michigan.

The EPA notes that it is currentlyreviewing the Michigan EnvironmentalAudit Privilege and Immunity Law,Public Act 132 of 1996, and its potentialimpact on Michigan’s federallydelegated and authorized programs,including programs under the FederalClean Air Act (CAA). The EPA’sapproval only addresses the requestedSIP revisions submitted by Michiganthat result from Executive Order 1991–31 and Executive Order 1995–18. TheEPA’s approval of requested revisions toMichigan’s SIP arising out of these twoExecutive Orders does not express anyviewpoint on the question of whetherthere are legal deficiencies inMichigan’s SIP resulting from PublicAct 132 of 1996.

Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budgethas exempted this regulatory actionfrom E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,5 U.S.C. 600 et seq., EPA must preparea regulatory flexibility analysisassessing the impact of any proposed orfinal rule on small entities. 5 U.S.C. 603and 604. Alternatively, EPA may certifythat the rule will not have a significantimpact on a substantial number of smallentities. Small entities include smallbusinesses, small not-for-profitenterprises, and government entitieswith jurisdiction over populations ofless than 50,000.

Delegation of the Governor’s authorityunder the CAA does not impose anynew requirements on small entities.EPA certifies that this delegation willnot affect a substantial number of smallentities.


C. Unfunded Mandates

Under section 202 of the UnfundedMandates Reform Act of 1995(‘‘Unfunded Mandates Act’’), signedinto law on March 22, 1995, EPA mustprepare a budgetary impact statement toaccompany any proposed or final rulethat includes a Federal mandate thatmay result in estimated costs to State,local, or tribal governments in theaggregate; or to private sector, of $100million or more. Under Section 205,EPA must select the most cost-effectiveand least burdensome alternative thatachieves the objectives of the rule andis consistent with statutoryrequirements. Section 203 requires EPAto establish a plan for informing andadvising any small governments thatmay be significantly or uniquelyimpacted by the rule.

The EPA has determined that theapproval action promulgated does notinclude a Federal mandate that mayresult in estimated costs of $100 millionor more to either State, local, or tribalgovernments in the aggregate, or to theprivate sector. This Federal actionimposes no new requirements.Accordingly, no additional costs toState, local, or tribal governments, or tothe private sector, result from thisaction.

D. Submission to Congress and theGeneral Accounting Office

Under section 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this ruleand other required information to theU.S. Senate, the U.S. House ofRepresentatives and the ComptrollerGeneral of the General AccountingOffice prior to publication of the rule inthis Federal Register. This rule is not a‘‘major rule’’ as defined by section804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the CAA,petitions for judicial review of thisaction must be filed in the United StatesCourt of Appeals for the appropriatecircuit by January 5, 1998. Filing apetition for reconsideration by theAdministrator of this final rule does notaffect the finality of this rule for thepurposes of judicial review nor does itextend the time within which a petitionfor judicial review may be filed, andshall not postpone the effectiveness ofsuch rule or action. This action may notbe challenged later in proceedings toenforce its requirements. (See section307(b)(2).)


Environmental protection, Airpollution control, Incorporation byreference, Intergovernmental relations.

Dated: August 13, 1997.Michelle D. Jordan,Acting Regional Administrator.

Part 52, chapter I, title 40 of the Codeof Federal Regulations is amended asfollows:

PART 52—[AMENDED]

1. The authority citation for Part 52continues to read as follows:

Authority: 42 U.S.C. 7401–7642(q).

Subpart X—Michigan

2. Section 52.1170 is amended byadding paragraph (c)109 to read asfollows:

§ 52.1170 Identification of plan.

* * * * *(c) * * *(109) On December 13, 1994 and

January 19, 1996, Michigan submittedcorrespondence and Executive Orders1991–31 and 1995–18 which indicatedthat the executive branch of governmenthad been reorganized. As a result of thereorganization, delegation of theGovernor’s authority under the CleanAir Act was revised. The EnvironmentalProtection Agency’s approval of theseExecutive Orders is limited to thoseprovisions affecting air pollutioncontrol. The Air Pollution ControlCommission was abolished and itsauthority was initially transferred to theDirector of the Michigan Department ofNatural Resources (DNR). Subsequently,the Michigan Department of NaturalResources of Environmental Quality(DEQ) was created by elevating eightprogram divisions and two programoffices previously located within theDNR. The authority then earlier vestedto the Director of the Michigan DNR wasthen transferred to the Director of theMichigan DEQ with the exception ofsome administrative appeals decisions.

(i) Incorporation by reference.(A) State of Michigan Executive Order

1991–31 Commission of NaturalResources, Department of NaturalResources, Michigan Department ofNatural Resources ExecutiveReorganization. Introductory andconcluding words of issuance and TitleI: General; Part A: Sections 1, 2, 4 and5, Part B. Title III: EnvironmentalProtection; Part A: Sections 1 and 2, PartB. Title IV: Miscellaneous; Parts A andB, Part C: Sections 1, 2, 4, Part D. Signedby John Engler, Governor, November 8,1991. Filed with the Secretary of State

November 8, 1991. Effective January 7,1992.

(B) State of Michigan Executive OrderNo. 1995–18 Michigan Department ofEnvironmental Quality, MichiganDepartment of Natural ResourcesExecutive Reorganization. Introductoryand concluding words of issuance.Paragraphs 1, 2, 3(a) and (g), 4, 7, 8, 9,10, 11, 12, 13, 15, 16, 17, 18. Signed byJohn Engler, Governor, July 31, 1995.Filed with the Secretary of State onAugust 1, 1995. Effective September 30,1995.

[FR Doc. 97–29395 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 52

[PA 091–4050a; FRL–5918–2]

Approval and Promulgation of AirQuality Implementation Plans;Pennsylvania; Enhanced Motor VehicleInspection and Maintenance Program

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Direct final rule; correctingamendment.

SUMMARY: This action corrects aninterim final rule, which was publishedon January 28, 1997, regarding EPAconditional approval of Pennsylvania’senhanced inspection and maintenance(I/M) program. This action pertains tothe consequences in the event that thePennsylvania enhanced I/M programfailed to commence per the deadlinesset forth in EPA’s interim final rule.EPA is taking this action for thepurposes of consistency withrulemaking actions EPA has since takenon other states’ inspection andmaintenance programs. EPA iscorrecting its January 28 final rulethrough a direct final rule, without priorproposal, because the Agency views thisas a noncontroversial SIP revision andanticipates no adverse comment fromthe public. A detailed description of thecorrection is set forth in theSUPPLEMENTARY INFORMATION section,below. If EPA receives adversecomments, the direct final rule will bewithdrawn and all public commentsreceived will be addressed in asubsequent final rule based on a parallelproposed rule, published elsewhere inthis Federal Register. EPA will notinstitute a second comment period onthis action. Any parties interested incommenting on this action should do soat this time.


DATES: Comments must be received inwriting by December 8, 1997. If noadverse comments to this action isreceived, the action will becomeeffective January 5, 1998. If the effectivedate is delayed, timely notice will bepublished in the Federal Register.ADDRESSES: Written comments on thisaction should be addressed to David L.Arnold, Chief, Ozone/CO and MobileSources Section (Mailcode 3AT21), U.S.Environmental Protection Agency,Region III, 841 Chestnut Building,Philadelphia, Pennsylvania 19107.Copies of the documents relevant to thisaction are available for publicinspection during normal businesshours at the Air, Radiation, and ToxicsDivision, U.S. Environmental ProtectionAgency, Region III, 841 ChestnutBuilding, Philadelphia, Pennsylvania19107. Relevant documents are alsoavailable at the PennsylvaniaDepartment of Environmental ResourcesBureau of Air Quality Control, P.O. Box8468, 400 Market Street, Harrisburg,Pennsylvania 17105.FOR FURTHER INFORMATION CONTACT:Brian Rehn, (215) 566–2176.


BackgroundOn January 28, 1997 (62 FR 4004),

EPA published an interim final ruleapproving a State Implementation Plan(SIP) revision submitted byPennsylvania for an enhancedinspection and maintenance program forall subject areas in the Commonwealth.

Need for CorrectionAs published, the direct final rule

contains an error, which may prove tobe misleading. Therefore, EPA’s actiontoday serves to clarify that rulemaking,as described in the January 28, 1997document, the National Highway SafetyDesignation Act (NHSDA) directs EPAto grant interim approval for a period of18 months to approvable decentralizedI/M submittals. The NHSDA requiressuch a state to gather data on theprogram during that time, and to assessthe effectiveness of the program at theend of the 18-month period. Therefore,EPA believes that Congress intended forprograms to be implemented as soon aspossible, and that these programs mustcommence testing by November 15,1997, so that at least six months worthof operational data can be collected forthe purpose of evaluating the program.

Therefore, EPA set a strict timetablefor states to begin testing under theNHSDA, and conditioned approval ofPennsylvania’s I/M plan upon start upby November 15, 1997. EPA’s January28, 1997 (62 FR 4004) interim approval

of Pennsylvania’s plan was conditionedupon five major deficiencies—includingstart up of the program. In theBackground section of the January 1997rulemaking for Pennsylvania, EPAstated that if the Commonwealth failedto start its program according toschedule, the conditional interimapproval would convert to a disapprovalafter a finding letter was sent by EPA tothe state. However, in the PublicComments/Response to Commentssection of EPA’s January 1997 rule, EPAconversely stated that all conditions ofthe conditional approval automaticallyconvert to disapprovals, by operation oflaw, if a state fails to remedy adeficiency upon which the plan isconditioned (by the date certainestablished under the conditionalapproval). EPA further added that in theevent any condition is not fulfilled in atimely fashion, conversion to adisapproval is automatic. EPA wouldsubsequently send a letter to the statenotifying the state and the public thatthe approval had converted to adisapproval. These two sections seem tobe inconsistent, and their meaningcould be easily misinterpreted, if theresponses in the Public Comments/Response to Comments section areapplied to the start condition, inaddition to the other noted majordeficiencies.

Correction of PublicationAlthough it is unclear in the January

28, 1997 rulemaking, EPA did notintend for I/M program implementation(or start up) to be a condition, the failureof which would automatically convertthe Commonwealth’s SIP approval to adisapproval. The I/M program start upcondition is not imposed pursuant to acommitment to correct a deficient SIPunder section 110(k)(4) of the Clean AirAct. Instead, EPA is imposing the startdate condition under its general SIPapproval authority under section110(k)(3) of the Clean Air Act, whichdoes not require automatic conversionin the event the condition is notsatisfied in a timely manner [see EPA’sInterim Final Rule approving Virginia’senhanced I/M program (62 FR 26746)] .

Unlike the other specified conditionsof Pennsylvania’s interim approval,which are explicit conditions undersection 110(k)(4) of the Clean Air Act,and which will trigger an automaticdisapproval should the Commonwealthfail to meet its commitments, the startdate provision will trigger a disapprovalupon EPA’s notification to theCommonwealth via letter that theprogram did not start per the specifieddeadlines imposed by EPA in its finalrule—by no later than November 15,

1997 for the five-county Philadelphiaarea and no later than November 15,1999 for the remaining 16 counties inPennsylvania. In the event the programdid not start in a timely manner, sucha letter would notify the Commonwealththat this rulemaking action has beenconverted to a disapproval and that thefirst sanction associated with such adisapproval has been triggered, per theproposed interim final determinationdocument published on October 3, 1996(61 FR 31598). As explained in thatdocument, the 18-month sanctions clockfor Pennsylvania’s I/M program SIP hasalready expired, with sanctionssuspended while EPA undertook SIPrulemaking action.

Although the January 28, 1997 finalrule does not make the distinction clearbetween program start up and the otherconditions placed upon the interim SIPapproval, EPA intended to distinguishthe failure for timely start up from allother major deficiencies, as explainedabove. Accordingly, the publication onJanuary 28, 1997 (62 FR 4004) of 40 CFR52.2026 is being amended by revisingparagraph (a) and (a)(1) to address thestart date condition.

Final ActionEPA is today correcting an error in its

January 28, 1997 interim conditionalapproval of Pennsylvania’s enhancedI/M program SIP revision. EPA is takingthis action without prior proposalbecause the Agency views this as anoncontroversial amendment andanticipates no adverse public commentson this action. However, in a separatedocument in this Federal Registerpublication, EPA is proposing toapprove the SIP revision should adverseor critical comments be filed. Thisaction will be effective January 5, 1998unless, within 30 days of publication,adverse or critical comments arereceived.

If EPA receives such comments, thiscorrection action will be withdrawnbefore the effective date by publishing asubsequent document that willwithdraw the final action. All publiccomments received will then beaddressed in a subsequent final rulebased on the parallel proposal action.EPA will not institute a secondcomment period on this action. Anyparties interested in commenting on thisaction should do so at this time. If nosuch comments are received, the publicis advised that this action will beeffective on January 5, 1998.

Administrative RequirementsUnder Executive Order 12866 (58 FR

51735, October 4, 1993), this action isnot a ‘‘significant regulatory action’’


and, is therefore not subject to review bythe Office of Management and Budget.In addition, this correction action doesnot impose any enforceable duty orcontain any unfunded mandate asdescribed in the Unfunded MandatesReform Act of 1995 (Pub. L. 104–4), orrequire prior consultation with stateofficials as specified by Executive Order12875 (58 FR 58093, October 28, 1993),or involve special consideration ofenvironmental justice related issues asrequired by Executive Order 12898 (59FR 7629, February 16, 1994).

Under the Regulatory Flexibility Act,5 U.S.C. 600 et seq., EPA must preparea regulatory flexibility analysisassessing the impact of any proposed orfinal rule on small entities. 5 U.S.C. 603and 604. Alternatively, EPA may certifythat the rule will not have a significantimpact on a substantial number of smallentities. Small entities include smallbusinesses, small not-for-profitenterprises, and government entitieswith jurisdiction over populations ofless than 50,000.

However, conditional approvals ofSIP submittals under section 110 andsubchapter I, part D of the CAA do notcreate any new requirements but simplyapprove requirements that a state isalready imposing. Therefore, becausethe federal SIP approval does notimpose any new requirements, I certifythat it does not have a significant impacton any small entities affected. Moreover,due to the nature of the Federal-Staterelationship under the CAA, preparationof a flexibility analysis would constituteFederal inquiry into the economicreasonableness of state action. TheClean Air Act forbids EPA to base itsactions concerning SIPs on suchgrounds. Union Electric Co. v. U.S. EPA,427 U.S. 246, 255–66 (1976); 42 U.S.C.7410(a)(2).

If the conditional approval isconverted to a disapproval undersection 110(k), based on the State’sfailure to meet the commitment, it willnot affect any existing staterequirements applicable to smallentities. Federal disapproval of the statesubmittal does not affect its state-enforceability. Moreover, EPA’sdisapproval of the submittal does notimpose a new Federal requirement.Therefore, EPA certifies that thisdisapproval action does not have asignificant impact on a substantialnumber of small entities because it doesnot remove existing requirements nordoes it substitute a new Federalrequirement.

Under 5 U.S.C. 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this rule

and other required information to theU.S. Senate, the U.S. House ofRepresentatives and the ComptrollerGeneral of the General AccountingOffice prior to publication of this rule intoday’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by 5U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the CleanAir Act, petitions for judicial review ofthis correction action must be filed inthe United States Court of Appeals forthe appropriate circuit by January 5,1998. Filing a petition forreconsideration by the Administrator ofthis final rule does not affect the finalityof this rule for the purposes of judicialreview nor does it extend the timewithin which a petition for judicialreview may be filed, and shall notpostpone the effectiveness of such ruleor action. This action may not bechallenged later in proceedings toenforce its requirements. (See section307(b)(2).)


Environmental protection, Airpollution control, Carbon monoxide,Hydrocarbons, Intergovernmentalrelations, Nitrogen dioxide, Ozone,Reporting and recordkeepingrequirements.

Dated: October 29, 1997.William T. Wisnieski,Acting Regional Administrator, Region III.

Part 52, Chapter I, title 40 of the Codeof Federal Regulations is amended asfollows:

PART 52—[AMENDED]


Authority: 42 U.S.C. 7401–7671q.

Subpart NN—Pennsylvania

2. Section 52.2026 is amended byrevising paragraphs (a) introductory textand (a)(1) to read as follows:

§ 52.2026 Conditional Approval.

* * * * *(a) If the Commonwealth fails to start

its program according to the schedule itprovided (i.e., by no later thanNovember 15, 1997 for the five-countyPhiladelphia area and no later thanNovember 15, 1999 for the remainingsixteen counties), this conditionalapproval will convert to a disapprovalafter EPA sends a letter to the state. Ifthe Commonwealth fails to satisfy thefollowing conditions per the deadlineslisted within each condition, thisconditional approval will automatically

convert to a disapproval as explainedunder section 110(k) of the Clean AirAct. The conditions for approvabilityare as follows:

(1) By no later than September 15,1997, a notice must be published in thePennsylvania Bulletin by the Secretaryof the Pennsylvania Department ofTransportation which certifies that theenhanced I/M program is required inorder to comply with Federal law andalso certifies the geographic areas whichare subject to the enhanced I/M program(the geographic coverage must beidentical to that listed in AppendixA–1 of the March 22, 1996 SIPsubmittal), and certifies thecommencement date of the enhanced I/M program.* * * * *[FR Doc. 97–29388 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–U


40 CFR Part 80

[FRL–5917–9]

Removal of Requirement in GasolineDeposit Control Additives RuleRegarding the Identification of theOxygenate Content of TransferredGasoline

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Direct final rule.

SUMMARY: EPA is amending the gasolinedeposit control additives program, (the‘‘detergent rule’’) to remove therequirement that certain information onthe oxygenate content of transferredgasoline must be included in thegasoline’s product transfer document.EPA is taking this action to avoidunnecessary disruption to the gasolinedistribution system and because theAgency believes that it will result in nonegative environmental impact.

In the proposed rules section oftoday’s Federal Register, EPA isproposing the same action covered bythis direct final rule (i.e., to amend thedetergent rule to remove therequirement that certain information onthe oxygenate content of transferredgasoline must be included in thegasoline’s product transfer document),as well as several other actionsimpacting the detergent rule. If adversecomment or a request for a publichearing is received on this direct finalrule, EPA will withdraw the direct finalrule and address the comments receivedin a subsequent final rule on the relatedproposed rule. No additional


1 Letter to Judith Lubow, Office of Enforcementand Compliance Assurance (OECA), EPA, from C.J.Krambuhl, Director, Manufacturing, Distribution,and Marketing, American Petroleum Institute (API),August 14, 1996, Docket item VI–-D–01.

2 Letter to C.J. Krambuhl, API, from Steven A.Herman, Assistant Administrator, OECA, EPA,August 28, 1996, Docket item VII–C–01.

opportunity for public comment on thisremoval of certain detergent ruleproduct transfer document oxygenateinformation will be provided.DATES: This action will become effectiveon January 5, 1998, unless notice isreceived by December 8, 1997 fromsomeone who wishes to submit adversecomment or requests an opportunity fora public hearing. If such notice isreceived, EPA will withdraw this directfinal rule, and a timely notice will bepublished in the Federal Register toindicate the withdrawal.ADDRESSES: Interested parties maysubmit written comments (in duplicateif possible) to Public Docket No. A–91–77, at the following address: Air DocketSection (LE–131), room M–1500, 401 MStreet SW, Washington, DC 20460;phone (202) 260–7548; fax (202) 260–4000. The Agency also requests that aseparate copy be sent to the contactperson listed below. The docket is openfor public inspection from 8:00 a.m.until 5:30 p.m. Monday through Friday,except on government holidays. Asprovided in 40 CFR part 2, a reasonablefee may be charged for copying docketmaterials.

This direct final rule is also availableelectronically on the day of publicationfrom the Office of the Federal Registerinternet Web site listed below. Aprepublication electronic copy of thisnotice is also available from the EPAOffice of Mobile Sources Web site listedbelow. This service is free of charge,except for any cost that you alreadyincur for internet connectivity.Federal Register Web Site:

http://www.epa.gov/docs/fedrgstr/EPA–AIR/ (Either select desireddate or use Search feature.)

Office of Mobile Sources Web Site:http://www.epa.gov/OMSWWW/

(Look in ‘‘What’s New’’ or underthe specific rulemaking topic.)

Please note that due to differencesbetween the software used to developthe document and the software intowhich the document may bedownloaded, changes in format, pagelength, etc. may occur.FOR FURTHER INFORMATION CONTACT:Judith Lubow, U.S. EPA, Office ofEnforcement and ComplianceAssurance, Western Field Office, 12345West Alameda Parkway, Suite 214,Lakewood, CO 80228; Telephone: (303)969–6483, FAX (303) 969–6490.


Table of ContentsI. Regulated EntitiesII. IntroductionIII. Removal of Identification Requirement of

Specific Oxygenate Content on GasolineProduct Transfer Documents (PTDs)

A. BackgroundB. Rule Amendment

IV. Environmental ImpactV. Economic Impact and Impact on Small

EntitiesVI. Public Participation and Effective DateVII. Executive Order 12866VIII. Unfunded MandatesIX. Paperwork Reduction ActX. Submission to Congress and General

Accounting OfficeXI. Statutory Authority

I. Regulated EntitiesEntities potentially regulated by this

action are those involved with theproduction, distribution, and sale ofgasoline and gasoline detergentadditives. Regulated categories andentities include:

Category Examples of regulated entities

Industry ........ Gasoline refiners and import-ers, Gasoline terminals, De-tergent blenders, Gasolinetruckers, Gasoline retailersand wholesale purchaser-consumers, and Detergentmanufacturers.

This table is not intended to beexhaustive, but rather provides a guidefor readers regarding entities likely to beregulated by this action. This table liststypes of entities that EPA is now awarecould potentially be regulated by thisaction. Other types of entities not listedin the table could also be regulated. Todetermine whether your organization isregulated by this action, you shouldcarefully examine the applicabilityrequirements in § 80.161(a), thedetergent certification requirements in§ 80.161(b), the program controls andprohibitions in § 80.168, and otherrelated program requirements inSubpart G, title 40, of the Code ofFederal Regulations (CFR). If you haveany questions regarding theapplicability of this action to aparticular entity, consult the personlisted in the preceding FOR FURTHERINFORMATION CONTACT section.

II. IntroductionSection 211(l) of the Clean Air Act

(‘‘CAA’’) requires that, by January 1,1995, all gasoline must containdetergent additives to prevent theaccumulation of deposits in motorvehicle engines and fuel supplysystems. This CAA section also requiresEPA to promulgate specifications for thedetergent additives. Detergent additivesprevent the accumulation of engine andfuel supply system deposits that haveadverse effects on vehicle emissions aswell as on fuel economy anddriveability.

In response to section 211(l)’srequirements, EPA published a Notice

of Proposed Rulemaking (‘‘NPRM’’) onDecember 6, 1993 (59 FR 64213)proposing a detergent additivesregulatory program. The detergentprogram was finalized in two parts.Final regulations for the interimdetergent program, requiring the use ofdetergent additives in gasoline but notmandating specific detergent efficiencytesting, were published on October 14,1994 (59 FR 54678). Final regulationsfor the detergent certification program,mandating the use of certifieddetergents with specified detergentefficiency testing, were published onJuly 5, 1996 (61 FR 35310).

One important implementation issuethat has arisen since the publication ofthe detergent certification rule concernsthe requirement that the producttransfer documents (PTDs) for gasolinetransfers must identify all oxygenatesfound in the gasoline. 40 CFR80.158(a)(5) and 80.171(a)(5). Membersof the gasoline refining and distributionindustry informed EPA that thisrequirement would, as an unintendedconsequence, significantly disruptgasoline distribution. 1

For the reasons described below, EPAexercised its enforcement discretion andannounced by letter to the AmericanPetroleum Institute (‘‘API’’) that itwould temporarily not enforce the PTDoxygenate identification requirementpending resolution of the issue througha rulemaking or until September 3,1997, whichever occurrence came first. 2

The Agency reserved the right to rescindthe exercise of this enforcementdiscretion if it determined thatrestricted-use detergents were actuallybeing certified or that the PTDoxygenate identification requirementsotherwise became appropriate. TheAgency further advised that if violationsinvolving the improper use ofoxygenate-restricted detergentsoccurred, parties wishing tosuccessfully assert an affirmativedefense to liability for such violationsmight need to provide informationestablishing the appropriate oxygenatecontent of the gasoline in question.Subsequently, EPA extended thisexercise of enforcement discretion untilimplementation of this Direct Final Rulewhich removes the specified PTD


3 Letter to C.J. Krambuhl, API, from Steven A.Herman, Assistant Administrator, OECA, EPA,September 4, 1997, Docket item VII–C–02.

oxygenate requirement, or untilDecember 31, 1997, whichever comesfirst. 3

III. Removal of IdentificationRequirement of Specific OxygenateContent on Gasoline Product TransferDocuments (PTDs)

A. BackgroundThe gasoline detergent additive

program requires all regulated partiestransferring products controlled underthe program to provide to the transfereePTDs giving pertinent information aboutthe products transferred. (40 CFR 80.158and 80.171) The products subject to thedetergent program PTD requirements aregasoline, detergent additives, andadditized components, such as ethanol,which are blended into gasoline afterthe refinery process (additized post-refinery components, or ‘‘PRC’’). Fortransfers of these regulated products, thePTDs must identify the parties to thetransfer, the product being transferred,and other information about theproduct’s regulatory status.

One such requirement is that PTDs fortransferred gasoline must identify alloxygenates and PRCs contained in thegasoline. Further, if the gasoline iscomprised of commingled fuels, alloxygenates and PRCs in the fuelscomprising the commingled productmust be identified. (40 CFR 80.158(a)(5)and 80.171(a)(5)) The purpose of thisidentification requirement is to alert theparties receiving the gasoline about theoxygenates and PRCs in the receivedproduct. This information would beuseful to the recipient because, underthe detergent certification program,parties may choose to additize gasolinewith a detergent whose certification isrestricted for use only with a specificoxygenate or with no oxygenate, or, inthe case of fuel-specific certifieddetergents, for use in gasoline withoutPRCs. Thus, parties choosing to usesuch restricted-use detergents mustknow the oxygenate or PRC(‘‘oxygenate’’) content of the gasolinethey intend to additize with thesedetergents. The PTD oxygenateidentification requirement was intendedto provide such information for thetransferred gasoline.

In creating this identificationrequirement, the Agency was not awarethat many parties did not know thespecific oxygenate content of thegasoline they were transferring. EPA hassince learned that, under typicalindustry practice prior to thisrequirement, parties commingled

gasolines without knowledge of what (ifany) specific ethers (a type of oxygenate)were present. Under the interimdetergent rule’s PTD requirements, noinformation about the oxygenate contentof base gasoline was required. Partieswere thus typically unaware of thespecific ether content (in type andconcentration) of commingled gasolinethey received or possessed themselves.To comply with this new oxygenateidentification requirement and tobecome knowledgeable about the etherstatus of their gasoline, parties wouldhave to ascertain the ether content ofreceived gasoline, stop comminglinggasolines with different ether contents,or start testing all batches to determinesuch content. In any of these scenarios,gasoline distribution as presentlypracticed would be significantlydisrupted.

It was never EPA’s intention todisrupt gasoline distribution practicesthrough the imposition of this PTDoxygenate identification requirement.Consequently, on August 28, l996, theAgency issued its first enforcementdiscretion letter temporarily suspendingenforcement of this PTD requirement.

B. Rule AmendmentEPA does not believe that the benefits

from the PTD requirement of providingoxygenate information to those partieswho might choose to use oxygenate-restricted certified detergents warrantsthe resulting disruption to the gasolinedistribution system. Therefore, theAgency is now amending the detergentprogram through this direct final rule toeliminate the requirement that PTDs forgasoline must identify the oxygenatesfound in the transferred product. At thesame time, an NPRM is being publishedto address this issue with full notice andcomment. Under the proposal, a newrequirement would take the place of thedeleted PTD identification requirement.The proposed requirement wouldmandate that those detergent-blendingparties wishing to use oxygenate-restricted detergents must maintaindocumentation fully identifying theoxygenate content of the fuel into whichthe detergent was blended, as evidencethat the fuel complied with thedetergent’s oxygenate use restriction.This direct final rule, however, ismerely deleting the PTD oxygenateidentification requirement. The Agencybelieves this is appropriate because nooxygenate-restricted detergents havebeen certified to date, so there ispresently no potential formisadditization based on inappropriateuse of oxygenate-restricted detergentsthrough the deletion of this PTDrequirement. Further, the deletion of

this requirement until the issue isresolved through the NPRM processdoes not in any way affect the detergentrule’s requirement of properadditization of gasoline in fullcompliance with all certificationrestrictions of the detergent being used.

IV. Environmental ImpactThis rule is expected to have no

negative environmental impact.Controls on proper gasoline additizationare not affected by this rule. Further, nooxygenate-restricted detergents havebeen certified yet, so the absence of thespecific PTD oxygenate information ontransferred gasoline will have no impacton the proper additization of suchgasoline.

V. Economic Impact and Impact onSmall Entities

EPA has determined that this finalrule will not have a significant impacton a substantial number of small entitiesbecause it removes a regulatoryrequirement with which parties wouldotherwise have to comply. This rule isnot expected to result in any additionalcompliance cost to regulated parties andmay be expected to reduce compliancecost. Therefore, a regulatory flexibilityanalysis has not been prepared.

VI. Public Participation and EffectiveDate

The Agency is publishing this actionas a direct final rule because it views itas non-controversial and anticipates noadverse comments. However, in aseparate Notice of Proposed Rulemaking(NPRM) in today’s Federal Register, theAgency is proposing, among otherthings, to eliminate the PTDrequirement should adverse or criticalcomments be filed. Thus, today’s directfinal action will be effective January 5,1998 unless the Agency receives noticeby December 8, 1997 that adverse orcritical comments will be submitted orthat a party requests the opportunity tosubmit such oral comments pursuant tosection 307(d)(5) of the Clean Air Act,as amended.

If the Agency receives suchcomments, EPA will withdraw thisaction before the effective date bypublishing a subsequent document. Allpublic comments received will then beaddressed in a subsequent final rulebased on the NPRM publishedelsewhere in today’s Federal Register.The Agency will not institute a secondcomment period on this action. Anyparties interested in commenting on thisaction should do so at this time. If nosuch comments are received, the publicis advised that this action will beeffective January 5, 1998.


4 58 FR 51736 (October 4, 1993).5 Id. at section 3(f)(1)–(4).

VII. Executive Order 12866Under Executive Order 12866,4 the

Agency must determine whether aregulation is ‘‘significant’’ and thereforesubject to OMB review and therequirements of the Executive Order.The Order defines ‘‘significantregulatory action’’ as one that is likelyto result in a rule that may:

(1) Have an annual effect on theeconomy of $100 million or more, oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local or tribal governments ofcommunities;

(2) Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof, or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in this Executive Order. 5

It has been determined that this ruleis not a ‘‘significant regulatory action’’under the terms of Executive Order12866 and is therefore not subject toOMB review.

VIII. Unfunded MandatesUnder Section 202 of the Unfunded

Mandates Reform Act of 1995(‘‘UMRA’’), Public Law 104–4, EPAmust prepare a budgetary impactstatement to accompany any generalnotice of proposed rulemaking or finalrule that includes a federal mandatewhich may result in estimated costs toState, local, or tribal governments in theaggregate, or to the private sector, of$100 million or more. Under Section205, for any rule subject to Section 202EPA generally must select the leastcostly, most cost-effective, or leastburdensome alternative that achievesthe objectives of the rule and isconsistent with statutory requirements.Under Section 203, before establishingany regulatory requirements that maysignificantly or uniquely affect smallgovernments, EPA must take steps toinform and advise small governments ofthe requirements and enable them toprovide input.

EPA has determined that the final rulepromulgated today does not include afederal mandate as defined in UMRA.The rule does not include a federalmandate that may result in estimatedannual costs to State, local or tribalgovernments in the aggregate, or to the

private sector, of $100 million or more,and it does not establish regulatoryrequirements that may significantly oruniquely affect small governments.

IX. Paperwork Reduction ActThe action in today’s notice does not

impose any new information collectionburden. Implementation of this actionwould eliminate the existingrequirement that product transferdocuments (PTDs) for gasoline mustidentify the oxygenates present. No newinformation collection requirementswould result from the implementationof the regulatory amendment which isthe subject of this action. To thecontrary, its implementation wouldeliminate a compliance burden from themajority of regulated parties.

The Office of Management and Budget(OMB) has previously approved theinformation collection requirements ofthe Regulation of Deposit ControlAdditives contained in 40 CFR Part 80under the provisions of the PaperworkReduction Act, 44 U.S.C. 3501 et seq.and has assigned OMB control number2060–0275 (EPA ICR Numbers 1655–01,1655–02, and 1655–03).

Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, or discloseor provide information to or for aFederal agency. This includes the timeneeded to review instructions; develop,acquire, install, and utilize technologyand systems for the purposes ofcollecting, validating, and verifyinginformation, processing andmaintaining information, and disclosingand providing information; adjust theexisting ways to comply with anypreviously applicable instructions andrequirements; train personnel to be ableto respond to a collection ofinformation; search data sources;complete and review the collection ofinformation; and transmit or otherwisedisclose the information.

Copies of the ICR documents may beobtained from Sandy Farmer,Information Policy Branch; EPA; 401 MSt., SW. (mail code 2136); Washington,DC 20460 or by calling (202) 260–2740.Include the ICR and/or OMB number inany correspondence.

X. Submission to Congress and theGeneral Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this ruleand other required information to theU.S. Senate, the U.S. House ofRepresentatives and the ComptrollerGeneral of the General AccountingOffice prior to publication of the rule in

today’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by 5U.S.C. 804(2).

XI. Statutory Authority

The statutory authority for theproposed action in this rule is grantedto EPA by sections 114, 211(a), (b), (c),and (l), and 301 of the Clean Air Act asamended: 42 U.S.C. 7414, 7545(a), (b),(c) and (l), and 7601.


Environmental protection, Fueladditives, Gasoline detergent additives,Gasoline, Motor vehicle pollution,Penalties, Reporting and recordkeepingrequirements.

Dated: October 30, 1997.Carol M. Browner,Administrator.

For the reasons set forth in thepreamble, part 80 of title 40 of the Codeof Federal Regulations is amended asfollows:

PART 80—[AMENDED]


Authority: Sections 114, 211 and 301(a) ofthe Clean Air Act as amended (42 U.S.C.7414, 7545, and 7601(a)).

§ 80.158 [Amended]2. Section 80.158(a) is amended as

follows:a. Paragraph (a)(5) is removed.b. Paragraphs (a)(6) through (a)(10) are

redesignated as paragraphs (a)(5)through (a)(9).

§ 80.171 [Amended]3. Section 80.171(a) is amended as

follows:a. Paragraph (a)(5) is removed.b. Paragraphs (a)(6) through (12) are




40 CFR Part 81

[AZ–001–BU; FRL–5917–4]

Clean Air Act Reclassification;Arizona-Phoenix Nonattainment Area;Ozone

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: EPA is finding that thePhoenix nonattainment area (Maricopa


1 On July 18, 1997 (62 FR 38856), EPA revised theozone NAAQS to establish a 8-hour standard;however, in order to ensure an effective transitionto the new 8-hour standard, EPA also retained the1-hour NAAQS for an area until such time as itdetermines that the area meets the 1-hour standard.See revised 40 CFR 50.9 at 62 FR 38894. As a resultof retaining the 1-hour standard, CAA part D,subpart 2, Additional Provisions for OzoneNonattainment Areas, including the reclassificationprovisions of section 181(b), remain applicable toareas that are not attaining the 1-hour standard.Unless otherwise indicated, all references in thisnotice are to the 1-hour ozone NAAQS.

County, Arizona) has not attained the 1-hour ozone national ambient air qualitystandard (NAAQS) by the applicableattainment date in the Clean Air Act(CAA) for moderate ozonenonattainment areas, November 15,1996. EPA is also denying Arizona’sapplication for a one-year extension ofthe November 15, 1996 attainment datefor the Phoenix area. The finding anddenial are based on EPA’s review ofmonitored air quality data from 1994through 1996 for compliance with the 1-hour ozone NAAQS. As a result of thefinding and denial, the Phoenix ozonenonattainment area will be reclassifiedby operation of law as a serious ozonenonattainment area on the effective dateof this action. The effect of thereclassification will be to continueprogress toward attainment of the 1-hour ozone NAAQS through thedevelopment of a new Stateimplementation plan (SIP), due 12months from the effective date of thisaction, addressing attainment of thatstandard by November 15, 1999.EFFECTIVE DATE: December 8, 1997.FOR FURTHER INFORMATION CONTACT:Frances Wicher, Office of Air Planning,AIR–2, Air Division, U.S.Environmental Protection Agency,Region 9, 75 Hawthorne Street, SanFrancisco, California 94105, (415) 744–1248.


I. BackgroundUnder sections 107(d)(1)(C) and

181(a) of the Clean Air Act (CAA), thePhoenix metropolitan area wasdesignated nonattainment for the 1-hourozone NAAQS and classified as‘‘moderate.’’ See 56 FR 56694(November 6, 1991). Moderatenonattainment areas were required toshow attainment by November 15, 1996.CAA section 181(a)(1).

Pursuant to section 181(b)(2)(A) of theCAA, EPA has the responsibility fordetermining, within six months of anarea’s applicable attainment date,whether the area has attained the 1-hourozone NAAQS. 1 Under section181(b)(2)(A), if EPA finds that an areahas not attained the 1-hour ozone

NAAQS, it is reclassified by operationof law to the higher of the next higherclassification or to the classificationapplicable to the area’s design value atthe time of the finding. CAA section181(b)(2)(B) of the Act requires EPA topublish a notice in the Federal Registeridentifying areas which failed to attainthe standard and therefore must bereclassified by operation of law.

If a state does not have the clean datanecessary to show attainment of theNAAQS, it may apply, under CAAsection 181(a)(5) of the CAA, for a one-year attainment date extension. Issuanceof an extension is discretionary, butEPA can exercise that discretion only ifthe state has: (1) complied with therequirements and commitmentspertaining to the applicableimplementation plan for the area, and(2) the area has measured no more thanone exceedance of the ozone NAAQS atany monitoring site in thenonattainment area in the yearpreceding the extension year.

A complete discussion of the statutoryprovisions and EPA policies governingfindings of whether an area failed toattain the ozone NAAQS and extensionsof the attainment date can be found inthe proposal for this action at 62 FR46229 (September 2, 1997).

II. Proposed ActionOn September 2, 1997, EPA proposed

to find that the Phoenix ozonenonattainment area failed to attain the1-hour ozone NAAQS by the applicableattainment date. 62 FR 46229. Theproposed finding was based uponambient air quality data from the years1994, 1995, and 1996. These datashowed that the 1-hour ozone NAAQSof 0.12 parts per million had beenexceeded on average more than one dayper year over this three-year period.Attainment of the 1-hour NAAQS isdemonstrated when an area averagesone or less days per year over thestandard during a three-year period. 40CFR 50.9 and Appendix H. EPA alsoproposed that the appropriatereclassification of the area was toserious, based on the area’s 1994–1996design value of 0.132 ppm. For acomplete discussion of the Phoenixozone data and method of calculatingboth the average number of days overthe ozone standard and the designvalue, see 62 FR 46230.

EPA also proposed to deny the Stateof Arizona’s application for a one-yearextension of the moderate area ozoneattainment date for the Phoenixnonattainment area. The proposeddenial was based, in part, on evidencethat the Phoenix area is not close toattainment of the 1-hour ozone standard

and will need additional controls toattain, and, in part, on the area’s failureto meet the second statutory criterionfor granting an extension. That criterionrequires that the area have no more thanone exceedance of the ozone NAAQS in1996. CAA section 181(a)(5)(B). TheFountain Hills special purpose monitorin the eastern part of the Phoenixnonattainment area recorded 4exceedances of the 1-hour ozoneNAAQS in 1996. For a completediscussion of the basis for the proposeddenial of the extension, including EPA’spolicies related to the use of specialpurpose monitoring data, see 62 FR46231.

Finally, EPA proposed to requiresubmittal of the serious area SIPrevisions no later than 12 months fromthe effective date of the area’sreclassification.

III. Response to CommentsEPA received twenty-one comment

letters in response to its September 2,1997 proposal. Comments were receivedfrom Arizona Governor Jane Dee Hull,the Arizona legislative leadership, U.S.Senator Jon Kyl and U.S. RepresentativeJohn Shadegg, the Arizona Departmentof Environmental Quality (ADEQ), theMaricopa County EnvironmentalServices Department (MCESD), severallocal elected officials, numerousbusiness groups, and one environmentalgroup.

EPA wishes to express itsappreciation to each of theseindividuals and organizations for takingthe time to comment on the proposal.Each raised important issues to whichEPA welcomes the opportunity torespond.

As described above, EPA’s proposalwas composed of three elements: (1) afinding of failure to attain by thestatutory deadline of November 15,1996; (2) a denial of the State’sapplication for a one-year extension ofthe attainment date; and (3) a 12-monthschedule for submittal of the revisedSIP.

Most commenters emphasizedArizona’s leadership in thedevelopment and implementation ofeffective ozone controls (many of whichare only mandated for serious or severeozone nonattainment areas) and itsdemonstrated commitment to makingreal improvements in air quality.Among the controls cited are: the State’spremier vehicle emissions inspectionprogram (which includes the onlyregulatory use of remote sensing),Maricopa County’s Travel ReductionProgram, the extension of the FederalReformulated Gasoline (RFG) programto the Phoenix area, the State’s adoption


of its own, more stringent ‘‘CleanBurning Gasoline’’ program as well asnumerous other control programs suchas the voluntary lawnmowerreplacement program, mandatoryconversion of government fleets toalternative fuels, and incentives forconversion of private fleets toalternative fuels and for theconstruction of public fueling facilities.The City of Phoenix also listed anumber of innovative air qualitymeasures that it has implemented, andfinally, APS noted the voluntary effortsof business and community groupsincluding the Business for Clean AirChallenge program.

EPA is very aware of Arizona’sleadership and noted the State’sdedicated efforts to adopt andimplement controls to attain the ozonestandard in its proposal. See 62 FR46232. The Agency would like to makeclear that in taking this action it isneither ignoring Arizona’s exemplaryefforts to adopt controls to improve itsair quality nor minimizing Arizona’scommitment to clean air. Both areevidenced by the numerous controlslisted above and the State’s continuingefforts to evaluate its ozone situation.

As stated above, neither thedetermination of attainment/nonattainment nor the determination ofwhether an area met the statutoryextension criterion relating toexceedances of the ozone NAAQS in1996 allows for reviewing an area’sefforts to adopt controls. This exerciseinvolves little more than a rote reviewof available ambient air quality data.While EPA may desire more flexibilityin this situation to reward Arizona forits demonstrated leadership, the Agencyhas not been granted that flexibilityunder the Clean Air Act.

For the most part, commenters madesimilar, and frequently identical,comments. The issues raised relateprincipally to (1) the adverse impacts ofthe reclassification to serious, (2) theretention of the 1-hour ozone NAAQS inEPA’s recent action revising the ozoneNAAQS, (3) the denial of the request fora one-year attainment date extension, (4)EPA’s compliance with the RegulatoryFlexibility Act, and (5) proposedmeasures to mitigate the impact of thereclassification. Many of the commentsreceived did not directly address EPA’sproposals and instead focused on issuesthat have been the subject of earlier EPArulemakings (e.g., retention of 1-hourozone standard), outside of EPA’sregulatory authority in this action (e.g.,the reclassification to serious), orunrelated to the action (e.g., approval ofArizona’s excess emissions rule).

In this preamble, EPA is respondingto the most significant commentsreceived and has provided moredetailed and complete answers to allcomments received in the Response toComments (RTC) document which ispart of the technical support document(TSD) for this rulemaking. Copies of theTSD as well as other documents in thedocket for this rulemaking may beobtained from the contact listed at thebeginning of this notice.

A. Comments Related to the ProposedFinding of Failure to Attain Comment

ADEQ and others note that Arizonahas implemented most of the mandatorycontrol programs for both serious andsevere ozone nonattainment areas andthe only remaining requirements are formore stringent new source review (NSR)and the federal clean fleets program.Because the imposition of these seriousarea requirements will do little toimprove air quality in the Phoenixmetropolitan area, the commenterscontend that the reclassification iseffectively punitive.

Response: Serious ozonenonattainment areas (like all otherclassifications) are subject to bothspecific requirements for mandatorycontrol programs and more generalrequirements for attainment andreasonable further progress. EPA agreesthat the Maricopa area already has inplace most of the mandatory controlprograms required for serious area. TheState, however, has yet to address therequirements for attainment by 1999 inCAA section 181(c)(2)(A) or the 9percent rate-of-progress requirement insection 181(c)(2)(B). Both theserequirements are very likely to requiremeasures beyond the specific controlprograms mandated by a serious areaclassification, resulting in improved airquality for the Phoenix area.

The classification structure of the Actis a clear statement of Congress’s beliefthat the later attainment deadlinesafforded higher-classified andreclassified areas require compensatingincreases in the stringency of controls.The reclassification provisions of theClean Air Act are a reasonablemechanism to assure continued progresstoward attainment of the health-basedambient air quality standards whenareas miss their attainment deadlinesand are not punitive.

Comment: ADEQ, MCESD, and othersasserted that the schedules for planningand attainment under a reclassificationalmost certainly guarantee failurebecause it would be difficult tocomplete the needed technical analysiswithin the proposed 12-month SIPsubmittal schedule and then to

implement any additional controlsneeded before the 1999 ozone season.

Response: EPA agrees that the shorttime available for planning andattainment between the moderate areadeadline of November 15, 1996 and theserious area deadline of November 15,1999 makes completing the requiredtechnical analysis and adoptingadditional controls difficult. The State,however, has already adopted or is inthe process of adopting a number ofcontrols that will contribute substantialemission reductions in 1997 or beyond.These controls include the federalreformulated gasoline program for 1997,Arizona’s Clean Burning Gasolineprogram for 1998 and later,improvements to the vehicle emissioninspection program, and an industrialsolvent cleaning rule (currentlyschedule for adoption in early 1998). Inaddition, ADEQ continues to evaluateand refine the Urban Airshed modelingperformed for the draft Voluntary EarlyOzone Plan (VEOP). All these actionsgive Arizona a head start in meeting theserious area requirements.

In proposing a 12-month schedule forsubmittal of the revised plan, EPAunderstood that this was an ambitiousschedule but stated that it believed ‘‘a12-month schedule is appropriatebecause the attainment date for seriousareas, November 15, 1999, is little morethan 2 years away and the State willneed to expedite adoption andimplementation of controls to meet thatdeadline.’’ See 62 FR 42633. EPA istherefore retaining the 12-monthschedule for submittal of the SIPrevisions needed to meet the seriousarea requirements.

Comment: Commenters argue thatbecause stationary sources are not thecause of the ozone problem in Phoenix,the more stringent new source review(NSR) requirements that come with theserious area classification will do littleto improve the air quality and are thusmerely punitive.

Response: Phoenix is not beingsingled out for more stringent NSRrequirements than any other similarly-classified area in the Country such asAtlanta, Washington, D.C. and SanDiego. The more stringent NSRprovisions (which principally affectwhich sources are subject to majorsource NSR) are required by statute ofall serious areas without exception. Thistightening of control requirements asareas move up the classification ladderand are given more time to attain is partof the basic Clean Air Act scheme forozone attainment. In establishing thisscheme, Congress determined that themore stringent NSR provision werereasonable for serious areas and, since


2 In the Phoenix area, MCESD operates eightozone monitors in its official or state or local airmonitoring station/national air monitoring station(SLAMS/NAMS) network. ADEQ and MCESDoperate a total of nine ozone special purposemonitors in the area.

3 This letter was signed by DOJ on behalf of EPAand accurately reflects the Agency’s position on theuse of SPM data.

Congress did not provide relief fromthese requirements for reclassified areas,it also determined that they werereasonable without exception formoderate areas being reclassified toserious.

B. Comments Related to Retention of the1-Hour Ozone Standard Comment

A number of comments were receivedon the legality of EPA’s decision, havingpromulgated an 8-hour NAAQS, to deferrevocation of the 1-hour ozone NAAQS.

Response: The continuedapplicability of the 1-hour standarduntil EPA determines that theapplicable area is meeting that standardis not the subject of this rulemaking.This rulemaking only concerns thefinding that the Phoenix area failed toattain the 1-hour standard and thedenial of the State’s request for anextension of the attainment deadline forthat standard. The issue of thecontinued applicability of the 1-hourstandard was part of the rulemaking inwhich EPA promulgated an 8-hourozone standard. 62 FR 38856 (July 18,1997). That rulemaking proceeding, notthis one concerning Phoenix, was theappropriate forum in which to raiseissues concerning the continuedapplicability of the 1-hour standard.

C. Comments Related to the Proposal toDeny Arizona’s Application for a One-Year Extension of the Attainment Date

Almost all comments receivedopposed EPA’s proposed denial of theState’s application for a one-yearextension of the November 15, 1996attainment date. Before responding tothe specific comments raised withregard to this issue, some introductoryremarks are in order. In general, thecommenters misperceive the nature ofsection 181(a)(5) of the CAA thatprovides:

Upon application of any State, theAdministrator may extend for 1 additionalyear (hereinafter referred to as the ‘‘ExtensionYear’’) the [attainment deadline] if—

(A) the State has complied with allrequirements and commitments pertaining tothe area in the applicable implementationplan, and

(B) no more than 1 exceedance of thenational ambient air quality standard levelfor ozone has occurred in the area in the yearpreceding the Extension Year.

No more than 2 one-year extensions maybe issued under this paragraph for a singlenonattainment area. Emphasis added.

Many commenters erroneouslyassume that if the conditions insubparagraphs A and B above are met,then EPA must automatically grant theextension. However, by its terms,section 181(a)(5) is ultimatelydiscretionary. See 62 FR 46230. While

EPA cannot grant an extension requestif the conditions are not met, it is notrequired to do so even if they are.

While EPA believes, as discussed atlength below, that the second conditionhas not been met, the Agency has amplejustification for denying the requesteven if that were not the case. In itsproposal, EPA articulated two reasons todeny the extension request. The first—the failure to meet the second extensioncriterion—will be discussed furtherbelow. The second—that the Phoenixarea was not close to attainment—wentvirtually unaddressed by most thecommenters. As EPA stated in its notice:[T]he underlying premise of an extension isthat an area is close to attainment andalready has in place the control strategyneeded for attainment. All evidence in frontof the Agency indicates that the Phoenix areais not close to attainment of the 1-hour ozonestandard and that, despite the State’sdedicated efforts to adopt and implementcontrols, the area will need to continue its ongoing planning and control efforts. Thus,even if the Phoenix area met the statutoryrequirements for granting an extension, EPAbelieves that such an extension would not beappropriate at this time. Emphasis added. 62FR 46232.

While several commenters questionedEPA’s conclusion that the Phoenix areawas not close to attainment, theircomments (which are addressed later)did not persuade EPA that itsconclusion was wrong. In fact, an equalnumber of commenters tacitly agreedwith EPA’s position by arguing the needfor long-term measures to solvePhoenix’s ozone problem and theimpossibility of showing attainment by1999.

The central thrust of the commentsEPA received on the extension issue isthat EPA improperly included data fromspecial purpose monitors (SPMs) 2 in itscalculation of whether the Phoenix areaexperienced no more than oneexceedance of the ozone NAAQS in1996, the year preceding the extensionyear, and had EPA properly excludedthe data, then the Phoenix area wouldhave been granted an extension. For thereasons discussed below, EPA believesthat it was entitled to rely on that datain making this assessment. However,even if the SPM data were excludedfrom the calculation, the Agencybelieves that it can properly exercise itsdiscretion to deny the State’s extensionrequest.

As documented below and inAppendix B to the TSD, since at least

1989, Arizona has maintained aninadequate official monitoring networkand has consistently declined to convertthe SPMs (which meet all of EPA’stechnical criteria) to cure thosedeficiencies. If it had to rely solely onthis inadequate monitoring network, itwould be impossible for EPA todetermine whether the Phoenix area hadone or fewer exceedances of the ozonestandard in 1996 because the officialnetwork does not adequately representPhoenix’s air quality. Only when thedata from the SPMs are combined withthose of the official network is itpossible to make this determination andwith the SPM data it is clear that thePhoenix area is not close to attaining theozone 1-hour NAAQS. Modelingconducted by the State confirms thisconclusion. Thus the underlying intentof the statute’s extension provision hasnot been met. In acknowledging thisreality, EPA can appropriately exerciseits discretion to deny the extensionrequest.

Comment: ADEQ contends that in aletter dated June 6, 1997, to the Clerk ofthe United States Court of Appeals forthe Third Circuit, EPA’s legal counselnoted that EPA was not required toconsider non-network (i.e., not part ofthe SLAMS/NAMS network) datashowing violations of the NAAQS.Letter, June 6, 1997, from Lois J.Schiffer, Assistant Attorney General,Environmental Natural ResourcesDivision (by Greer S. Goldman), U.S.Department of Justice (DOJ) to P.Douglas Sisk, Clerk, United States Courtof Appeals for the Third Circuit (‘‘3rdCircuit letter’’). ADEQ also citesSouthwestern Pennsylvania GrowthAlliance v. Browner, 121 F.3d 106 (3rdCir. 1997), to support its position thatEPA in the past has excludedexceedance data from its evaluation ofa redesignation request because the datacame from monitors that were not partof the SLAMS network.

Response: In the 3rd Circuit letter,EPA actually concluded that theAgency’s regulation on the use of SPMdata, 40 CFR 58.14, does not authorizeit to take into account the State’sintended use of SPM data that otherwisemeet that regulation’s requirementswhen deciding whether to use it in anozone redesignation action.3 As a result,under EPA’s regulation, all availableSPM data that meet the minimumfederal siting and quality assurancerequirements in 40 CFR Part 58 must beused in making regulatory decisions


such as redesignations andreclassifications.

Southwestern Pennsylvania GrowthAlliance involves EPA’s disapproval ofthe Commonwealth of Pennsylvania’srequest to redesignate the Pittsburgh-Beaver Valley nonattainment area toattainment for ozone. The disapprovalwas based on 1995 violations of theozone standard recorded on the area’sSLAMS/NAMS network. 61 FR 19193(May 1, 1996) The SouthwesternPennsylvania Growth Alliance(SWPGA), an organization of majormanufacturers and local governments inthe Pittsburgh-Beaver Valley region,sought review of EPA’s disapproval bythe Third Circuit Court of Appeals. Afull history of EPA’s actions onPennsylvania’s redesignation requestcan be found in the TSD for today’snotice.

Among the issues raised by SWPGAwas the use of the 1995 SLAMS/NAMSdata. SWPGA argued that EPA actedcontrary to the Act by considering the1995 ozone exceedances because theyoccurred after the EPA’s 18 monthdeadline to act on the State’sredesignation request which had beensubmitted in November, 1993. In aneffort to clarify certain statements madein its brief, EPA identified certaininstances where it had not usedavailable data when acting on aredesignation request. In one instance,the San Francisco-Bay Arearedesignation to attainment for ozone,EPA had excluded SPM data from itsredesignation evaluation. The otherinstance, LaFourche Parish, Louisiana,involved only SLAMS/NAMS data. 121F.3d at 115.

The court then directed EPA toaddress a number of questions,including why it is lawful for EPA toexclude consideration of data frommonitors that are not part of the SLAMSnetwork. The 3rd Circuit letter cited byADEQ is EPA’s response to the court onthis issue. As stated in this letter (p. 4):

For data from monitors that are not part ofthe SLAMS network required by [40 CFR]Part 58 [EPA’s monitoring regulation], EPAregulations provide that EPA will exclude thedata when they do not meet the terms of 40CFR 58.14. That section provides, in relevantpart:

Any ambient air quality monitoring stationother than a SLAMS or [prevention ofsignificant deterioration] station from whichthe State intends to use the data as part ofa demonstration of attainment ornonattainment or in computing a designvalue for control purposes of the [NAAQS]must meet the requirements for SLAMSdescribed in section 58.22 and, after January1, 1983, must also meet the requirements forSLAMS as described in section 58.13 andappendices A and E to this part.

* * * In at least one case, EPA hasinterpreted section 58.14 to make a state’sintent a factor in determining whether datafrom special purpose monitors that otherwisemeet the requirements of section 58.14 maybe excluded from consideration in an ozoneredesignation action. However, EPA hasrecently evaluated that interpretation andconcluded that it is not authorized by section58.14.

The passage supports the conclusionthat the only circumstance under whichSPM data may be excluded is if the datado not meet the siting and qualityassurance requirements of Part 58.

The statement that ADEQ cites fromthe 3rd Circuit letter comes from theletter’s concluding paragraph whichdiscusses the specific facts ofSouthwestern Pennsylvania GrowthAlliance. All monitoring data underconsideration in that case came fromSLAMs monitors; there were no SPMdata at issue in EPA’s decision to denythe redesignation request. In thiscontext, it is clear that the 3rd Circuitletter does not indicate that EPA mayignore SPM data:

It should be noted, however, that the issueof whether EPA has discretion to decide ifdata from outside the official monitoringnetwork should be used in redesignationdecisions is not at issue in this case, whereall monitored violations of the ozonestandard were recorded at official networkmonitors. And even if EPA were required toconsider non-network data showingviolations, EPA would not be authorized toignore violations at official network monitorswhen determining whether an area hasattained the standard and is entitled toredesignation. 3rd Circuit letter (p. 4).

ADEQ also cites the court’s opinion tosupport its contention that EPA hasexcluded SPM data in the past. Whilethe court noted that ‘‘[i]n at least onecase, the EPA has excluded exceedancedata from its evaluation of aredesignation request because the datacame from monitors that were not partof the [SLAMS] network * * *,’’ it wenton to state in the same paragraph:

Assuming arguendo that the EPA’sexclusion of non-SLAMS exceedance dataviolates the EPA’s duty not to redesignate anarea that fails to attain the NAAQS, the EPA’sprior disregard of this duty did not relieve theEPA of its obligation to act correctly in othercases. Emphasis added. 121 F.3d at 115.

Based on its interpretation of Section58.14, and the facts of the Phoenix airquality situation discussed below, EPAbelieves that it is acting correctly in notexcluding the SPM data fromconsideration in the Phoenix extensiondecision.

Comment: Numerous commentersquestioned the timing of EPA’s issuanceof the Memorandum, ‘‘Agency Policy onthe Use of Special Purpose Monitoring

Data,’’ dated August 22, 1997, by JohnSeitz, EPA Director of the Office of AirQuality Planning and Standards (‘‘SPMpolicy’’ or ‘‘SPM memo’’), noting that itwas issued just 3 days in advance ofEPA’s announcement that it wasproposing to find that the Phoenix areahad failed to attain the ozone standardand to deny the State’s extensionrequest. The commenters contend that,absent this ‘‘ad hoc policy,’’ EPA wouldnot have been able to propose to denyArizona’s one-year extension requestbased upon the use of the specialpurpose monitor data that EPA hasheretofore rejected.

Commenters state that the informationsubmitted to EPA’s AIRS and additionaldata submitted to EPA by ADEQdemonstrate that, had the Fountain Hillsspecial purpose monitor data properlybeen excluded, the criterion in section181(a)(5)(B) would have been satisfied.Commenters note that during the yearpreceding the extension year (1996),there was only one exceedance of theozone NAAQS at a SLAMS or NAMSmonitor (the exceedance at the MesaSLAMS monitor on July 23, 1996, whena reading of 0.127 ppm ozone wasrecorded) and that this was the onlyozone exceedance recorded during theentire calendar year of 1996 on anyofficial SLAMS or NAMS monitor.

Response: The proper treatment ofSPM data has been growing nationalinterest for some time, increasing theneed for EPA to issue national guidance.As noted in the SPM memo (p. 1):[OAQPS] has received several inquiries fromRegional Offices into how special purposemonitoring data can be used in making avariety of regulatory decisions such asdesignations, classifications, and attainmentdate extensions. [It] also [has] a final rulingfrom the U.S. Court of Appeals for the ThirdCircuit which supports the U.S. EPA denialof Pennsylvania’s redesignation request forthe Pittsburgh-Beaver Valley ozonenonattainment area. In light of thesequestions, legal developments, and the new[NAAQS] implementation directives,[OAQPS] believe[s] it is necessary to discussthe use of all publicly available specialpurpose monitoring data for all regulatoryapplications.

Further impetus for the SPM policywas the revised ozone NAAQS underwhich EPA must determine within 90days of their July 18, 1997 publicationwhich areas of the Country are attainingthe 1-hour standard. National guidanceis clearly essential to assure consistencyin the use of SPM data for thesedeterminations.

The interest in and the need for aclear statement of the Agency’s policyon SPM data was thus far broader thanthe Phoenix situation. The Agency didnot, as the commenters imply, create an


4 ADEQ convened a series of facilitatedstakeholder meetings in May through July, 1997 todiscuss the ambient air quality monitoring networkin Maricopa County. Participants included MCESD,other local agencies, industry representatives, andenvironmental groups. EPA also participated in themeetings.

5 This policy clarification is clearly permissible.Moreover, even if it were a change or revision inpolicy, rather than a clarification, it would alsoclearly be permissible. It is well established that anagency may modify or reverse its interpretation overtime provided the agency supplies a reasoned basisfor the change. See e.g., Chevron U.S.A., Inc. v.NRDC, 467 U.S. 837, 863 (1984); Motor VehicleManufacturers Assoc. of the U.S., Inc. v. State FarmMutual Automobile Insurance Co., 463 U.S. 29, 42(1983)(‘‘we fully recognize that ‘‘[regulatory]agencies do not establish rules of conduct to lastforever’ * * * and that an agency must be givenample latitude to ‘‘adapt their rules and policies tothe demands of changing circumstances.’ ’’); GoodSamaritan Hospital v. Shalala, 113 S. Ct. 2151,2161 (1993) (‘‘[A]n administrative agency is notdisqualified from changing its mind * * *’’). EPAprovided that reasonable basis in the SPM memo.

‘‘ad hoc’’ policy simply to justify itsproposed denial of Arizona’s request foran extension but rather it articulated anational policy applicable to all areas ofthe Country.

The commenters, however, wronglyassert that EPA needed the August 22,1997 SPM policy to justify its denial ofArizona’s extension request. Evenwithout a formal written policystatement, EPA believes that it hassound reasons to use the SPM data inthis case, including the inadequateSLAMS/NAMS network in Phoenix, thediscrepancies in measured air qualitybetween the official monitors and theSPMs, and its long-establishedregulations governing the use of SPMdata.

Moreover, the June 6, 1997 letter tothe Third Circuit and the Court’ssubsequent July 28, 1997 decision inSouthwestern Pennsylvania GrowthAlliance, both available long beforeEPA’s announcement, may be read toimply that EPA must consider availableSPM data in making regulatorydecisions such as granting extensionrequests. As noted in the SPM memo (p.2):The Third Circuit Court decision supportsthe view that the EPA may not redesignatean area from nonattainment to attainment ifthe EPA knows that the area is not meetingthe ozone NAAQS. Specifically, if the U.S.EPA knows of a violation or violations of theozone NAAQS by either examininginformation within the AIRS or data fromother sources and these data meet all 40 CFRPart 58 requirements, the U.S. EPA cannotdetermine that an area is attaining theNAAQS.

This logic applies equally toextension requests: if EPA knows ofmore than one exceedance in an area inthe year preceding the extension year byeither examining information withinAIRS or data from other sources andthese data meet all 40 CFR part 58requirements, EPA cannot grant anextension of the attainment date.

Finally, EPA notes that it informedArizona of its intention to use the SPMdata in advance of its August 25, 1997announcement. In a presentation to theMay 19, 1997 meeting of the Arizona airquality monitoring networkstakeholders,4 EPA stated that thecurrent Maricopa SLAM network wasdeficient and that it could not, withoutinclusion of the SPM sites, support thegranting of an extension. At the June 9,

1997 meeting, EPA distributed the 3rdCircuit letter and noted that EPA wouldsoon be formally clarifying its use ofSPM data. EPA also made a series ofcourtesy calls to state and local agenciesthe week before its announcement toinform them that it would be proposingto find that Phoenix had failed to attainand that it was proposing to deny theextension request based in part on theSPM data.

Comment: Several commenterscontend that the use of the SPM data inthis instance is inconsistent withactions taken in other nonattainmentareas where SPM data were excluded forthe purposes of making similardeterminations and conclude that ifEPA had followed its earlier precedentsthen data from the Fountain Hillsspecial purpose monitor would not havebeen used to deny the extension request.ADEQ also notes that the SPM memoimplicitly concedes that Agency policyup to the date of the memorandum hadbeen to reject exactly the kind ofmonitoring data on which EPA based itsdecisions to propose to deny the one-year extension. Commenters view EPA’srefusal to follow prior precedent anddisregard special purpose monitor datain this situation as a simple case ofdisparate treatment.

Response: EPA’s previous record onthe use of SPM data contains numerousexamples of instances where the Agencyhas used SPM data in makingdesignation and classification decisions.While commenters note one instancewhere EPA did not use available SPMdata (the Beaumont-Port Arthurreclassification), and the SPM memonotes one other (the San Francisco-BayArea redesignation), there are manymore instances where the Agency hasused SPM data to either designate orclassify an area, including the originalclassification of the Phoenix area asmoderate for ozone and the PM–10nonattainment designations for theBullhead City and Payson, Arizonaareas. See 56 FR 56694, 56703(November 6, 1991) and 58 FR 67334,67336 (December 21, 1993),respectively. Outside of Arizona, EPAhas used SPM data to redesignate tononattainment portions of White TopMountain in New York and SmythCounty, Virginia. See 56 FR 56694,56704.

Many commenters cited EPA’s 1996action to correct the Beaumont/PortArthur, Texas area ozone classificationfrom serious to moderate as an exampleof EPA’s inconsistent use of SPM data.61 FR 14496 (April 2, 1996). In thiscase, data from an SPM had originallybeen utilized to classify the Beaumont/Port Arthur area as a serious ozone

nonattainment area. Based on additionalinformation provided by Texas, EPAcorrected the reclassification underCAA section 110(k)(6) from serious tomoderate, stating that the data from theSPM should not have been used forclassification purposes because, amongother reasons, the SPM was not a partof the state monitoring network, the datafrom the monitor were utilized forresearch purposes, and the data werenot reported to EPA’s AerometricInformation Retrieval System (AIRS).

Commenters contend that in thesethree circumstances the Phoenixsituation closely parallels Beaumont-Port Arthur’s; therefore, EPA shouldtreat the Phoenix SPM data in a likemanner by excluding it. In response,EPA notes that it has clarified its policyon the treatment of SPM data since theApril 2, 1996 action on Beaumont-PortArthur, resulting in all three of thesecircumstances no longer being groundsfor excluding SPM data.5

Even if EPA’s regulations and policywere that valid SPM data could beexcluded in some cases (which they arenot), EPA believes that there are twocompelling reasons to use the SPM datain the Phoenix case. These reasons are(1) the inadequacy of the Maricopaozone monitoring network and (2) thelarge discrepancy between air qualitywhen measured on Maricopa’s SLAMS/NAMS network and when measured onthe SLAMS/NAMS/SPM network.

Since 1989, EPA has consistentlyfound that Maricopa’s existing ozoneSLAMS/NAMS network is inadequate tomeet the monitoring objectives of Part58, more specifically the requirementfor a site measuring maximumconcentration. A complete history ofEPA’s evaluations of the MaricopaCounty monitoring network can befound in Appendix D to the TSD.Numerous evaluations, including therecent VEOP, have indicated thatmaximum ozone concentrations areoccurring in the rapidly-developingeastern-northeastern portion of


6 This is borne out by the fact that all but one ofthe 1996 exceedances (the one at the Mesa SLAMSmonitor) occurred at monitors to the east ornortheast of the metropolitan area.

7 SBREFA amended the Regulatory Flexibility Act(RFA), 5 U.S.C. 601 et seq.

8 EPA notes that businesses that emit 100 tpy ormore are already subject to some of these

requirements under the moderate areaclassification.

Maricopa County.6 While there areSLAMS sites located throughout thecentral part of the Phoenix metropolitanarea, there are no SLAMS sites on theeastern edge of the Phoenix area. EPAhas been urging the County for nearly adecade to locate an ozone SLAMSmonitor in this area. The County hasresponded by locating numerous SPMsites there (including the Fountain Hills

SPM site) but has yet to convert any ofthose sites into SLAMS or NAMS.

Based solely on this inadequatenetwork, it is not possible for EPA toaccurately determine the area’scompliance with the second statutorycriterion for extensions. Such adetermination can only be made basedon data from a complete network thataccurately reflects air quality in thearea; therefore, even if the SPM data

were excluded from the calculation, theAgency believes that it can properlyexercise its discretion to deny theState’s extension request.

The inadequate SLAMS network hasled to a troubling discrepancy betweenthe air quality measured on the SLAMS/NAMS network and that network whenaugmented by the SPM sites. This isillustrated by Table 1 below.

TABLE 1.—AIR QUALITY COMPARISON BETWEEN THE SLAMS/NAMS NETWORK AND SLAMS/NAMS/SPM NETWORK

[Maricopa County, 1994–1996]

SLAMS/NAMS net-

work

SLAMS/NAMS/SPM

network(w/o Mt.

Ord or BluePoint)

Number of Ozone Exceedance ........................................................................................................................................ 10 44Number of Ozone Violations ............................................................................................................................................ 2 13Number of Days over the Ozone Standard ..................................................................................................................... 6 21

Clearly had EPA ignored the SPMdata in Maricopa County, it would havegreatly underestimated the severity ofthe area’s air quality andinappropriately downplayed the impactof that air quality on public health.

Given the significant probability thatthe Phoenix area would eventually facereclassification to serious even if it weregranted an extension, EPA questions theactual benefit of an extension to thearea. The commenters have madeextensive comments on the adverseimpacts of reclassification, among themthe short-term planning and attainmentdeadlines facing newly serious areasand the imposition of the more stringentNSR provisions. An extension wouldonly compound the problem of the shorttime frames while simply deferring themore stringent NSR provisions for ashort time. Hence, even if it were withinits discretion to grant an extension, EPAstands by its belief that an extension isnot appropriate at this time.

Comment: A number of commentersnoted that the Phoenix area had notexperienced any ozone exceedances in1997 and asserted that this indicatesthat the area’s ozone problem has beensolved. Noting that the number of ozoneexceedances peaked in 1995 anddecreased in 1996, the County statedthat the ‘‘reality check’’ provided by theambient data indicates a trendcontradictory to EPA’s contention thatthe Phoenix area is not close toattainment.

Response: The clean ozone air qualitythat the Phoenix area has experiencedthis year is very good news. These lowerozone readings are due in some part tothe introduction of reformulatedgasoline and the continuingimplementation of other controlprograms such as the State’s premiervehicle emission inspection program.

Unfortunately, a single year of ozonedata cannot be used to conclude that anarea is close to attaining the 1-hourozone standard. The Phoenix area hasexperienced another year (1989) inwhich ozone exceedances were notrecorded, only to have the subsequentyears show widespread violations.

Ozone levels are related to bothemission levels and meteorology. As aresult of this meteorological component,ozone levels can vary greatly from yearto year. The 1-hour ozone standardaccounts for the weather’s effect byevaluating compliance over a three-yearperiod (that is, an area can average nomore than 1 exceedance per year over athree-year period). 40 CFR 50.9 and part50, Appendix H.

There is some reason to believe thatfavorable weather patterns this yearhave also contributed to Phoenix’s lowozone readings. In fact, 1997 has beenan unusually good year for air qualitythroughout the West. All areas in EPARegion 9 (with the exception of SanDiego and the Imperial Valley) haveshown decreases in second-high ozonelevels from 1996 to 1997, many greater

than Phoenix’s. None of these areas hasintroduced substantial new emissionreduction programs, like Phoenix, thatwould account for these decreases.

D. Comments Related to the RegulatoryFlexibility Act Requirements

Comment: A number of commentersclaimed that EPA failed to comply withthe Small Business RegulatoryEnforcement Fairness Act of 1996(SBREFA) in its proposal.7 Thecommenters claim that EPA’scertification that its action would nothave a significant economic impact ona substantial number of small entities isincorrect.

In support of their argument, thecommenters state that small businessesthat emit 50 tpy or more of VOC willbecome subject to reasonably availablecontrol technology (RACT)requirements, more stringent NSRrequirements, and the Title V operatingpermit program as a result of thereclassification to serious and describein more detail the potential adverseimpacts of these requirements on smallbusinesses.8

The commenters further assert thatEPA’s reliance on Mid-Tex ElectricCooperative, Inc. v. FERC, 773 F.2d 327(D.C. Cir. 1985) for not preparing aregulatory flexibility analysis ismisplaced. Finally, as an aside, thecommenters note that Mid-Tex wasdecided a decade before Congressenacted SBREFA and more significantly,


9 Commenters only addressed the potentialimpact on small businesses of the reclassification(which is based on the determination ofnonattainment and the denial of the extensionrequest), and not the potential impacts of the SIPsubmittal schedule. Therefore, the latter action isnot discussed further in response to this comment.

SBREFA imposes outreach requirementson EPA and OSHA which are imposedon no other government agencies (citing5 U.S.C. 609(b) and (d)).

Response: The Regulatory FlexibilityAct provides that, whenever an agencyis required to publish a general noticeof rulemaking for a proposed rule, theagency must prepare an initialregulatory flexibility analysis for theproposed rule unless the head of theagency certifies that the rule ‘‘will not,if promulgated, have a significanteconomic impact on a substantialnumber of small entities’’ (section605(b)). EPA certified the proposeddetermination that the Phoenix area didnot attain the 1-hour ozone standard bythe attainment date and the proposeddenial of the attainment date extensionrequest,9 based on its conclusion thatthe rule would not establishrequirements applicable to smallentities and therefore would not have asignificant economic impact on smallentities within the meaning of the RFA.EPA is reaffirming that certification inthis final action.

As described elsewhere in this notice,CAA section 181(b) requires EPA todetermine whether an area has attaineda NAAQS by the applicable attainmentdeadline. If EPA finds that the area hasnot attained, the section generallyprovides that the area ‘‘shall bereclassified by operation of law’’(section 181(b)(2)(A)). The sectionrequires EPA to publish a notice in theFederal Register identifying each areathe Agency has determined to be innonattainment and ‘‘identifying’’ theresulting reclassification of the area(section 181(b)(2)(B)).

While determinations that trigger areclassification do not themselvesestablish regulatory requirementsapplicable to small (or large) entities,they may, as noted by the commenters,trigger the application to small entitiesof regulatory requirements establishedby other rulemakings under the CleanAir Act (and conceivably other statutes).EPA, however, has concluded that theword ‘‘impact’’ as used in the RFA doesnot include regulatory requirements thatthe rule does not establish, but maytrigger under the terms of other rules orstatutory provisions. For the reasonsdiscussed at length in the TSD, EPAbelieves that the RFA’s text, legislativehistory and case law, including Mid-Tex, all make clear that RFA analysis is

limited to the requirements of the rulebeing promulgated.

A more detailed discussion of thisissue may be found in the TSD for thisrulemaking.

E. Comments Related to Mitigating theAdverse Impacts of Reclassification

Many commenters suggested severalsteps that could be taken to mitigate theadverse impacts of the reclassification toserious. While EPA will briefly respondto most of the suggestions here, manyinvolve issues that are being dealt within forums other than this action. EPAwill continue to work with interestedparties in Arizona to address theseissues in those other forums. EPA alsoreceived questions regarding theimplementation of NSR and Title Vrequirements. Those questions areaddressed in the TSD.

Comment: Commenters requested thatEPA suspend further enforcement of the1-hour ozone NAAQS in the PhoenixMetropolitan area by amending its‘‘implementation policy’’ for the revised8-hour ozone NAAQS. Commenterscontend that EPA has the flexibility andauthority to do so under the‘‘implementation policy’’ by citing thepolicy’s statements that implementationof the new 8-hour ozone NAAQS shouldbe ‘‘carried out to maximize commonsense, flexibility, and costeffectiveness.’’ 62 FR 38421 (July 18,1997).

Response: The document referred toand cited by the commenters as the‘‘Implementation Policy,’’ 62 FR 38421(July 18, 1997) is a memorandum to theEPA Administrator entitled‘‘Implementation of Revised Air QualityStandards for Ozone and ParticulateMatter’’ (‘‘President’s Memorandum’’)signed by President Clinton for theimplementation of the revised ozoneand particulate matter standards.Attached to that memorandum is astrategy, ‘‘Implementation Plan forRevised Air Quality Standards’’(‘‘Implementation Plan’’) outlining thesteps for implementing these standards.EPA is currently developing guidanceand proposed rules consistent with thePresident’s Memorandum. EPA iscommitted to the goals of maximizingcommon sense, flexibility, and costeffectiveness in implementing therevised NAAQS.

EPA’s action reclassifying Phoenix asa serious ozone nonattainment area is inno way inconsistent with those goals.Furthermore, it is consistent with thecontinued applicability of the 1-hourstandard and subpart 2 as provided forin EPA’s rulemaking on the ozoneNAAQS. See 62 FR 38856, 38873. Tothe extent that the comments concern

that issue, they are not appropriatelyraised in this rulemaking.

Neither the provisions of 40 CFR 50.9,as revised (62 FR 38856, 38894), nor anyother statutory or regulatory provisions,provide EPA with the authority tosuspend enforcement of the 1-hourNAAQS in Phoenix. Moreover, as notedearlier, the Phoenix area has notcomplied with some of the mostsignificant serious area requirements(e.g., the 9 percent rate of progressrequirement). Finally EPA believes thatcomplying with those requirements willhave a positive, not detrimental, effecton the ability of Phoenix to comply withthe 8-hour standard. Additionalcomments related to this point areaddressed in the TSD.

Comment: The commenters requestedthat EPA execute an agreement with theState of Arizona to act upon submittedSIP revisions within a fixed period oftime based upon priorities identified bythe State and to set a schedule for actingon future SIP revisions.

Response: EPA Region 9 receiveshundreds of requests each year to revisefederally-enforceable SIPs from over 40different state and local air pollutionagencies. These include requests tomodify inventories, attainmentdemonstrations, and administrative,permit, and prohibitory regulations.Given the available resources, Region 9is unable to review and act on each ofthese requests as quickly as it wouldlike. As a result, the Agency relies onthe state and local agencies to prioritizesubmittals so that the most importantones to the state and local agencies canbe acted on first. Region 9 does expectto take final action soon on severalrevisions submitted by Maricopa Countyand has recently contacted the Arizonaair pollution agencies to request thatthey identify those submittals that needto be acted quickly in order to issueTitle V permits or for other purposes.Region 9 will process submittals in thepriority order requested by theseagencies.

Comment: Commenters requested thatEPA approve EPA ArizonaAdministrative Code (A.A.C.) R18–2–310 (The Arizona Excess EmissionsRule) as a revision to the SIP.

Response: This comment is closelyrelated to a lawsuit brought by theArizona Mining Association with regardto EPA’s interim approval of Arizona’sTitle V operating permit program onOctober 30, 1996 (61 FR 55910). Theparties involved in the suit have hadconstructive exchanges, which EPAexpects to continue, on the appropriatetreatment of the Arizona ExcessEmissions Rule during the settlementdiscussions.


Comment: Commenters request thatEPA adopt realistic, streamlinednational Prevention of SignificantDeterioration (PSD) and New SourceReview (NSR) regulations.

Response: EPA recognizes that itscurrent regulations governing the newsource review programs mandated byboth parts C (PSD) and D (NSR) of TitleI of the Clean Air Act are a source ofconcern for many people. On July 23,1996, EPA proposed major revisions(known as the NSR reform proposal) toits PSD and NSR regulations. 61 FR38250. EPA has received manycomments on its proposal and iscurrently carefully reviewing andconsidering these comments as itdevelops the final rule. EPA’s goal forthis final rule is to simplify its NSR andPSD regulations consistent with theClean Air Act requirements for thoseprograms.

Comment: Commenters request thatEPA adopt a regulatory affirmativedefense for sources with potential VOCemissions of from 50 to 100 tons peryear that will apply to enforcement ofthe NSR requirements in ozonenonattainment areas that meet certaincriteria.

Response: It appears that thecommenters are attempting to ease theperceived regulatory burden that will beimposed on sources that emit between50 and 100 tons of VOC per year as aresult of the reclassification. EPA willstudy the proposal, but its initialresponse is that the commenters’suggested approach is not the mosteffective means for addressing theirunderlying concerns. EPA believes itmay be constructive to engage in adialogue regarding possible mechanismsfor limiting sources’ potential to emit tobelow the thresholds that trigger NSR.However, where a source’s actualemissions exceed the major sourcethreshold or the source is unable toreduce its potential to emit below themajor source threshold, the source issubject to major NSR.

Comment: Commenters request thatEPA continue to expeditiously act toapprove the Arizona Clean BurningGasoline Program.

Response: EPA has been very pleasedto support Arizona’s efforts to bringreformulated gasoline to the Phoenixarea. In addition to approving theGovernor’s request to join the federalprogram and the State’s request forlower RVP limits, the Agencyparticipated in the development of thenew CBG rules in order to correct anyapproval problems early in the process.EPA is now working closely with ADEQto act on the recent submittal of the CBG

rules. This work is among EPA’s highestpriorities.

F. Other CommentsComment: Senator Kyl and

Representative Shadegg commented thatby using data collected from 1994through 1996 as the basis for itsdecision, EPA has not taken intoaccount the significant and positiveeffects of the RFG program and otheractions taken by the State of Arizona toreduce ozone pollution and that thisresults in an inaccurate andunwarranted reclassification of Phoenixto serious. They comment further thatthis violates principles in President’sJuly 18, 1997 memorandum that‘‘implementation of the air qualitystandards is to be carried out tomaximize common sense, flexibility,and cost effectiveness.’’

Response: EPA agrees that the 1994–1996 data do not reflect the 1997implementation of the RFG program andthat this program will have a continuingpositive effect on ozone levels in thePhoenix area. EPA, however, isconstrained by statute from considering1997 data in its finding of failure toattain and denial of the extensionrequest.

CAA section 181(b)(4) requires EPA todetermine if an area has attained ‘‘as ofthe attainment date.’’ For Phoenix, theattainment date is November 15, 1996,and under long-established procedures,determining attainment as of that daterequires reviewing data from the threeyears immediately preceding that dateor 1994 through 1996. 40 CFR 50.9 andpart 50, Appendix H.

The criterion for extensions in CAAsection 181(a)(5)(B) is that ‘‘no morethan one exceedance of the [ozonestandard] has occurred in the area in theyear preceding the Extension Year.’’ Theextension year is 1997, thus the ‘‘yearpreceding’’ is 1996.

VI. Final ActionEPA is finding that the Phoenix ozone

nonattainment area did not attain theozone NAAQS by November 15, 1996,the CAA attainment date for moderateozone nonattainment areas. EPA is alsodenying Arizona’s application for a one-year extension of the attainment date.As a result of this finding and denial,the Phoenix ozone nonattainment areais reclassified by operation of law as aserious ozone nonattainment area on theeffective date of today’s action and thesubmittal of the serious area SIPrevisions will be due no later than 12months from this effective date. Therequirements for this SIP submittal areestablished in CAA section 182(c) andapplicable EPA guidance.

Nothing in this action should beconstrued as permitting, allowing orestablishing a precedent for any futureaction. Each finding of failure to attain,request for an extension of anattainment date, and establishment of aSIP submittal date shall be consideredseparately and shall be based on thefactual situation of the area underconsideration and in relation to relevantstatutory and regulatory requirements.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

Under E.O. 12866, (58 FR 51735,October 4, 1993), EPA is required todetermine whether today’s action is a‘‘significant regulatory action’’ withinthe meaning of the E.O., and thereforeshould be subject to OMB review,economic analysis, and therequirements of the E.O. See E.O. 12866,sec. 6(a)(3). The E.O. defines, in sec.3(f), a ‘‘significant regulatory action’’ asa regulatory action that is likely to resultin a rule that may meet at least one offour criteria identified in section 3(f),including,

(1) Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;


(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

EPA has determined that neither thefinding of failure to attain it is makingtoday, the denial of Arizona’s requestfor a one-year extension of theattainment data, nor the establishmentof SIP submittal schedule would resultin any of the effects identified in E.O.12866 sec. 3(f). As discussed in theresponse to comments above and inmore detail in the TSD, findings offailure to attain under section 181(b)(2)of the Act are based upon air qualityconsiderations, and reclassificationsmust occur by operation of law in lightof certain air quality conditions. Thesefindings do not, in and of themselves,impose any new requirements on anysectors of the economy. In addition,because the statutory requirements areclearly defined with respect to thedifferently classified areas, and because


those requirements are automaticallytriggered by classifications that, in turn,are triggered by air quality values,findings of failure to attain andreclassification cannot be said to imposea materially adverse impact on State,local, or tribal governments orcommunities. The same is true of thedetermination not to grant a one-yearextension, in light of the fact that thisdetermination is also based in part onair quality values. Similarly, theestablishment of new SIP submittalschedules merely establishes the datesby which SIPs must be submitted, anddoes not adversely affect entities.

B. Regulatory FlexibilityUnder the Regulatory Flexibility Act,

5 U.S.C. 601 et seq., EPA must preparea regulatory flexibility analysisassessing the impact of any proposed orfinal rule on small entities. 5 U.S.C. 603and 604. Alternatively, EPA may certifythat the rule will not have a significanteconomic impact on a substantialnumber of small entities. Small entitiesinclude small businesses, small not-for-profit enterprises, and governmententities with jurisdiction overpopulations of less than 50,000.

As discussed in the response tocomments above and in more detail inthe TSD, a finding of failure to attain(and the consequent reclassification byoperation of law of the nonattainmentarea) under section 181(b)(2) of the Act,a denial of a one-year extension request,and the establishment of a SIP submittalschedule for a reclassified area, do not,in-and-of-themselves, directly imposeany new requirements on small entities.See Mid-Tex Electric Cooperative, Inc. v.FERC, 773 F.2d 327 (D.C. Cir. 1985)(agency’s certification need onlyconsider the rule’s impact on entitiessubject to the requirements of the rule).Instead, this rulemaking simply makes afactual determination and establishes aschedule to require States to submit SIPrevisions, and does not directly regulateany entities. Therefore, pursuant to 5U.S.C. 605(b), EPA reaffirms itscertification made in the proposal (62FR 46233) that today’s final action willnot have a significant impact on asubstantial number of small entitieswithin the meaning of those terms forRFA purposes.

C. Unfunded Mandates Reform ActTitle II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.104–4, establishes requirements forFederal agencies to assess the effects oftheir regulatory actions on State, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a written

statement, including a cost-benefitanalysis, when EPA promulgates ‘‘anygeneral notice of proposed rulemakingthat is likely to result in promulgationof any rule that includes any Federalmandate that may result in theexpenditures by State, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or more’’in any one year. A ‘‘Federal mandate’’is defined, under section 101 of UMRA,as a provision that ‘‘would impose anenforceable duty’’ upon the privatesector or State, local, or tribalgovernments’’, with certain exceptionsnot here relevant. Under section 203 ofUMRA, EPA must develop a smallgovernment agency plan before EPA‘‘establish[es] any regulatoryrequirements that might significantly oruniquely affect small governments’’.Under section 204 of UMRA, EPA isrequired to develop a process tofacilitate input by elected officers ofState, local, and tribal governments forEPA’s ‘‘regulatory proposals’’ thatcontain significant Federalintergovernmental mandates. Undersection 205 of UMRA, before EPApromulgates ‘‘any rule for which awritten statement is required under[UMRA sec.] 202’’, EPA must identifyand consider a reasonable number ofregulatory alternatives and either adoptthe least costly, most cost-effective orleast burdensome alternative thatachieves the objectives of the rule, orexplain why a different alternative wasselected.

Generally, EPA has determined thatthe provisions of sections 202 and 205of UMRA do not apply to this decision.Under section 202, EPA is to prepare awritten statement that is to containassessments and estimates of the costsand benefits of a rule containing aFederal Mandate ‘‘unless otherwiseprohibited by law.’’ Congress clarifiedthat ‘‘unless otherwise prohibited bylaw’’ referred to whether an agency wasprohibited from considering theinformation in the rulemaking process,not to whether an agency wasprohibited from collecting theinformation. The Conference Report onUMRA states, ‘‘This section [202] doesnot require the preparation of anyestimate or analysis if the agency isprohibited by law from considering theestimate or analysis in adopting therule.’’ 141 Cong. Rec. H3063 (Daily ed.March 13, 1995). Because the Clean AirAct prohibits, when determiningwhether an area attained the ozonestandard or met the criteria for anextension, from considering the types ofestimates and assessments described insection 202, UMRA does not require

EPA to prepare a written statementunder section 202. Although theestablishment of a SIP submissionschedule may impose a federal mandate,this mandate would not create costs of$100 million or more, and therefore, noanalysis is required under section 202.The requirements in section 205 do notapply because those requirements forrules ‘‘for which a written statement isrequired under section 202 * * *.’’

With regard to the outreach describedin UMRA section 204, EPA discussed itsproposed action in advance of theproposal with State officials.

Finally, section 203 of UMRA doesnot apply to today’s action because theregulatory requirements finalizedtoday—the SIP submittal schedule—affect only the State of Arizona, whichis not a small government under UMRA.

D. Submission to Congress and theGeneral Accounting Office

Under section 801(a)(1)(A) of theAdministrative Procedures Act (APA) asamended by the Small BusinessRegulatory Enforcement Fairness Act of1996, EPA submitted a report containingthis rule and other required informationto the U.S. Senate, the U.S. House ofRepresentatives and the ComptrollerGeneral of the General AccountingOffice prior to publication of the rule intoday’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by section804(2) of the APA as amended.

E. Petitions for Judicial Review

Under section 307(b)(1) of the CleanAir Act, petitions for judicial review ofthis action must be filed in the UnitedStates Court of Appeals for theappropriate circuit by January 5, 1998.Filing a petition for reconsideration bythe Administrator of this final rule doesnot affect the finality of this rule for thepurposes of judicial review nor does itextend the time within which a petitionfor judicial review may be filed, andshall not postpone the effectiveness ofsuch rule or action. This action may notbe challenged later in proceedings toenforce its requirements. See section307(b)(2).


Environmental protection, Airpollution control, Intergovernmentalrelations, Ozone.

Dated: October 27, 1997.Harry Seraydarian,Acting Regional Administrator.

Part 81, chapter I, title 40 of the Codeof Federal Regulations is amended asfollows:


PART 81—[AMENDED]


Authority: 42 U.S.C. 7401–7671q.

2. Section 81.303 is amended byrevising the table for Arizona— Ozone,for the Phoenix Area to read as follows:

§ 81.303 Arizona

* * * * *

ARIZONA-OZONE

Designated areaDesignation Classification

Date Type Date Type

Phoenix Area:Maricopa County (part) .................................................... 11/15/90 Nonattainment ............... 12/8/97 Serious.

The Urban Planning Area of the Maricopa Associa-tion of Governments is bounded as follows:

1.Commencing at a point which is at the inter-section of the eastern line of Range 7 East,Gila and Salt River Baseline and Meridian,and the southern line of Township 2 South,said point is the southeastern corner of theMaricopa Association of Governments UrbanPlanning Area, which is the point of begin-ning;

2. Thence, proceed northerly along the easternline of Range 7 East which is the commonboundary between Maricopa and Pinal Coun-ties, as described in Arizona Revised StatuteSection 11–109, to a point where the easternline of Range 7 East intersects the northernline of Township 1 North, said point is alsothe intersection of the Maricopa County Lineand the Tonto National Forest Boundary, asestablished by Executive Order 869 datedJuly 1, 1908, as amended and showed onthe U.S. Forest Service 1969 PlanimetricMaps;

3. Thence, westerly along the northern line ofTownship 1 North to approximately thesouthwest corner of the southeast quarter ofSection 35, Township 2 North, Range 7 East,said point being the boundary of the TontoNational Forest and Usery Mountain Semi-Regional Park;

4. Thence, northerly along the Tonto NationalForest Boundary, which is generally thewestern line of the east half of Sections 26and 35 of Township 2 North, Range 7 East,to a point which is where the quarter sectionline intersects with the northern line of Sec-tion 26, Township 2 North, Range 7 East,said point also being the northeast corner ofthe Usery Mountain Semi-Regional Park;

5. Thence, westerly along the Tonto NationalForest Boundary, which is generally thesouth line of Section 19, 20, 21 and 22 andthe southern line of the west half of Section23, Township 2 North, Range 7 East, to apoint which is the southwest corner of Sec-tion 19, Township 2 North, Range 7 East;

6. Thence, northerly along the Tonto NationalForest Boundary to a point where the TontoNational Forest Boundary intersects with theeastern boundary of the Salt River IndianReservation, generally described as the cen-ter line of the Salt River Channel;

7. Thence, northeasterly and northerly alongthe common boundary of the Tonto NationalForest and the Salt River Indian Reservationto a point which is the northeast corner ofthe Salt River Indian Reservation and thesoutheast corner of the Fort McDowell IndianReservation, as shown on the plat dated July22, 1902, and recorded with the U.S. Gov-ernment on June 15, 1902;


ARIZONA-OZONE—Continued


Date Type Date Type

8. Thence, northeasterly along the commonboundary between the Tonto National Forestand the Fort McDowell Indian Reservation toa point which is the northeast corner of theFort McDowell Indian Reservation;

9. Thence, southwesterly along the northernboundary of the Fort McDowell Indian Res-ervation, which line is a common boundarywith the Tonto National Forest, to a pointwhere the boundary intersects with the east-ern line of Section 12, Township 4 North,Range 6 East;

10. Thence, northerly along the eastern line ofRange 6 East to a point where the easternline of Range 6 East intersects with thesouthern line of Township 5 North, said lineis the boundary between the Tonto NationalForest and the east boundary of McDowellMountain Regional Park;

11. Thence, westerly along the southern line ofTownship 5 North to a point where the south-ern line intersects with the eastern line ofRange 5 East which line is the boundary ofTonto National Forest and the north bound-ary of McDowell Mountain Regional Park;

12. Thence, northerly along the eastern line ofRange 5 East to a point where the easternline of Range 5 East intersects with thenorthern line of Township 5 North, which lineis the boundary of the Tonto National Forest;

13. Thence, westerly along the northern line ofTownship 5 North to a point where the north-ern line of Township 5 North intersects withthe easterly line of Range 4 East, said line isthe boundary of Tonto National Forest;

14. Thence, northerly along the eastern line ofRange 4 East to a point where the easternline of Range 4 East intersects with thenorthern line of Township 6 North, which lineis the boundary of the Tonto National Forest;

15. Thence, westerly along the northern line ofTownship 6 North to a point of intersectionwith the Maricopa-Yavapai County line,which is generally described in Arizona Re-vised Statute Section 11–109 as the centerline of the Aqua Fria River (Also the northend of Lake Pleasant);

16. Thence, southwesterly and southerly alongthe Maricopa-Yavapai County line to a pointwhich is described by Arizona Revised Stat-ute Section 11–109 as being on the centerline of the Aqua Fria River, two miles south-erly and below the mouth of Humbug Creek;

17. Thence, southerly along the center line ofAqua Fria River to the intersection of thecenter line of the Aqua Fria River and thecenter line of Beardsley Canal, said point isgenerally in the northeast quarter of Section17, Township 5 North, Range 1 East, asshown on the U.S. Geological Survey’s BaldyMountain, Arizona Quadrangle Map, 7.5Minute series (Topographic), dated 1964;

18. Thence, southwesterly and southerly alongthe center line of Beardsley Canal to a pointwhich is the center line of Beardsley Canalwhere it intersects with the center line of In-dian School Road;


ARIZONA-OZONE—Continued


Date Type Date Type

19. Thence, westerly along the center line ofWest Indian School Road to a point wherethe center line of West Indian School Roadintersects with the center line of North Jack-rabbit Trail;

20. Thence, southerly along the center line ofJackrabbit Trail approximately nine andthree-quarter miles to a point where the cen-ter line of Jackrabbit Trail intersects with theGila River, said point is generally on thenorth-south quarter section line of Section 8,Township 1 South, Range 2 West;

21. Thence, northeasterly and easterly up theGila River to a point where the Gila Riverintersects with the northern extension of thewestern boundary of Estrella Mountain Re-gional Park, which point is generally thequarter corner of the northern line of Section31, Township 1 North, Range 1 West;

22. Thence, southerly along the extension ofthe western boundary and along the westernboundary of Estrella Mountain Regional Parkto a point where the southern extension ofthe western boundary of Estrella MountainRegional Park intersects with the southernline of Township 1 South;

23. Thence, easterly along the southern line ofTownship 1 South to a point where the southline of Township 1 South intersects with thewestern line of Range 1 East, which line isgenerally the southern boundary of EstrellaMountain Regional Park;

24. Thence, southerly along the western line ofRange 1 East to the southwest corner ofSection 18, Township 2 South, Range 1East, said line is the western boundary of theGila River Indian Reservation;

25. Thence, easterly along the southern bound-ary of the Gila River Indian Reservationwhich is the southern line of Sections 13, 14,15, 16, 17, and 18, Township 2 South,Range 1 East, to the boundary between Mar-icopa and Pinal Counties as described in Ari-zona Revised Statues Section 11–109 and11–113, which is the eastern line of Range 1East;

26. Thence, northerly along the eastern bound-ary of Range 1 East, which is the commonboundary between Maricopa and Pinal Coun-ties, to a point where the eastern line ofRange 1 East intersects the Gila River;

27. Thence, southerly up the Gila River to apoint where the Gila River intersects with thesouthern line of Township 2 South; and

28. Thence, easterly along the southern line ofTownship 2 South to the point of beginningwhich is a point where the southern line ofTownship 2 South intersects with the easternline Range 7 East

* * * * *[FR Doc. 97–29396 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P


GENERAL SERVICESADMINISTRATION

41 CFR Part 105–60

RIN 3090–AG16

Public Availability of Agency Recordsand Information Materials

AGENCY: Office of Management andWorkplace Programs, (GSA).ACTION: Final rule.

SUMMARY: The General ServicesAdministration, GSA is revising itsregulations that implement the Freedomof Information Act (FOIA), toincorporate changes since publication in1988 of GSA’s last final ruleimplementing the FOIA. This rule alsoissues instructions to current and formerGSA employees concerning theresponse to subpoenas and otherdemands in litigation before judicialand administrative tribunals.DATES: This rule is effective December 8,1997.FOR FURTHER INFORMATION CONTACT:Mary Cunningham, GSA Freedom ofInformation Act (FOIA) Officer (202–501–3415); or Helen C. Maus, Office ofGeneral Counsel (202–501–1460).SUPPLEMENTARY INFORMATION: Aproposal to revise GSA’s regulationsthat implement FOIA were published inthe Federal Register on March 25, 1997,62 FR 14081. This rule was notsubmitted to the Office of Managementand Budget pursuant to Executive Order12866 of September 30, 1993,Regulatory Planning and Review,because it is not a significant regulatoryaction as defined in Executive Order12866. GSA has based all administrativedecisions underlying this rule onadequate information concerning theneed for and the consequences of thisrule, particularly the subpart thatgoverns responses to subpoenas andother judicially enforceable demands formaterial or information. Specifically,the increase in the number of subpoenasand other demands to its employees injudicial or administrative proceedings,particularly in cases in which neitherGSA nor the United States is a party,necessitates detailed and uniforminstructions to be followed by currentand former GSA employees.

The Paperwork Reduction Act doesnot apply because the rule does notimpose information collectionrequirements that require the approvalof the Office of Management and Budgetunder 44 U.S.C. 3501, et seq.

The principles of Executive Order12988 of February 5, 1996, Civil Justice

Reform, have been incorporated whereapplicable.

The Administrator certifies that thisregulatory amendment will not have asignificant economic impact on asubstantial number of small entities asthey are defined in the RegulatoryFlexibility Act, 5 U.S.C. 601–612.Pursuant to 5 U.S.C. 605(b) this rule istherefore exempt from the initial andfinal regulatory flexibility analysesrequirements of sections 603 and 604.

Interested persons have been affordedan opportunity to participate in themaking of this rule. Due considerationhas been given to the commentsreceived.

Comprehensive Summary

I. Implementation of the FOIA

These regulations implement theFOIA, which codified Pub. L. 89–487and amended section 3 of theAdministrative Procedure Act, formerly5 U.S.C. 1002 (1964 ed.). Theseregulations also implement Pub. L. 93–502, popularly known as the Freedom ofInformation Act Amendments of 1974,as amended by Pub. L. 99–570, theFreedom of Information Reform Act of1986; and Executive Order 12600,Predisclosure Notification Proceduresfor Confidential CommercialInformation, of June 23, 1987.

The revisions incorporatepredisclosure notification proceduresfor confidential commercialinformation. The revisions also:

(a) Update organizational reference;(b) Clarify the definition of available

records to include electronic records;(c) Revise fees for manual searches by

clerical staff from $9 to $13 per hour orfraction of an hour and for manualsearches and review by professionalstaff from $18 to $29 per hour orfraction of an hour, to more accuratelyreflect the full cost of searches anddocument review.

(d) Clarify GSA policy with regard to:(1) reconstructing records and providingincomplete records; (2) explainingcompelling reasons for denial of accessto records; and (3) requiring assuranceof payment;

(e) Provide instructions onsubmission of FOIA requests via Telefaxand fee payment by credit card;

(f) Extend the time limit foradministrative appeal within GSA from30 to 120 days; and

(g) Clarify GSA policy with respect tothe availability of records from othersources that have statutory authority toprovide information to the public at setfees.

(h) Incorporate, as appropriate,policies in Executive Order 12988 ofFebruary 5, 1996 on Civil JusticeReform.

II. Response to Demands in Judicial orAdministrative Proceedings

This rule also amends 41 CFR 105–60.6, which pertains to production ofinformation pursuant to demands injudicial or administrative proceedings.41 CFR 105–60.6 is amended toprescribe instructions and procedures tobe followed by current and former GSAemployees with respect to theproduction and disclosure of material orinformation acquired as a result ofperformance of the person’s officialduties or because of the person’s officialstatus in response to judiciallyenforceable subpoenas or demands injudicial or administrative proceedings,except demands from the Congress or inFederal grand jury proceedings.Included are detailed factors to beconsidered by the appropriate authoritywithin the General ServicesAdministration in determining theAgency’s response to a subpoena orother judicially enforceable demand,including widely acknowledged areas ofprivilege that may render disclosure orproduction inappropriate. Instructionsconcerning the appropriate response byemployees and former employees tocourts and other authorities areincluded.

The rules governing responses tosubpoenas and demands in judicial oradministrative proceedings provideinstructions and procedures foremployees and former employeesregarding the internal operations of GSAand is not intended to be relied upon tocreate any right or benefit, substantiveor procedural, enforceable at law by aparty against the General ServicesAdministration.

(a) GSA is amending this subpart toset forth uniform prescribed instructionsand procedures to be complied with bycurrent and former GSA employeesconcerning disclosure or production ofagency materials or information injudicial or administrative proceedingsin response to a judicially enforceablesubpoena or demand. These instructionsestablish policy, assign responsibilitiesand prescribe procedures for respondingto demands for GSA materials ortestimony of current and former GSAemployees in judicial andadministrative proceedings. Theinstructions in 41 CFR subpart 105–60.6do not apply to requests unrelated tolitigation before judicial oradministrative tribunals, to requests


made pursuant to the FOIA or PrivacyAct, 5 U.S.C. 552 and 552a, respectively,to demands from the Congress, or todemands in Federal grand juryproceedings.

(b) These instructions are intendedsolely to provide an orderly means bywhich current and former GSAemployees respond to demands formaterial and information covered bythis rule, and to protect the interests ofthe United States, including thesafeguarding of privileged or otherwisesensitive information. This rule isconsistent with the decision in thelandmark case of United States ex rel.Touhy v. Ragen, 340 U.S. 462 (1951) inwhich the Supreme Court upheld theability of an agency head to issueregulations for the preservation ofagency records, determined that anagency employee, acting pursuant tosuch instructions, could not be held incontempt of court for declining toproduce records in response to asubpoena duces tecum. Accordingly,current and former GSA employeesshall respond to the party on whosebehalf the demand is issued only inaccordance with the instructions andprocedures required by 41 CFR subpart105–60.6. Furthermore, the GSA canrefuse to disclose materials or makeinformation available based on thefactors set forth in 41 CFR 105–60.605.These instructions and procedures arenot intended to preclude disclosures orproductions in compliance with courtorders except where disclosure wouldbe inappropriate even if required by acourt, e.g., where disclosure would belegally prohibited or would be contraryto a recognized privilege.

Summary of CommentsGSA received two comments in

response to its proposed rule. Onecomment was from an internal agencycomponent and the other was external.

I. Comments on FOIA-Related Sectionsof the Rule

Both commenters indicated that theproposed rule does not addressamendments to the FOIA required bythe Electronic Freedom of InformationAct Amendments of 1996, Pub. L. 104–231. The intent of the proposed rule wasto amend GSA’s current FOIAregulations to address changesoccasioned by reorganizations withinGSA, to incorporate formally proceduresfor notifying submitters of commercialor financial information of a request,entertain reasons for nondisclosure, andto provide procedures, for responding tosubpoenas for GSA materials orinformation. This rule is not intended toaddress the recent amendments to the

FOIA. Changes required by theamendments will be the subject of asubsequent proposed rule.

The internal GSA comment raised anumber of issues—somenonsubstantive/editorial commentshave been adopted. For the reasonswhich follow, substantive internal andexternal comments have or have notbeen adopted.

Subsection. 105–60.103–1. It issuggested that the FOIA does notrequire that GSA perform ‘‘minorreprogramming’’ when doing so is notcostly or burdensome. We have adoptedthis suggestion and amended thissubsection to read that GSA ‘‘mayperform minor reprogramming’’ whendoing so is not costly or burdensome.

Subsection. 105–60.103–2. It isrecommended that the final rule modifyor eliminate the requirement that adenial of information requested underthe FOIA cite the compelling reason fordenying access. The reason being thatthe current FOIA statutory exemptionsalready describe the basis fornondisclosure.

We have adopted this suggestion byeliminating the ‘‘compelling reason’’language because other provisions of therule encompass the intent. GSA’sexisting FOIA procedures state that thereasons for withholding will be clearlydescribed in the letter to the requester,and GSA will not invoke an exemptionif disclosure will cause no demonstrableharm to any governmental or privateinterest. 41 CFR 150–60.501(b), (c). Weconsider a demonstrable harm to anygovernmental or private interest to be acompelling reason for invoking a FOIAexemption. We have thereforeeliminated the ‘‘compelling reason’’language and substituted languagestating that the harm to a Governmentalor private interest will be specificallydescribed in the denial letter to therequester.

Subsection. 105–60.305–1(d). Asproposed, this subsection stated thatGSA ‘‘will’’ provide a copy of thematerial in a form usable by therequester unless administrativelyburdensome to do so. It is recommendedthat this language be changed to readthat to the extent ‘‘practicable’’ GSAwill provide a copy of the material inthe form specified by the requester. Wehave adopted this suggestion becausethe phrase ‘‘to the extent practicable’’ isdeemed to encompass the concept of‘‘administratively burdensome.’’

Subsection. 105–60.305–4(b). Thissubsection, as proposed, includes aprovision that GSA will make copies ofvoluminous records available to arequester as quickly as possible andprovide a number of ‘‘additional’’ copies

of requested material when commercialreproduction services are not availableto a requester. It is suggested that thefirst sentence of this provision bedeleted because it is inconsistent with aprovision in § 105–60.305–4(a) whichallows GSA discretion to provide arequester the opportunity to receivecopies or to review originals forinspection and copying. Thesesubsections were not intended to beinconsistent or mutually exclusive. Wehave therefore made the followingadjustments. Subsections 60.105–305–4(a) and (b) are amended to provide thatGSA may offer a requester who seeksvoluminous records not subject toexemption an option to review them ata mutually agreeable place and time andthereby avoid duplication fees forrecords not desired by the requester.

II. Comments on Subpoena-RelatedSection of the Proposed Rule

One commenter stated that so-called‘‘Touhy’’ regulations of this kind are notseparate authority to withholdinformation. It is not the intent of theproposed rule to confer such authority.Authority to withhold information in alitigative context is typically predicatedon grounds and privileges recognized instatute, judicial interpretation, rulesapplicable to a particular forum or theCommon Law. We have therefore addedlanguage to clarify that this regulation isnot an independent authority towithhold information.

A commenter indicated that in caseswhere the agency/U.S. Government is aparty a Touhy regulation cannotinterfere with the application of theFederal Rules of Civil Procedure. It isnot the intent of these regulations to doso. We have therefore addedintroductory language that states thatwhere GSA is a party to a proceeding,nothing in these regulations shalloperate or be interpreted to supersede orcircumvent rules of proceduresapplicable to the forum in which thematter is pending. We have also madea conforming adjustment to the languagein § 105–60.605(b). We have not,however, altered the language in § 105–60.105(b) which provides that theappropriate authority may, at therequest of the U.S. Department ofJustice, waive the requirements in thisrule where the United States is a party.Because the U.S. Department of Justicetypically represents the United Statesand its departments and agencies inlitigation, we believe the extent towhich a waiver in such cases is or is notappropriate in a particular case shouldbe the result of a collaborative effortbetween our agencies.


Subsection 105–60.605(a). Bothcommenters questioned GSA’s authorityand/or ability to control the testimonyof former employees. For reasons whichfollow, we have not adopted anysuggestion that the regulations shouldnot apply to former employees. Aprimary purpose behind the Touhyregulations is the establishment of asystematic means by which an agencycan evaluate requests for production ofofficial agency information anddetermine the extent to which there arelegally defensible reasons for objectionto production. These legitimate agencyinterests exist regardless of whether therequested information is in thepossession for current or former agencyemployees.

When GSA becomes aware of asubpoena to a former employee forproduction of official GSA informationthrough testimony or documentproduction, it intends to use legallyavailable means to ensure that agencyinterests are protected.

Subsection 105–60.605(b). Acommenter suggested that anappropriate basis for waiver of therequirements in this rule are cases inwhich the United States has an interestin addition to cases in which the UnitedStates is a party. The situation may arisein so-called ‘‘qui tam’’ suits. We haveadded language to this section thatrecognizes this type of litigation whichmay, in coordination with the U.S.Department of Justice, be a situation inwhich a waiver may be appropriate.

Subsection 105–60.605(e). Acommenter recommended that the list offactors to be considered by theappropriate authority in responding todemands contain the language ‘‘include,but are but are not limited to:.’’ Thefactors in § 105–60.605(e) alreadycontemplate ‘‘[A]ny additional factorsunique to a particular demand forproceeding.’’ Because this provisionalready incorporates the commenter’ssuggestion it has not been adopted.

List of Subjects in 41 Part 105–60Freedom of information.For the reasons set out in the

preamble, 41 CFR part 105–60 is revisedto read as follows:

PART 105–60—PUBLIC AVAILABILITYOF AGENCY RECORDS ANDINFORMATIONAL MATERIALS

Sec.105–60.000 Scope of part.

Subpart 105.60.1—General Provisions

105–60.101 Purpose.105–60.102 Application.105–60.103 Policy.105–60.103–1 Availability of records.

105–60.103–2 Applying exemptions.105–60.104 Records of other agencies.

Subpart 105–60.2—Publication of GeneralAgency Information and Rules in theFederal Register105–60.201 Published information and

rules.105–60.202 Published materials available

for sale to the public.

Subpart 105–60.3—Availability of Opinions,Orders, Policies, Interpretations, Manuals,and Instructions105–60.301 General.105–60.302 Available materials.105–60.303 Rules for public inspection and

copying.105–60.304 Index.105–60.305 Fees.105–60.305–1 Definitions.105–60.305–2 Scope of this subpart.105–60.305–3 GSA records available

without charge.105–60.305–4 GSA records available at a

fee.105–60.305–5 Searches.105–60.305–6 Reviews.105–60.305–7 Assurance of payment.105–60.305–8 Prepayment of fees.105–60.305–9 Form of payment.105–60.305–10 Fee schedule.105–60.305–11 Fees for authenticated and

attested copies.105–60.305–12 Administrative actions to

improve assessment and collection offees.

105–60.305–13 Waiver of fee.

Subaprt 105–60.4—Described Records105–60.401 General.105–60.402 Procedures for making records

available.105–60.402–1 Submission of requests.105–60.402–2 Response to initial requests.105–60.403 Appeal within GSA.105–60.404 Extension of time limits.105–60.405 Processing requests for

confidential commercial information.

Subpart 105–60.5—Exemptions

105–60.501 Categories of records exemptfrom disclosure under the FOIA.

Subpart 105–60.6—Production orDisclosure by Present or Former GeneralServices Administration Employees inResponse to Subpoenas or SimilarDemands in Judicial or AdministrativeProceedings.105–60.601 Purpose and scope of subpart.105–60.602 Definitions.105–60.603 Acceptance of service of a

subpoena duces tecum or other legaldemand on behalf of the GeneralServices Administration.

105–60.604 Production or disclosureprohibited unless approved by theAppropriate Authority.

105–60.605 Procedure in the event of ademand for production or disclosure.

105–60.606 Procedure where response todemand is required prior to receivinginstructions.

105–60.607 Procedure in the event of anadverse ruling.

105–60.608 Fees, expenses, and costs.

Authority: 5 U.S.C. 301 and 552; 40 U.S.C.486(c).

§ 105–60.000 Scope of part.(a) This part sets forth policies and

procedures of the General ServicesAdministration (GSA) regarding publicaccess to records documenting:

(1) Agency organization, functions,decisionmaking channels, and rules andregulations of general applicability;

(2) Agency final opinions and orders,including policy statements and staffmanuals;

(3) Operational and other appropriateagency records; and

(4) Agency proceedings.(b) This part also covers exemptions

from disclosure of these records,procedures for the public to inspect orobtain copies of GSA records, andinstructions to current and former GSAemployees on the response to asubpoena or other legal demand formaterial or information received orgenerated in the performance of officialduty or because of the person’s officialstatus.

(c) Any policies and procedures inany GSA internal or external directiveinconsistent with the policies andprocedures set forth in this part aresuperseded to the extent of thatinconsistency.

Subpart 105–60.1—General Provisions

§ 105–60.101 Purpose.This part 105–60 implements the

provisions of the Freedom ofInformation Act (FOIA), as amended, 5U.S.C. 552. The regulations in this partalso implement Executive Order 12600,Predisclosure Notification Proceduresfor Confidential CommercialInformation, of June 23, 1987 (3 CFR,1987 Comp., p. 235). This partprescribes procedures by which thepublic may inspect and obtain copies ofGSA records under the FOIA, includingadministrative procedures that must beexhausted before a requester invokes thejurisdiction of an appropriate UnitedStates District Court for GSA’s failure torespond to a proper request within thestatutory time limits, for a denial ofagency records or challenge to theadequacy of a search, or for a denial ofa fee waiver.

§ 105–60.102 Application.This part applies to all records and

informational materials generated,maintained, and controlled by GSA thatcome within the scope of 5 U.S.C. 552.

§ 105–60.103 Policy.

§ 105–60.103–1 Availability of records.The policies of GSA with regard to the

availability of records to the public are:


(a) GSA records are available to thegreatest extent possible in keeping withthe spirit and intent of the FOIA. GSAwill disclose information in any existingGSA record, with noted exceptions,regardless of the form or format of therecord. For example, records maintainedin an electronic form, as part of a database, will be provided on request usingexisting programming. GSA will providethe record in the form or formatrequested if the record is readilyreproducible by the agency in that formor format. GSA will make reasonableefforts to maintain its records in formsor formats that are reproducible forpurposes of this section.

(b) the person making the requestdoes not need to demonstrate an interestin the records or justify the request.

(c) The FOIA does not give the publicthe right to demand that GSA compilea record that does not already exist. Forexample, FOIA does not require GSA tocollect and compile information frommultiple sources to create a new recordor to develop a new computer programto extract requested records. GSA maycompile records or perform minorreprogramming when doing so will notsignificantly interfere with the operationof the automated system already inexistence.

(d) Similarly, FOIA does not requireGSA to reconstruct records that havebeen destroyed in compliance withdisposition schedules approved by theArchivist of the United States. However,GSA will not destroy records after amember of the public has requestedaccess to them and will process therequest even if destruction has alreadybeen scheduled.

(e) If the record requested is notcomplete at the time of the request, GSAmay, at its discretion, inform therequester that the complete record willbe provided when it is available, withno additional request required, if therecord is not exempt from disclosure.

(f) Requests must be addressed to theoffice identified in § 105–60.402–1.

(g) Fee for locating and duplicatingrecords are listed in § 105–60.305–10.

§ 108–60.103–2 Applying exemptions.

GSA may deny a request for a GSArecord if it falls within an exemptionunder the FOIA outlined in subpart105–60.5 of this part. Except when arecord is classified or when disclosurewould violate any Federal statute, theauthority to withhold a record fromdisclosure will likely cause harm to aGovernmental or private interest. GSAwill explain the harm to requesterswhen a record is denied under FOIA.

§ 105–60.104 Records of other agencies.If GSA receives a request for access to

records that are known to be theprimary responsibility of anotheragency, GSA will refer the request to theagency concerned for appropriateaction. For example, GSA will referrequests to the appropriate agency incases in which GSA does not havesufficient knowledge of the action ormatter that is the subject of therequested records to determine whetherthe records must be released or may bewithheld under one of the exemptionslisted in § 105–60.5. If GSA does nothave the requested records, the agencywill attempt to determine whether therequested records exist at anotheragency and, if possible, will forward therequest to that agency. GSA will informthe requester that GSA has forwardedthe request to another agency.

Subpart 105–60.2—Publication ofGeneral Agency Information and Rulesin the Federal Register

§ 105–60.201 Published information andrules.

In accordance with 5 U.S.C. 552(a)(1),GSA publishes in the Federal Register,for the guidance of the public, thefollowing general informationconcerning GSA:

(a) Description of the organization ofthe Central Office and regional officesand the established places at which, theemployees from whom, and themethods whereby, the public mayobtain information, make submittals orrequests, or obtain decisions;

(b) Statements of the general courseand method by which its functions arechanneled and determined, includingthe nature and requirements of allformal and informal proceduresavailable;

(c) Rules of procedure, descriptions offorms available or the places whereforms may be obtained, and instructionson the scope and contents of all papers,reports, or examinations;

(d) Substantive rules of generalapplicability adopted as authorized bylaw, and statements of general policy orinterpretations of general applicabilityformulated and adopted by GSA; and

(e) Each amendment, revision, orrepeal of the materials described in thissection.

§ 105–60.202 Published materials availablefor sale to the public.

(a) Substantive rules of generalapplicability adopted by GSA asauthorized by law which this agencypublishes in the Federal Register andwhich are available for sale to the publicby the Superintendent of Documents at

pre-established prices are: The GeneralServices Administration AcquisitionRegulation (48 CFR Ch. 5), the FederalAcquisition Regulation (48 CFR Ch. 1),the Federal Property ManagementRegulations (41 CFR Ch. 101), and theFederal Travel Regulation (41 CFR Ch.301–304).

(b) GSA also provides technicalinformation, including manuals andhandbooks, to other Federal entities,e.g., the National Technical InformationService, with separate statutoryauthority to make information availableto the public at pre-established fees.

(c) Requests for information availablethrough the sources in paragraphs (a)and (b) of this section will be referredto those sources.

Subpart 105–60.3—Availability ofOpinions, Orders, Policies,Interpretations, Manuals, andInstructions

§ 105–60.301 General.

GSA makes available to the public thematerials described under 5 U.S.C.552(a)(2), which are listed in § 105–60.302, at the locations listed in § 105–60.303. An Index of those materials asdescribed in § 105–60.304 is available atGSA’s Central Office in Washington,DC. Reasonable copying services areprovided at the fees specified in § 105–60.305.

§ 105–60.302 Available materials.

GSA materials available under thissubpart 105–60.3 are as follows:

(a) Final opinions, includingconcurring and dissenting opinions andorders, made in the adjudication ofcases.

(b) Those statements of policy andinterpretations that have been adoptedby GSA and are not published in theFederal Register.

(c) Administrative staff manuals andinstructions to staff affecting a memberof the public unless these materials arepromptly published and copies offeredfor sale.

§ 105–60.303 Rules for public inspectionand copying.

(a) Locations. Selected areascontaining the materials available forpublic inspection and copying,described in § 105–60.302, are locatedin the following places:

Central Office (GSA Headquarters)

General Services Administration,Washington, DC, Telephone: 202–501–2262 or 202–501–1659, FAX: 202–501–2727, 1800 F Street, NW. (CAI),Washington, DC 20405


Office of the Inspector General

FOIA Officer, Office of Inspector General (J),General Services Administration, 1800 FStreet NW., Room 5324, Washington, DC20405

New England Region

General Services Administration (1AB)(Comprised of the States of Connecticut,Maine, Massachusetts, New Hampshire,Rhode Island, and Vermont), Thomas P.O’Neill, Jr., Federal Building, 10 CausewayStreet, Boston, MA 02222, Telephone: 617–565–8100, FAX: 617–565–8101

Northeast and Caribbean Region

(Comprised of the States of New Jersey, NewYork, the Commonwealth of Puerto Rico,and the Virgin Islands), General ServicesAdministration (2AR), 26 Federal Plaza,New York, NY 10278, Telephone: 212–264–1234, FAX: 212–264–2760.

Mid-Atlantic Region

(Comprised of the States of Delaware,Maryland, Pennsylvania, Virginia, andWest Virginia, excluding the Washington,D.C. metropolitan area), General ServicesAdministration (3ADS), 100 Penn SquareEast, Philadelphia, PA 19107, Telephone:215–656–5530, FAX: 215–656–5590

Southeast Sunbelt Region

(Comprised of the States of Alabama, Florida,Georgia, Kentucky, Mississippi, NorthCarolina, South Carolina, and Tennessee),General Services Administration (4E), 401West Peachtree Street, Atlanta, GA, 30365,Telephone: 404–331–5103, FAX: 404–331–1813

Great Lakes Region

(Comprised of the States of Illinois, Indiana,Ohio, Minnesota, Michigan, andWisconsin), General ServicesAdministration (5ADB), 230 SouthDearborn Street, Chicago, IL 60604,Telephone: 312–353–5383, FAX: 312–886–9893

Heartland Region

(Comprised of the States of Iowa, Kansas,Missouri, and Nebraska), General ServicesAdministration (6ADB), 1500 EastBannister Road, Kansas City, MO 64131,Telephone: 816–926–7203, FAX: 816–823–1167

Greater Southwest Region

(Comprised of the States of Arkansas,Louisiana, New Mexico, Texas, andOklahoma), General ServicesAdministration (7CPA), 819 Taylor Street,Fort Worth, TX 76102, Telephone: 817–978–3902, FAX: 817–978–4867

Rocky Mountain Region

(Comprised of the States of Colorado, NorthDakota, South Dakota, Montana, Utah, andWyoming), Business Service Center,General Services Administration (8PB–B),Building 41, Denver Federal Center,Denver, CO 80225, Telephone: 303–236–7408, FAX: 303–236–7403

Pacific Rim Region(Comprised of the States of Hawaii,

California, Nevada, Arizona, Guam, andTrust Territory of the Pacific), BusinessService Center, General ServicesAdministration (9ADB), 525 Market Street,San Francisco, CA 94105, Telephone: 415–522–2715, FAX: 415–522–2705

Northwest/Arctic Region(Comprised of the States of Alaska, Idaho,

Oregon, and Washington), General ServicesAdministration (10L), GSA Center, 15thand C Streets, SW, Auburn, WA 98002,Telephone: 206–931–7007, FAX: 206–931–7195

National Capital Region(Comprised of the District of Columbia and

the surrounding metropolitan area),General Services Administration, (WPFA–L), 7th and D Streets SW., Washington, DC20407, Telephone: 202–708–5854, FAX:202–205–2478

(b) Time. The reading rooms orselected areas will be open to the publicduring the business hours of the GSAoffice where they are located.

(c) Reading room and selected arearules.—(1) Handling of materials. Theremoval or mutilation of materials isforbidden by law and is punishable byfine or imprisonment or both. Whenrequested by a reading room or selectedarea attendant, a person inspectingmaterials must present for examinationany briefcase, handbag, notebook,package, envelope, book or other articlethat could contain GSA informationalmaterials.

(2) Reproduction services. The GSACentral Office or the Regional BusinessService Centers will furnish reasonablecopying and reproduction services foravailable materials at the fees specifiedin § 105–60.305.

§ 105–60.304 Index.GSA will make available to any

member of the public who requests it acurrent index identifying informationfor the public regarding any matterdescribed in § 105–60.302.

§ 105–60.305 Fees.

§ 105–60.305–1 Definitions.For the purpose of this part:(a) A statute specifically providing for

setting the level of fees for particulartypes of records (5 U.S.C.552(a)(4)(A)(vii)) means any statute thatspecifically requires a Governmentagency to set the level of fees forparticular types of records, as opposedto a statute that generally discusses suchfees. Fees are required by statute to:

(1) Make Government informationconveniently available to the public andto private sector organizations;

(2) Ensure that groups and individualspay the cost of publications and other

services that are for their special use sothat these costs are not borne by thegeneral taxpaying public;

(3) Operate an informationdissemination activity on self-sustainingbasis to the maximum extent possible;or

(4) Return revenue to the Treasury fordefraying, wholly or in part,appropriated funds used to pay the costof disseminating Governmentinformation.

(b) The term direct costs means thoseexpenditures that GSA actually incursin searching for and duplicating (and inthe case of commercial requesters,reviewing and redacting) documents torespond to a FOIA request. Direct costsinclude, for example, the salary of theemployee performing the work (thebasic rate of pay for the employee plus16 percent of that rate to cover benefits),and the cost of operating duplicatingmachinery. Overhead expenses such ascosts of space, and heating or lightingthe facility where the records are storedare not included in direct costs.

(c) The term search includes all timespent looking for material that isresponsive to a request, including line-by-line identification of material withindocuments. Searches will be performedin the most efficient and least expensivemanner so as to minimize costs for boththe agency and the requester. Line-by-line searchers will not be undertakenwhen it would be more efficient toduplicate the entire document. ‘‘Search’’for responsive material is not the sameas ‘‘review’’ of a record to determinewhether it is exempt from disclosure inwhole or in part (see paragraph (e) ofthis section). Searches may be donemanually or by computer using existingprogramming.

(d) The term duplication means theprocess of making a copy of a documentin response to a FOIA request. Copiescan take the form of paper, microfilm,audiovisual materials, or magnetic tapesor disks. To the extent practicable, GSAwill provide a copy of the material inthe form specified by the requester.

(e) The term review means the processof examining documents located inresponse to a request to determine if anyportion of that document is permitted tobe withheld and processing anydocuments for disclosure. See § 105–60.305–6.

(f) The term commercial-use requestmeans a request from or on behalf of onewho seeks information for a use orpurpose that furthers the commercial,trade, or profit interests of the requesteror person on whose behalf the requestis made. GSA will determine whether arequester properly belongs in this


category by determining how therequester will use the documents.

(g) The term educational institutionmeans a preschool, a public or privateelementary or secondary school, aninstitution of graduate higher education,an institution of undergraduate highereducation, an institution of professionaleducation, or an institution ofvocational education that operates aprogram or programs of scholarlyresearch.

(h) The term noncommercial scientificinstitution means an institution that isnot operated on a ‘‘commercial’’ basis asthat term is used in paragraph (f) of thissection and which is operated solely forthe purpose of conducting scientificresearch the results of which are notintended to promote any particularproduct or industry.

(i) The term representative of thenews media means any person activelygathering news for an entity that isorganized and operated to publish orbroadcast news to the public. The term‘‘news’’ means information that is aboutcurrent events or that would be ofcurrent interest to the public. Examplesof news media include television orradio stations broadcasting to the publicat large, and publishers of periodicals(but only in those instances when theycan qualify as disseminators of ‘‘news’’)who make their products available forpurchase or subscription by the generalpublic. ‘‘Freelance’’ journalists will beregarded as working for a newsorganization if they can demonstrate asolid basis for expecting publicationthrough that organization even thoughthey are not actually employed by it.

§ 105–60.305–2 Scope of this subpart.

This subpart sets forth policies andprocedures to be followed in theassessment and collection of fees froma requester for the search, review, andreproduction of GSA records.

§ 105–60.305–3 GSA records availablewithout charge.

GSA records available to the publicare displayed in the Business ServiceCenter for each GSA region. The addressand phone number of the BusinessService Centers are listed in § 105–60.303. Certain material related to bids(excluding construction plans andspecifications) and any materialdisplayed are available without chargeupon request.

§ 105–60.305–4 GSA records available at afee.

(a) GSA will make a record not subjectto exemption available at a time andplace mutually agreed upon by GSA andthe requester at fees shown in § 105–

60.305–10. Waivers of these fees areavailable under the conditionsdescribed in § 105–60.305–13. GSA willagree to:

(1) Show the originals to therequester; or

(2) Make one copy available at a fee;or

(3) A combination of thesealternatives.

(b) GSA will make copies ofvoluminous records as quickly aspossible. GSA may, in its discretion,make a reasonable number of additionalcopies for a fee when commercialreproduction services are not availableto the requester.

§ 105–60.305–5 Searches.(a) GSA may charge for the time spent

in the following activities indetermining ‘‘search time’’ subject toapplicable fees as provided in § 105–60.305–10:

(1) Time spent in trying to locate GSArecords that come within the scope ofthe request;

(2) Time spent in either transportinga necessary agency searcher to a placeof record storage, or in transportingrecords to the locations of a necessaryagency searcher; and

(3) Direct costs of the use of computertime to locate and extract requestedrecords.

(b) GSA will not charge for the timespent in monitoring a requester’sinspection of disclosed agency records.

(c) GSA may assess fees for searchtime even if the search provesunsuccessful or if the records locatedare exempt from disclosure.

§ 105–60.305–6 Reviews.(a) GSA will charge only commercial-

use requesters for review time.(b) GSA will charge for the time spent

in the following activities indetermining ‘‘review time’’ subject toapplicable fees as provided in § 105–60.305–10:

(1) Time spent in examining arequested record to determine whetherany or all of the record is exempt fromdisclosure, including time spentconsulting with submitters of requestedinformation; and

(2) Time spent in deleting exemptmatter being withheld from recordsotherwise made available.

(c) GSA will not charge for:(1) Time spent in resolving issues of

law or policy regarding the applicationof exemptions; or

(2) Review at the administrativeappeal level of an exemption alreadyapplied. However, records or portions ofrecords withheld in full under anexemption that is subsequently

determined not to apply may bereviewed again to determine theapplicability of other exemptions notpreviously considered. GSA will chargefor such subsequent review.

§ 105–60.305–7 Assurance of payment.

If fees for search, review, andreproduction will exceed $25 but willbe less than $250, the requester mustprovide written assurance of paymentbefore GSA will process the request. Ifthis assurance is not included in theinitial request, GSA will notify therequester that assurance of payment isrequired before the request is processed.GSA will offer requesters anopportunity to modify the request toreduce the fee.

§ 105–60.305–8 Prepayment of fees.

(a) Fees over $250. GSA will requireprepayment of fees for search, review,and reproduction that are likely toexceed $250. When the anticipated totalfee exceeds $250, the requester willreceive notice to prepay and at the timewill be given an opportunity to modifyhis or her request to reduce the fee.When it is anticipated that fees willexceed $250, GSA will notify therequester that it will not start processinga request until payment is received.

(b) Delinquent payments. As noted in§ 105–60.305–12(d), requesters who aredelinquent in paying for previousrequests will be required to repay theold debt and to prepay for anysubsequent request. GSA will inform therequester that it will process noadditional requests until all fees arepaid.

§ 105–60.305–9 Form of payment.

Requesters should pay fees by checkor money order made out to the GeneralServices Administration and addressedto the official named by GSA in itscorrespondence. Payment may also bemade by means of Mastercard or Visa.For information concerning payment bycredit cards, call 816–926–7551.

§ 105–60.305–10 Fee schedule.

(a) When GSA is aware thatdocuments responsive to a request aremaintained for distribution by anagency operating a statutory fee basedprogram, GSA will inform the requesterof the procedures for obtaining recordsfrom those sources.

(b) GSA will consider only thefollowing costs in fees charged torequesters of GSA records:

(1) Review and search fees.Manual searches by clerical staff: $13 per

hour or fraction of an hour.Manual searches and reviews by

professional staff in cases in which clerical


staff would be unable to locate the requestedrecords: $29 per hour or fraction of an hour.

Computer searches: Direct cost to GSA.Transporation or special handling of

records: Direct cost to GSA.

(2) Reproduction fees.Pages no larger than 81⁄2 by 14 inches,

when reproduced by routine electrostaticcopying: $0.10 per page.

Pages over 81⁄2 by 14 inches: Direct cost ofreproduction to GSA.

Pages requiring reduction, enlargement, orother special services: Direct cost ofreproduction to GSA.

Reproduction by other than routineelectrostatic copying:

Direct cost of reproduction to GSA.

(c) Any fees not provided for underparagraph (b) of this section, shall becalculated as direct costs, in accordancewith § 105–60.305–1(b).

(d) GSA will assess fees based on thecategory of the requester as defined in§ 105–60.305–1(f)–(i); i.e., commercial-use, educational and noncommercialscientific institutions, news media, andall other. The fees listed in paragraph (b)of this section apply with the followingexceptions:

(1) GSA will not charge the requestedif the fee is $25 or less as the cost ofcollection would be greater than the fee.

(2) Educational and noncommercialscientific institutions and the newsmedia will be charged for the cost ofreproduction alone. These requesters areentitled to the first 100 pages (papercopies) of duplication at no cost. Thefollowing are examples of how thesefees are calculated:

(i) A request that results in 150 pagesof material. No fee would be assessedfor duplication of 150 pages. The reasonis that these requesters are entitled tothe first 100 pages at no charge. Thecharge for the remaining 50 pages wouldbe $7.50. This amount would not bebilled under the preceding section.

(ii) A request that results in 450 pagesof material. The requester in this casewould be charged $35. The reason isthat the requester is entitled to the first100 pages at no charge. The charge forthe remaining 350 pages would be $35.

(3) Noncommercial requesters whoare not included under paragraph (d)(2)of this section will be entitled to thefirst 100 pages (paper copies) ofduplication at no cost and two hours ofsearch without charge. The term ‘‘searchtime’’ generally refers to manual search.To apply this term to searchers made bycomputer, GSA will determine thehourly cost of operating the centralprocessing unit and the operator’shourly salary plus 16 percent. When thecost of search (including the operatortime and the cost of operating thecomputer to process a request) equals

the equivalent dollar amount of twohours of the salary of the personperforming a manual search, GSA willbegin assessing charges for computersearch.

(4) GSA will charge commercial-userequesters fees which recover the fulldirect costs of searching for, reviewingfor release, and duplicating the recordssought. Commercial-use requester arenot entitled to two hours of free searchtime.

(e) Determining the category of arequester. GSA may ask any requester toprovide additional information at anytime to determine his or her feecategory.

§ 105–60.305–11 Fees for authenticatedand attested copies.

The fees set forth in § 105–60.305–10apply to requests for authenticated andattested copies of GSA records.

§ 105–60.305–12 Administrative actions toimprove assessment and collection of fees.

(a) Charging interest. GSA may chargerequesters who fail to pay fees intereston the amount billed starting on the 31stday following the month on which thebilling was sent. Interest will be at therate prescribed in 31 U.S.C. 3717.

(b) Effect of the Debt Collection Act of1982. GSA will take any actionauthorized by the Debt Collection Act of1982 (Pub. L. 97–365, 96 Stat. 1749),including disclosure to consumerreporting agencies, use of collectionagencies, and assessment of penaltiesand administrative costs, whereappropriate, to encourage payment.

(c) Aggregating requests. When theGSA reasonably believes that arequester, or group of requesters actingin concert, is attempting to break downa request into a series of requests relatedto the same subject for the purpose ofevading the assessment of fees, GSAwill combine any such requests andcharges accordingly, including fees forprevious requests where charges werenot assessed. GSA will presume thatmultiple requests of this type within a30-day period are made to avoid fees.

(d) Advance payments. Whenever arequester is delinquent in paying the feefor a previous request (i.e., within 30days of the date of the billing), GSA willrequire the requester to pay the fullamount owed plus any applicableinterest penalties and administrativecosts as provided in paragraph (a) of thissection or to demonstrate that he or shehas, in fact, paid the fee. In such cases,GSA will also require advance paymentof the full amount of the estimated feebefore the agency begins to process anew request or a pending request fromthat requester. When advance payment

is required under this section, theadministrative time limits in subsection(a)(6) of the FOIA (i.e., 10 working daysfrom receipt of appeals from initialdenial plus permissible time extensions)will begin only after GSA has receivedthe fee payments described in § 105–60.305–8.

§ 105–60.305–13 Waiver of fee.

(a) Any request for waiver orreduction of a fee should be included inthe initial letter requesting access toGSA records under § 105–60.402–1. Thewaiver request should explain howdisclosure of the information wouldcontribute significantly to publicunderstanding of the operations oractivities of the Government and wouldnot be primarily in the commercialinterest of the requester. In respondingto a request, GSA will consider thefollowing factors:

(1) Whether the subject of therequested records concerns ‘‘theoperations or activities of theGovernment.’’ The subject matter of therequested records must specificallyconcern identifiable operations oractivities of the Federal Government.The connection between the records andthe operations or activities must bedirect and clear, not remote orattenuated.

(2) Whether the disclosure is ‘‘likelyto contribute’’ to an understanding ofGovernment operations or activities. Inthis connection, GSA will considerwhether the requested information isalready in the public domain. If it is,then disclosure of the informationwould not be likely to contribute to anunderstanding of Governmentoperations or activities, as nothing newwould be added to the public record.

(3) Whether disclosure of therequested information will contribute to‘‘public understanding.’’ The focus heremust be on the contribution to publicunderstanding rather than personalbenefit to be derived by the requester.For purposes of this analysis, theidentity and qualifications of therequester should be considered, todetermine whether the requester is in aposition to contribute to publicunderstanding through the requesteddisclosure.

(4) Whether the requester has acommercial interest that would befurthered by the requested disclosure;and if so: whether the magnitude of theidentified commercial interest of therequester is sufficiently large, incomparison with the public interest indisclosure, that disclosure is ‘‘primarilyin the commercial interest of therequester.’’


(b) GSA will ask the requester tofurnish additional information if theinitial request is insufficient to evaluatethe merits of the request. GSA will notstart processing a request until the feewaiver issue has been resolved unlessthe requester has provided writtenassurance of payment in full if the feewaiver is denied by the agency.

Subpart 105–60.4—Described Records

§ 105–60.401 General.(a) Except for records made available

in accordance with subparts 105–60.2and 105–60.3 of this part, GSA willmake records available to a requesterpromptly when the request reasonablydescribes the records unless GSAinvokes an exemption in accordancewith Subpart 105–60.5 of this part.Although the burden of reasonabledescription of the records rests with therequester, whenever practical GSA willassist requesters to describe recordsmore specifically.

(b) Whenever a request does notreasonably describe the recordsrequested, GSA may contact therequester to seek a more specificdescription. The 10-workday time limitset forth in § 105–60.402–2 will not startuntil the official identified in § 105–60.402–1 or other responding officialreceives a request reasonably describingthe records.

§ 105–60.402 Procedures for makingrecords available.

This subpart sets forth initialprocedures for making records availablewhen they are requested, includingadministrative procedures to beexhausted prior to seeking judicialreview by an appropriate United StatesDistrict Court.

§ 105–60.402–1 Submission of requests.For records located in the GSA

Central Office, the requester mustsubmit a request in writing to the GSAFOIA Officer, General ServicesAdministration (CAIR), Washington, DC20405. Requesters may FAX requests to(202) 501–2727, or submit a request bye-mail to [email protected]. For recordslocated in the Office of InspectorGeneral, the requester must submit arequest to the FOIA Officer, Office ofInspector General, General ServicesAdministration, 1800 F Street NW.,Room 5324, Washington, DC 20405. Forrecords located in the GSA regionaloffices, the requester must submit arequest to the FOIA Officer for therelevant region, at the address listed in§ 105–60.303(a). Requests shouldinclude the words ‘‘Freedom ofInformation Act Request’’ prominentlymarked on both the face of the request

letter and the envelop. The 10-workdaytime limit for agency decisions set forthin § 105–60.402–2 begins with receipt ofa request in the office of the officialidentified in this section, unless theprovisions under §§ 105–60.305–8 and105–60.305–12(d) apply. Failure toinclude the words ‘‘Freedom ofInformation Act Request’’ or to submita request to the official identified in thissection will result in processing delays.A requester with questions concerning aFOIA request should contact the GSAFOIA Office, General ServicesAdministration (CAI), 1800 F Street,NW, Washington, DC 20405, (202) 501–2262 or (202) 501–1659.

§ 105–60.402–2 Response to initialrequests.

GSA will respond to an initial FOIArequest which reasonably describesrequested records, including a feewaiver request, within 10 workdays(that is, excluding Saturdays, Sundays,and legal holidays) after receipt of arequest by the office of the appropriateofficial specified in § 105–60.402–1.This letter will provide the agency’sdecision with respect to disclosure ornondisclosure of the requested records,or, if appropriate, a decision on arequest for a fee waiver. If the recordsto be disclosed are not provided withthe initial letter, the records will be sentas soon as possible thereafter. Inunusual circumstances, as described in§ 105–60.404, GSA will inform therequester of the agency’s need to take anextension of time, not to exceed andadditional 10 workdays.

§ 105–60.403 Appeal within GSA.(a) A requester who receives a denial

of a request, in whole or in part, or adenial of a fee waiver request, mayappeal that decision within GSA. Arequester may also appeal the adequacyof the search if GSA determines that ithas searched for but has no requestedrecords. The requester must send theappeal to the GSA FOIA Officer, GeneralServices Administration (CAI), 1800 FStreet NW, Washington, DC 20405,regardless of whether the denial beingappealed was made in the Central Officeor in a regional office. For denials thatoriginate in the Office of InspectorGeneral, the requester must send theappeal to the Inspector General, GeneralServices Administration, 1800 F StreetNW., Washington, DC 20405.

(b) The GSA FOIA Officer mustreceive an appeal no later than 120calendar days after receipt by therequester of the initial denial of accessor fee waiver.

(c) An appeal must be in writing,include a brief statement of the reasons

the requester thinks GSA should releasethe records, and enclose copies of theinitial request and denial.

The appeal letter must include thewords ‘‘Freedom of Information ActAppeal’’ on both the face of the appealletter and on the envelope. Failure tofollow these procedures will delayprocessing of the appeal. GSA has 20workdays after receipt of a properappeal to issue a determination of theappeal. The 20-workday time limit shallnot begin until the GSA FOIA Officerreceives the appeal. As noted in § 105–60.404, the GSA FOIA Officer mayextend this time limit in unusualcircumstances.

(d) A requester who receives a denialof an appeal, or who has not receiveda response to an appeal or initial requestwithin the statutory timeframe may seekjudicial review in the United StatesDistrict Court in the district in whichthe requester resides or has a principalplace of business, or where the recordsare situated, or in the United StatesDistrict Court for the District ofColumbia.

§ 105–60.404 Extension of time limits.(a) In unusual circumstances, the GSA

Central Office FOIA Officer or theregional FOIA Officer may extend thetime limits prescribed in §§ 105–60.402and 105–60.403. For purposes of thissection, the term unusual circumstancesmeans:

(1) The need to search for and collectthe requested records from fieldfacilities or other establishments that areseparate from the office processing therequest;

(2) The need to search for, collect, andappropriately examine a voluminousamount of separate and distinct recordsthat are described in a single request;

(3) The need for consultation, whichshall be conducted with all practicablespeed, with another agency having asubstantial interest in the determinationof the request or among two or morecomponents of GSA having substantialsubject-matter interest therein; or

(4) The need to consult with thesubmitter of the requested information.

(b) If necessary, GSA may take morethan one extension of time. However,the total extension of time to respond toany single request shall not exceed 10workdays. The extension may bedivided between the initial and appealstages or within a single stage. GSA willprovide written notice to the requesterof any extension of time limits.

§ 105–60.405 Processing requests forconfidential commercial information.

(a) General. The following additionalprocedures apply when processing


requests for confidential commercialinformation.

(b) Definitions. For the purposes ofthis section, the following definitionsapply:

(1) Confidential commercialinformation means records provided tothe government by a submitter thatcontain material arguably exempt fromrelease under 5 U.S.C. 552(b)(4),because disclosure could reasonably beexpected to cause substantialcompetitive harm.

(2) Submitter means a person or entitythat provides to the Governmentinformation that may constituteconfidential commercial information.The term ‘‘submitter’’ includes, but isnot limited to, individuals,partnerships, corporations, Stategovernments, and foreign governments.

(c) Designating confidentialcommercial information. Since January1, 1988, submitters must designateconfidential commercial information assuch when it is submitted to GSA or ata reasonable time thereafter. Forinformation submitted in connectionwith negotiated procurements, therequirements of Federal AcquisitionRegulation 48 CFR 15.407(c)(8) and52.215–12 also apply.

(d) Procedural requirements—consultation with the submitter. (1) IfGSA receives a FOIA request forpotentially confidential commercialinformation, it will notify the submitterimmediately by telephone and invite anopinion whether disclosure will or willnot cause substantial competitive harm.

(2) GSA will follow up the telephonicnotice promptly in writing beforereleasing any records unless paragraph(f) of this section applies.

(3) If the submitter indicates anobjection to disclosure, GSA will givethe submitter seven workdays fromreceipt of the letter to provide GSA witha detailed written explanation of howdisclosure of any specified portion ofthe records would be competitivelyharmful.

(4) If the submitter verbally states thatthere is no objection to disclosure, GSAwill confirm this fact in writing beforedisclosing any records.

(5) At the same time GSA notifies thesubmitter, it will also advise therequester that there will be a delay inresponding to the request due to theneed to consult with the submitter.

(6) GSA will review the reasons fornondisclosure before independentlydeciding whether the information mustbe released or should be withheld. IfGSA decides to release the requestedinformation, it will provide thesubmitter with a written statementexplaining why his or her objections are

not sustained. The letter to thesubmitter will contain a copy of thematerial to be disclosed or will offer thesubmitter an opportunity to review thematerial in one of GSA’s offices. If GSAdecides not to release the material, itwill notify the submitter orally or inwriting.

(7) If GSA determines to discloseinformation over a submitter’sobjections, it will inform the submitterthat GSA will delay disclosure for fiveworkdays from the estimated date thesubmitter receives GSA’s decisionbefore it releases the information. Thedecision letter to the requester shallstate that GSA delay disclosure ofmaterial it has determined to disclose toallow for the notification of thesubmitter.

(e) When notice is required. (1) Forconfidential commercial informationsubmitted prior to January 1, 1988, GSAwill notify a submitter whenever itreceives a FOIA request for suchinformation:

(i) If the records are less than 10 yearsold and the information has beendesignated by the submitter asconfidential commercial information; or

(ii) If GSA has reason to believe thatdisclosure of the information couldreasonably be expected to causesubstantial competitive harm.

(2) For confidential commercialinformation submitted on or afterJanuary 1, 1988, GSA will notify asubmitter whenever it determines thatthe agency may be required to discloserecords:

(i) That the submitter has previouslydesignated as privileged or confidential;or

(ii) That GSA believes couldreasonably be expected to causesubstantial competitive harm ifdisclosed.

(3) GSA will provide notice to asubmitter for a period of up to 10 yearsafter the date of submission.

(f) When notice is not required. Thenotice requirements of this section willnot apply if:

(1) GSA determines that theinformation should not be disclosed;

(2) The information has beenpublished or has been officially madeavailable to the public;

(3) Disclosure of the information isrequired by a law other than the FIOA;

(4) Disclosure is required by anagency rule that—

(i) Was adopted pursuant to noticeand public comment;

(ii) Specifies narrow classes of recordssubmitted to the agency that are to bereleased under FIOA; and

(iii) Provides in exceptionalcircumstances for notice when the

submitter provides written justification,at the time the information is submittedor a reasonable time thereafter, thatdisclosure of the information couldreasonably be expected to causesubstantial competitive harm;

(5) The information is not designatedby the submitter as exempt fromdisclosure under paragraph (c) of thissection, unless GSA has substantialreason to believe that the disclosure ofthe information would be competitivelyharmful; or

(6) The designation made by thesubmitter in accordance with paragraph(c) of this section appears obviouslyfrivolous; except that, in such cases, theagency must provide the submitter withwritten notice of any finaladministrative decision five workdaysprior to disclosing the information.

(g) Lawsuits. If a FIOA requester suesthe agency to compel disclosure ofconfidential commercial information,GSA will notify the submitter as soon aspossible. If the submitter sues GSA toenjoin disclosure of the records, GSAwill notify the requester.

Subpart 105–60.5—Exemptions

§ 105–60.501 Categories of recordsexempt from disclosure under the FIOA.

(a) 5 U.S.C. 552(b) provides that therequirements of the FIOA do not applyto matters that are:

(1) Specifically authorized under thecriteria established by an ExecutiveOrder to be kept secret in the interest ofnational defense or foreign policy andare in fact properly classified pursuantto such Executive order;

(2) Related solely to the internalpersonnel rules and practices of anagency;

(3) Specifically exempted fromdisclosure by statute (other than section552b of this title), provided that suchstatute:

(i) Requires that the matters bewithheld from the public in such amanner as to leave no discretion on theissue; or

(ii) Establishes particular criteria forwithholding or refers to particular typesof matters to be withheld;

(4) Trade secrets and commercial orfinancial information obtained from aperson and privileged or confidential;

(5) Interagency or intra-agencymemorandums or letters that would notbe available by law to a party other thanan agency in litigation with the agency;

(6) Personnel and medical files andsimilar files the disclosure of whichwould constitute a clearly unwarrantedinvasion of personal privacy;

(7) Records or information compiledfor law enforcement purposes, but only


to the extent that the production of suchlaw enforcement records or information:

(i) Could reasonably be expected tointerfere with enforcement proceedings;

(ii) Would deprive a person of a rightto a fair trial or an impartialadjudication;

(iii) Could reasonably be expected toconstitute an unwarranted invasion ofpersonal privacy;

(iv) Could reasonably be expected todisclose the identity of a confidentialsource, including a State, local, orforeign agency or authority or anyprivate institution that furnishedinformation on a confidential basis, and,in the case of a record or informationcompiled by a criminal law enforcementauthority in the course of a criminalinvestigation or by an agencyconducting a lawful natural securityintelligence investigation, informationfurnished by a confidential source;

(v) Would disclose techniques andprocedures for law enforcementinvestigations or prosecutions; or woulddisclose guidelines for law enforcementinvestigations or prosecutions if suchdisclosure could reasonably be expectedto risk circumvention of the law; or

(vi) Could reasonably be expected toendanger the life or physical safety ofany individual;

(8) Contained in or related toexamination, operating, or conditionreports prepared by, on behalf of, or forthe use of an agency responsible for theregulation or supervision of financialinstitutions; or

(9) Geological and geophysicalinformation and data, including maps,concerning wells.

(b) GSA will provide any reasonablysegregable portion of a record to arequester after deletion of the portionsthat are exempt under this section. IfGSA must delete information from arecord before disclosing it, thisinformation, and the reasons forwithholding it, will be clearly describedin the cover letter to the requester or inan attachment.

(c) GSA will invoke no exemptionunder this section to deny access torecords that would be availablepursuant to a request made under thePrivacy Act of 1974 (5 U.S.C. 522a) andimplementing regulations, 41 CFR part105–64, or if disclosure would cause nodemonstrable harm to any governmentalor private interest.

(d) Whenever a request is made thatinvolves access to records described in§ 105–60.501(a)(7)(i) and theinvestigation or proceeding involves apossible violation of criminal law, andthere is reason to believe that the subjectof the investigation or proceeding is notaware of it, and disclosure of the

existence of the records couldreasonably be expected to interfere withenforcement proceedings, the agencymay, during only such time as thatcircumstance continues, treat therecords as not subject to therequirements of this section.

(e) Whenever informant recordsmaintained by a criminal lawenforcement agency under aninformant’s name or personal identifierare requested by a third party accordingto the informant’s name or personalidentifier, the agency may treat therecords as not subject to therequirements of this section unless theinformant’s status as an informant hasbeen officially confirmed.

(f) Whenever a request is made thatinvolves access to records maintainedby the Federal Bureau of Investigationpertaining to foreign intelligence orcounterintelligence, or internationalterrorism, and the existence of therecords is classified information asprovided in paragraph (a)(1) of thissection, the Bureau may, as long as theexistence of the records remainsclassified information, treat the recordsas not subject to the requirements of thissection.

Subpart 105–60.6—Production orDisclosure by Present or FormerGeneral Services AdministrationEmployees in Response to Subpoenasor Similar Demands in Judicial orAdministrative Proceedings

§ 105–60.601 Purpose and scope ofsubpart.

(a) By virtue of the authority vested inthe Administrator of General Servicesby 5 U.S.C. 301 and 40 U.S.C. 486(c)this subpart establishes instructions andprocedures to be followed by currentand former employees of the GeneralServices Administration in response tosubpoenas or similar demands issued injudicial or administrative proceedingsfor production or disclosure of materialor information obtained as part of theperformance of a person’s official dutiesor because of the person’s official status.Nothing in these instructions applies toresponses to subpoenas or demandsissued by the Congress or in Federalgrand jury proceedings.

(b) This subpart provides instructionsregarding the internal operations of GSAand the conduct of its employees, andis not intended and does not, and maynot, be relied upon to create any rightor benefit, substantive or procedural,enforceable at law by a party againstGSA.

(c) These regulations provide forprocedures and a systematic means bywhich GSA can evaluate whether it

should comply with a demand forofficial GSA information or whetherapplicable privileges or statutes providea legitimate basis for withholding thedemanded information. Theseregulations do not provide independentauthority to withhold information. Inproceedings to which GSA is a party,these regulations shall not beinterpreted or applied to supersede orfrustrate established rules of procedureapplicable to the forum in which thematter is pending.

§ 105–60.602 Definitions.For purposes of this subpart, the

following definitions apply:(a) Material means any document,

record, file or data, regardless of thephysical form or the media by orthrough that it is maintained orrecorded, that was generated or acquiredby a current or former GSA employee byreason of the performance of thatperson’s official duties or because of theperson’s official status, or any othertangible item, e.g., personal propertypossessed or controlled by GSA.

(b) Information means any knowledgeor facts contained in material, and anyknowledge or facts acquired by currentor former GSA employee as part of theperformance of that person’s officialduties or because of that person’sofficial status.

(c) Demand means any subpoena,order, or similar demand for theproduction or disclosure of material,information or testimony regarding suchmaterial or information, issued by acourt or other authority in a judicial oradministrative proceeding, excludingcongressional subpoenas or demands inFederal Grand Jury proceedings, andserved upon a present or former GSAemployee.

(d) Appropriate Authority means thefollowing officials who are delegatedauthority to approve or deny responsesto demands for material, information ortestimony:

(1) The Counsel to the InspectorGeneral for material and informationthat is the responsibility of the GSAOffice of Inspector General or testimonyof current or former employees of theOffice of the Inspector General;

(2) The Counsel to the GSA Board ofContract Appeals for material andinformation that is the responsibility ofthe Board of Contract Appeals ortestimony of current or former Board ofContract Appeals employees;

(3) The GSA General Counsel,Associate General Counsel(s) orRegional Counsel(s) for all material,information, or testimony not coveredby paragraphs (d)(1) and (2) of thissection.


§ 105–60.603 Acceptance of service of asubpoena duces tecum or other legaldemand on behalf of the General ServicesAdministration.

(a) The Administrator of GeneralServices Administration and thefollowing officials are the only GSApersonnel authorized to accept serviceof a subpoena or other legal demand onbehalf of GSA: The GSA GeneralCounsel and Associate GeneralCounsel(s) and, with respect to materialor information that is the responsibilityof a regional office, the RegionalAdministrator and the RegionalCounsel. The Inspector General andCounsel to the Inspector General, aswell as the Chairman and ViceChairman of the Board of ContractAppeals, are authorized to acceptservice for material or informationwhich is the responsibility of theirrespective organizations.

(b) A present or former GSA employeenot authorized to accept service of asubpoena or other demand for material,information or testimony obtained in anofficial capacity shall respectfullyinform the process serve that he or sheis not authorized to accept service onbehalf of GSA and refer the processserver to an appropriate official listed inparagraph (a) of this section.

(c) A Regional Administrator orRegional Counsel shall notify theGeneral Counsel of a demand that mayraise policy concerns or affect multipleregions.

§ 105–60.604 Production or disclosureprohibited unless approved by theAppropriate Authority.

No current or former GSA employeeshall, in response to a demand, produceany material or disclose, throughtestimony or other means, anyinformation covered by this subpart,without prior approval of theAppropriate Authority.

§ 105–60.605 Procedure in the event of ademand for production or disclosure.

(a) Whenever service of demand isattempted in person or via mail upon acurrent or former GSA employee for theproduction of material or the disclosureof information covered by this subpart,the employee or former employee shallimmediately notify the AppropriateAuthority through his or her supervisoror his or her former service, staff, orregional office. The supervisor shallnotify the Appropriate Authority. Forcurrent or former employees of theOffice of Inspector General located inregional offices, Counsel to theInspector General shall be notifiedthrough the immediate supervisor orformer employing field office.

(b) The Appropriate Authority shallrequire that the party seeking materialor testimony provide the AppropriateAuthority with an affidavit, declaration,statement, and/or a plan as described inparagraphs (c)(1), (2) and (3) of thissection if not included with ordescribed in the demand. TheAppropriate Authority may in his or herdiscretion waive this requirement for ademand arising out of proceedings towhich GSA or the United States is aparty and in proceedings in which theUnited States or GSA is not a party buthas an interest such as so-called QuiTam proceedings, or where theAppropriate Authority has independentknowledge of facts relevant to the matterupon which an informed determinationcan be made. Any waiver will becoordinated with the United StatesDepartment of Justice (DOJ) inproceedings in which GSA, its currentor former employees, or the UnitedStates are represented by DOJ.

(c)(1) Oral testimony. If oral testimonyis sought by a demand, the AppropriateAuthority shall require the party seekingthe testimony or the party’s attorney toprovide, by affidavit or other statement,a detailed summary of the testimonysought and its relevance to theproceedings. Any authorization for thetestimony of a current or former GSAemployee shall be limited to the scopeof the demand as summarized in suchstatement or affidavit.

(2) Production of material. Wheninformation other than oral testimony issought by a demand, the AppropriateAuthority shall require the party seekingproduction or the party’s attorney toprovide a detailed summary, by affidavitor other statement, of the informationsought and its relevance to theproceeding.

(3) The Appropriate Authority mayrequire a plan or other information fromthe party seeking testimony orproduction of material of all demandsreasonably foreseeable, including, butnot limited to, names of all current andformer GSA and employees from whomtestimony or production is or will likelybe sought, areas of inquiry, for currentemployees the length of time away fromduty anticipated, and identification ofdocuments to be used in eachdeposition or other testimony, whereappropriate.

(d) The Appropriate Authority willnotify the current or former employee,the appropriate supervisor, and suchother persons as circumstances maywarrant, whether disclosure orproduction is authorized, and of anyconditions or limitations to disclosureor production.

(e) Factors to be considered by theAppropriate Authority in responding todemands:

(1) Whether disclosure or productionis appropriate under rules of proceduregoverning the proceeding out of whichthe demand arose;

(2) The relevance of the testimony ordocuments to the proceedings;

(3) The impact of the relevantsubstantive law concerning applicableprivileges recognized by statute,common law; judicial interpretation orsimilar authority;

(4) The information provided by theissuer of the demand in response torequests by the Appropriate Authoritypursuant to paragraphs (b) and (c) ofthis section;

(5) The steps taken by the issuer of thedemand to minimize the burden ofdisclosure or production on GSA,including but not limited to willingnessto accept authenticated copies ofmaterial in lieu of personal appearanceby GSA employees;

(6) The impact on pending orpotential litigation involving GSA or theUnited States as a party;

(7) In consultation with the head ofthe GSA organizational componentaffected, the burden to GSA thatdisclosure or production would entail;and

(8) Any additional factors unique to aparticular demand or proceeding.

(f) Examples of situations in whichauthority for production will likely bedenied by the Appropriate Authority arethose in which production would:

(1) Violate a statute or a specificregulation;

(2) Reveal classified information,unless appropriately declassified by theoriginating agency;

(3) Reveal a confidential source orinformant, unless the investigativeagency and the source or informantconsent;

(4) Reveal records or informationcompiled for law enforcement purposesthat would interfere with enforcementproceedings or disclose investigativetechniques and procedures theeffectiveness of which would beimpaired;

(5) Reveal trade secrets or commercialor financial information that isprivileged or confidential without priorconsultation with the person fromwhom it was obtained; or

(6) Be contrary to a recognizedprivilege.

(g) The Appropriate Authority’sdetermination, including any reasonsfor denial or limitations on disclosure orproduction, shall be made asexpeditiously as possible and shall becommunicated in writing to the issuer


of the demand and appropriate currentor former GSA employee(s). Inproceedings in which GSA, its currentor former employees, or the UnitedStates are represented by DOJ thedetermination shall be coordinated withDOJ, which may respond to the issuerof the subpoenas or demand in lieu ofthe Appropriate Authority.

§ 105–60.606 Procedure where responseto demand is required prior to receivinginstructions.

(a) If a response to a demand isrequired before the AppropriateAuthority’s decision is issued, a GSAattorney designated by the AppropriateAuthority for the purpose shall appearwith the employee or former employeeupon whom the demand has been made,and shall furnish the judicial or otherauthority with a copy of the instructionscontained in this subpart. The attorneyshall inform the court or other authoritythat the demand has been or is beingreferred for the prompt consideration bythe Appropriate Authority. The attoneryshall respectfully request the judicial oradministrative authority to stay thedemand pending receipt of therequested instructions.

(b) The designated GSA attorney shallcoordinate GSA’s response with DOJ’sCivil Division or the relevant Office ofthe United States Attorney and mayrequest that a DOJ or Assistant UnitedStates Attorney appear with theemployee in addition to or in lieu of adesignated GSA attorney.

(c) If an immediate demand forproduction or disclosure is made incircumstances which preclude theappearance of a GSA or DOJ attorney onthe behalf of the employee or the formeremployee, the employee or formeremployee shall respectfully make arequest to the demanding authority forsufficient time to obtain advice ofcounsel.

§ 105–60.607 Procedure in the event of anadverse ruling.

If the court or other authority declinesto stay the effect of the demand inresponse to a request made inaccordance with § 105–60.606 pendingreceipt of instructions, or if the court orother authority rules that the demandmust be complied with irrespective ofinstructions by the AppropriateAuthority not to produce the material ordisclosure the information sought, theemployee or former employee uponwhom the demand has been made shallrespectfully decline to comply, citingthese instructions and the decision ofthe United States Supreme Court inUnited States ex rel. Touhy v. Ragen,340 U.S. 462 (1951).

§ 105–60.608 Fees, expenses, and costs.(a) In consultation with the

Appropriate Authority, a currentemployee who appears as a witnesspursuant to a demand shall ensure thathe or she receives all fees and expenses,including travel expenses, to whichwitnesses are entitled pursuant to rulesapplicable to the judicial oradministrative proceedings out of whichthe demand arose.

(b) Witness fees and reimbursementfor expenses received by a GSAemployee shall be disposed of inaccordance with rules applicable toFederal employees in effect at the time.

(c) Reimbursement to the GSA forcosts associated with producingmaterial pursuant to a demand shall bedetermined in accordance with rulesapplicable to the proceedings out ofwhich the demand arose.

Dated: October 28, 1997.David J. Barram,Administrator.[FR Doc. 97–29061 Filed 11–5–97; 8:45 am]BILLING CODE 6820–34–M

FEDERAL COMMUNICATIONSCOMMISSION

47 CFR Parts 1, 21 and 74

[MM Docket No. 97–217; FCC 97–360]

MDS and ITFS Two-WayTransmissions

AGENCY: Federal CommunicationsCommission.ACTION: Proposed rule.

SUMMARY: In this Notice of ProposedRulemaking (‘‘NPRM’’), the Commissionseeks comment on the proposedamendment of its rules to enableMultipoint Distribution Service(‘‘MDS’’) and Instructional TelevisionFixed Service (‘‘ITFS’’) licensees toengage in fixed two-way transmissions.The Commission seeks comment on itsproposals to enhance the flexibility ofMDS and ITFS operations throughfacilitated use of response stations, useof booster stations with programorigination capability in a cellularconfiguration, and use of variablebandwidth (‘‘subchanneling’’ or‘‘superchanneling’’). Comment is soughtregarding the technical, procedural andeconomic effects of implementing theproposed rule changes.DATES: Comments must be filed on orbefore December 9, 1997, and replycomments on or before January 8, 1998.Written comments by the public on theInitial Regulatory Flexibility Analysisare due December 9, 1997.

ADDRESSES: Office of the Secretary,Federal Communications Commission,1919 M Street, N.W., Washington, D.C.20554.FOR FURTHER INFORMATION CONTACT:Michael J. Jacobs, (202) 418–7066 orDave Roberts, (202) 418–1600, VideoServices Division, Mass Media Bureau.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s Notice ofProposed Rulemaking, MM Docket No.97–217, adopted October 7, 1997, andreleased October 10, 1997. The full textof this NPRM is available for inspectionand copying during normal businesshours in the FCC Reference Center(Room 239), 1919 M Street, N.W.,Washington, D.C., and also may bepurchased from the Commission’s copycontractor, International TranscriptionServices, Inc., (202) 857–3800, 123120th Street, N.W., Washington, D.C.20036.

Synopsis of Notice of ProposedRulemaking on MDS and ITFS Two-Way Transmissions

1. This NPRM was issued in responseto a petition for rulemaking filed by agroup of 111 educators and participantsin the wireless cable industry(collectively, ‘‘Petitioners’’), comprisedof MDS and ITFS licensees, wirelesscable operators, equipmentmanufacturers, and industry consultantsand associations. In this proceeding,Petitioners are asking that weimplement a series of technical rulechanges that would give MDS and ITFSlicensees the needed flexibility to fullyexploit digital technology in deliveringtwo-way communications services.Currently, MDS and ITFS licensees areauthorized to use digital technology inorder to increase the number of usableone-way channels available to them,leased ITFS frequencies and MDSchannels may be used for asymmetricalhigh speed digital data applications solong as such usage complies with theCommission’s technical rules and itsdeclaratory ruling on the use of digitalmodulation by MDS and ITFS stations(‘‘Digital Declaratory Ruling,’’ 11 FCCRcd 18839 (1996)), and MDS licenseeshave been permitted to provide two-wayservice on a limited basis. While 125kHz response channels are currentlyallocated for use in association withmost MDS and ITFS stations, Petitionersanticipate that many MDS and ITFSlicensees and wireless cable operatorsengaging in two-way transmissions willrequire more capacity for return pathsthan is available through such 125 kHzchannels. Moreover, because these 125kHz response channels must beindividually licensed under the


Commission’s existing rules, Petitionersargue that the existing rules are toocumbersome and impose too great afinancial burden on licensees seeking toimplement two-way wireless services.Instead, Petitioners propose a systemunder which MDS and ITFS licenseeswould be permitted to utilize all or partof a 6 MHz channel for return pathtransmissions from subscriber premises,to cellularize their transmission systemsto take advantage of spectrally efficientfrequency reuse techniques, and toemploy modulation schemes consistentwith bandwidths either larger or smallerthan 6 MHz, all while providingincumbent MDS and ITFS licenseesinterference protection equivalent towhat they currently receive.

2. Petitioners emphasized that theyare not seeking a reallocation ofspectrum, but instead are seeking tomodify the technical rules governing thespectrum already allotted to MDS andITFS. We placed the petition forrulemaking on public notice, andreceived comments and reply commentsfrom wireless cable industryparticipants that generally supportedPetitioners’ proposals. While many ITFScommenters expressed concern over thedetails of Petitioners’ proposals, thecomments and reply comments reflecteda consensus in the MDS and ITFScommunities that the concept of two-way offerings would greatly aid bothservices. We believe that several ofPetitioners’ proposals may be in thepublic interest in that they wouldenhance the MDS and ITFS services byproviding licensees additionalflexibility in order to implement two-way services. Such flexibility would befacilitated by changing certain of ourtechnical rules, amending some of ourprogramming rules, and modifying someof our current application proceduresfor MDS and ITFS facilities. The NPRMseeks comment on the various issuesraised by these proposals, and puts forthsome counter-proposals to thoseproffered by Petitioners.

3. Revised Definitions of Service. TheITFS/MDS spectrum is used primarilyfor the provision of either one-wayvideo service to students, in the ITFScontext, or, in the MDS context, wirelesscable service to subscribers, whichlikewise historically has constitutedprimarily the provision of one-wayvideo services. While our Rules alreadypermit MDS licensees to provide non-video services, under our currentregulatory scheme, MDS operatorstypically only provide two-way serviceto subscribers using telephone returnlinks or individually licensed subscriberpremises stations. This is an outgrowthof the basic one-way approach to MDS

transmission from which our currentrules originated.

4. We propose changes to MDS andITFS service definitions to fullyincorporate the concept of two-waytransmission and which reflect thereorientation of the regulatory approachto a flexible service, from that of anessentially one-way service. Aregulatory system would be createdauthorizing the use of response stationsand response station hubs to enable thetwo-way operation of wireless cablesystems. We solicit comment on thisnew service paradigm.

5. Specifically, we propose to amendthe definition of a ‘‘response station’’ toindicate that licensees may use all orpart of any of their 6 MHz channels asa response channel. Response stationswould be the means of transmissionfrom a subscriber’s premises, and coulduse either separate transmittingantennas for return paths or combinedtransmitting/receiving antennas. Theconcept of a response station hub isadded, and these hubs would serve asthe collection points for signals from theresponse stations in a multipoint-to-point configuration for upstream signalflow. Thus, response stations would notneed to be licensed individually, andthey could operate at lower powerbecause the response station hubswould be located closer to subscriberpremises than are current transmittersites. Commenter CaritasTelecommunications, Inc. (‘‘Caritas’’)proposed that we limit the availabilityof response channels to MDS channels1, 2 and 2A, converting those channelsfrom their current use for point-to-multipoint transmissions to subscribers’homes to use for transmission returnpaths. We tentatively decline to adoptthis counter-proposal and agree withPetitioners that it would both artificiallylimit the amount of spectrum that couldbe used for return paths andunnecessarily prevent ITFS licenseesfrom using their own channels forreturn paths. We solicit comment on theresponse station hub concept and itsimplications. We also solicit commentson our proposals regarding theexpanded definition of responsestations, including provision fortransmissions on all available MDS andITFS channels, and on Caritas’ counter-proposal.

6. We further propose to amend thedefinition for ‘‘signal booster stations’’to allow such stations to originatetransmissions, as well as to relaytransmissions from other stations.Booster stations would be used tocellularize wireless cable operations,which now may operate in areas toolarge to be served by a single station.

Permitting boosters to originate as wellas relay programming would facilitatefrequency reuse cellular configurationsand two-way high speed Internet accessand other services. We seek comment onthe proposal to expand the role ofbooster stations in this manner. Flexiblesubchannelization (i.e., the division of achannel of a particular bandwidth intomultiple channels of smallerbandwidth) also would be permitted toallow more efficient channel reusewithin a given service area, andsuperchannelization (i.e., the combiningof more than one channel into a single,wider channel) would be allowed andcould be used for the transmission ofhigh data rates and/or the use of spreadspectrum emissions. Superchannels alsowould be licensed to multiple entities inmany instances, due to the fact that theinterleaved, non-contiguous channels inthis band generally are licensed todifferent entities.

Subchannels and superchannelswould be limited to digitaltransmissions with uniform spectralpower density across the bandwidth, inorder to make possible the use ofspectral density analysis as part of theinterference analysis process. We seekcomment on these channelizationproposals.

7. Finally, as noted above, 125 kHzchannels are currently allocated asresponse channels for use in associationwith most MDS and ITFS stations, andas such they would provide furthercapacity as return paths in thecellularized two-way scheme. In theirComments, Petitioners add that theCommission should also permit the useof the 125 kHz channels for point-to-multipoint transmissions. Petitionersexplain that for systems using digitaltechnologies, there is a need to transmitdownstream control signals over sidechannels that require less than a full 6MHz channel, for instance for controlover digital set top decoders or controlover two-way communication systems.Petitioners maintain that use of the 125kHz channels for such applications isbeneficial in that it preserves the 6 MHzchannels for transmissions that requiregreater bandwidth, and it can lead toreduced equipment costs. Petitionersalso propound that to further offerflexibility to create channels withbandwidths exceeding 125 kHz, theCommission should remove the currentrule provisions which require that the125 kHz channels only be used inconjunction with their associated 6 MHzchannels. While also proposing that the125 kHz channels be used for additionalpoint-to-multipoint spectrum, Caritasgoes a step further than Petitioners,advancing that the Commission should


reallocate the 125 kHz channels to becombined into one continuous piece ofspectrum to be used for such purposes.We are proposing rules in accordancewith the most flexible frameworkultimately requested by Petitioners foruse of the 125 kHz channels, includingallowing superchannelization orsubchannelization of these stationsregardless of whether they are used asresponse stations or for point-to-multipoint transmissions. We believethat these changes are sufficient toderive the benefits explained byPetitioners, and that a reallocation andthe complications associated with thatis not necessary. We solicit comment onthese proposals regarding use of the 125kHz channels.

8. Interference Considerations. In theDigital Declaratory Ruling, we waivedour rules with respect to out-of-bandemissions and permitted the use of asomewhat relaxed spectral mask fordigital transmission modes. This actionwas taken because the Commissionconcluded that the application of thecurrent analog emission mask to digitalemissions would be unnecessarilyrestrictive and could increase the cost ofdigital equipment while providing nobenefit. In addition, the results oflaboratory tests submitted in connectionwith the Commission’s consideration ofthis issue demonstrated that a digitalstation using the relaxed mask is lesslikely to cause interference than ananalog station using the existing, morerestrictive, mask.

9. In the NPRM, we propose topermanently incorporate into the Rulesthe spectral mask waiver provisions ofthe Digital Declaratory Ruling,specifically for primary systemtransmitters and single channel boostertransmitters with a power greater than¥9 dBW EIRP; masks are furtherspecified, albeit with certainmodifications, for sub-andsuperchannels, response stations, andbooster stations transmitting onmultiple non-contiguous channelscarrying separate signals and with anEIRP greater than ¥9 dBW (‘‘broadbandboosters’’). As an exception to thespectral masks for the 125 kHzchannels, discrete spurious emissionsabove the upper and below the lowerauthorized channel edges would bepermitted under certain conditions. AndPetitioners request that no spectral maskwhatsoever be applicable to boosterstations with an EIRP of ¥9 dBW orless. Petitioners argue that such lowpower stations have only a very limitedpotential for interference, and thatapplying strict emission limitations tothem would significantly increase theprice of equipment with no benefit to

the user or nearby licensees in terms ofadded interference protection. We seekcomment on whether the degree ofattenuation proposed for these variousschemes is sufficient to provideadequate adjacent channel interferenceprotection. We also request comment onwhether eliminating a spectral mask forlow power boosters presents an undueinterference risk, and, if so, whichadditional interference safeguardsshould be adopted.

10. As in the Digital DeclaratoryRuling, all spectral mask calculationsinvolving digital emissions will use theaverage power of the emission across itsbandwidth, and steps must be taken toensure substantially uniform powerdensity across the bandwidth in use,including constant power per unit ofbandwidth for sub-and superchannels.We also propose to place a limit of 18dBW EIRP on response stationtransmitters in cellularized systems, andthat higher power facilities beauthorized separately and require a sitespecific interference analysis. Given theextremely complex interferencesituation attendant to cellularizedoperations and the heavily encumberednature of MDS and ITFS environments,we do not believe that it would beprudent to permit essentially unlimitednumbers of response station transmitterswith 2000 watts (33 dBW EIRP) ofradiated power, as Petitioners requested.However, while current MDS and ITFSrules limit booster power to 18 dBWEIRP, we propose to allow boosters tooperate up to 33 dBW EIRP, themaximum power level for MDS andITFS. We seek comment on thisapproach to transmitter power withinthe two-way scheme. We also seekcomment on rule proposals with respectto frequency tolerance requirements fordigital transmissions, type acceptance ofresponse station transmitters andboosters, and radio frequency (‘‘RF’’)emissions for MDS/ITFS return pathtransmissions.

11. The Commission’s currentregulations in ITFS and MDS forinterference protection were designed tominimize the potential for destructivecochannel and adjacent channelinterference between systems located inproximity to each other. The specificcriteria for protection are of two forms,namely, (1) cochannel and adjacentchannel desired-to-undesired signal (D/U) ratios and (2) limits on themagnitude of a station’s free space fieldas measured at the edge of the station’sprotected service area. For cochannelinterference protection, an applicantmust configure its system so that thesignals from each of its transmitters areat least 45 dB weaker than the signals

of the existing licensee’s transmitterswithin the licensee’s protected servicearea and/or, in the case of ITFSlicensees, at the licensee’s protectedreceiver sites. For adjacent channelprotection, the ratio must be at least 0dB. In order to meet the second form ofprotection, an applicant generally mustbe able to demonstrate that themagnitude of the free space radiatedfield from each transmitter does notexceed a particular limit (i.e., a powerflux density ¥73 dBW/m2) at theboundary of the applicant’s service area.

12. Petitioners propose to apply theexisting interference criteria inessentially unchanged form, and tosupplement them with similar newcriteria to be applied to hub, booster,and response stations. Petitionersfurther propose to aggregate the powerfrom a primary station and allassociated booster stations for one set ofinterference calculations, and that aseparate set of interference calculationsbe performed using the aggregatedpower from response stations. However,we counter-propose that a calculation ofthe combined field produced by theprimary station transmitter, all boosters,and the aggregated power from responsestations within a system be utilized todetermine compliance with interferencestandards. We seek comment on therelative merits of Petitioners’ proposedapproach and our counter-proposal. Wealso emphasize that where an interfered-with receive antenna meets the antennacharacteristics set forth in our MDS andITFS rules, the station causing theharmful interference is responsible forcuring it.

13. Interference PredictionMethodology. In order to predict theinterference potential of responsestations in the proposed cellularizedscheme, Petitioners seek to employ athree-step process using statisticalanalysis and worst-case assumptions. Instep one, the hub station responseservice area (‘‘RSA’’) is defined and agrid of points is located within this arearepresentative of the expected actualdistribution of response stationtransmitters within the area. Regionswithin the area are defined so that anadequate population uniformity existsfor purposes of predicting interferencefrom a distribution of response stationtransmitters. Population uniformity isdetermined using a complex formulainvolving evaluation of the populationdensity within each ZIP Code within theplanned boundaries of a region.Population uniformity is an importantfacet of each region because Petitionersassume, a priori, that the distribution ofresponse station transmitters will be


closely matched to populationdistribution within each region.

14. In step two, Petitioners propose toidentify the technical characteristics ofresponse stations which will beassociated with each point in the RSAgrid. One or more classes of responsestations would be identified within theRSA and its regions, with each classbeing a function of several variables,such as transmitted power (EIRP),antenna height, frequency, bandwidth,and maximum number of assumedsimultaneously operated responsestations in the regional class; thesecharacteristics and others would bespecified in the response hubapplication. Differentiating betweenclasses is asserted by Petitioners to beessential for accurately calculating theinterference potential of the responsestations within an RSA, becausedifferentiable technical characteristicsbetween classes likely will lead todifferentiable potentials for causinginterference to neighboring systems.

15. The final step in calculatingresponse station interference wouldrequire combining the radiated fields ofall response stations of all classes,regions and RSAs within the primarystation’s protected service area. In orderto simplify this calculation, thestatistical population uniformity withineach region would be used as a basis forgrouping response stations of all classesin proximity at the grid points laid outwithin each RSA; multiple classes couldshare the same grid points. For eachclass of response stations assigned to agrid point, a set of worst-caseassumptions would be made concerningthe transmitting antenna radiationpattern, transmitter power (EIRP) andantenna height. Several complexcalculations, including procedures forchecking the initial calculations,combining the radiated field for all ofthe transmitters for each class ofresponse station at each grid point fromall RSAs would then be used to evaluatecompliance with the interferencecriteria. Thus, whereas under currentrules such compliance is calculated ona per-transmitter basis, Petitioners’proposed system would necessitate thatit be calculated on an aggregated basis,covering hundreds or thousands oftransmitters and their combinedinterference potential to neighboringsystems. Petitioners argue that licenseesshould be free, upon notification to theCommission, to continue addingresponse station transmitters withintheir systems until calculations indicatethat permissible interference valueswould be exceeded, and that usingworst-case assumptions in theirmethodology has built in an interference

protection buffer for situations wheremore stations or a different mix ofstations than anticipated are activated inan RSA.

16. In the NPRM, we caution that theinterference prediction methodology isbased solely on assumptions, thusleading to a statistical picture ofresponse station interference potentialwhich gives an uncertain approximationof the operating environment, althoughPetitioners also claim that thisapproximation is conservative. Inaddition, we discuss how the smallscale test conducted by Petitioners inthe flat and relatively unimpededterrain of Tucson, AZ, while useful, maynot be generally applicable to the verydiverse geographical and interferenceenvironments in which MDS and ITFSsystems operate. We also expressconcern that the proposed methodologyis so complex that it may be verydifficult to implement and enforce, andmay lead to numerous filings updatingsystem configurations, which wouldpresent severe burdens upon existinglicensees and operators needing toanalyze these filings in order to verifythat no harmful interference will resultto their systems. Notwithstanding thesereservations, however, we express ourbelief that Petitioners’ overall goal offacilitating cellularization of theservices is very forward-looking, andwarrants an opportunity to proceeddespite the complications anduncertainties which could arise. Thus,we propose to adopt the methodologyand seek comment on it, but we alsospecifically solicit suggestions foralternative methods for prediction ofinterference to and from cellularizedsystems. For example, we ask to whatextent ‘‘worst case’’ analysis could servea sufficient approximation to a moreexact analysis, such as a determinationof noninterference based solely onterrain shadowing, and to whatgeographical extent individual responsestation areas should be aggregated inlarge BTAs.

17. Modulation Methods. In theDigital Declaratory Ruling, weauthorized the use of QuadratureAmplitude Modulation (‘‘QAM’’) andVestigial Sideband (‘‘VSB’’) modulation.While we declined to consider the useof other digital modulation methods inthe context of that proceeding, we statedthat we would consider future requestsfor declaratory rulings where therequesters submit appropriate data todemonstrate that other modulationtechniques could be used in a mannerthat would not interfere with MDS andITFS analog and digital operations. Inthe current rulemaking proceeding, PaceTelecommunications Consortium

(‘‘Pace’’) commented that theCommission should immediately grantITFS and MDS licensees the flexibilityto use whatever digital techniques bestserve their needs, with interferencecontrolled through the use of powerspectral density limits and spectralmasks.

18. As in the Digital DeclaratoryRuling, in the NPRM we decline toadopt one or more ‘‘standard’’ digitaltechnologies. We will retain or addprovisions for accommodating the use ofdifferent modulation types, as requestedby Petitioners. In addition, because wewish to encourage parties to continue toidentify different digital modulationschemes that could be useful in MDSand ITFS, we emphasize that we remainopen to considering future requests fordeclaratory rulings in accordance withthe Digital Declaratory Ruling, uponsubmission of appropriate data. Wefurther invite comment on whetherthere is a basis for concluding that useof particular digital modulation types byMDS and ITFS stations other than VSBand QAM would not be prone tointerference, based on the current 45dB/0 dB protection ratios for cochanneland adjacent channel interferencerespectively, i.e. that such modulationformats should be permitted withoutrequiring test data. For example, onemodulation type may be a subset of VSBand QAM and, therefore, is coveredunder the industry tests used to supportthe Digital Declaratory Ruling.

19. Application Procedures.Petitioners set forth an applicationprocessing scheme, governing the filingof applications for new or modifiedresponse station hubs or boosters, thatwould substantially shift review ofapplications from Commission staff andleave much of the interferenceenvironment to be worked out amonglicensees. Petitioners propose that weadopt a rolling, one-day filing windowsystem. While each applicant would berequired to demonstrate protection ofexisting or previously proposedfacilities, all acceptable applicationsfiled on the same day would be grantedand the filers left to resolveincompatibilities amongst themselveswith little or no intervention byCommission staff. Specifically,Petitioners propose that applicationswould be placed on public noticewithout prior staff review ofinterference studies, and that theapplications would be automaticallygranted on the 61st day after that noticeunless a petition to deny was filed orthe Commission notified the applicantprior to that date that a grant would notbe made.


20. Petitioners speculate that a largenumber of applications are likely to befiled once the new rules becomeeffective and that many of theapplications submitted at that time willconflict with others filedsimultaneously. In order to smooth thetransition to the rolling one-day filingwindow application processing system,Petitioners propose that a special one-week window be employed when thenew rules first go into effect, and that allapplications filed during this windowbe deemed filed as of the same day.Following the publication of a publicnotice announcing the tendering forfiling of applications submitted duringthat window, applicants would have aperiod of 60 days to amend theirapplications to resolve conflicts. Duringthis 60-day period, no additionalapplications could be filed, affordingthose who filed during the one-weekwindow an opportunity to resolve anyconflicts without fear that, during thependency of settlement discussions,third parties will propose facilities thatwill have to be protected if the originalapplicants amend their applications.After this initial 60 day period, publicnotice and automatic grant proceduresakin to those proposed by Petitioners forthe rolling one-day filing windowswould be implemented. FollowingPetitioners’ plan, on the 61st day afterthe publication of the second publicnotice, applications for authorizationsfor response station hubs and for boosterstations henceforth would be acceptedand processed under the rolling one-dayfiling window approach.

21. Although we tentatively acceptPetitioners’ proposal to place theapplications on public notice withoutprior staff review of the interferencestudies, we tentatively reject theirproposal for automatic grant of theapplications. We believe that placingthe applications on public noticewithout prior interference analysis willserve to speed the review process bymaking the relevant data available to allinterested parties as quickly as possible.However, we believe that an automaticgrant at the end of the proposed 60 daypublic notice period will not provide anadequate opportunity for interestedparties or, where necessary, forCommission staff, to review theinterference studies or for theCommission to make a reasoneddetermination in complex cases. Wesolicit comment on our conclusions.

22. In addition, while Petitioners’proposal in this area presents apromising start, it still leaves a numberof concerns and questions unresolved.Commenter Catholic TelevisionNetwork (‘‘CTN’’) raised the concern

that the one-day rolling filing windowwill create an undue burden on ITFSlicensees, who may find themselvesrequired to evaluate a continuing streamof applications. We solicit comment onhow such a concern could be resolvedin the context of the one-day rollingfiling window. We also solicit commenton whether we should retain our currentperiodic filing window system used forITFS applications and what advantagesand disadvantages exist between theexisting system and the proposedsystem. Furthermore, Petitioners’proposal leaves a number of significantquestions unresolved regarding theprocessing of conflicting applications.For example what should be the resultin the event that same-day filers ofclosely-spaced conflicting applicationscannot resolve their differences? Shouldthe applicants be ordered into bindingarbitration for which they will assumethe cost and whose outcome will befinally subject to Commission approval?Should the Commission simply freezethe applications until the parties areable to resolve their differences? Shouldthe Commission’s staff function as areferee in such cases and, if so, shouldit adopt any sort of comparative criteriato guide its decisions? Should the staffadopt some type of point system to ratecompeting applicants? We seekcomment on these questions.

23. We tentatively propose thefollowing processing rules, taking intoconsideration the concerns of thevarious commenters. Under these rules,applicants would file an original andtwo copies of their system proposal andserve a copy of the proposal on anyparty whose MDS/ITFS interests may beaffected by the proposal. A completeapplication would then be placed onpublic notice for a 60-day initialcomment period. Prior to the expirationof the 60-day period, interested partiescould file comments, petitions to denyor requests for extension of time to filecomments or petitions to deny.Although it is our policy that requestsfor extension of time shall not begranted, and we do not propose tochange that policy, we anticipate thatthe limited resources available to anITFS party to review a potentiallycomplex two-way service proposal willbe a factor considered in whether wegrant a request for extension of time. Inthe alternative, we would consideradopting a 120-day initial commentperiod, with requests for extensions oftime considered only in extraordinarycircumstances. We seek comment onthese proposals and solicit detailedalternate proposals. We especially seekcomment on what time period parties

believe would be necessary toadequately review a service proposalwithout unduly delaying the processingof such a proposal.

24. We believe that the adoption ofthe one-week initial filing window willlessen the burden on all affected parties,including the Commission’s staff,during the first round of applicationfiling. We also believe that providingparties with an initial 60-day periodduring which they can resolve anyapparent conflicts and then amend theirapplications without prejudice willprovide for quicker and easierprocessing. We believe that issuing apublic notice announcing theacceptance for filing of all applicationsas amended will serve an importantnotice function for all potentiallyaffected parties. As discussed above,however, we do not propose to acceptPetitioners’ automatic grant proposal.Rather than adopt Petitioners’ proposedautomatic grant, we tentativelyconclude that, at the end of anycomment period that we may adopt andfollowing any further staff review, theCommission staff, pursuant to delegatedauthority, would issue a grant or denialof any authorization pursuant to therevised rules. If no oppositions havebeen filed in a particular proceedingand the Commission staff hasdetermined that a service proposalwould not cause interference inviolation of our Rules, we anticipatethat such a grant would beaccomplished quickly. We seekcomment on both our proposedapproach and on Petitioners’ proposedautomatic grant.

25. We also solicit comment on waysto make information on actual systemoperating parameters available to third-party applicants who need suchinformation for analysis of theinterference environment, and on howto conform our MDS and ITFS rules toprovide for amendment of boosterstation and response station hubapplications. Finally, in theirComments, Petitioners urge that weadopt a system whereby an applicant,once authorization for service has beengranted, may switch from commoncarrier to non-common carrier serviceand back without seeking subsequentauthorization. We seek comment on thisaspect of Petitioners’ proposal, and onwhether operators should be required togive the Commission notice when theyare switching back and forth betweencommon carrier and non-commoncarrier service, even if prior approval isnot required.

26. Issues Specific to ITFS. Under§ 74.931 of the Commission’s Rules,ITFS stations are operated by


educational organizations and are‘‘intended primarily to provide a formaleducational and cultural developmentin aural and visual form,’’ to studentsenrolled for credit in accreditedsecondary schools, colleges anduniversities. An ITFS licensee wholeases excess channel capacity to awireless cable operator must provide atotal average of at least 20 hours perchannel per week of ITFS programmingon its authorized channels. ITFSlicensees in such lease arrangementsalso retain the right to recapture ‘‘anaverage of an additional 20 hours perchannel per week for simultaneousprogramming on the number ofchannels for which it is authorized.’’ Inaddition, an ITFS licensee may shift itsrequired educational programming ontofewer than its authorized number ofchannels via channel loading or channelmapping. The licensee may furtheragree to transmission of recapture timeon channels not authorized to it butwhich are included in the wireless cablesystem of which it is a part.

27. Petitioners propose changes whichwould revise the absolute 20 hours perchannel per week recapture timerequirement to provide that the ITFSprogramming requirements constitute atotal of 40 hours per channel per week,including both actual programming andrecapture time. The Petition does notcontemplate any changes to the requiredminimum of 20 hours per channel perweek of actual ITFS programming.Thus, under the proposed changes, if anITFS licensee actually provides morethan an average of 20 hours per channelper week of ITFS programming,reserved recapture time would onlyneed to make up the difference toachieve a total of 40 hours per channelper week. CTN commented thatretaining the 20 hour minimum actualprogramming requirement isinadequate, and insisted that as digitalcompression increases the number ofchannel paths, there must be aproportionate increase in the number ofpaths available for education, includingdata services. In their reply, Petitionersclaimed that many ITFS licensees arefinding it difficult to satisfy the existingITFS minimum programmingrequirements. Petitioners further posedthat adoption of CTN’s proposal wouldcreate a disincentive for ITFS licenseesto introduce the new technologiescontemplated by the Petition. We solicitcomment from ITFS licensees on thesecomments. In the NPRM, we find nogrounds for retreat from the absolute 20hour recapture time requirement,especially at this juncture when severalwireless cable systems currently enjoy

or imminently stand to reap the benefitsof increased spectrum capacity throughuse of digital compression techniques.While we acknowledge the great valueto wireless cable operators ofmaximization of spectrum available forleasing, we also emphasize the primaryeducational purpose of ITFS and theimportance of maintaining sufficientcapacity for programming by ITFSlicensees which fulfills that purpose.

28. In the NPRM, we specifically seekcomment on several issues related to thequestion of whether to change our ITFSprogramming requirements in light ofthe use of digital technology by ITFSlicensees. Should there be differentrules depending on whether thewireless cable system employs digitaltransmissions? Should a change take theform of an increase in required levels ofactual ITFS programming, an increase inready recapture time, or both? Howshould any increased requirements bemeasured, e.g., additional hours oradditional paths? With the flexibility inimplementation of ITFS programmingrequirements currently allowed orproposed, such as channel loading andshifting of required programming ontoother channels within a wireless cablesystem, should we retain our existingprogram content requirements and, ifnot, how should they be modified? Forexample, should data transmissioncount towards minimum ITFSprogramming requirements? Shouldvoice transmission count? If data and/orvoice transmission were to count, howwould they be measured with respect tofulfillment of minimum ITFSprogramming requirements? Shouldtime-of-day requirements be institutedfor these uses to help ensure that theyare really being put towards ITFSprogramming? Furthermore, shouldcounting one or both of them have aneffect on the amount of actualprogramming or ready recapture timerequired? We also invite comment onwhether education-related uplinktransmissions should be appliedtowards satisfaction of minimum ITFSprogramming requirements. While wenote our initial impression that countinguplink transmissions will be overlycomplicated and impractical, given theanticipated multitudes of responsestations and the difficulty in predictingor tracking exactly when they are beingused for educational purposes, wenonetheless welcome suggestions onhow they would be measured withrespect to fulfillment of minimum ITFSprogramming requirements.

29. Petitioners anticipate that systemdevelopers will attempt to utilizecontiguous 6 MHz channels for two-wayservices in order to minimize the

amount of spectrum that would be lostto the proposed spectral mask whenevera return path is adjacent to a downlinkchannel. Furthermore, entire ITFSchannel groups may need to be devotedfor return paths. Thus, Petitionerspropose that we allow ITFS licensees tosatisfy their programming requirementson other channels within the wirelesscable system. This proposal would bethe next step in a progression of rulechanges, following our allowance ofchannel mapping and channel loading,that have afforded ITFS licenseesincreased flexibility in theimplementation of their minimumprogramming requirements. Becausethis proposal would enhance the two-way scheme, and because it would notcall for any dilution or elimination ofminimum ITFS programmingrequirements, we are consideringimplementing it. The flexibility that thesuggested changes would accord to ITFSlicensees to lease their channel capacity,along with the maintenance ofminimum ITFS programmingrequirements, could also encourageeducators to apply for new ITFS stationsand lead to more educationalprogramming. Several commenters putforth ideas for refinements to thisproposal. Arizona State Board ofRegents, et al. (‘‘Arizona’’) suggestedthat each ITFS licensee be required topreserve at least one downstream videochannel, and that the Commissioninstitute a procedure whereby it wouldroutinely grant applications by ITFSlicensees to exchange individual ITFSchannels between channel groups.Instructional TelecommunicationsFoundation, Inc. (‘‘Foundation’’) wouldrequire that each ITFS licensee devote atleast half of its capacity for downstreamuse. Schwartz, Woods & Miller(‘‘SWM’’) prompted the Commission tofacilitate the ‘‘trading’’ of channelsbetween the ITFS and MDS bands.

30. Several of the ITFS commentingparties expressed concern that theproposed two-way scheme presentsthreats to the independence of ITFSlicensees and their future ability to usespectrum capacity for instructionalpurposes. Pace, for instance, cautionedthat because the Petition proposes amassive shift towards industry controlover ITFS applications, the Commissionmust ensure that individual ITFSlicensees ‘‘do not lose their freedom ofchoice’’ over the use of their channels,through coercion by neighboringlicensees or strong wireless cableoperators. However, Charlotte-Mecklenburg Public BroadcastingAuthority (‘‘CMPBA’’), an ITFS licensee,took the view that the proposed rules


adequately protect the interests of ITFSentities, primarily because the rules donot obligate ITFS licensees to take partin the two-way system, enter into a leaseagreement, file FCC applications, oraccept harmful signal levels. Some ofthe concerned ITFS commenting partiesfocused on the effect that the proposedrules may have on the engineeringautonomy of ITFS licensees. Arizonaposed the question of what wouldhappen if an excess capacity agreementcomes to an end, and the ITFS licenseehas previously converted its channels totwo-way use and has shifted some or allof its programming onto other channelsin the wireless cable system. Similarly,CTN asked what the impact ofcellularization of a market would be onone or more ITFS licensees within itwho elect not to cellularize, as well aswhether a single ITFS licensee whostrives to cellularize its operationswould be dependent on other licenseesin the market.

31. In the NPRM, we emphasize thatcellularization by ITFS licensees wouldbe permissive only, and not mandatory.We particularly seek comment on theeffects of allowing complete flexibilityin the number of channels ‘‘turnedaround’’ for return paths, and in theshifting of required ITFS programmingonto other channels in the wirelesscable system and what restrictions, ifany, should be adopted. We also seekcomment on whether we should requireITFS licensees to retain one or morechannels for downstream transmissionsand the ramifications of such arequirement. Further, we seek commenton whether ITFS channel swaps shouldonly be just between ITFS channels, orwhether ITFS licensees should be ableto swap their spectrum for channels inthe MDS band. We seek additionalcomment on specific potential threats tothe engineering autonomy of ITFSlicensees which could result frominstitution of the proposed two-wayframework; in conjunction with suchcomment, we further seek proposedsolutions. Some proposed solutionsinclude channel swapping andreimbursement of costs of channelchanges, upholding that participation ofITFS licensees in cellularization is notmandatory, and potentially increasingreservation of ready recapture time forITFS programming. Do any of theseideas individually, or a combination ofthem, provide a sufficient foundationfor meeting the expanding needs ofsome ITFS licensees? Commenters arealso encouraged to address the generalquestion of whether the Commissionshould establish solutions by rule, or

whether solutions should be achievedby contract, as advocated by Petitioners.

32. Several commenters alsoaddressed the degree of oversight theCommission should maintain inregulating the wireless cable industryand ITFS. In the past, the Commissionhas adopted rules and procedures toaccommodate and protect the specialneeds of educational institutions andorganizations, believing that educationalinstitutions should be treated differentlyfrom commercial entities in manysituations due to limited financial andstaff resources. In addition, ITFSlicensees and applicants are required tofile their excess capacity leaseagreements, which are reviewed by thestaff for overly restrictive provisionsaffecting the licensee’s rights andobligations, and compliance with theCommission’s leasing policies.

33. In order to ensure that educatorsretain control of their facilities and toprotect their interests, the Foundationproposed that the Commission requirethat two-way digital applications andinterference consents be reviewed bylegal and engineering counsel that donot represent commercial interests, andthat these independent advisors ‘‘certifythat in their professional opinion thesubmission will not be harmful to futureinstructional service.’’ We havedeclined in the past to require allleasing parties to hire separate counsel,finding this ‘‘safeguard’’ unnecessaryand relying instead on the staff’s reviewand monitoring of leases. We see noreason to change our position on thisissue and seek comment on this issue.SWM also proposed that in order toprotect the rights of incumbent ITFSlicenses, the Commission require thatleases approved or submitted under theprevious rules ‘‘be amended to makeclear that the wireless cable lessee andthe ITFS licensee have togetherconsidered the rule changes adoptedand made any appropriate changes tolease terms, prior to the commencementof commercial operations on thefrequencies using cellularization,sectorization or differing channelizationplans.’’ Petitioners opposed thisproposal, stating that the parties to theexcess capacity lease agreements, andnot the Commission, are best positionedto determine whether proposed systemchanges require contract revisions.Accordingly, we seek comment onSWM’s proposal.

34. We also seek comment on whatimpact the proposed rule changeswould have on our requirementsregarding excess capacity leaseagreements. For example, theCommission consistently hasmaintained that an ITFS licensee should

be permitted to purchase the ITFSequipment necessary to maintain itsoperation in the event the lease isterminated. In addition, we also requirethat the licensee maintain ultimatecontrol over its licensed facilities.Several commenters have expressedconcern that given the complexity andcost of Petitioner’s proposal, ITFSlicensees will be unable to sever theirrelationship with the wireless cableoperator and acquire the equipment toeither continue cellular operations orreturn to non-two-way transmissions.We particularly seek comment on thismatter and on what type of equipmentMDS lessees of ITFS channels should berequired to make available to the ITFSlicensees upon termination of a lease.For example, should it only be digitalequipment comparable to that in use onthe system at the time the lease isterminated or should it be equipmentthat would make it possible for the ITFSlicensee to restore analog videooperation, if necessary? Furthermore,with respect to Petitioners’ proposal thatITFS licensees be allowed to utilizetheir entire channel for return paths andshift their ITFS programming to otherchannels, we request comment onwhether the parties should be requiredto file written agreements governing theITFS licensee’s lease of an ITFSprogramming channel, and whether ourpresent requirements for excess capacityleases, including those dealing withcontrol issues, length of lease, and rightson termination, should apply.

35. We also revisit our channelloading rules, and propose to retainthem. We request that interested partiescomment on whether these rules havebeen beneficial to ITFS licensees andwireless cable operators, or whetherthey have been detrimental. Because webelieve that they have providedadditional much-needed flexibility toITFS licensees and wireless cableoperators, any parties commenting thatthese rules have been detrimentalshould also focus on solutions to permitthe continued application of them whilerendering them more universallybeneficial. Finally, we also considerissues related to retention of ITFS callsign transmission requirements andaccountability of ITFS licensees.

36. In this NPRM, we propose toamend our rules to give MDS and ITFSlicensees the needed flexibility to fullyexploit digital technology in deliveringtwo-way communications services.Growth in the wireless cable industryhas remained slow despite the increasedchannel capacity offered by digitalcompression and facilitated by theDigital Declaratory Ruling. Meanwhile,convergence of different information


1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601et seq., has been amended by the Contract WithAmerica Advancement Act of 1996, Public Law104–121, 110 Stat. 847 (1996) (CWAAA). Title II ofthe CWAAA is the Small Business RegulatoryEnforcement Fairness Act of 1996 (SBREFA).

2 5 U.S.C. § 601(6).3 5 U.S.C. § 601(3) (incorporating by reference the

definition of ‘‘small business concern’’ in 15 U.S.C.§ 632). Pursuant to 5 U.S.C. § 601(3), the statutorydefinition of small business applies unless anagency after consultation with the Office ofAdvocacy of the Small Business Administrationand after an opportunity for public comment,establishes one or more definitions of such term

which are appropriate to the activities of the agencyand publishes definitions in the Federal Register.

4 Small Business Act, 15 USC § 632.5 47 CFR 21.961(b)(1).6 See Amendment of Parts 21 and 74 of the

Commission’s Rules With Regard to FilingProcedures in the Multipoint Distribution Serviceand in the Instructional Television Fixed Serviceand Implementation of Section 309(j) of theCommunications Act—Competitive Bidding, MMDocket No. 94–31 and PP Docket No. 93–253,Report and Order, 10 FCC Rcd 9589 (1995), 60 FR36524 (July 17, 1995).

7 One of these small entities, O’ahu WirelessCable, Inc., was subsequently acquired by GTEMedia Ventures, Inc., which did not qualify as asmall entity for purposes of the MDS auction.

8 13 CFR 121.201.9 See 5 U.S.C. §§ 601 (3)–(5).

delivery systems, including video andInternet access, is occurring in otherindustries, such as cable and DBS. Thus,one of our primary goals in institutingthis proceeding is to enhance thecompetitiveness of the wireless cableindustry. Another of our chiefunderlying goals in this proceeding is toprovide benefits to the educationalcommunity through the use of two-wayservices, such as high speed Internetservice. Besides proposing to amend ourtechnical rules to facilitate such usageover ITFS frequencies, we note that thegrowth of wireless cable has led to thecontinued development of ITFS bysupporting and funding approximately95 percent of all new ITFS applicants.Thus, we believe that enhancing thecompetitive viability of wireless cableservice through maximization offlexibility and service offeringspromotes the underlying educationalpurpose of ITFS.

37. This is a permit-but-disclosenotice and comment rulemakingproceeding. Ex parte presentations arepermitted, except during the SunshineAgenda period, provided they aredisclosed as provided in theCommission’s Rules. See generally 47CFR 1.1202, 1.1203, and 1.1206(a).

38. For information regarding properfiling procedures for comments, see 47CFR 1.415 and 1.419. To file formally inthis proceeding, participants must filean original and five copies of allcomments, reply comments, andsupporting comments. If participantswant each Commissioner to receive apersonal copy of their comments, anoriginal plus ten copies must be filed.Comments and reply comments will beavailable for public inspection duringregular business hours in the FCCReference Center (Room 239) at theFederal Communications Commission,1919 M Street, N.W., Washington, D.C.20554.

39. Authority. This NPRM is issuedpursuant to authority contained inSections 4(i) and (j), 301, 303(g) and (r),and 403 of the Communications Act of1934, as amended, 47 U.S.C. §§ 154(i),154(j), 301, 303(g), 303(r), and 403.

Initial Regulatory Flexibility AnalysisAs required by the Regulatory

Flexibility Act (RFA),1 the Commissionhas prepared this present InitialRegulatory Flexibility Analysis (IRFA)of the expected significant economicimpact on small entities by the policies

and rules proposed in this Notice ofProposed Rulemaking in MM DocketNo. 97–217 (‘‘NPRM’’). Written publiccomments are requested on this IRFA.Comments must be identified asresponses to the IRFA and must be filedby the deadlines for comments on theNPRM provided above. The Commissionwill send a copy of the NPRM, includingthis IRFA, to the Chief Counsel forAdvocacy of the Small BusinessAdministration (SBA). See 5 U.S.C.§ 603(a). In addition, the NPRM andIRFA (or summaries thereof) will bepublished in the Federal Register. Seeid.

Need for, and Objectives of, theProposed Rules

The Commission is instituting thisrulemaking to determine whether, and ifso, how, to amend its rules to promotethe ability of MDS and ITFS licensees toprovide two-way digital services. Theobjective of this proceeding is toencourage the efficient use of thespectrum allotted to MDS and ITFS bysimplifying our current two-waylicensing system and providing greaterflexibility in the use of the allottedspectrum where such flexibility wouldbest serve the needs of the public. Inaddition, we intend to enhance thecompetitiveness of the wireless cableindustry and the resultant choicesavailable to consumers, and to increaseInternet access for educationalinstitutions and their students via ITFSfrequencies.

Legal Basis

Authority for the action proposed inthis proceeding may be found inSections 4(i) and (j), 301, 303(g) and (r),and 403 of the Communications Act of1934, as amended, 47 U.S.C. Sections154(i), 154(j), 301, 303(g), 303(r), and403.

Description and Estimate of the Numberof Small Entities to Which the ProposedRules Will Apply

The RFA generally defines ‘‘smallentity’’ as having the same meaning asthe terms ‘‘small business,’’ ‘‘smallorganization,’’ and ‘‘small businessconcern.’’ 2 In addition, the term ‘‘smallbusiness’’ has the same meaning as theterm ‘‘small business concern’’ underthe Small Business Act.3 A small

business concern is one which: (1) isindependently owned and operated; (2)is not dominant in its field of operation;and (3) satisfies any additional criteriaestablished by the SBA.4

MDSThe Commission has defined ‘‘small

entity’’ for the auction of MDS as anentity that, together with its affiliates,has average gross annual revenues thatare not more than $40 million for thepreceding three calendar years.5 Thisdefinition of a small entity in thecontext of MDS auctions has beenapproved by the SBA.6 The Commissioncompleted its MDS auction in March1996 for authorizations in 493 basictrading areas (BTAs). Of 67 winningbidders, 61 qualified as small entities.7

MDS is also heavily encumbered withlicensees of stations authorized prior tothe auction. The SBA has developed adefinition of small entities for paytelevision services, which includes allsuch companies generating $11 millionor less in annual receipts.8 Thisdefinition includes multipointdistribution systems, and thus applies toMDS licensees and wireless cableoperators which did not participate inthe MDS auction. Information availableto us indicates that there are 832 ofthese licensees and operators that do notgenerate revenue in excess of $11million annually. We tentativelyconclude that for purposes of this IRFA,there are approximately 892 small MDSproviders as defined by the SBA and theCommission’s auction rules, and someof these providers may be impacted bythe outcome of this NPRM. We seekcomment on this tentative conclusion.

ITFSThere are presently 2032 ITFS

licensees. All but 100 of these licensesare held by educational institutions(these 100 fall in the MDS category,above). Educational institutions may beincluded in the definition of a smallentity.9 ITFS is a non-pay, non-


10 See 13 CFR 121.210 (SIC 4833, 4841, and 4899).11 See, e.g., 47 CFR 21.911.

commercial broadcast service that,depending on SBA categorization, has,as small entities, entities generatingeither $10.5 million or less, or $11.0million or less, in annual receipts.10

However, we do not collect, nor are weaware of other collections of, annualrevenue data for ITFS licensees. Thus,we tentatively conclude that up to 1932of these educational institutions aresmall entities. We seek comment on thisconclusion.

Description of Reporting,Recordkeeping and Other ComplianceRequirements

The Commission seeks comment onproposals to amend its rules to promotethe ability of MDS and ITFS licensees toprovide two-way digital services,including implementation of simplifiedprocedures governing application for,and authorization of, booster stationsand response station hubs. Because theproposed rule changes would enablelicensees to apply for and receiveauthorizations for new types of boosterstations and for response station hubs,certain commensurate new reportingand recordkeeping obligations wouldfollow as part of this process, though thenature of the obligations and the MDSand ITFS rules directly addressingthem 11 would remain the same. At thesame time, however, the proposed rulechanges would make the overalllicensing process for two-way digitalservices much less cumbersome thanthe current process, which requiresindividual licensing of each responsestation and booster station. In theNPRM, we request comment on whetherwe should increase ITFS programmingrequirements, and if so, in which wayand to what degree. While the proposedtwo-way scheme would result in morecomplicated interference analysisrequirements for MDS and ITFS entitiesseeking to establish or modify service,regardless of whether the entitiesthemselves choose to engage in fixedtwo-way transmissions, theseinterference safeguards are necessary topromote the objectives of thisproceeding. We seek comment on theseconclusions and how we can modifyany proposed new requirements so as toreduce the burden on small entities andstill meet the objectives of thisproceeding.

Steps Taken to Minimize SignificantEconomic Impact on Small Entities, andSignificant Alternatives Considered

As described in the NPRM, inresponse to a March 31, 1997 Public

Notice soliciting comment on thePetition, several of the ITFScommenting parties express concernthat the proposed two-way schemepresents threats to the independence ofITFS licensees and their future ability touse spectrum capacity for instructionalpurposes. Pace, for instance, cautionsthat because the Petition proposes amassive shift towards industry controlover ITFS applications, the Commissionmust ensure that individual ITFSlicensees ‘‘do not lose their freedom ofchoice’’ over the use of their channels,through coercion by neighboringlicensees or strong wireless cableoperators. Other commenting ITFSparties, however, do not perceive sucha threat. For instance, CMPBA believesthat the proposed rules adequatelyprotect the interests of ITFS entities,primarily because the rules do notobligate ITFS licensees to take part inthe two-way system, enter into a leaseagreement, file FCC applications, oraccept harmful signal levels.Nevertheless, in order to find solutionsthat would allay the concerns of someITFS licensees, in the NPRM we seeksuggestions on ways to providemaximum flexibility in usage of ITFSchannels while ensuring that capacity isreserved for downstream ITFSprogramming, pose the question ofwhether solutions should be establishedby rule or by contract and what role theCommission or other third partiesshould play in reviewing excesscapacity lease agreements, and confirmthat cellularization by ITFS licenseeswould be permissive only, and notmandatory.

CTN raises the concern thatPetitioners’ one-day rolling applicationfiling window plan and automatic grantproposal will create an undue burdenon ITFS licensees who may findthemselves required to evaluate acontinuing stream of applications. Wesolicit comment on how such a concerncould be resolved in the context of aone-day rolling filing window orwhether we should retain a periodicfiling window system. Furthermore, wetentatively reject the automatic grantcomponent of Petitioners’ applicationprocessing proposal, and insteadpropose a ‘‘comment period’’ of 60 or120 days, after which applicationswould be processed pursuant to currentprocedures. In proposing the commentperiod alternative, we acknowledge thecomplexity of the engineeringinformation in the response hub orbooster station applications, and thesubstantial number of affected parties,particularly ITFS licensees, thatfrequently have very limited resources

and that often would not be able to filea petition against an application beforethe application is automatically granted.Thus, in the NPRM, we particularlysolicit comment from small ITFSoperators. Similarly, we express concernthat the proposed interferenceprediction methodology is so complexthat it may lead to numerous filingsupdating system configurations, whichwould present considerable burdensupon existing licensees and operatorsneeding to analyze these filings. Wetherefore solicit suggestions for otherpossible prediction methodologies.

In some instances, a proposed rulewill impact different classes of smallentities in different ways. For instance,in considering whether to increase ITFSprogramming requirements, includingready recapture time, we acknowledgein the NPRM the balance whichunderlies the existence and substance ofthe ready recapture provisions of 47CFR 74.931(e): the great value towireless cable operators ofmaximization of spectrum available forleasing, and the importance ofmaintaining sufficient capacity forprogramming by ITFS licensees whichfulfills the primary educational purposeof ITFS. We decline to retreat from thecurrent recapture time requirements of§ 74.931(e), but we solicit comment inthe NPRM on whether we should adoptany changes to the number of hoursrequired for ready recapture by ITFSlicensees.

Other proposals, tentativeconclusions, or questions that we posein the NPRM are designed to minimizethe impact on all small entitiesinvolved. For example, we tentativelyreject Caritas’ proposal to limit theavailability of response channels toMDS channels 1, 2, and 2A, because itwould both artificially limit the amountof spectrum that could be used forreturn paths and unnecessarily preventITFS licensees from using their ownchannels for return paths, whileproviding no interference protectionbenefits that cannot be derived in otherways.

CTN and SWM both put forthprocedural suggestions for thisproceeding. CTN proposes that ratherthan proceeding with the instantrulemaking, we pursue a negotiatedrulemaking procedure and convene afederal advisory committee to evaluatePetitioners’ proposals and work out themost effective method to implementthem. CTN asserts that this wouldprovide substantial, useful informationand facilitate the process initiated byPetitioners. We believe that the instantrulemaking process will provide us withsufficient information to adequately


1 Implementation of the Pay TelephoneReclassification and Compensation Provisions ofthe Telecommunications Act of 1996, CC DocketNo. 96–128, Report and Order, 61 FR 52307(October 7, 1996), 11 FCC Rcd 20,541 (1996),(‘‘Report and Order’’); Order on Reconsideration, 61FR 65341 (December 12, 1996), 11 FCC Rcd 21,233(1996)(’’Order on Reconsideration’’) (together the‘‘Payphone Orders’’).

2 See Report and Order, 11 FCC Rcd at 20,591,paras. 98–99; Order on Reconsideration, 11 FCCRcd at 21265–66, para. 64, and 21,278–80, paras.93–99.

3 See Order on Reconsideration, 11 FCC Rcd at21265–66, para. 64, and 21,278–80, paras. 93–99.

4 See id.5 Requests were received from the United States

Telephone Association (USTA), the LEC ANICoalition and TDS Communications Corporation.Those petitions have been placed on public noticefor comments. See DA 97–2214, Pleading CycleEstablished for Petitions to Waive Payphone CodingDigits Requirements, October 20, 1997.

6 This waiver does not change the obligations ofLECs pursuant to our requirements in Policies andRules Concerning Operator Service Access and PayTelephone Compensation, Third Report and Order,CC Docket No. 91–35, 61 FR 26466 (May 28, 1996),11 FCC Rcd 17,021 (1996).

evaluate Petitioners’ proposals. Inaddition, the need for swiftconsideration of these proposals, inorder to enhance the competitiveness ofthe wireless cable industry and expediteeducational institutions’ access to theInternet via ITFS frequencies, may bedefeated by implementing a potentiallylengthy negotiated rulemakingprocedure. Thus, we reject CTN’sproposal for a negotiated rulemaking atthis time. Should circumstanceswarrant, however, we reserve the optionto revisit our decision on this issue ata later date. Conversely, SWM requeststhe issuance of an NPRM in thisproceeding, and noting that many of theparties which filed comments in theinitial round of this proceeding are ITFSentities, requests an early Fall commentdate in light of the academic scheduleswhich predominate amongst theseentities. The comment period that weestablish here, therefore, shouldenhance the ability of ITFS entities tofile carefully considered comments andreply comments. We solicit comment inthe NPRM on other substantive andprocedural alternatives to adoption ofthe proposed two-way digitaltransmission scheme.

Federal Rules that Overlap, Duplicateor Conflict With the Proposed Rule

None.

List of Subjects

47 CFR Part 1

Environmental impact statements

47 CFR Part 21

Communications common carriers,Communications equipment, Reportingand recordkeeping requirements,Television.

47 CFR Part 74

Communications equipment,Education, Reporting and recordkeepingrequirements, Television.

Federal Communications Commission.

William F. Caton,Acting Secretary.[FR Doc. 97–29346 Filed 11–5–97; 8:45 am]

BILLING CODE 6712–01–P


47 CFR Part 64

[CC Docket 96–128; DA 97–2162]

Pay Telephone Reclassification andCompensation Provisions of theTelecommunications Act of 1996

AGENCY: Federal CommunicationsCommission.ACTION: Final rule; petition for waiver.

SUMMARY: On October 7, 1997, theCommon Carrier Bureau granted, on itsown motion, a limited waiver of fivemonths, until March 9, 1998, to thoselocal exchange carriers and payphoneservice providers that cannot providepayphone-specific digits as required byorders in this proceeding. This limitedwaiver applied to the requirement thatlocal exchange carriers providepayphone-specific coding digits topayphone service providers, and thatpayphone service providers providecoding digits from their payphonesbefore they can receive per-callcompensation from interexchangecarriers for subscriber 800 and accesscode calls, and 0+ and inmate calls. Thelimited waiver recognized that threeparties had filed petitions for waiver ofthe payphone-specific coding digitrequirements.EFFECTIVE DATE: October 7, 1997.FOR FURTHER INFORMATION CONTACT: RoseCrellin or Greg Lipscomb, FormalComplaints and Information Branch,Enforcement Division, Common CarrierBureau. (202) 418–0960.SUPPLEMENTARY INFORMATION: A toll-freecall transmitted by a local exchangecarrier (LEC) to an interexchange carrier(IXC) carries with it billing informationcodes, called automatic numberidentification (ANI), supplied by theLEC that assist the IXC in properlybilling the call. Currently, however, notall payphone calls carry the payphone-specific coding digits necessary toidentify the calls as payphone calls,making per-call tracking and blockingmore difficult.

In the Payphone Orders,1 we imposeda requirement that LECs providepayphone-specific coding digits topayphone service providers (PSPs), andthat PSPs provide those digits from their

payphones before the PSPs can receiveper-call compensation from IXCs forsubscriber 800 and access code calls.2 Inthe Order on Reconsideration, weclarified that, to be eligible for per-callcompensation beginning October 7,1997, payphones are required totransmit specific payphone codingdigits as a part of their ANI, which willassist in identifying payphones tocompensation payers.3 Each payphonemust transmit coding digits thatspecifically identify it as a payphone,and not merely as a restricted line.4 Wealso clarified that by October 7, 1997,LECs must make available to PSPs, ona tariffed basis, such coding digits as apart of the ANI for each payphone.

We have received three requests for awaiver of the payphone-specific codingdigit requirements.5 Meanwhile, wehave granted, on our own motion,pursuant to § 1.3 of our rules, a limitedwaiver, until March 9, 1998, of thepayphone-specific coding requirementfor those LECs and PSPs not yet able toprovide transmission of such digits.Those LECs and PSPs that are able totransmit the required coding digits byOctober 7, 1997, remain obligated to doso. Similarly, the remaining LECs andPSPs are obligated to transmit therequired coding digits as soon as theyare technically capable, but in any eventno later than March 9, 1998.

During the period between October 7,1997, and March 9, 1998, payphonesappearing on the LEC-provided lists ofpayphones will be eligible for per-callcompensation even if they do nottransmit payphone-specific codes. Thiswaiver of the requirements applicable toLECs and PSPs will provide LECs, IXCs,and PSPs with additional time that therecord indicates is necessary toimplement the procedures needed totransmit payphone-specific codingdigits, without further delaying thepayment of per-call compensationrequired by section 276 of the Act.6


7 USTA Petition at 9, 11.8 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C.

Cir. 1969).9 47 U.S.C. 276(b)(A).

We also include LECs that have non-equal-access switches in the generalcoverage of this waiver. We do notaddress in this order the specialproblems presented by non-equal-accessswitches that were raised in the USTAPetition.7 We will be addressing in aseparate order the issues raised byparties regarding the provision ofpayphone-specific coding digits by non-equal-access switches.

This waiver is effective immediatelyin order to ensure that all PSPs receiveper-call compensation effective October7, 1997, as required by the PayphonesOrders.

This waiver is appropriate becausespecial circumstances warrant adeviation from the general rule, andsuch a deviation will serve the publicinterest.8 The special circumstances arethat transmission of payphone-specificcoding digits is not yet ready forimplementation for certain payphones.The industry is, however, working on anexpeditious resolution of this situation.The public interest is served by thiswaiver because it allows theCommission to move forward inimplementing the statutoryrequirement 9 that PSPs receive faircompensation for calls placed from theirpayphones. Refusal to waive thisrequirement would lead to theinequitable result that many payphoneproviders, particularly independentproviders who do not control thenetwork modifications necessary topermit payphone-specific coding digitsto be transmitted, would be denied anycompensation while implementationissues are being resolved by theindustry. This limited waiver, moreover,will not significantly harm any parties.The unavailability of these codingdigits, for instance, will not precludeIXCs from identifying payphone callsfor the purpose of determining thenumber of calls for which compensationis owned. Nor will the waiver intereferewith the possibly sixty percent ofpayphones that currently are able totransmit payphone-specific codingdigits.

Accordingly, pursuant to authoritycontained in sections 1, 4, 201–205, 218,226, and 276 of the CommunicationsAct of 1934, as amended, 47 U.S.C. 151,154, 201–205, 218, 226, and 276, and§§ 0.91, 0.291 and 1.3 of theCommission’s rules, 47 CFR 0.91, 0.291and 1.3, it is ordered on theCommission’s own motion that the timebefore payphone-specific coding digitsare required for per-call compensation is

extended until March 9, 1998, to theextent described herein.

It is further ordered that this order iseffective upon release thereof, and thatthe waiver included in this order iseffective October 7, 1997.

List of Subjects in 47 CFR Part 64Communications common carriers,

Operator service access, Payphonecompensation, Telephone.Federal Communications Commission.A. Richard Metzger, Jr.,Acting Chief, Common Carrier Bureau.[FR Doc. 97–29305 Filed 11–5–97; 8:45 am]BILLING CODE 6712–01–P


Federal Highway Administration

49 CFR Part 385[FHWA Docket Nos. MC–94–22 and MC–96–18; FHWA–97–2252]

RIN 2125–AC 71

Safety Fitness Procedure; SafetyRatings

AGENCY: Federal HighwayAdministration (FHWA), DOT.ACTION: Final rule.

SUMMARY: This document incorporates aSafety Fitness Rating Methodology(SFRM) as an appendix to the MotorCarrier Safety Fitness Proceduresregulations. The SFRM will be used tomeasure the safety fitness of motorcarriers against the safety fitnessstandard contained in 49 CFR Part 385.By this action the FHWA will supersedethe interim final rule promulgated onMay 28, 1997, effective May 28, 1997until November 28, 1997 (62 FR 28807).That rule incorporated an SFRM tocalculate the safety fitness of motorcarriers transporting hazardousmaterials in quantities for which vehicleplacarding is required, or transporting15 or more passengers including thedriver. The rule also includes aprocedure which provides a noticeperiod of 45 days during which aproposed rating can be challengedbefore it becomes effective.DATES: The effective date of thisregulation is November 28,1997.FOR FURTHER INFORMATION CONTACT: Mr.William C. Hill, Vehicle and OperationsDivision, Office of Motor CarrierResearch and Standards, (202) 366–4009, or Mr. Charles Medalen, Office ofthe Chief Counsel, (202) 366–1354,Federal Highway Administration, 400Seventh Street, SW., Washington, D.C.20590. Office hours are from 7:45 a.m.to 4:15 p.m., e.t., Monday throughFriday, except Federal holidays.


Introduction

The FHWA is taking this actionlargely in response to a finding of theDistrict of Columbia Circuit Court ofAppeals, infra. This final rule isrequired to meet the FHWA’sresponsibility to maintain a system todetermine the safety fitness of motorcarriers operating in interstatecommerce, but the agency is consideringother means to achieve that goal.

Some commenters to this docketargued that a performance-based systemmodeled on SafeStat would be fair, andperhaps preferable to the systemproposed in the FHWA’s May 28 NPRM,infra, but that improvements are neededin the generation and use of data.

The FHWA’s goal is to create a moreperformance-based means ofdetermining when carriers are not fit toconduct commercial motor vehicle(CMV) operations safely in interstatecommerce. A future rating system usinga pass-fail test is conceivable. TheFHWA will publish an advanced noticeof proposed rulemaking shortly in theFederal Register requesting commentsand supporting data on the future of arating system that can be used both inmaking safety fitness determinationsand in meeting the demands ofshippers, insurers and other present andpotential users interested in evaluatingmotor carrier performance.

Background

The U.S. Court of Appeals for theDistrict of Columbia Circuit ruled onMarch 19, 1997, that the FHWA’sprocedures for assigning safety ratingswere adopted contrary to law. MSTExpress and Truckers United for Safetyv. Department of Transportation andFederal Highway Administration, 108F.3d 401 (D.C. Cir. 1997). The courtfound the FHWA had failed to carry outits statutory obligation to establish, byregulation, a means of determiningwhether a motor carrier has compliedwith the safety fitness requirements ofthe Motor Carrier Safety Act of 1984(MCSA) (codified at 49 U.S.C. 31144)because the SFRM had not been adoptedpursuant to notice and commentrulemaking, as 49 U.S.C. 31144(a)requires. The safety rating of MSTExpress was determined using theSFRM, and the petitioner’s conditionalsafety rating was therefore vacated andthe matter remanded to the FHWA ‘‘forsuch further action as it may wish totake, consistent with the decision.’’


In response to the court’s decision theFHWA issued an interim final rule (62FR 28807) effective May 28, 1997,adopting the challenged SFRM but onlyto rate motor carriers transportinghazardous materials or passengerspending the development of apermanent rule. This step was necessaryin order to enable the agency to complywith the mandate of the MCSA of 1990(49 U.S.C. 5113), which requires thatpassenger and hazardous materialscarriers cease operations within 45 daysof being rated unsatisfactory.

In a notice of proposed rulemaking(NPRM) (62 FR 28826), also publishedon May 28, 1997, the FHWA proposedto modify the SFRM, incorporate it asAppendix B to Part 385, and use it inthe process of deciding whether allmotor carriers meet the safety fitnessrequirements.

The FHWA had been using an SFRM,comprised of six rating factors, sinceOctober 1, 1989, as the mechanism forcalculating how well motor carriersadhere to 49 CFR 385.5, Safety fitnessstandard. In addition to making thedetailed explanation of the SFRMpublicly available since August 16,1991, the FHWA issued notices seekingcomments from the public in FHWADocket Nos. MC–91–8 and MC–94–22.

In the first docket, the FHWAsolicited public comment on an interimfinal rule (56 FR 40801) (August 16,1991) implementing the provision of theMCSA of 1990 prohibiting a motorcarrier with an unsatisfactory safetyrating from operating CMVs to transport:(1) Hazardous materials in quantities forwhich vehicle placarding is required, or(2) more than 15 passengers includingthe driver. This prohibition becomeseffective after 45 days have elapsedfollowing receipt of an unsatisfactorysafety rating issued by the FHWA.During the 45-day period, the motorcarrier should take such action as maybe necessary to improve its safety ratingto conditional or satisfactory or besubject to the prohibition. Fourteencomments were received in response tothe 1991 interim final rule, and thosewhich provided information relevant tothe May 28, 1997, NPRM werediscussed in that document.

In the second docket, initiated by anotice published in the Federal Registeron September 14, 1994 (59 FR 47203),the FHWA requested comments onchanges made to the SFRM in 1993.Additional changes to the SFRM, whichwere to become effective on October 1,1994, were also explained andcomments were invited. These changesinitiated the use of violations of thesafety regulations designated as ‘‘acute’’or ‘‘critical’’ to rate each of the five

regulatory factors evaluated whenperforming a compliance review (CR) ata carrier’s place of business.

The FHWA also solicited commentsconcerning: (1) The direction that futuremodifications to the SFRM should take,and (2) how best to disseminateinformation to the industry about newregulations and the FHWA programsthat encourage ‘‘voluntary compliance.’’

The 17 comments received inresponse to the second docket werediscussed in the May 28, 1997, NPRMto the extent they provided relevantinformation.

On April 29, 1996, the FHWAproposed to reorganize and revise itsprocedural rules, including thoserelated to the assignment of ratings (61FR 18866). Among the revisionsproposed was a procedure for theissuance of a notice of proposed ratingwhich provided a 45-day period withinwhich a motor carrier could challenge aproposed rating before it becameeffective. The procedure also providedrelief from an adverse rating to carriersthat were willing to make credible,effective and verifiable commitments toimproved management andperformance.

Discussion of CommentsThirty two comments were received

in response to the May 28, 1997, interimfinal rule (62 FR 28807) and NPRM (62FR 28826). Only a few of the 125comments received in response to theApril 29, 1996 NPRM on proceduralrules addressed the notice of proposedrating provision.

Purpose of Safety RatingsThe Transportation Lawyers

Association (TLA) suggested that theFHWA undertake a thorough evaluationof its entire program by first recognizingthat the current rating system serves twopurposes, information (i.e., the rating)and enforcement. It recommended theFHWA separate the rating fromenforcement as it believes thatcombining them is unworkable.

The American Trucking Associations(ATA) stated that the current SFRM isbased on the premise that a lack of‘‘safety management controls’’ isindicative of an unsafe carrier, yet itdoes not believe the FHWA hasdemonstrated that a lack of compliancewill cause a carrier to be unsafe.

The safety rating providesinformation, both to the rated carrierand anyone else inquiring about therating, concerning the degree ofadherence by the motor carrier to thePart 385 safety fitness standard.Enforcement is an aspect of the ratingonly in the sense that a motor carrier

with an unsatisfactory rating isprohibited from transporting hazardousmaterials requiring placarding or 15 ormore passengers including the driver.Congress, however, mandated this resultby enacting the prohibition againsttransportation by such carriers in theMCSA of 1990. The FHWA, moreover,believes that sufficient data exists toconclude that motor carriers withinadequate safety management controls,i.e., less than satisfactory compliancewith the safety fitness standard, aremore likely to have higher accidentrates. In addition, the FHWA hascommissioned research by the VolpeNational Transportation Systems Center,part of the Research and SpecialPrograms Administration, to assess theperformance of the CR program throughthe development of an ImpactAssessment Model. Preliminaryindications are that CR activity, due toits educational, safety awareness andsanction aspects, has substantial crashreduction benefits.

Accident FactorThe National Tank Truck Carriers

(NTTC), Rocor Transportation (RT),Truckload Carriers Association (TCA),American Movers Conference (AMC),the ATA, Oregon Department ofTransportation, Motor CarrierTransportation Branch (ODOT/MCTB),and Ryder System, Inc. (RS) supportedthe proposal to adopt a recordableaccident rate for the accident factor ofthe SFRM. The Advocates for Highwayand Auto Safety (AHAS) questioned thestatement in the NPRM that ‘‘The dataindicate that the vast majority of allaccidents have been determined to bepreventable.’’

Santee Carriers (SC) , Vertex ChemicalCorporation (VC), and the OwnerOperator Independent DriversAssociation, Inc. (OOIDA) wanted toretain the recordable preventableaccident criteria for the accident factor,as this would measure accidents withinthe carrier’s control, and OOIDA wouldlike the ‘‘preventability’’ determinationmade more objective. The TCA statedthat the FHWA has yet to define thecriteria to be used in determiningpreventability.

The Association of Waste HazardousMaterials Transporters (AWHMT),Distribution & LTL Carrier Association(DLCA), the VC, Petroleum MarketersAssociation of America (PMAA) and theATA recommended determiningaccident rates on a multi-year basis.They believe a multi-year standard ismore reflective of the average accidentrate. The TCA and the NPTCrecommended that there be a midpointbetween accident rates of 1.6 and 2.1 to


define an unsatisfactory rating in theaccident factor for carriers with somespecified significant portion, though notall, of their mileage in urban areas.

The TCA, the AMC, AgriculturalTransporters Conference (ATC),California Highway Patrol (CHP) and theRS recommended adopting differentaccident rates for particular industrysegments and types of operations. ThePMAA believes that the proposed 2.1accident rate is unfair for its short haulcarriers because most of their mileageoccurs in heavy traffic environments. Asimilar concern was expressed by theVC and the OOIDA.

The RI and the NPTC opposedremoving the conditional level in theaccident factor rating. The AHASopposed a single tier rating for theaccident factor as motor carriers notassigned an unsatisfactory factor ratingcould not be distinguished from unratedcarriers. They also opposedcontinuation of the exception forcarriers with less than 20 drivers (thesecarriers could not be rated less thanconditional for the accident factor) asthey believe some of these carriers couldhave very high accident rates.

The DLCA, the TCA, the AWMT, theVC, the NADA, the ATA, New MexicoMotor Carrier’s Association (NMMCA),and the CHP wanted the FHWA to useonly ‘‘at fault’’ accidents, thosedetermined by law enforcement officersto be the fault of the CMV driver orthose otherwise clearly attributable tothe fault of the CMV driver or carrier,for rating the accident factor.

The NPTC, the ATA and the AHASquestioned whether doubling thenational average is appropriate, as poormileage information underminesaccurate calculation of accident rates.The NPTC stated that the FHWApresented no statistical data fordoubling the accident rate, and that amore appropriate reference would bethe median accident rate.

The FHWA has carefully consideredall of the comments and for thefollowing reasons believes it isreasonable to use the recordableaccident rate for evaluating the accidentfactor. The data from Fiscal Years 1994,1995 and 1996 in Recordable Rate (RR)and Recordable Preventable Rate (RPR)is as follows: 1994: RR=.804; RPR=.553;1995: RR=.724; RPR=.528; 1996:RR=.713; RPR=.503. The FHWA hasincreasingly focused CRs on carriersmost likely to have accidents, thus, therates for reviewed carriers are higherthan the rates would be for all carrierssubject to the Federal Motor CarrierSafety Regulations (FMCSRs). Therecordable accident rates used weretaken from all CRs performed in Fiscal

Years 1994, 1995 and 1996, whichaddresses the concern that the averageaccident rate should be on a multi-yearbasis. The average recordable rate was.747, and the average recordable rate forcarriers operating entirely within a 100air mile radius was .839 per millionmiles. Recent analysis of accident ratesfor all carriers showed only smalldifferences in rates by fleet size, and thedifferential between recordable andrecordable preventable accidents wasconsistent by fleet size. The FHWA willrate the accident factor only when acarrier has two or more accidents in the12 months prior to the CR. A singleaccident could easily place a smallcarrier, or a larger carrier operating veryfew miles, over the threshold for theunsatisfactory factor rating, which is nota reliable outcome. By using only theunsatisfactory rating the FHWA believesit is sending a message that any accidentis unacceptable; however, only thosecarriers that are over the threshold willbe identified in the factor rating. Amotor carrier with an accident ratetwice the average rate for all similarlysituated carriers is most likely to haveinadequate or improperly functioningsafety management controls.

An urban carrier (a carrier operatingentirely within the 100 air mile radius)with a recordable accident rate over 1.7(approximately twice the 1994–96average of .839) will receive anunsatisfactory factor rating. All othercarriers with a recordable accident rategreater than 1.5 (approximately doublethe 1994–96 average of .747) willreceive an unsatisfactory factor rating.

The FHWA stated in the NPRM, ‘‘If adriver, who exercises normal judgmentand foresight could have foreseen thepossibility of the accident that in factoccurred, and avoided it by taking stepswithin his/her control which would nothave risked causing another kind ofmishap, the accident was preventable.’’The FHWA reviewed the data relative tothe statement in the NPRM that ‘‘thevast majority of all accidents have beendetermined to be preventable.’’ Thestatement should have said simply thatthe majority of all accidents arepreventable, as approximately twothirds of recordable accidents arepreventable.

The SFRM is the means by which theFHWA calculates a motor carrier’sadherence to the § 385.5 safety fitnessstandard. As it is a method and not anabsolute criterion, the FHWA willcontinue to consider non-preventabilityof accidents when a motor carriercontests a rating by presentingcompelling evidence that the recordablerate, as applied to its particularcircumstances, is not a fair means of

evaluating its accident factor. Anexample would be a motor carrier thathad two recordable accidents in the 12months prior to the CR and in bothaccidents its’ CMVs were rear-endedwhen stopped for a signal light. TheFHWA believes there will be relativelyfew instances where a motor carrier willbe able to avail itself of the non-preventability defense to an adverserating based on the accident factor.Retaining the non-preventabilityexception provides motor carriers theability to present information that theiraccident factor should undergo asecond-level evaluation. Adopting the45-day notice of proposed ratingprocedure will allow for such second-level review in a meaningful manner.

The FHWA is continuing to evaluatethe possibility of setting differentaccident-rate thresholds for differenttypes of transportation, extending theurban carrier threshold to carriers thatare not exclusively urban, andestablishing a different threshold for anunsatisfactory accident factor rating forcarriers with very few accidents, asopposed to those with many accidents.No such changes are included in thisfinal rule, however.

The FHWA will continue to examinethe accident data in the Motor CarrierManagement Information System(MCMIS) as a means to evaluate allcarriers’ accident rates. This source ofinformation is increasingly reliable. Thestates and their subdivisions haveuploaded their accident data moretimely and accurately with each yearsince the National GovernorsAssociation accident reporting systemwas inaugurated in 1992.

Objectivity of RatingsThe DLCA and the ATA argued that

there is too much variance by regions inthe rating process. Further, the ATAstated that CRs must be performeduniformly throughout the country, andthe ‘‘findings of the CR must accuratelyreflect the overall safety posture of themotor carrier.’’ It also commented that‘‘the CR and rating processes should notbe overly influenced by the attitude ofindividual investigators and the resultsshould not be different depending on amotor carrier’s geographical location.’’

The FHWA believes that, havingmodified the SFRM to rate motorcarriers on the basis of actual violationsof ‘‘acute’’ regulations and patterns ofviolations of ‘‘critical’’ regulations andto measure performance by recordableaccidents and vehicle out-of-service(OOS) rates from roadside driver/vehicle inspections, the safety ratingprocess has been made more objective.The regulations identified as ‘‘acute’’


and ‘‘critical’’ enable the motor carrierswith adequate safety managementcontrols to direct their initialcompliance efforts toward theseregulations. There should not be apattern, i.e., a 10 percent violation rate,of ‘critical’ regulations by motor carriersexercising due diligence in their effortsto comply with the regulations. TheFHWA continues to work towardmaking the CR process as fair and asuniform as possible. The agencybelieves that an important aspect ofnational uniformity in the performanceof CRs is the review of a relativelyconstant number of vehicles, drivers,and records which varies with thenumber of vehicles and driversperforming transportation for thecarrier. The minimum number ofvehicles, drivers, and records to reviewis derived from a sampling chart, whichprovides guidance to the individualperforming the CR. It is relevant thatmotor carriers are required to complywith all applicable FMCSRs andHazardous Materials Regulations(HMRs). Thus, to perform a CR based ona random sample of a carrier’s drivers,vehicles and records would be counter-productive in determining if the carrierwas complying with regulatoryrequirements and meeting the Safetyfitness standard in § 385.5.

‘‘Acute’’ and ‘‘Critical’’ RegulationsThe AHAS and the AWHMT believe

that the FHWA has not explained whyregulations are categorized as ‘‘acute’’ or‘‘critical.’’ The AWHMT questioned thedesignation of certain regulations as‘‘critical’’ and argued that they shouldbe ‘‘acute’’ regulations. The AWHMTalso wanted to know the FHWA’srationale for the ‘‘10 percent thresholdwhen assessing points to carriers for apattern of violations of a ‘‘critical’’regulation,’’ and also asked what ismeant by ‘‘large numbers’’ concerningthe pattern of violations when ‘‘critical’’regulations were discussed. The AHASis concerned with FHWA’s commentthat ‘‘even a carrier with effective safetymanagement controls will likely violatesome of the ‘critical’ regulations.’’ TheAHAS also wanted violations of ‘‘acute’’regulations to be cited even when themotor carrier did not have knowledge orcould not reasonably be expected tohave knowledge of the violation.

The FHWA has categorized certainregulations as ‘‘acute’’ or ‘‘critical’’based on the experience of the Federalfield staff and State enforcementofficials. As the terms imply, suchregulations have a potential or actualimpact on operational safety, and acarrier’s compliance with them is adirect indication of its ability effectively

to manage the complex operationsneeded to make it a responsible user ofthe public highways. The FHWAbelieves that even motor carriers witheffective safety management controlsmay incur some violations of ‘‘critical’’regulations, notwithstanding systematicreview of their compliance with theregulations. This is so because of thenecessity for remote and often post hocmonitoring by a safety manager. Amotor carrier that reviews driversrecords of duty status (RODS) anddiscovers three instances out of 100RODS reviewed where drivers exceededthe 10-hour driving limitation in§ 395.3(a)(1), may take appropriateactions to discipline the drivers, but theviolations have still occurred. Thecarrier is not in total compliance, butthe 97 instances where compliance wasfound indicates the carrier’s safetymanagement controls are effective. Aviolation rate over the ‘‘10 percentthreshold’’ is used as an indication thata pattern of noncompliance is detectableand tolerated.

The FHWA has reviewed thereference in the SFRM to ‘‘largenumbers of documents’’ found in (62 FR28832). The agency was attempting toconvey the principle that a pattern ofviolations is more than an isolatedinstance of noncompliance. There wasno intent to imply a specific number ofdocuments. To clarify its intent thesentence now reads: ‘‘When a number ofdocuments are reviewed, the number ofviolations required to meet a pattern isequal to at least 10 percent of thoseexamined.’’ The preceding sentenceremains ‘‘A pattern is more than oneviolation.’’ Concerning the AHASrecommendation that the FHWA shouldcite the carrier for all violations of‘‘acute ‘‘ regulations, the FHWA believesits proposed policy was and is correct.Violations of ‘‘acute’’ regulations willnot be cited on the CR or used in theSFRM if, under the circumstances, thecarrier did not know, and could notreasonably be expected to have known,of a violation that the driver deliberatelyconcealed from the carrier. Because ofthe nature of ‘‘acute’’ regulations,however, such omissions are expectedto be rare.

Vehicle FactorThe AWHMT wanted to know if the

FHWA plans to adjust the 34 percentOOS rate for the vehicle factor. TheNTTC, the TCA and the AMCrecommended that the FHWA considernot assigning any weight to OOSviolations in the vehicle factor until theNTTC’s petition to incorporate into theFMCSRs the current OOS criteriapublished by the Commercial Vehicle

Safety Alliance and maintained inconcert with the FHWA, is finallydisposed of. One association noted thatgood roadside inspections are often notdocumented. Rocor Transportationfound the current criteria for the vehiclefactor acceptable.

The FHWA will continue to rate thevehicle factor as proposed in the NPRMas it believes this is an appropriatelyobjective way to evaluate the carrier’sperformance. Whether the OOS criteriashould be incorporated into theFMCSRs is an issue unrelated to thevalidity of those criteria as a measure ofvehicle safety. The OOS criteria areessentially enforcement tolerances, as§ 396.3(a)(1) requires that parts andaccessories be in safe and properoperating condition at all times.

The 34 percent OOS rate is the firstindicator in evaluating the vehicle factorwhen a motor carrier has three or moreroadside inspections in the 12 monthsprior to the review, or three vehiclesinspected at the time of the CR, or acombination of the two. If the OOS rateis 34 percent or greater, the initial factorrating is conditional. The reason for thethree inspections is that the agencywanted the vehicle OOS rates to be anaspect of the factor rating for as manycarriers as possible, but did not wantone OOS vehicle inspection to impactthe factor rating. The vehicle OOS ratefor Level I (full) inspections has beenbetween 27.9 percent and 36.2 percentfor the last five fiscal years. Generally,roadside inspections are not random.Vehicles that appear to have defects aresometimes selected from the trafficstream at scales, or vehicles of carriersthat have no or few inspections in theMCMIS are selected for inspection.Therefore, the average OOS rate basedon selected sampling is approximatelyone-third of the vehicles inspected. TheFHWA believes setting the rate at 34 percent for the initial factor rating ofconditional is appropriate, as a carrierwith only one vehicle out of threeinspected placed OOS will not have thefactor rating affected. The FHWA isaware that some vehicles receive acursory inspection at a scale facility,which does not produce an inspectionreport when no defects are discovered.The FHWA will consider adjusting the34 percent first indicator should therebe a significant change in the Level Ivehicle OOS rate.

The second indicator in the vehiclefactor is the compliance with the Part396 regulatory requirements. Ifnoncompliance with an ‘‘acute’’regulation or a pattern ofnoncompliance with a ‘‘critical’’regulation is discovered, the initial


conditional factor rating will be loweredto unsatisfactory.

For carriers with fewer than threeinspections in the 12 months prior tothe CR, or three vehicles inspected atthe time of the review, or a combinationof the two totaling three, the vehiclefactor will be evaluated on the basis ofcompliance with ‘‘acute’’ and ‘‘critical’’regulations. This is the same method forevaluating the other regulatory factors.

Selection of Records for ReviewA number of the commenters

reiterated that the FHWA should samplerecords randomly for safety ratingpurposes, although they agreed thattargeted selection of records isappropriate for enforcement purposes.They cited studies of the way the FHWAselects records for CRs, and concludedthat the selection method ‘‘does notyield a representative picture of thestate of the carrier’s safety record.’’ Theysuggest that for rating purposes theinformation should be generated by areview in which motor carrier recordswould be examined on a purely randombasis, according to generally acceptedstatistical practices, in order to presenta fair picture of the carrier’s safetycompliance in a broad context. Onecommenter believes this will removesome of the alleged subjectivity from thecurrent system. Another commentersuggests the FHWA go beyond a randomsample requirement for CRs and give thecarrier the option of substituting a 100percent universal sample, probably inthe form of electronic records.

One commenter quoted a recentmemorandum from OMC’s Office ofField Operations to the RegionalDirectors which indicates that ‘‘allreferences to the ‘International Standardof Sampling’ have been removed fromthe Field Operations Manual.’’ Thecommenter’s concern was that thisaction ‘‘is inconsistent with both theinterim final rule and the notice ofproposed rulemaking,’’ which indicatedthat the FHWA currently uses andproposes this standard.

The International Brotherhood ofTeamsters (IBT) noted that the May28,1997, NPRM did address thesampling issues, and it found thereasons supporting the current samplingmethodology persuasive. The IBT alsostated that the proper objective is tofocus scarce enforcement resourceswhere the problems are most likely tooccur.

The FHWA has carefully consideredthese comments and believes it is in thebest interest of public safety to continueto focus its limited resources on driversand vehicles most likely to be inviolation of the regulations. The overall

safety posture of the motor carrier is notbeing measured during the CR, ratherthe ‘‘adequacy of the carrier’s safetymanagement controls’’ is being assessedpursuant to § 385.5. The references tothe International Standard of Samplinghave been removed from the FieldOperations Training Manual, as theFHWA is making it very clear that thesampling chart, which has not beenchanged, is intended only for purposesof determining the minimum number ofrecords to be reviewed, depending onthe size of the carrier. The agency doesnot want to give the false impressionthat full-scale random samplingprocedures are being used. Motorcarriers are equally able to use the sameindicators the FHWA uses when thecarriers are monitoring the performanceof their drivers and vehicles to assurecompliance with the FMCSRs andHMRs. It is important to note that asatisfactory safety rating is only apassing grade and that full compliancewith all of the safety regulations shouldbe the objective of every carrier andevery driver. It is also the best way toavoid a rating with adverseconsequences to the carrier’s operations.

Opportunity To Challenge a RatingA registered practitioner and

regulatory analyst recommended thatthere should be a procedure to enable amotor carrier that challenges a safetyrating to obtain a stay of theeffectiveness of that rating until thechallenge has been heard and decided.The TLA recommended that the carrierhave a means of correcting inaccurateinformation before the safety rating isissued. These recommendations areconsistent with proposals made inresponse to the April 29,1996, NPRM toamend the FHWA’s rules of practice formotor carrier proceedings. The NPRMproposed that motor carriers receive a‘‘Notice of Proposed Rating’’ before asafety rating was issued (61 FR18866,18884). The commentsoverwhelmingly supported thatproposal.

One State enforcement agency arguedthat, ‘‘in the interest of the travelingpublic,’’ the 45-day grace period forpassenger and hazardous materialcarriers that receive an unsatisfactorysafety rating should be waived and therating should become effectiveimmediately. The MCSA of 1990requires that motor carriers be afforded45 days after receipt of an unsatisfactorysafety rating before the prohibitionagainst transportation becomes effective.The National Automobile DealersAssociation (NADA) was satisfied thatcarriers are afforded reasonable dueprocess. The AHAS strenuously

opposed the suppression of the ratingresults during the 45-day challengeperiod, which, of course, would defeatthe purpose of the provision, i.e., toafford the opportunity to be heardbefore a potentially damaging judgmentis rendered.

The FHWA has considered thesecomments and is amending § 385.11,Notification of a safety rating, toincorporate a notice-of-rating procedurefor all less than satisfactory ratings. Aproposed safety rating of unsatisfactoryor conditional will become the finalrating 45 days after the date the noticeof proposed safety rating is received bythe motor carrier, unless the carrierpetitions for a review and the petitionis granted. The proposed-ratingprocedure parallels the requirement inthe MCSA of 1990 that a motor carrierreceiving an unsatisfactory safety ratingbe given 45 days to improve its ratingbefore the ban on the transportation ofhazardous materials and passengerstakes effect. It eliminates a distinctionbetween carriers based on type ofoperation by giving advance notice ofthe proposed adverse rating in all cases.This will afford all carriers theopportunity to be heard during thatperiod before consequences attach. Thisprovision was published for notice andcomment on April 29, 1996 (61 FR18866, 18884) and was welcomed byvirtually all of those who commented onit. Under the circumstances, the agencybelieves that a supplemental notice ofproposed rulemaking to republish theproposal under this docket would besuperfluous and is thereforeunnecessary under the AdministrativeProcedure Act.

As a result of amending § 385.11,related sections in Part 385 were alsorevised to incorporate those changes.

Point Assessment for Violations of‘‘Acute’’ and ‘‘Critical’’ Regulations

One commenter wanted all of thefactor 3 (Hours of Service) ‘‘critical’regulations to be aggregated to meet the10 percent pattern definition whenviolations are discovered. For example,violations of the 10-hour rule and the70-hour rule would be treated as part ofthe same pattern. Another commenteragreed with the higher weighting ofpatterns of factor 3 ‘‘critical’’regulations. Another commenter statedthat the motor carrier should not bepenalized for willful hours of serviceviolations by its drivers.

A number of commenters argued thatpatterns of violations of ‘‘critical’’ hoursof service regulations should not beassessed two points, as they did notbelieve existing research establishes acausal relationship between those


violations and accidents. Anothercommenter stated that the currentpolicy of two points for hours of serviceviolations is one of ‘‘absolute liabilityfor hours of service violations’’ and isirrational.

The ODOT/MCTB stated thatalthough ‘‘recent studies indicate timeof day and the amount and quality ofrest may be more critical factors thandriving hours, and we are still obligatedto enforce the current regulation toensure an optimum level ofperformance.’’ The commenter does notbelieve that doubling the points forfactor 3 is appropriate unless there is aviolation of cumulative on-duty timeand falsification of records for thepurpose of concealing excessive on-dutytime. The ATA noted that severalfatigue related studies which wereplaced in the docket as supplementalinformation, show that there is nosimple way to measure fatigue. This isfurther evidence, the ATA wrote, thatthe connection between hours of serviceviolations, fatigue and accidents isextremely complex and not fullyunderstood. Thus, the ATA believes itwould be inappropriate to give twice theweight to hours of service violations.The IBT agreed with the FHWA’sproposal to retain a higher weightingfactor for violations of Part 395‘‘critical’’ regulations.

After careful consideration of thecomments, the FHWA remainsconvinced that the current regulationsdo have an impact in preventing therisks of driver fatigue and that they mustbe enforced until new regulations aredeveloped. There have not been anystudies that have discounted time ontask as a significant contributor tofatigue. The observations of the ODOT/MCTB and the ATA about thecomplexity of the connection betweenhours of service violations, fatigue, andaccidents, do not provide a rationalbasis for rulemaking changes. Moreover,there are no ‘‘acute’’ regulations in Part395 (Hours of Service). Thus, to have arating of less than satisfactory in factor3, a motor carrier must havedemonstrated a pattern ofnoncompliance with a ‘‘critical’’regulation. The FHWA believes thatmotor carriers with effective safetymanagement controls should be able tomaintain a noncompliance rate of lessthan 10 percent for any of the Part 395‘‘critical’’ regulations. Therefore, untilthe ongoing rulemaking efforts to betterregulate fatigue are concluded, theFHWA believes it is important tocontinue to assign two points for apattern of violations of a Part 395‘‘critical’’ regulation.

Rating Factors

One commenter suggested that theaccident factor have more weight thanthe other factors. Another commenterbelieves that until research is conclusivethat one factor has a more significantimpact on safety compared to the others,equal weight should be given to eachfactor. This difference in thecommenters’ responses is indicative ofthe problem the FHWA faces. While anaccident is unquestionably a moreserious event than any particularregulatory violation, there is goodreason to believe that regulatoryviolations are causally related toaccidents. The 1988 workgroup whichdeveloped the six factors in the SFRMwas unable to determine that any of thesix factors was more important to safetyfitness than any other, and each factorwas therefore given equal weight.(Although the Operations factorincludes a double-weighting of patternsof violations of Part 395 ‘‘critical’’regulations, a pattern requires that atleast ten percent of the records of dutyreviewed be in violation. Duringvirtually all CRs a minimum of at leastone hundred fifty RODS are reviewedfor compliance with Part 395 ‘‘critical’’regulations. Carriers with adequatesafety management controls will be ableto keep the rate of noncompliance underten percent for any of these ‘‘critical’’regulations. The only regulatory controlon fatigue is the current hours of servicerequirements. The fact that a ‘‘pattern’’of violations cannot occur unless at leastten percent of the RODS checked fail tocomply with the regulations; that Part395 includes no ‘‘acute’’ regulations;and that at least 150 RODS are typicallyreviewed, virtually eliminating thepossibility of statistical accidents—all ofthese tend to balance the doubleweighting of patterns of violations ofPart 395, resulting in a factor withroughly the same weight as any other.In the absence of clear evidence that oneor more of the rating factors has agreater impact on safety or is a betterindex of the carrier’s safety managementcontrols, the FHWA has concluded thatit must continue to place equal weighton each of the factors.

Safety Profiles

A number of the commenters wereconcerned about the accuracy of theinformation in the carrier profiles. Twocommenters wanted the carrier to bepresented in advance of the CR with ‘‘arecord of violations upon which anauditor intends to rely, so that thecarrier has an opportunity to protect anddefend its record and identify anyinaccuracies before its safety

performance is judged.’’ They also wereconcerned about the timeliness of thedata and wanted stale violationsremoved from the carrier’s record. Twocommenters suggested that carriers beprovided a continuing opportunity tochallenge the accuracy of the entries intheir carrier profiles, and a process tocorrect the profiles when errors arediscovered. They stated that it is‘‘virtually impossible to get a profilecorrected under the current system.’’

Motor carriers have access to theircarrier profiles in the MCMIS, thus,there is little justification for presentingmotor carriers in advance of the CR withthe information in their carrier profile.The FHWA has consistentlyrecommended that when errors from aState source are discovered in a motorcarrier’s safety profile, they should bebrought to the attention of the State thatperformed the inspection or enteredinvalid or incorrect information intoSafetynet. The FHWA is aware of onlyseveral instances where a State, whenapprised of an error by a motor carrier,was unable or unwilling to correct theerror. If motor carriers are unable toresolve the discrepancy with the State,they should contact the OMC Office ofMotor Carrier Information Analysis(telephone (202) 366–4039). This officewill work with the State, or ifappropriate, correct the error in thesafety profile on its own initiative. TheFHWA continues to work with its Statepartners to improve the quality of thedata in motor carrier safety profiles.

Implementation of Proposed SFRMA number of the commenters opposed

the implementation of the proposedSFRM, which they viewed as aministerial task to comply with thefindings of the Court in the MSTExpress case. Several of thesecommenters referred to the June 18,1997, Motor Carrier Safety Audit andRating Forum sponsored by the ATA,which they stated was held to build aconsensus on the future of the safetyrating process. It concluded that thecurrent system must be replaced with afairer, more uniform performance-basedsystem.

The ATA wanted the ‘‘new era’’concept of safety performance to bebased less on regulatory compliance andmore on ‘‘performance measurements,’’e.g., accident rates, driver and vehicleOOS rates, driver traffic convictions,and violations of OOS orders. Othercommenters agreed.

The ODOT/MCTB commented that,‘‘as proposed, the MCSFR [motor carriersafety fitness rating] methodologyrepresents the best collection of safetyinformation for a motor carrier currently


available.’’ It stated that ‘‘the fact thatonly ‘acute’ and ‘critical’ regulationsaffect the safety rating adds furthercredibility to the safety rating process. Itis Oregon’s opinion that the dreaded‘paper work’ violations are not includedin either the ‘acute’ or ‘critical’regulations.’’ The IBT alsorecommended that the FHWA adopt theSFRM as proposed.

The FHWA believes that the proposedSFRM establishes a fair and reasonableprocedure to decide the safety fitness ofowners and operators of CMVs. It alsomeets the statutory mandate (49 U.S.C.31144) because it includes:

(a) specific, initial and continuingrequirements to be met by the owners,operators, and other persons to provesafety fitness;

(b) a means of deciding whether theowners, operators, and other personsmeet the safety fitness requirements in(a); and

(c) specific time deadlines for actionby the FHWA in making fitnessdeterminations.

MiscellaneousSeveral sections in Part 385 are

amended to correct previous technicalerrors. The definition of ‘‘Safety review’’in § 385.3 is removed since SafetyReviews were discontinued as ofOctober 1, 1994. The definitions ofConditional safety rating andUnsatisfactory safety rating in § 385.3are revised to include references to§ 385.5 (i) through (k), dealing withhazardous materials and accidents.These subsections were inadvertentlyomitted when the final rule waspublished on December 19, 1988 (53 FR50961). Section 385.9 is revised toinclude a subsection (b) to meet therequirement in 49 U.S.C. 31144(a)(1)(C)that there be specific time deadlines foraction by the Secretary in making fitnessdecisions.

Section 385.17 is revised in a numberof ways. The FHWA published aproposed revision of § 385.17 for noticeand comment under FHWA Docket No.MC–96–18 on April 29, 1996 (61 FR18866, 18884), where it was designatedas § 362.107. In addition to explainingmore clearly the process to request asafety rating change based on correctiveactions taken, that provision wouldhave given carriers whose request wasdenied new rights to administrativereview. Commenters favored this changealmost unanimously. In order to makethese rights available to motor carriersas soon as possible, the proposedprovision designated as § 362.107 in theApril 29 NPRM has been incorporatedinto this final rule, with minor changes,as § 385.17. Many parties concerned

about the safety rating system submittedcomments in response to the April 29,1996, NPRM and the May 28, 1997,NPRM that opened this docket. Becausethe amended version of § 385.17 hasalready been published for notice andcomment, though under a differentdocket and with a different sectionnumber, the FHWA finds good cause(pursuant to 5 U.S.C. 553(b)(B)) to adopt§ 385.17, and the related amendments to§§ 385.11, and 385.15, which were alsopublished in the April 29 NPRM,without re-publishing them under thisdocket as a Supplemental NPRM.

The current appendix to Part 385 isredesignated as appendix A. TheExplanation of Safety Rating Process isadded as appendix B. Changes toappendix B from the appendix in theNPRM are a result of using several yearsaccident rates instead of one year for theaccident rates in the accident ratingfactor, and editorial changes for clarity.Appendix B is further changed bysubstituting ‘‘proposed rating’’ for‘‘anticipated rating’’, to conform withthe procedure in § 385.11(b).

Rulemaking Analyses and NoticesFor the reasons given below, the

FHWA finds good cause to make thisfinal rule effective less than 30 daysafter the date of publication. Theinterim final rule adopting a SafetyFitness Rating Methodology (SFRM) waspromulgated on May 28, 1997 (62 FR22807), and will expire on November28, 1997. That rule allows the FHWA toassign safety ratings to motor carrierswhich use CMVs to transport 15 or morepassengers, including the driver, orhazardous materials in quantities thatrequire placarding under DOTregulations. The final rule publishedtoday does not change the existingmotor carrier safety requirements orimpose new obligations on motorcarriers. It merely sets forth an SFRMthe FHWA will use to evaluate motorcarriers’ compliance with the standardsand factors specified in 49 C.F.R. 385.5and 385.7. Furthermore, it gives carriers45 days after notification of a proposedconditional or unsatisfactory ratingbefore the rating takes effect. During thattime, motor carriers will have anopportunity to correct deficiencies intheir compliance with Part 385 or topoint out to the agency any materialfactual issues in dispute. No such graceperiod is available under the currentinterim final rule. Carriers rated lessthan satisfactory under the SFRM willtherefore have at least 45 days after theeffective date of this rule before therating takes effect. In view of these facts,and because the demands of publicsafety and a specific statutory mandate

(49 U.S.C. 5113) require the agency tocontinue rating passenger andhazardous materials carriers withoutinterruption, the FHWA hereby findsgood cause pursuant to 5 U.S.C.553(d)(3) to make this rule effective onNovember 28, 1997.

Executive Order 12866 (RegulatoryPlanning and Review) and DOTRegulatory Policies and Procedures

The FHWA has determined that thisaction is not a significant regulatoryaction within the meaning of ExecutiveOrder 12866. No serious inconsistencyor interference with another agency’sactions or plans is likely to result, andit is unlikely that this regulatory actionwill have an annual effect on theeconomy of $100 million or more. Thisfinal rule is administrative in nature inthat it neither imposes newrequirements upon the motor carrierindustry nor alters the August 16, 1991,interim final rule implementing theprovisions of 49 U.S.C. 5113. TheFHWA does not anticipate any neweconomic impacts as a result of thisrulemaking. This rule would not imposeany costs on motor carriers in additionto those assessed in the RegulatoryEvaluation and Regulatory FlexibilityAnalysis prepared in support of the1988 final rule. (The 1991 interim finalamended the 1988 rule in ways that theFHWA believes had minimal economicimpact on motor carriers.)

The existing rating factors are used toevaluate the degree to which the motorcarrier complies with the regulationsand add no costs because the carrier isalready required to comply. Compliancewith regulations, however, is only asurrogate for actual safety performance.The addition of the accident factorintroduces a direct measure ofperformance into the equation. In 1988,this factor was not considered as havinga cost consequence because the effect ofa negative rating resulting fromsubstantially higher accidents than thenorm would be virtually identical to theimpact on the carrier’s business thatwould flow from public knowledge ofits poor safety performance.

The impact resulting from a negativerating generally relates to knowledge ofthe rating by shipper or insurer. If thosesame entities know of the unusuallyhigh accident rate, the FHWA believesthe consequences would or should beapproximately the same.

Considering all recordable accidentsinstead of only preventable recordableaccidents will have the same sort ofimpact. Nevertheless, the FHWAbelieves that this is a significantregulatory action within the meaning ofthe Department of Transportation’s


regulatory policies and proceduresbecause there is significant publicinterest in this action.

Regulatory Flexibility Act

In compliance with the RegulatoryFlexibility Act (5 U.S.C. 601–612), theFHWA has evaluated the effects of thisrule on small entities and hasdetermined that it will not have asignificant economic impact on asubstantial number of small entities.The motor carriers economicallyimpacted by this rulemaking will bethose who are rated as unsatisfactoryand fail to take appropriate actions tohave their rating upgraded. In the past,relatively few small motor carriers hadbeen affected by the statutoryconsequences of an unsatisfactory, andthere is no reason to believe that thoseimpacts will increase in any way by thisaction.

Executive Order 12612 (FederalismAssessment)

This action has been analyzed inaccordance with the principles andcriteria contained in Executive Order12612, and it has been determined thatthis rulemaking does not have sufficientFederalism implications to warrant thepreparation of a Federalism assessment.These safety requirements do notdirectly preempt any State law orregulation, and no additional costs orburdens would be imposed on the Statesas a result of this action.

Furthermore, the State’s ability todischarge traditional State governmentalfunctions would not be affected by thisrulemaking.

Executive Order 12372(Intergovernmental Review)

Catalog of Federal DomesticAssistance Program Number 20.217,Motor Carrier Safety. The regulationsimplementing Executive Order 12372regarding intergovernmentalconsultation on Federal programs andactivities do not apply to this program.

Paperwork Reduction Act

This action does not contain acollection of information requirementfor the purposes of the PaperworkReduction Act of 1995, 44 U.S.C. 3501–3520.

National Environmental Policy Act

The agency has analyzed thisrulemaking for the purpose of theNational Environmental Policy Act of1969 (42 U.S.C. 4321–4347) and hasdetermined that this action would nothave any effect on the quality of theenvironment.

Regulation Identification Number

A regulation identification number(RIN) is assigned to each regulatoryaction listed in the Unified Agenda ofFederal Regulations. The RegulatoryInformation Service Center publishesthe Unified Agenda in April andOctober of each year. The RIN containedin the heading of this document can beused to cross reference this action withthe Unified Agenda.


Highway safety, Highways and roads,Motor carriers, Motor vehicle safety, andSafety fitness procedures.

Issued on: October 31, 1997.Gloria Jeff,Acting Administrator.

In consideration of the foregoing, theFHWA is amending title 49, Code ofFederal Regulations, Chapter III, Part385 as set forth below:

PART 385—SAFETY FITNESSPROCEDURES


Authority: 49 U.S.C. 104, 504, 521(b)(5)(A),5113, 31136, 31144, and 31502; 49 CFR 1.48.

2. In § 385.3, under the definition‘‘reviews’’, remove and reserveparagraph (2) ‘‘safety review’’; andunder the definition ‘‘safety ratings’’,revise paragraphs (2) ‘‘conditional safetyrating’’ and (3) ‘‘unsatisfactory safetyrating’’ to read as follows:

§ 385.3 Definitions.

* * * * *Reviews. * * *(1) * * *(2) [Reserved](3) * * *Safety ratings: (1) * * *(2) Conditional safety rating means a

motor carrier does not have adequatesafety management controls in place toensure compliance with the safetyfitness standard that could result inoccurrences listed in § 385.5 (a) through(k).

(3) Unsatisfactory safety rating meansa motor carrier does not have adequatesafety management controls in place toensure compliance with the safetyfitness standard which has resulted inoccurrences listed in § 385.5 (a) through(k).* * * * *

3. Section 385.9 is revised to read asfollows:

§ 385.9 Determination of a safety rating.(a) Following a compliance review of

a motor carrier operation, the FHWA,using the factors prescribed in § 385.7 as

computed under the Safety FitnessRating Methodology set forth inappendix B of this part, shall determinewhether the present operations of themotor carrier are consistent with thesafety fitness standard set forth in§ 385.5, and assign a safety ratingaccordingly.

(b) Unless otherwise specificallyprovided in this part, a safety rating willbe issued to a motor carrier within 30days following the completion of acompliance review.


§ 385.11 Notification of a safety rating.(a) Except as provided elsewhere in

this section, written notification of thesafety rating will be provided to a motorcarrier as soon as practicable afterassignment of the rating, but not laterthan 30 days after the review thatproduced the rating.

(b) Before a safety rating ofunsatisfactory or conditional, isassigned to any motor carrier, theFHWA will issue a notice of proposedsafety rating. The notice of proposedsafety rating will list the deficienciesdiscovered during the review of themotor carrier’s operations, for whichcorrective actions must be taken. Aproposed conditional safety rating(which is an improvement of an existingunsatisfactory safety rating) becomeseffective as soon as it issued fromWashington, D.C., and the carrier mayalso avail itself of relief under the§ 385.15, Administrative Review and§ 385.17, Change to safety rating basedon corrective actions.

(c) A notice of a proposed safetyrating of unsatisfactory will indicatethat, if the unsatisfactory rating becomesfinal, the motor carrier will be subject tothe provisions of § 385.13, whichprohibit motor carriers ratedunsatisfactory from transportinghazardous materials or passengers, andother consequences that may result fromsuch rating.

(d) Except as provided in § 385.17, aproposed safety rating issued pursuantto paragraph (b) of this section willbecome the motor carrier’s final safetyrating 45 days after the date the noticeof proposed safety rating is received bythe motor carrier.


§ 385.13 Unsatisfactory rated motorcarriers—prohibition on transportation ofhazardous materials and passengers;ineligibility for Federal contracts.

(a) A motor carrier ratedunsatisfactory is prohibited fromoperating a commercial motor vehicle totransport—


(1) Hazardous materials for whichvehicle placarding is required pursuantto part 172 of chapter 1 of this title; or

(2) More than 15 passengers,including the driver.

(b) A motor carrier subject to theprovisions of paragraph (a) of thissection is ineligible to contract orsubcontract with any Federal agency fortransportation of the property orpassengers referred to in paragraphs(a)(1) and (a)(2) of this section.

(c) Penalties. When a carrier subject tothe prohibitions in paragraph (a) of thissection is known to transport theproperty or passengers referred totherein, an order will be issued placingthose operations out of service. Anymotor carrier that operates commercialmotor vehicles in violation of thissection will be subject to the penaltyprovisions listed in part 386 of thischapter.


§ 385.15 Administrative review.(a) Within the 45 day notice period

provided in § 385.11(d), or within 45days after denial of a request for achange in rating as provided in§ 385.17(g), the motor carrier maypetition the FHWA for administrativereview of a proposed or final safetyrating by submitting a written request tothe Director, Office of Motor CarrierField Operations, 400 Seventh Street,SW., Washington DC 20590.

(b) The petition must state why theproposed safety rating is believed to bein error and list all factual andprocedural issues in dispute. Thepetition may be accompanied by anyinformation or documents the motorcarrier is relying upon as the basis forits petition.

(c) The Director, Office of MotorCarrier Field Operations, may requestthe petitioner to submit additional dataand attend a conference to discuss thesafety rating. Failure to provide theinformation requested or attend theconference may result in dismissal ofthe petition.

(d) The petitioner shall be notified inwriting of the decision onadministrative review. The notificationwill occur within 30 days after receiptof a petition from a hazardous materialsor passenger motor carrier.

(e) If the decision on administrativereview results in a final rating ofunsatisfactory for a hazardous materialsor passenger motor carrier, the decisionshall be accompanied by an appropriateout-of-service order.

(f) All other decisions onadministrative review of ratingsconstitute final agency action.

Thereafter, improvement in the ratingmay be obtained under § 385.17 of thispart.


§ 385.17 Change to safety rating based oncorrective actions.

(a) Within the 45-day period specifiedin § 385.11(d), or at any time after arating has become final, a motor carriermay request a change to a proposed orfinal safety rating based on evidencethat corrective actions have been takenand that its operations currently meetthe safety standard and factors specifiedin § 385.9.

(b) A request for a change must bemade, in writing, to the RegionalDirector, Office of Motor Carriers, forthe FHWA Region in which the carriermaintains its principal place ofbusiness, and must include a writtendescription of corrective actions takenand other documentation that may berelied upon as a basis for the requestedchange to the proposed rating.

(c) The final determination on therequest for change will be based uponthe documentation submitted and anyadditional investigation deemednecessary.

(d) The filing of a request for changeto a proposed rating under this sectiondoes not stay the 45-day periodestablished in § 385.11(d), after which aproposed safety rating becomes final. Ifthe motor carrier has submittedevidence that corrective actions havebeen taken pursuant to this section anda final determination cannot be madewithin the 45-day period, the periodbefore the proposed safety ratingbecomes effective may be extended forup to 10 days at the discretion of theRegional Director.

(e) If it is determined that the motorcarrier has taken the corrective actionsrequired and that its operationscurrently meet the safety standard andfactors specified in § 385.9, the motorcarrier will be provided with writtennotification that the proposed ratingwill not be assigned, or, if alreadyassigned, rescinded.

(f) If it is determined that the motorcarrier has not taken all the correctiveactions required or that its operationsstill fail to meet the safety standards andfactors specified in § § 385.5 and 385.7,the motor carrier shall be provided withwritten notification that its request hasbeen denied and that the proposedsafety rating will become final pursuantto § 385.11(d), or that a safety ratingcurrently in effect will not be changed.

(g) Any motor carrier whose requestfor change is denied pursuant toparagraph (f) of this section may

petition for administrative reviewpursuant to § 385.15 within 45 days ofthe denial of the request for ratingchange. If the proposed rating hasbecome final, it shall remain in effectduring the period of any administrativereview unless stayed by the reviewingofficial.


§ 385.19 Safety fitness information.(a) Final ratings will be made

available to other Federal and Stateagencies in writing, telephonically or byremote computer access.

(b) The final safety rating assigned toa motor carrier will be made availableto the public upon request. Any personrequesting the assigned rating of a motorcarrier shall provide the FHWA with themotor carrier’s name, principal officeaddress, and, if known, the DOTnumber or the ICC docket number, ifany.

(c) Requests shall be addressed to theOffice of Motor Carrier InformationManagement and Analysis, HIA–1,Federal Highway Administration, 400Seventh Street, SW., Washington, D.C.20590.

(d) Oral requests by telephone to (800)832–5660 will be given an oralresponse.

9. Part 385 is amended by revisingappendix B to read as follows:

Appendix B TO Part 385—Explanation ofSafety Rating Process

(a) Section 215 of the Motor Carrier SafetyAct of 1984 (49 U.S.C. 31144) directed theSecretary of Transportation to establish aprocedure to determine the safety fitness ofowners and operators of commercial motorvehicles operating in interstate or foreigncommerce. The Secretary, in turn, delegatedthis responsibility to the Federal HighwayAdministration (FHWA).

(b) As directed, FHWA promulgated asafety fitness regulation, entitled ‘‘SafetyFitness Procedures,’’ which established aprocedure to determine the safety fitness ofmotor carriers through the assignment ofsafety ratings and established a ‘‘safetyfitness standard’’ which a motor carrier mustmeet to obtain a satisfactory safety rating.

(c) To meet the safety fitness standard, amotor carrier must demonstrate to the FHWAthat it has adequate safety managementcontrols in place which function effectivelyto ensure acceptable compliance with theapplicable safety requirements. A ‘‘safetyfitness rating methodology’’ (SFRM) wasdeveloped by the FHWA, which uses datafrom compliance reviews (CRs) and roadsideinspections to rate motor carriers.

(d) The safety rating process developed byFHWA’s Office of Motor Carriers is used to:

1. Evaluate safety fitness and assign one ofthree safety ratings (satisfactory, conditionalor unsatisfactory) to motor carriers operatingin interstate commerce. This processconforms to 49 CFR 385.5, Safety fitness


standard, and § 385.7, Factors to beconsidered in determining a safety rating.

2. Identify motor carriers needingimprovement in their compliance with theFederal Motor Carrier Safety Regulations(FMCSRs) and applicable Hazardous MaterialRegulations (HMRs). These are carriers ratedunsatisfactory or conditional.

I. Source of Data for Rating Methodology

(a) The FHWA’s rating process is builtupon the operational tool known as the CR.This tool was developed to assist Federal andState safety specialists in gathering pertinentmotor carrier compliance and accidentinformation.

(b) The CR is an in-depth examination ofa motor carrier’s operations and is used (1)to rate unrated motor carriers, (2) to conducta follow-up investigation on motor carriersrated unsatisfactory or conditional as a resultof a previous review, (3) to investigatecomplaints, or (4) in response to a request bya motor carrier to reevaluate its safety rating.Documents such as those contained in driverqualification files, records of duty status,vehicle maintenance records, and otherrecords are thoroughly examined forcompliance with the FMCSRs and HMRs.Violations are cited on the CR document.Performance-based information, whenavailable, is utilized to evaluate the carrier’scompliance with the vehicle regulations.Recordable accident information is alsocollected.

II. Converting CR Information Into a SafetyRating

(a) The FHWA gathers information throughan in-depth examination of the motorcarrier’s compliance with identified ‘‘acute’’or ‘‘critical’’ regulations of the FMCSRs andHMRs.

(b) Acute regulations are those identified assuch where noncompliance is so severe as torequire immediate corrective actions by amotor carrier regardless of the overall safetyposture of the motor carrier. An example ofan acute regulation is § 383.37(b), allowing,requiring, permitting, or authorizing anemployee with more than one CommercialDriver’s License (CDL) to operate acommercial motor vehicle. Noncompliancewith § 383.37(b) is usually discovered whenthe motor carrier’s driver qualification filereflects that the motor carrier had knowledgeof a driver with more than one CDL, and stillpermitted the driver to operate a commercialmotor vehicle. If the motor carrier did nothave such knowledge or could not reasonablybe expected to have such knowledge, then aviolation would not be cited.

(c) Critical regulations are those identifiedas such where noncompliance relates tomanagement and/or operational controls.These are indicative of breakdowns in acarrier’s management controls. An exampleof a critical regulation is § 395.3(a)(1),requiring or permitting a driver to drive morethan 10 hours.

(d) The list of the acute and criticalregulations which are used in determiningsafety ratings is included at the end of thisdocument.

(e) Noncompliance with acute regulationsand patterns of non-compliance with critical

regulations are quantitatively linked toinadequate safety management controls andusually higher than average accident rates.The FHWA has used noncompliance withacute regulations and patterns ofnoncompliance with critical regulationssince 1989 to determine motor carriers’adherence to the Safety fitness standard in§ 385.5.

(f) The regulatory factors, evaluated on thebasis of the adequacy of the carrier’s safetymanagement controls, are (1) Parts 387 and390; (2) Parts 382, 383 and 391; (3) Parts 392and 395; (4) Parts 393 and 396 when thereare less than three vehicle inspections in thelast 12 months to evaluate; and (5) Parts 397,171, 177 and 180.

(g) For each instance of noncompliancewith an acute regulation or each pattern ofnoncompliance with a critical regulationduring the CR, one point will be assessed. Apattern is more than one violation. When anumber of documents are reviewed, thenumber of violations required to meet apattern is equal to at least 10 percent of thoseexamined.

(h) However, each pattern ofnoncompliance with a critical regulationrelative to Part 395, Hours of Service ofDrivers, will be assessed two points.

A. Vehicle Factor

(a) When a total of three or moreinspections are recorded in the Motor CarrierManagement Information System (MCMIS)during the twelve months prior to the CR orperformed at the time of the review, theVehicle Factor (Parts 393 and 396) will beevaluated on the basis of the Out-of-Service(OOS) rates and noncompliance with acuteregulations and/or a pattern ofnoncompliance with critical regulations. Theresults of the review of the OOS rate willaffect the Vehicle Factor rating as follows:

1. If a motor carrier has three or moreroadside vehicle inspections in the twelvemonths prior to the carrier review, or threevehicles inspected at the time of the review,or a combination of the two totaling three ormore, and the vehicle OOS rate is 34 percentor greater, the initial factor rating will beconditional. The requirements of Part 396,Inspection, Repair, and Maintenance, will beexamined during each review. The results ofthe examination could lower the factor ratingto unsatisfactory if noncompliance with anacute regulation or a pattern ofnoncompliance with a critical regulation isdiscovered. If the examination of the Part 396requirements reveals no such problems withthe systems the motor carrier is required tomaintain for compliance, the Vehicle Factorremains conditional.

2. If a carrier’s vehicle OOS rate is less thanpercent, the initial factor rating will besatisfactory. If noncompliance with an acuteregulation or a pattern of noncompliancewith a critical regulation is discovered duringthe examination of Part 396 requirements, thefactor rating will be lowered to conditional.If the examination of Part 396 requirementsdiscovers no such problems with the systemsthe motor carrier is required to maintain forcompliance, the Vehicle Factor remainssatisfactory.

(b) Nearly two million vehicle inspectionsoccur on the roadside each year. This vehicle

inspection information is retained in theMCMIS and is integral to evaluating motorcarriers’ ability to successfully maintain theirvehicles, thus preventing them from beingplaced OOS during roadside inspections.Since many of the roadside inspections aretargeted to visibly defective vehicles andsince there are a limited number ofinspections for many motor carriers, the useof that data is limited. Each CR will continueto have the requirements of Part 396,Inspection, Repair, and Maintenance,reviewed as indicated by the aboveexplanation.

B. Accident Factor

(a) In addition to the five regulatory ratingfactors, a sixth factor is included in theprocess to address the accident history of themotor carrier. This factor is the recordableaccident rate which the carrier hasexperienced during the past 12 months.Recordable accident, as defined in 49 CFR390.5, means an accident involving acommercial motor vehicle operating on apublic road in interstate or intrastatecommerce which results in a fatality; bodilyinjury to a person who, as a result of theinjury, immediately receives medicaltreatment away from the scene of theaccident; one or more motor vehiclesincurring disabling damage as a result of theaccident requiring the motor vehicle to betransported away from the scene by a towtruck or other motor vehicle.

(b) Recordable accidents per million mileswere computed for each CR performed inFiscal Years 1994,1995 and 1996. Thenational average for all carriers rated was0.747, and .839 for carriers operating entirelywithin the 100 air mile radius.

(c) Experience has shown that urbancarriers, those motor carriers operatingprimarily within a radius of less than 100 airmiles (normally in urban areas) have a higherexposure to accident situations because oftheir environment and normally have higheraccident rates.

(d) The recordable accident rate will beused to rate Factor 6, Accident. It will beused only when a motor carrier incurs twoor more recordable accidents occurred withinthe 12 months prior to the CR. An urbancarrier (a carrier operating entirely within aradius of 100 air miles) with a recordableaccident rate greater than 1.7 will receive anunsatisfactory rating for the accident factor.All other carriers with a recordable accidentrate greater than 1.5 will receive anunsatisfactory factor rating. The rates are aresult of roughly doubling the nationalaverage accident rate for each type of carrierrated in Fiscal Years 1994, 1995 and 1996.

(e) The FHWA will continue to considerpreventability when a motor carrier contestsa rating by presenting compelling evidencethat the recordable rate is not a fair meansof evaluating its accident factor.Preventability will be determined accordingto the following standard: ‘‘If a driver, whoexercises normal judgment and foresightcould have foreseen the possibility of theaccident that in fact occurred, and avoided itby taking steps within his/her control whichwould not have risked causing another kindof mishap, the accident was preventable.’’


C. Factor Ratings

(a) Parts of the FMCSRs and the HMRshaving similar characteristics are combinedtogether into five regulatory areas called‘‘factors.’’

(b) The following table shows the fiveregulatory factors, parts of the FMCSRs andHMRs associated with each factor, and theaccident factor. Factor Ratings aredetermined as follows:

Factors

Factor 1 General=Parts 387 and 390Factor 2 Driver=Parts 382, 383 and 391Factor 3 Operational=Parts 392 and 395Factor 4 Vehicle=Parts 393 and 396Factor 5 Haz. Mat.=Parts 397, 171, 177 and

180Factor 6 Accident Factor=Recordable Rate‘‘Satisfactory’’—if the acute and/or critical=0

points‘‘Conditional’’—if the acute and/or critical=1

point‘‘Unsatisfactory’’—if the acute and/or

critical=2 or more points

III. Safety Rating

A. Rating Table

(a) The ratings for the six factors are thenentered into a rating table which establishesthe motor carrier’s safety rating.

(b) The FHWA has developed acomputerized rating formula for assessing theinformation obtained from the CR documentand is using that formula in assigning a safetyrating.

MOTOR CARRIER SAFETY RATINGTABLE

Factor ratings

Overall safety ratingUnsat-isfac-tory

Condi-tional

0 ......... 2 orless.

SATISFACTORY.

0 ......... morethan2.

CONDITIONAL.

0 ......... 2 orless.

CONDITIONAL.

1 ......... morethan2.

UNSATISFACTORY.

2 ormore.

0 ormore.

UNSATISFACTORY.

B. Proposed Safety Rating

(a) The proposed safety rating will appearon the CR. The following appropriateinformation will appear after the last entry onthe CR, MCS–151, Part B.

‘‘Your proposed safety rating isSATISFACTORY.’’

Your proposed safety rating isCONDITIONAL.’’ The proposed rating willbecome the final rating 45 after you receivethis notice.

OR

‘‘Your proposed safety rating isUNSATISFACTORY.’’ The safety rating will

become the final safety rating 45 days afteryou receive this notice.

(b) Proposed safety ratings of conditionalor unsatisfactory will list the deficienciesdiscovered during the CR for whichcorrective actions must be taken.

(c) Proposed unsatisfactory safety ratingswill indicate that, if the unsatisfactory ratingbecomes final, the motor carrier will besubject to the provision of § 385.13, whichprohibits motor carriers rated unsatisfactoryfrom transporting hazardous materialsrequiring placarding or 15 passengers ormore including the driver.

IV. Assignment of Final Rating/MotorCarrier Notification

When the official rating is determined inWashington, D.C., the FHWA notifies themotor carrier in writing of its safety rating asprescribed in § 385.11. A proposedconditional safety rating (which is animprovement of an existing unsatisfactoryrating) becomes effective as soon as theofficial safety rating from Washington, D.C. isissued, and the carrier may also avail itselfof relief under the § 385.15, AdministrativeReview and § 385.17, Change to safety ratingbased on corrective actions.

V. Motor Carrier Rights to a Change in theSafety Rating

Under §§ 385.15 and 385.17, motor carriershave the right to petition for a review of theirratings if there are factual or proceduraldisputes, and to request another review aftercorrective actions have been taken. They arethe procedural avenues a motor carrier whichbelieves its safety rating to be in error mayexercise, and the means to request anotherreview after corrective action has been taken.

VI. Conclusion

(a) The FHWA believes this ‘‘safety fitnessrating methodology’’ is a reasonableapproach for assigning a safety rating whichbest describes the current safety fitnessposture of a motor carrier as required by thesafety fitness regulations (§ 385.9). Thismethodology has the capability toincorporate regulatory changes as they occur.

(b) Improved compliance with theregulations leads to an improved rating,which in turn increases safety. Thisincreased safety is our regulatory goal.

VII. List of Acute and Critical Regulations

§ 382.115(c) Failing to implement analcohol and/or controlled substance testingprogram. (acute)

§ 382.201 Using a driver who has an alcoholconcentration of 0.04 or greater. (acute)

§ 382.211 Using a driver who has refused tosubmit to an alcohol controlled substancestest required under Part 382. (acute)

§ 382.213(b) Using a driver who has used acontrolled substance. (acute)

§ 382.215 Using a driver who has testedpositive for a controlled substance. (acute)

§ 382.301(a) Using a driver before the motorcarrier has received negative pre-employment controlled substance testresults. (critical)

§ 382.303(a) Failing to conduct postaccident testing on driver for alcohol and/or controlled substances. (critical)

§ 382.305 Failing to implement a randomcontrolled substances and/or an alcoholtesting program. (acute)

§ 382.305(b)(1) Failing to conduct randomalcohol testing at an annual rate of not lessthan 25 percent of the average number ofdriver positions. (critical)

§ 382.305(b)(2) Failing to conduct randomcontrolled substances testing at an annualrate of not less than 50 percent of theaverage number of driver positions.(critical)

§ 382.309(a) Using a driver who has notundergone a return-to-duty alcohol testwith a result indicating an alcoholconcentration of less than 0.02. (acute)

§ 382.309(b) Using a driver who has notundergone a return-to-duty controlledsubstances test with a result indicating averified negative result for controlledsubstances. (acute)

§ 382.503 Driver performing safety sensitivefunction, after engaging in conductprohibited by Subpart B, without beingevaluated by substance abuse professional,as required by § 382.605. (critical)

§ 382.505(a) Using a driver within 24 hoursafter being found to have an alcoholconcentration of 0.02 or greater but lessthan 0.04. (acute)

§ 382.605(c)(1) Using a driver who has notundergone a return-to-duty alcohol testwith a result indicating an alcoholconcentration of less than .02 or withverified negative test result, after engagingin conduct prohibited by Part 382 SubpartB. (acute)

§ 382.605(c)(2)(ii) Failing to subject a driverwho has been identified as needingassistance to at least six unannouncedfollow-up alcohol and controlled substancetests in the first 12 months following thedriver’s return to duty. (critical)

§ 383.23(a) Operating a commercial motorvehicle without a valid commercialdriver’s license. (critical)

§ 383.37(a) Allowing, requiring, permitting,or authorizing an employee with aCommercial Driver’s License which issuspended, revoked, or canceled by a stateor who is disqualified to operate acommercial motor vehicle. (acute)

§ 383.37(b) Allowing, requiring, permitting,or authorizing an employee with more thanone Commercial Driver’s License to operatea commercial motor vehicle. (acute)

§ 383.51(a) Allowing, requiring, permitting,or authorizing a driver to drive who isdisqualified to drive a commercial motorvehicle. (acute)

§ 387.7(a) Operating a motor vehiclewithout having in effect the requiredminimum levels of financial responsibilitycoverage. (acute)

§ 387.7(d) Failing to maintain at principalplace of business required proof offinancial responsibility. (critical)

§ 387.31(a) Operating a passenger carryingvehicle without having in effect therequired minimum levels of financialresponsibility. (acute)

§ 387.31(d) Failing to maintain at principalplace of business required proof offinancial responsibility for passengervehicles. (critical)

§ 390.15(b)(2) Failing to maintain copies ofall accident reports required by State or


other governmental entities or insurers.(critical)

§ 390.35 Making, or causing to makefraudulent or intentionally false statementsor records and/or reproducing fraudulentrecords. (acute)

§ 391.11(a)/391.95 Using an unqualifieddriver, a driver who has tested positive forcontrolled substances, or refused to betested as required. (acute)

§ 391.11(b)(6) Using a physicallyunqualified driver. (acute)

§ 391.15(a) Using a disqualified driver.(acute)

§ 391.45(a) Using a driver not medicallyexamined and certified. (critical)

§ 391.45(b) Using a driver not medicallyexamined and certified each 24 months.(critical)

§ 391.51(a) Failing to maintain driverqualification file on each driver employed.(critical)

§ 391.51(b)(1) Failing to maintain medicalexaminer’s certificate in driver’squalification file. (critical)

§ 391.51(c)(1) Failing to maintain medicalexaminer’s certificate in driver’squalification file. (critical)

§ 391.51(c)(3) Failing to maintain inquiriesinto driver’s driving record in driver’squalification file. (critical)

§ 391.51(d)(1) Failing to maintain medicalexaminer’s certificate in driver’squalification file. (critical)

§ 391.87(f)(5) Failing to retain in thedriver’s qualification file test finding,either ‘‘Negative’’ and, if ‘‘Positive’’, thecontrolled substances identified. (critical)

§ 391.93(a) Failing to implement acontrolled substances testing program.(acute)

§ 391.99(a) Failing to require a driver to betested for the use of controlled substances,upon reasonable cause. (acute)

§ 391.103(a) Failing to require a driver-applicant whom the motor carrier intendsto hire or use to be tested for the use ofcontrolled substances as a pre-qualificationcondition. (critical)

§ 391.109(a) Failing to conduct controlledsubstance testing at a 50% annualized rate.(critical)

§ 391.115(c) Failing to ensure post-accidentcontrolled substances testing is conductedand conforms with 49 CFR Part 40.(critical)

§ 392.2 Operating a motor vehicle not inaccordance with the laws, ordinances, andregulations of the jurisdiction in which itis being operated. (critical)

§ 392.4(b) Requiring or permitting a driverto drive while under the influence of, or inpossession of, a narcotic drug,amphetamine, or any other substancecapable of rendering the driver incapableof safely operating a motor vehicle. (acute)

§ 392.5(b)(1) Requiring or permitting adriver to drive a motor vehicle while underthe influence of, or in possession of, anintoxicating beverage. (acute)

§ 392.5(b)(2) Requiring or permitting adriver who has consumed an intoxicatingbeverage within 4 hours to operate a motorvehicle. (acute)

§ 392.6 Scheduling a run which wouldnecessitate the vehicle being operated atspeeds in excess of those prescribed.(critical)

§ 392.9(a)(1) Requiring or permitting adriver to drive without the vehicle’s cargobeing properly distributed and adequatelysecured. (critical)

§ 395.1(i)(1)(i) Requiring or permitting adriver to drive more than 15 hours.(Driving in Alaska.) (critical)

§ 395.1(i)(1)(ii) Requiring or permitting adriver to drive after having been on duty20 hours. (Driving in Alaska.) (critical)

§ 395.1(i)(1)(iii) Requiring or permittingdriver to drive after having been on dutymore than 70 hours in 7 consecutive days.(Driving in Alaska.) (critical)

§ 395.1(i)(1)(iv) Requiring or permittingdriver to drive after having been § on dutymore than 80 hours in 8 consecutive days.(Driving in Alaska.) (critical)

§ 395.3(a)(1) Requiring or permitting driverto drive more than 10 hours. (critical)

§ 395.3(a)(2) Requiring or permitting driverto drive after having been on duty 15hours. (critical)

§ 395.3(b) Requiring or permitting driver todrive after having been on duty more than60 hours in 7 consecutive days. (critical)

§ 395.3(b) Requiring or permitting driver todrive after having been on duty more than70 hours in 8 consecutive days. (critical)

§ 395.8(a) Failing to require driver to makea record of duty status. (critical)

§ 395.8(e) False reports of records of dutystatus. (critical)

§ 395.8(i) Failing to require driver toforward within 13 days of completion, theoriginal of the record of duty status.(critical)

§ 395.8(k)(1) Failing to preserve driver’srecord of duty status for 6 months. (critical)

§ 395.8(k)(1) Failing to preserve driver’srecords of duty status supportingdocuments for 6 months. (critical)

§ 396.3(b) Failing to keep minimum recordsof inspection and vehicle maintenance.(critical)

§ 396.9(c)(2) Requiring or permitting theoperation of a motor vehicle declared ‘‘out-of-service’’ before repairs were made.(acute)

§ 396.11(a) Failing to require driver toprepare driver vehicle inspection report.(critical)

§ 396.11(c) Failing to correct Out-of-Servicedefects listed by driver in a driver vehicleinspection report. (acute)

§ 396.17(a) Using a commercial motorvehicle not periodically inspected.(critical)

§ 396.17(g) Failing to promptly repair partsand accessories not meeting minimumperiodic inspection standards. (acute)

§ 397.5(a) Failing to ensure a motor vehiclecontaining Class A or B explosives, (Class

1.1, 1.2, or 1.3) is attended at all times byits driver or a qualified representative.(acute)

§ 397.7(a)(1) Parking a motor vehiclecontaining Class A or B explosives (1.1,1.2, 1.3) within 5 feet of traveled portionof highway. (critical)

§ 397.7(b) Parking a motor vehiclecontaining hazardous material(s) within 5feet of traveled portion of highway orstreet. (critical)

§ 397.13(a) Permitting a person to smoke orcarry a lighted cigarette, cigar or pipewithin 25 feet of a motor vehiclecontaining explosives, oxidizing materials,or flammable materials. (critical)

§ 397.19(a) Failing to furnish driver ofmotor vehicle transporting Class A or Bexplosives (Class 1.1, 1.2, 1.3) with a copyof the rules of Part 397 and/or emergencyresponse instructions. (critical)

§ 397.67(d) Requiring or permitting theoperation of a motor vehicle containingDivision 1.1, 1.2, or 1.3 (explosive)material that is not accompanied by awritten route plan. (critical)

§ 171.15 Carrier failing to give immediatetelephone notice of an incident involvinghazardous materials. (critical)

§ 171.16 Carrier failing to make a writtenreport of an incident involving hazardousmaterials. (critical)

§ 177.800(c) Failing to instruct a category ofemployees in hazardous materialsregulations. (critical)

§ 177.817(a) Transporting a shipment ofhazardous materials not accompanied by aproperly prepared shipping paper. (critical)

§ 177.817(e) Failing to maintain properaccessibility of shipping papers. (critical)

§ 177.823(a) Moving a transport vehiclecontaining hazardous material that is notproperly marked or placarded. (critical)

§ 177.841(e) Transporting a package bearinga poison label in the same transport vehiclewith material marked or known to befoodstuff, feed, or any edible materialintended for consumption by humans oranimals. (acute)

§ 180.407(a) Transporting a shipment ofhazardous material in cargo tank that hasnot been inspected or retested inaccordance with § 180.407. (critical)

§ 180.407(c) Failing to periodically test andinspect a cargo tank. (critical)

§ 180.415 Failing to mark a cargo tankwhich passed an inspection or testrequired by § 180.407. (critical)

§ 180.417(a)(1) Failing to retain cargo tankmanufacturer’s data report certificate andrelated papers, as required. (critical)

§ 180.417(a)(2) Failing to retain copies ofcargo tank manufacturer’s certificate andrelated papers (or alternative report) asrequired. (critical)


This section of the FEDERAL REGISTERcontains notices to the public of the proposedissuance of rules and regulations. Thepurpose of these notices is to give interestedpersons an opportunity to participate in therule making prior to the adoption of the finalrules.

Proposed Rules Federal Register

60047

Vol. 62, No. 215


FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 1997–15]

Rulemaking Petition: Definition of‘‘Express Advocacy’’; Notice ofAvailability

AGENCY: Federal Election Commission.ACTION: Rulemaking petition: Notice ofavailability.

SUMMARY: On October 20, 1997, theCommission received a Petition forRulemaking from James Bopp, Jr., onbehalf of the James Madison Center forFree Speech. The Petition urges theCommission to revise its rules defining‘‘express advocacy’’ to conform with arecent court decision. The Petition isavailable for inspection in theCommission’s Public Records Office,through its FAXLINE service, and on itsInternet home page.DATES: Statements in support of or inopposition to the Petition must be filedon or before December 8, 1997.ADDRESSES: All comments should beaddressed to Susan E. Propper,Assistant General Counsel, and must besubmitted in either written or electronicform. Written comments should be sentto the Federal Election Commission, 999E Street, N.W., Washington, DC 20463.Faxed comments should be sent to (202)219–3923, with printed copy follow-up.Electronic mail comments should besent to [email protected]. Commenterssending comments by electronic mailshould include their full name andpostal service address within the text oftheir comments. Electronic commentsthat do not contain the full name,electronic mail address and postalservice address of the commenter willnot be considered.FOR FURTHER INFORMATION CONTACT: Ms.Susan E. Propper, Assistant GeneralCounsel, or Ms. Rita A. Reimer,Attorney, 999 E Street, N.W.,Washington, D.C. 20463, (202) 219–3690or (800) 424–9530.

SUPPLEMENTARY INFORMATION: Thepetitioner is requesting the Commissionto revise the definition of ‘‘expressadvocacy’’ set forth in its rules at 11CFR 100.22 to reflect the decision inMaine Right to Life Committee v. FEC,914 F.Supp. 8 (D.Me. 1995), aff’d percuriam, 98 F.3d 1 (1st Cir. 1996), cert.denied, No. 96–1818 (U.S. 1997).Specifically, the Petition urges repeal of11 CFR 100.22(b), which was heldinvalid in that case. The challengedparagraph defines ‘‘express advocacy’’to include communications in whichthe electoral portion is ‘‘unmistakable,unambiguous, and suggestive of onlyone meaning, and reasonable mindscould not differ as to whether itencourages actions to elect or defeat oneor more clearly identified candidate(s)or encourages some other kind ofaction.’’

The ‘‘express advocacy’’ standard isused to determine if a disbursementqualifies as a reportable independentexpenditure or membershipcommunication for purposes of theFederal Election Campaign Act; ifindependent communications bycorporations and labor organizations areprohibited under the Act; and ifcampaign communications require adisclaimer. See 2 U.S.C. 431(17) and(9)(B)(iii); 434(b)(4) and (c); 441b, 441d;Federal Election Commission v.Massachusetts Citizens for Life, Inc., 479U.S. 238 (1986).

Copies of the Petition for Rulemakingare available for public inspection at theCommission’s Public Records Office,999 E Street, N.W., Washington, DC20463, Monday through Friday betweenthe hours of 9:00 a.m. and 5:00 p.m.Interested persons may also obtain acopy of the Petition by dialing theCommission’s FAXLINE service at (202)501–3413 and following its instructions,at any time of the day and week.Request document #232. The text of thepetition is available on the Internet atthe Commission’s home page,www.fec.gov.

Consideration of the merits of thePetition will be deferred until the closeof the comment period. If theCommission decides that the Petitionhas merit, it may begin a rulemakingproceeding. Any subsequent actiontaken by the Commission will beannounced in the Federal Register.

Dated: November 3, 1997.Joan D. Aikens,Vice Chairman.[FR Doc. 97–29375 Filed 11–5–97; 8:45 am]BILLING CODE 6715–01–P



14 CFR Part 39

[Docket No. 97–NM–240–AD]

RIN 2120–AA64

Airworthiness Directives; Airbus ModelA300 and A300–600 Series Airplanes

AGENCY: Federal AviationAdministration, DOT.ACTION: Notice of proposed rulemaking(NPRM).

SUMMARY: This document proposes theadoption of a new airworthinessdirective (AD) that is applicable to allAirbus Model A300 and A300–600series airplanes. This proposal wouldrequire repetitive inspections forcracking of the lugs of hinge brackets ofinner airbrakes (spoilers) No. 1 and No.2, and corrective action, if necessary.This proposal is prompted by theissuance of mandatory continuingairworthiness information by a foreigncivil airworthiness authority. Theactions specified by the proposed ADare intended to prevent detachment ofthe spoilers and consequent reducedcontrollability of the airplane.DATES: Comments must be received byDecember 8, 1997.ADDRESSES: Submit comments intriplicate to the Federal AviationAdministration (FAA), TransportAirplane Directorate, ANM–103,Attention: Rules Docket No. 97–NM–240–AD, 1601 Lind Avenue, SW.,Renton, Washington 98055–4056.Comments may be inspected at thislocation between 9:00 a.m. and 3:00p.m., Monday through Friday, exceptFederal holidays.

The service information referenced inthe proposed rule may be obtained fromAirbus Industrie, 1 Rond Point MauriceBellonte, 31707 Blagnac Cedex, France.This information may be examined atthe FAA, Transport AirplaneDirectorate, 1601 Lind Avenue, SW.,Renton, Washington.

60048 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Proposed Rules

FOR FURTHER INFORMATION CONTACT:Charles D. Huber, Aerospace Engineer,Standardization Branch, ANM–113,FAA, Transport Airplane Directorate,1601 Lind Avenue, SW., Renton,Washington 98055–4056; telephone(425) 227–2589; fax (425) 227–1149.


Comments InvitedInterested persons are invited to

participate in the making of theproposed rule by submitting suchwritten data, views, or arguments asthey may desire. Communications shallidentify the Rules Docket number andbe submitted in triplicate to the addressspecified above. All communicationsreceived on or before the closing datefor comments, specified above, will beconsidered before taking action on theproposed rule. The proposals containedin this notice may be changed in lightof the comments received.

Comments are specifically invited onthe overall regulatory, economic,environmental, and energy aspects ofthe proposed rule. All commentssubmitted will be available, both beforeand after the closing date for comments,in the Rules Docket for examination byinterested persons. A reportsummarizing each FAA-public contactconcerned with the substance of thisproposal will be filed in the RulesDocket.

Commenters wishing the FAA toacknowledge receipt of their commentssubmitted in response to this noticemust submit a self-addressed, stampedpostcard on which the followingstatement is made: ‘‘Comments toDocket Number 97–NM–240–AD.’’ Thepostcard will be date stamped andreturned to the commenter.

Availability of NPRMsAny person may obtain a copy of this

NPRM by submitting a request to theFAA, Transport Airplane Directorate,ANM–103, Attention: Rules Docket No.97–NM–240–AD, 1601 Lind Avenue,SW., Renton, Washington 98055–4056.

DiscussionThe Direction Generale de l’Aviation

Civile (DGAC), which is theairworthiness authority for France,notified the FAA that an unsafecondition may exist on all Airbus ModelA300 and A300–600 series airplanes.The DGAC advises that it received fourreports indicating that, during routinemaintenance, fatigue cracking wasdetected in lugs of the center hingebracket of an inner airbrake (spoiler) No.1. Fatigue cracking and failure of centerhinge brackets due to increased loadingcould result in propagation of cracks of

the inner and outer hinge brackets. Suchfatigue cracking, if not detected andcorrected in a timely manner, couldresult in detachment of the spoilers andconsequent reduced controllability ofthe airplane.

Explanation of Relevant ServiceInformation

Airbus has issued Service BulletinsA300–57–0229 (for Model A300 seriesairplanes) and A300–57–6074 (forModel A300–600 series airplanes), bothdated October 16, 1996. These servicebulletins describe procedures forrepetitive high frequency eddy current(HFEC) inspections for cracking of thelugs of hinge brackets of spoilers No. 1and No. 2 of both wings; andreplacement, with a serviceable bracket,of any bracket having a cracked lug. TheDGAC classified these service bulletinsas mandatory and issued Frenchairworthiness directive 97–080–211(B)R1, dated May 21, 1997, in orderto assure the continued airworthiness ofthese airplanes in France.

FAA’s ConclusionsThese airplane models are

manufactured in France and are typecertificated for operation in the UnitedStates under the provisions of section21.29 of the Federal AviationRegulations (14 CFR 21.29) and theapplicable bilateral airworthinessagreement. Pursuant to this bilateralairworthiness agreement, the DGAC haskept the FAA informed of the situationdescribed above. The FAA hasexamined the findings of the DGAC,reviewed all available information, anddetermined that AD action is necessaryfor products of this type design that arecertificated for operation in the UnitedStates.

Explanation of Requirements ofProposed Rule

Since an unsafe condition has beenidentified that is likely to exist ordevelop on other airplanes of the sametype design registered in the UnitedStates, the proposed AD would requireaccomplishment of the actions specifiedin the service bulletins describedpreviously, except as described below.

Differences Between the Proposed ADand the Service Bulletins

Airbus Service Bulletins A300–57–6074 and A300–57–0229, both datedOctober 16, 1996, specify that thecorrective actions required by thisproposed AD may be accomplished inaccordance with a method ‘‘left to theoperator’s discretion.’’ However,operators would use a discretionarymethod only if that method has been

approved by the FAA. Therefore, thisAD requires that the actions beaccomplished in accordance with theprocedures specified in Repair DrawingR57240205 (for a center hinge bracket)and/or R57240208 (for an inner or outerhinge bracket), as applicable.

Cost ImpactThe FAA estimates that 102 Airbus

Model A300 and A300–600 seriesairplanes of U.S. registry would beaffected by this proposed AD, that itwould take approximately 4 work hoursper airplane to accomplish the proposedactions, and that the average labor rateis $60 per work hour. Based on thesefigures, the cost impact of the proposedAD on U.S. operators is estimated to be$24,480, or $240 per airplane.

The cost impact figure discussedabove is based on assumptions that nooperator has yet accomplished any ofthe proposed requirements of this ADaction, and that no operator wouldaccomplish those actions in the future ifthis AD were not adopted.

Regulatory ImpactThe regulations proposed herein

would not have substantial direct effectson the States, on the relationshipbetween the national government andthe States, or on the distribution ofpower and responsibilities among thevarious levels of government. Therefore,in accordance with Executive Order12612, it is determined that thisproposal would not have sufficientfederalism implications to warrant thepreparation of a Federalism Assessment.

For the reasons discussed above, Icertify that this proposed regulation (1)is not a ‘‘significant regulatory action’’under Executive Order 12866; (2) is nota ‘‘significant rule’’ under the DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3) ifpromulgated, will not have a significanteconomic impact, positive or negative,on a substantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A copy of the draftregulatory evaluation prepared for thisaction is contained in the Rules Docket.A copy of it may be obtained bycontacting the Rules Docket at thelocation provided under the captionADDRESSES.


safety, Safety.

The Proposed AmendmentAccordingly, pursuant to the

authority delegated to me by theAdministrator, the Federal AviationAdministration proposes to amend part

60049Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Proposed Rules

39 of the Federal Aviation Regulations(14 CFR part 39) as follows:



Authority: 49 U.S.C. 106(g), 40113, 44701.


adding the following new airworthinessdirective:Airbus Industrie: Docket 97–NM–240–AD.

Applicability: All Model A300 and A300–600 series airplanes, certificated in anycategory.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenotherwise modified, altered, or repaired inthe area subject to the requirements of thisAD. For airplanes that have been modified,altered, or repaired so that the performanceof the requirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (c) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.

Compliance: Required as indicated, unlessaccomplished previously.

To detect and correct cracking of the lugsof hinge brackets of inner airbrakes (spoilers)No. 1 and No. 2 of both wings, which couldresult in detachment of the spoilers andconsequent reduced controllability of theairplane, accomplish the following:

(a) Perform a high frequency eddy current(HFEC) inspection for cracking of the lugs ofthe center hinge brackets of spoilers No. 1and No. 2, in accordance with Airbus ServiceBulletin A300–57–0229 (for Model A300series airplanes) or A300–57–6074 (for ModelA300–600 series airplanes), both datedOctober 16, 1996, as applicable. Accomplishthe inspection at the time specified inparagraph (a)(1), (a)(2), or (a)(3), asapplicable, of this AD. If any discrepancy isfound, prior to further flight, perform thefollow-on actions specified in theAccomplishment Instructions of theapplicable service bulletin. Repeat the HFECinspection thereafter at intervals not toexceed 8,200 flight cycles.

(1) For airplanes that have accumulatedless than 23,200 total flight cycles as of theeffective date of this AD: Inspect prior to theaccumulation of 16,000 total flight cycles, orwithin 1,000 flight cycles after the effectivedate of this AD, whichever occurs later.

(2) For airplanes that have accumulated23,200 total flight cycles or more, but lessthan 36,500 total flight cycles as of theeffective date of this AD: Inspect within 500flight cycles after the effective date of thisAD.

(3) For airplanes that have accumulated36,500 total flight cycles or more as of the

effective date of this AD: Inspect within 50flight cycles after the effective date of thisAD.

(b) Airbus Service Bulletins A300–57–6074and A300–57–0229, both dated October 16,1996, specify that the actions required byparagraph (a) of this AD may beaccomplished in accordance with a method‘‘left to the operator’s discretion.’’ [Operatorsmay use a discretionary method only if thatmethod has been approved as an alternativemethod of compliance in accordance withparagraph (c) of this AD.] Therefore, this ADrequires that the replacement of a bracket asrequired by paragraph (a) be accomplished inaccordance with the procedures specified inRepair Drawing R57240205 (for a centerhinge bracket) and/or R57240208 (for aninner or outer hinge bracket), as applicable.

(c) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager,Standardization Branch, ANM–113, FAA,Transport Airplane Directorate. Operatorsshall submit their requests through anappropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, StandardizationBranch, ANM–113.

Note 2: Information concerning theexistence of approved alternative methods ofcompliance with this AD, if any, may beobtained from the Standardization Branch,ANM–113.

(d) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

Note 3: The subject of this AD is addressedin French airworthiness directive 97–080–211(B)R1, dated May 21, 1997.

Issued in Renton, Washington, on October30, 1997.Darrell M. Pederson,Acting Manager, Transport AirplaneDirectorate, Aircraft Certification Service.[FR Doc. 97–29342 Filed 11–5–97; 8:45 am]BILLING CODE 4910–13–U



14 CFR Part 39

[Docket No. 97–NM–205–AD]

RIN 2120–AA64

Airworthiness Directives; Airbus ModelA310 and A300–600 Series Airplanes

AGENCY: Federal AviationAdministration, DOT.ACTION: Notice of proposed rulemaking(NPRM).

SUMMARY: This document proposes theadoption of a new airworthinessdirective (AD) that is applicable to all

Airbus Model A310 and A300–600series airplanes. This proposal wouldrequire a one-time visual inspection todetermine the accuracy of the outerplacards of the static ports. Thisproposal also would require a one-timeinspection to detect crossed connectionsof the air data static system and thestatic probe heating system, andcorrection of any discrepancies. Thisproposal is prompted by issuance ofmandatory continuing airworthinessinformation by a foreign civilairworthiness authority. The actionsspecified by the proposed AD areintended to prevent erroneous displayof altitude information to the flightcrew, and consequent reducedoperational safety during all phases offlight.DATES: Comments must be received byDecember 8, 1997.ADDRESSES: Submit comments intriplicate to the Federal AviationAdministration (FAA), TransportAirplane Directorate, ANM–103,Attention: Rules Docket No. 97–NM–205–AD, 1601 Lind Avenue, SW.,Renton, Washington 98055–4056.Comments may be inspected at thislocation between 9:00 a.m. and 3:00p.m., Monday through Friday, exceptFederal holidays.

The service information referenced inthe proposed rule may be obtained fromAirbus Industrie, 1 Rond Point MauriceBellonte, 31707 Blagnac Cedex, France.This information may be examined atthe FAA, Transport AirplaneDirectorate, 1601 Lind Avenue, SW.,Renton, Washington.FOR FURTHER INFORMATION CONTACT:Manager, International Branch, ANM–116, FAA, Transport AirplaneDirectorate, 1601 Lind Avenue, SW.,Renton, Washington 98055–4056;telephone (425) 227–2110; fax (425)227–1149.



participate in the making of theproposed rule by submitting suchwritten data, views, or arguments asthey may desire. Communications shallidentify the Rules Docket number andbe submitted in triplicate to the addressspecified above. All communicationsreceived on or before the closing datefor comments, specified above, will beconsidered before taking action on theproposed rule. The proposals containedin this notice may be changed in lightof the comments received.

Comments are specifically invited onthe overall regulatory, economic,environmental, and energy aspects of


the proposed rule. All commentssubmitted will be available, both beforeand after the closing date for comments,in the Rules Docket for examination byinterested persons. A reportsummarizing each FAA-public contactconcerned with the substance of thisproposal will be filed in the RulesDocket.

Commenters wishing the FAA toacknowledge receipt of their commentssubmitted in response to this noticemust submit a self-addressed, stampedpostcard on which the followingstatement is made: ‘‘Comments toDocket Number 97–NM–205–AD.’’ Thepostcard will be date stamped andreturned to the commenter.

Availability of NPRMsAny person may obtain a copy of this

NPRM by submitting a request to theFAA, Transport Airplane Directorate,ANM–103, Attention: Rules Docket No.97–NM–205–AD, 1601 Lind Avenue,SW., Renton, Washington 98055–4056.

DiscussionThe Direction Generale de l’Aviation

Civile (DGAC), which is theairworthiness authority for France,notified the FAA that an unsafecondition may exist on all Airbus ModelA310 and A300–600 series airplanes.The DGAC advises that, during a routineinspection, one operator found that thetubings of the air data static systemconnected to the captain and firstofficer’s static probes were inverted (i.e.,cross-connected) on both the left-handand right-hand side of the aircraft. Theheating circuit wires of the static probeheating system to the captain and firstofficer’s static probes on the left-handside of the airplane were also found tobe inverted. The cross connections ofthe air data tubings and probe heatwiring apparently resulted from aninappropriate installation process on theassembly line. This condition, if notcorrected, could result in erroneousdisplay of altitude information to theflight crew, and consequent reducedoperational safety during all phases offlight.

Explanation of Relevant ServiceInformation

Airbus has issued All Operators Telex(AOT) 34–04, dated July 16, 1996,which describes procedures to performa one-time visual inspection todetermine the accuracy of the outerplacards. The AOT also describesprocedures to perform a one-time visualinspection to detect crossed connectionsof the air data static system and thestatic probe heating system, andcorrection of any discrepancies.

Accomplishment of the actionsspecified in the AOT are intended toadequately address the identified unsafecondition. The DGAC classified thisAOT as mandatory and issued Frenchairworthiness directive 97–098–216 (B),dated March 26, 1997, in order to assurethe continued airworthiness of theseairplanes in France.

FAA’s ConclusionsThese airplane models are

manufactured in France and are typecertificated for operation in the UnitedStates under the provisions of section21.29 of the Federal AviationRegulations (14 CFR 21.29) and theapplicable bilateral airworthinessagreement. Pursuant to this bilateralairworthiness agreement, the DGAC haskept the FAA informed of the situationdescribed above. The FAA hasexamined the findings of the DGAC,reviewed all available information, anddetermined that AD action is necessaryfor products of this type design that arecertificated for operation in the UnitedStates.

Explanation of Requirements ofProposed Rule

Since an unsafe condition has beenidentified that is likely to exist ordevelop on other airplanes of the sametype design registered in the UnitedStates, the proposed AD would requireaccomplishment of the actions specifiedin the AOT described previously.

Cost ImpactThe FAA estimates that 94 airplanes

of U.S. registry would be affected by thisproposed AD, that it would takeapproximately 5 work hours perairplane to accomplish the proposedactions, and that the average labor rateis $60 per work hour. Based on thesefigures, the cost impact of the proposedAD on U.S. operators is estimated to be$28,200, or $300 per airplane.

The cost impact figure discussedabove is based on assumptions that nooperator has yet accomplished any ofthe proposed requirements of this ADaction, and that no operator wouldaccomplish those actions in the future ifthis AD were not adopted.

Regulatory ImpactThe regulations proposed herein

would not have substantial direct effectson the States, on the relationshipbetween the national government andthe States, or on the distribution ofpower and responsibilities among thevarious levels of government. Therefore,in accordance with Executive Order12612, it is determined that thisproposal would not have sufficient

federalism implications to warrant thepreparation of a Federalism Assessment.

For the reasons discussed above, Icertify that this proposed regulation (1)is not a ‘‘significant regulatory action’’under Executive Order 12866; (2) is nota ‘‘significant rule’’ under the DOTRegulatory Policies and Procedures (44FR 11034, February 26, 1979); and (3) ifpromulgated, will not have a significanteconomic impact, positive or negative,on a substantial number of small entitiesunder the criteria of the RegulatoryFlexibility Act. A copy of the draftregulatory evaluation prepared for thisaction is contained in the Rules Docket.A copy of it may be obtained bycontacting the Rules Docket at thelocation provided under the captionADDRESSES.


safety, Safety.

The Proposed AmendmentAccordingly, pursuant to the

authority delegated to me by theAdministrator, the Federal AviationAdministration proposes to amend part39 of the Federal Aviation Regulations(14 CFR part 39) as follows:



Authority: 49 U.S.C. 106(g), 40113, 44701.


adding the following new airworthinessdirective:Airbus Industrie: Docket 97–NM–205–AD.

Applicability: All Model A310 and A300–600 series airplanes, certificated in anycategory.

Note 1: This AD applies to each airplaneidentified in the preceding applicabilityprovision, regardless of whether it has beenotherwise modified, altered, or repaired inthe area subject to the requirements of thisAD. For airplanes that have been modified,altered, or repaired so that the performanceof the requirements of this AD is affected, theowner/operator must request approval for analternative method of compliance inaccordance with paragraph (d) of this AD.The request should include an assessment ofthe effect of the modification, alteration, orrepair on the unsafe condition addressed bythis AD; and, if the unsafe condition has notbeen eliminated, the request should includespecific proposed actions to address it.

Compliance: Required as indicated, unlessaccomplished previously.

To prevent erroneous display of altitudeinformation to the flight crew, andconsequent reduced operational safety duringall phases of flight, accomplish the following:


(a) Within 600 flight hours after theeffective date of this AD, perform a one-timevisual inspection of the outer placards of thestatic ports to determine that theidentification of the static port correspondswith the specified position on the aircraft, inaccordance with Airbus All Operators Telex(AOT) 34–04, dated July 16, 1996.

(b) Within 600 flight hours after theeffective date of this AD, perform a one-timevisual inspection of the pneumaticconnections of the captain, first officer, andstandby air data static systems to detectcross-connected tubing, and conduct anoperational check of each of the static probeheating systems to detect cross-connectedwiring, in accordance with Airbus AllOperators Telex (AOT) 34–04, dated July 16,1996.

(c) If any discrepancy is found, prior tofurther flight, correct the discrepancy inaccordance with Airbus AOT 34–04, datedJuly 16, 1996.

(d) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager,International Branch, ANM–116, FAA,Transport Airplane Directorate. Operatorsshall submit their requests through anappropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, International Branch,ANM–116.

Note 2: Information concerning theexistence of approved alternative methods ofcompliance with this AD, if any, may beobtained from the International Branch,ANM–116.

(e) Special flight permits may be issued inaccordance with sections 21.197 and 21.199of the Federal Aviation Regulations (14 CFR21.197 and 21.199) to operate the airplane toa location where the requirements of this ADcan be accomplished.

Note 3: The subject of this AD is addressedin French airworthiness directive 97–098–216 (B), dated March 26, 1997.

Issued in Renton, Washington, on October30, 1997.Darrell M. Pederson,Acting Manager, Transport AirplaneDirectorate, Aircraft Certification Service.[FR Doc. 97–29341 Filed 11–5–97; 8:45 am]BILLING CODE 4910–13–U



14 CFR Part 71

[Airspace Docket No. 97–AEA–42]

Proposed Amendment to Class EAirspace; Allentown, PA

AGENCY: Federal AviationAdministration (FAA), DOT.ACTION: Notice of proposed rulemaking.

SUMMARY: This notice proposes toamend the Class E airspace area at

Allentown,, PA. The development of anew Standard Instrument ApproachProcedure (SIAP) based on the GlobalPositioning System (GPS) at AllentownQueen City Airport has made thisproposal necessary. Additionalcontrolled airspace extending upwardfrom 700 feet Above Ground Level(AGL) is needed to accommodate theSIAP and for Instrument Flight Rules(IFR) operations at the airport.DATES: Comments must be received onor before December 8, 1997.ADDRESSES: Send comments on theproposal in triplicate to: Manager,Airspace Branch, AEA–520, Docket No.97–AEA–42, F.A.A. Eastern Region,Federal Building #111, John F. KennedyInt’l Airport, Jamaica, NY 11430.

The official docket may be examinedin the Office of the Assistant ChiefCounsel, AEA–7, F.A.A. Eastern Region,Federal Building #111, John F. KennedyInternational Airport, Jamaica, NewYork 11430.

An informal docket may also beexamined during normal business hoursin the Airspace Branch, AEA–520,F.A.A. Eastern Region, Federal Building#111, John F. Kennedy InternationalAirport, Jamaica, NY 11430.FOR FURTHER INFORMATION CONTACT: Mr.Francis T. Jordan, Jr., AirspaceSpecialist, Airspace Branch, AEA–520F.A.A. Eastern Region, Federal Building#111, John F. Kennedy InternationalAirport, Jamaica, New York 11430;telephone (718) 553–4521.


Comments InvitedInterested parties are invited to

participate in this proposed rulemakingby submitting such written data, views,or arguments as they may desire.Comments that provide the factual basissupporting the views and suggestionspresented are particiulary helpful indeveloping reasoned regulatorydecisions on the proposal. Commentsare specifically invited on the overallregulatory, economic, environmental,and energy-related aspects of theproposal. Communications shouldidentify the airspace docket number andbe submitted in triplicate to the addresslisted above. Commenters wishing theFAA to acknowledge receipt of theircomments on this notice must submitwith those comments a self-addressed,stamped postcard on which thefollowing statement is made:‘‘Comments to Airspace Docket No. 97–AEA–42.’’ The postcard will be date/time stamped and returned to thecommenter. All communicationsreceived on or before the closing datefor comments will be considered before

taking action on the proposed rule. Theproposal contained in this notice maybe changed in light of commentsreceived. All comments submitted willbe available for examination in theRules Docket both before and after theclosing date for comments. A reportsummarizing each substantive publiccontact with the FAA personnelconcerned with this rulemaking will befiled in the docket.

Availability of NPRMs

Any person may obtain a copy of thisNotice of Proposed Rulemaking (NPRM)by submitting a request to the Office ofthe Assistant Chief Counsel, AEA–7,F.A.A. Eastern Region, Federal Building#111, John F. Kennedy InternationalAirport, Jamaica, NY 11430.Communications must identify thenotice number of this NPRM. Personsinterested in being placed on a mailinglist for future NPRMs should alsorequest a copy of Advisory Circular No.11–2A, which describes the applicationprocedure.

The Proposal

The FAA is considering anamendment to 14 CFR Part 71 to amendthe Class E airspace area at Allentown,PA. A GPS RWY 7 SIAP has beendeveloped for the Allentown Queen CityAirport. Additional controlled airspaceextending upward from 700 feet AGL isneeded to accommodate the SIAP andfor IFR operations at the airport. ClassE airspace designations for airspaceareas extending upward from 700 feet ormore above the surface are published inParagraph 6005 of FAA Order 7400.9E,dated September 10, 1997, and effectiveSeptember 16, 1997, which isincorporated by reference in 14 CFR71.1. The Class E airspace designationlisted in this document would bepublished subsequently in the Order.

The FAA has determined that thisproposed regulation only involves anestablished body of technicalregulations for which frequent androutine amendments are necessary tokeep them operationally current.Therefore, this proposed regulation—(1)is not a ‘‘significant regulatory action’’under Executive Order 12866; (2) is nota ‘‘significant rule’’ under DOTRegulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3)does not warrant preparation of aregulatory evaluation as the anticipatedimpact is so minimal. Since this is aroutine matter that would only affect airtraffic procedures and air navigation, itis certified that this proposed rulewould not have significant economicimpact on a substantial number of small


entities under the criteria of theRegulatory Flexibility Act.


Airspace, Incorporation by reference,Navigation (air).

The Proposed Amendment

In consideration of the foregoing, theFederal Aviation Administrationproposes to amend 14 CFR Part 71 asfollows:

PART 71—[AMENDED]

1. The authority citation for Part 71continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.

§ 71.1 [Amended]

2. The incorporation by reference in14 CFR 71.1 of Federal AviationAdministration Order 7400.9E, AirspaceDesignations and Reporting Points,dated September 10, 1997, and effectiveSeptember 16, 1997, is proposed to beamended as follows:

Paragraph 6005 Class E airspace areasextending upward from 700 feet or moreabove the surface of the earth.

* * * * *

AEA PA E5 Allentown, PA [Revised]

Lehigh Valley International Airport, PA(lat. 40°39′11′′ N., long. 75°26′24′′ W.)

LEEHI LOM(lat. 40°35′09′′ N., long. 75°32′58′′ W.)

Allentown Queen City Municipal Airport, PA(lat. 40°34′13′′ N., long. 75°29′18′′ W.)

That airspace extending upward from 700feet above the surface within a 6.7-mileradius of Lehigh Valley International Airportand within 7.5-mile radius of AllentownQueen City Airport and within 3.1 milesnorth and 5 miles south of the Lehigh ValleyInternational Airport localizer southwestcourse extending from the LEEHI LOM to 10miles southwest of the LOM, excluding thatportion that coincides with the Easton, PA,and Quakertown, PA, Class E airspace areas.

* * * * *Issued in Jamaica, New York, on October

7, 1997.

Franklin D. Hatfield,Manager, Air Traffic Division, Eastern Region.[FR Doc. 97–29350 Filed 11–5–97; 8:45 am]

BILLING CODE 4910–13–M


40 CFR Part 52

[PA 091–4050b ; FRL–5918–3]

Air Quality Implementation Plans;Approval and Promulgation:Pennsylvania

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Proposed rule.

SUMMARY: This action proposes tocorrect an interim final rule, which waspublished on January 28, 1997,regarding EPA conditional approval ofPennsylvania’s enhanced inspectionand maintenance (I/M) program. Thisaction pertains to the consequences inthe event that the Pennsylvaniaenhanced I/M program failed tocommence per the deadlines set forth inEPA’s interim final rule. EPA is takingthis action for the purposes ofconsistency with rulemaking actionsEPA has since taken on other states’inspection and maintenance programs.In the Final Rules section of thisFederal Register, EPA is making thiscorrection to the Commonwealth’sJanuary 28, 1996 conditional SIPapproval by issuing a direct final rulewithout prior proposal because theAgency views this correction as anoncontroversial SIP revision. Thus,EPA anticipates no adverse comments.A detailed explanation of this correctionis set forth in the direct final rule. If noadverse comments are received inresponse to this proposed rule, nofurther activity is contemplated inrelation to this rule. If EPA receivesadverse comments, the direct final rulewill be withdrawn and all publiccomments received will be addressed ina subsequent final rule based on thisproposed rule. EPA will not institute asecond comment period on this action.Any parties interested in commentingon this action should do so at this time.DATES: Comments must be received inwriting by December 8, 1997.ADDRESSES: Written comments on thisaction should be addressed to David L.Arnold, Chief, Ozone/CO and MobileSources Section (Mailcode 3AT21), U.S.Environmental Protection Agency,Region III, 841 Chestnut Building,Philadelphia, Pennsylvania 19107.Copies of the documents relevant to thisaction are available for publicinspection during normal businesshours at the Air, Radiation, and ToxicsDivision, U.S. Environmental ProtectionAgency, Region III, 841 ChestnutBuilding, Philadelphia, Pennsylvania

19107. Relevant documents are alsoavailable at the PennsylvaniaDepartment of Environmental ResourcesBureau of Air Quality Control, P.O. Box8468, 400 Market Street, Harrisburg,Pennsylvania 17105.FOR FURTHER INFORMATION CONTACT:Brian Rehn, at (215) 566–2176, or inwriting at the EPA Region III addressabove.SUPPLEMENTARY INFORMATION: See theinformation provided in the direct finalaction of the same title which is locatedin the Rules and Regulations section ofthis Federal Register.

Authority: 42 U.S.C. 7401–7671q.Dated: October 28, 1997.

William T. Wisniewski,Acting Regional Administrator, Region III.[FR Doc. 97–29389 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–U


40 CFR Part 80

[AMS–FRL–5917–8]

Regulation of Fuels and FuelAdditives: Proposed Minor Revisionsto Selected Recordkeeping andEnforcement Provisions Under theRegulation of Deposit Control GasolineAdditives

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of proposed rulemaking(NPRM).

SUMMARY: EPA is proposing to revisecertain requirements in its program forthe use of detergent additives ingasoline. Under the current regulations,information on the oxygenate content ofthe gasoline must always be included inthe required product transferdocuments. To avoid unnecessarydisruption to the gasoline distributionsystem, EPA is proposing to remove thisrequirement. A party who wants to usea detergent additive that is restricted inuse with respect to oxygenates would beresponsible for determining theoxygenate content of the gasolineinvolved. This proposal would continueto ensure that detergents with oxygenaterestrictions are used in compliance withsuch restrictions, and would avoid theunnecessary disruption to the gasolinedistribution system which would occurunder the current regulations. Forcertain transfers of base gasoline, EPA isalso proposing to allow the use ofproduct codes in lieu of regulatorywarning language concerning applicable


limitations on the sale and use of suchgasolines.

These proposals are expected toprovide industry additional flexibility,while ensuring the proper use of use-restricted detergents and base gasoline.There are no new information collectionrequirements accompanying theseproposed changes. These proposals willnot affect the air quality benefits fromEPA’s detergent additive program.

In the final rules section of thisFederal Register, EPA is alsopromulgating a direct final rule withoutprior proposal, which will remove therequirement addressed in this NPRM,that mandates that information on theoxygenate content of transferredgasoline must be included in therequired product transfer documents. Itis not expected that the deletion of thisrequirement through the direct final rulewill be controversial or that it will elicitnegative comments. No detergents arepresently certified with restrictedoxygenate-use that would require theknowledge of gasoline oxygenatecontent for proper use. Further, theissue of the best means of acquiringoxygenate information to ensure properadditization is being addressed withnotice and an opportunity to commentwithin the context of this NPRM.However, if EPA does receive adversecomments or a request for a publichearing on the direct final rule, it willbe withdrawn and all commentsreceived on it will be addressed in thesubsequent final rule to be based on thisNPRM. EPA will not institute a secondcomment period on this NPRM if thedirect final rule is withdrawn. Anyparties interested in commenting on thisissue should do so at this time.

DATES: Comments on this NPRM will beaccepted until December 8, 1997.Additional information on thecomments procedure can be foundunder ‘‘Public Participation’’ in theSUPPLEMENTARY INFORMATION Section ofthis document.

ADDRESSES: Interested parties maysubmit written comments (in duplicateif possible) to Public Docket No. A–91–77, at the following address: Air DocketSection (LE–131), room M–1500, 401 MStreet SW, Washington, DC 20460;phone (202) 260–7548; fax (202) 260–4000. The Agency also requests that aseparate copy be sent to the contactperson listed below. The docket is openfor public inspection from 8:00 a.m.until 5:30 p.m. Monday through Friday,except on government holidays. Asprovided in 40 CFR Part 2, a reasonablefee may be charged for copying docketmaterials.

This NPRM is also availableelectronically on the day of publicationfrom the Office of the Federal Registerinternet Web site listed below. Aprepublication electronic copy of thisnotice is also available from the EPAOffice of Mobile Sources Web site listedbelow. This service is free of charge,except for any cost that you alreadyincur for internet connectivity.

Federal Register Web Site:http://www.epa.gov/docs/fedrgstr/

EPA–AIR/(Either select desired date or use

Search feature.)

Office of Mobile Sources Web Site:http://www.epa.gov/OMSWWW/(Look in ‘‘What’s New’’ or under the

specific rulemaking topic.)

Please note that due to differencesbetween the software used to developthe document and the software intowhich the document may bedownloaded, changes in format, pagelength, etc. may occur.

FOR FURTHER INFORMATION CONTACT:Judith Lubow, U.S. EPA, Office ofEnforcement and ComplianceAssurance, Western Field Office, 12345West Alameda Parkway, Suite 214,Lakewood, CO 80228; Telephone: (303)969–6483, FAX (303) 969–6490.


Table of Contents

I. Regulated EntitiesII. IntroductionIII. Identification of Specific Oxygenate

Content on Gasoline Product TransferDocuments (PTDs)

A. BackgroundB. Proposal

IV. Product Codes as Substitutes for WarningLanguage on Certain Base Gasoline PTDs

A. BackgroundB. Proposal

V. Public ParticipationVI. Environmental and Economic ImpactsVII. Administrative Requirements

A. Administrative DesignationB. Impact on Small EntitiesC. Paperwork Reduction ActD. Unfunded Mandates Reform Act

VIII. Statutory Authority

I. Regulated Entities

Entities potentially regulated by thisaction are those involved with theproduction, distribution, and sale ofgasoline and gasoline detergentadditives. Regulated categories andentities include:

Category Examples of regulated entities

Industry .... Gasoline refiners and importers,Gasoline terminals, Detergentblenders, Gasoline truckers,Gasoline retailers and whole-sale purchaser-consumers,and Detergent manufacturers.

This table is not intended to beexhaustive, but rather provides a guidefor readers regarding entities likely to beregulated by this action. This table liststypes of entities that EPA is now awarecould potentially be regulated by thisaction. Other types of entities not listedin the table could also be regulated. Todetermine whether your organization isregulated by this action, you shouldcarefully examine the applicabilityrequirements in § 80.161(a), thedetergent certification requirements in§ 80.161(b), the program controls andprohibitions in § 80.168, and otherrelated program requirements inSubpart G, title 40, of the Code ofFederal Regulations (CFR). If you haveany questions regarding theapplicability of this action to aparticular entity, consult the personlisted in the preceding FOR FURTHERINFORMATION CONTACT section.

II. Introduction

Section 211(l) of the Clean Air Act(‘‘CAA’’) requires that, by January 1,1995, all gasoline must containdetergent additives to prevent theaccumulation of deposits in motorvehicle engines and fuel supplysystems. This CAA section also requiresEPA to promulgate specifications for thedetergent additives. Detergent additivesprevent the accumulation of engine andfuel supply system deposits that haveadverse effects on vehicle emissions aswell as on fuel economy anddriveabilty.

In response to section 211(l)’srequirements, EPA published a Noticeof Proposed Rulemaking (‘‘NPRM’’) onDecember 6, 1993 (59 FR 64213)proposing a detergent additivesregulatory program. The detergentprogram was finalized in two parts.Regulations for the interim detergentprogram, requiring the use of detergentadditives in gasoline but not mandatingspecific detergent efficiency testing,were published on October 14, 1994 (59FR 54678). Regulations for the detergentcertification program, mandating the useof certified detergents with specifieddetergent efficiency testing, werepublished on July 5, 1996 (61 FR35310).

One important implementation issuethat has arisen since the publication ofthe detergent certification rule concerns


1 Letter to Judith Lubow, Office of Enforcementand Compliance Assurance (OECA), EPA, from C.J.Krambuhl, Director, Manufacturing, Distribution,and Marketing, American Petroleum Institute (API),August 14, 1996, Docket item VII-D–01.

2 Letter to C.J. Krambuhl, API, from Steven A.Herman, Assistant Administrator, OECA, EPA,August 28, 1996, Docket item VII-C–01.

3 Letter to C.J. Krambuhl, API, from Steven A.Herman, Assistant Administrator, OECA, EPA,September 4, 1997, Docket item VII-C–02.

the requirement that the producttransfer documents (PTDs) for gasolinetransfers must identify all oxygenatesfound in the gasoline. Members of thegasoline refining and distributionindustry informed EPA that thisrequirement’s implementation would, asan unintended consequence,significantly disrupt gasolinedistribution.1

For the reasons described below, EPAexercised its enforcement discretion andannounced by letter to the AmericanPetroleum Institute (‘‘API’’) that itwould temporarily not enforce the PTDoxygenate identification requirementpending resolution of the issue througha rulemaking or until September 3,1997, whichever occurrence came first.2The Agency reserved the right to rescindthe exercise of this enforcementdiscretion if it determined thatrestricted-use detergents were actuallybeing certified or that the PTDoxygenate identification requirementsotherwise became appropriate. TheAgency further advised that if violationsinvolving the improper use ofoxygenate-restricted detergentsoccurred, parties wishing tosuccessfully assert an affirmativedefense to liability for such violationsmight need to provide informationestablishing the appropriate oxygenatecontent of the gasoline in question.Subsequently, EPA extended thisexercise of enforcement discretion untilimplementation of the direct final ruleremoving the PTD oxygenaterequirement (which is associated withthis NPRM), or until December 31, 1997,whichever occurrence came first.3

A second issue about the detergentprogram’s PTD requirements,concerning the use of product codes,also arose since publication of thecertification rule. The detergentprogram’s two PTD implementationissues, plus the Agency’s proposedregulatory solutions to these issues, willbe discussed below.

III. Identification of Specific OxygenateContent on Gasoline Product TransferDocuments (PTDs)

A. BackgroundThe gasoline detergent additive

program requires all regulated partiestransferring products controlled under

the program to provide to the transfereePTDs giving pertinent information aboutthe products transferred. (40 CFR 80.158and 80.171) The products subject to thedetergent program PTD requirements aregasoline, detergent additives, andadditized components, such as ethanol,which are blended into gasoline afterthe refinery process (additized post-refinery components, or ‘‘PRC’’). Fortransfers of these regulated products, thePTDs must identify the parties to thetransfer, the product being transferred,and appropriate warning informationabout regulatory requirements.

One requirement is that PTDs fortransferred gasoline must identify alloxygenates and PRCs contained in thegasoline. Further, if the gasoline iscomprised of commingled fuels, alloxygenates and PRCs in the fuelscomprising the commingled productmust be identified. (40 CFR 80.158(a)(5)and 80.171(a)(5)) The purpose of thisidentification requirement is to alert theparties receiving the gasoline about theoxygenates and PRCs in the receivedproduct. This information would beuseful to the recipient because, underthe detergent certification program,parties may choose to additize gasolinewith a detergent whose certification isrestricted for use only with a specificoxygenate or no oxygenate, or, in thecase of fuel-specific certified detergents,for use in gasoline without PRCs. Thus,parties choosing to use such restricted-use detergents must know the oxygenateor PRC (‘‘oxygenate’’) content of thegasoline they intend to additize withthese detergents. The PTD oxygenateidentification requirement was intendedto provide such information for thetransferred gasoline.

In creating this identificationrequirement, the Agency was not awarethat many parties did not know thespecific oxygenate content of thegasoline they were transferring. EPA hassince learned that, under typicalindustry practice prior to thisrequirement, parties could and didcommingle gasolines withoutknowledge of what (if any) specificethers (a type of oxygenate) werepresent. Under the interim detergentrule’s PTD requirements, no informationabout the oxygenate content of basegasoline was required. Parties were thustypically unaware of the specific ethercontent (in type(s) and concentration) ofcommingled gasoline they received orpossessed themselves. To comply withthis new oxygenate identificationrequirement and to becomeknowledgeable about the ether status oftheir gasoline, parties would have toascertain the ether content of receivedgasoline (which would be the

imposition of a new practice), stopcommingling gasolines with differentether contents, or start testing allbatches to determine such content. Inany of these scenarios, gasolinedistribution as presently practicedwould be significantly disrupted.

It was never EPA’s intention todisrupt gasoline distribution practicesthrough the imposition of this PTDoxygenate identification requirement.Consequently, the Agency temporarilysuspended enforcement of this PTDrequirement.

B. Proposal

EPA does not believe that the benefitsfrom the PTD requirement of providingoxygenate information to those partieswho might choose to use oxygenate-restricted certified detergents warrantsthe resulting disruption to the gasolinedistribution system. Therefore, theAgency is now proposing a regulatorychange in the detergent program whichwould eliminate the requirement thatPTDs for gasoline must identify theoxygenates found in the transferredproduct. Instead, a new requirementwould take its place, that thosedetergent-blending parties wishing touse oxygenate-restricted detergents mustmaintain documentation fullyidentifying the oxygenate content of thefuel into which the detergent wasblended, as evidence that the fuelcomplied with the detergent’s oxygenateuse restriction.

Under this proposal, a detergentblender could use different types ofdocumentation to comply with this newrequirement. Examples of suchdocumentation would be PTDs or otherwritten statements from suppliers fullyidentifying the oxygenate content of thereceived fuel; test results of oxygenatecontent, either of its own or fromsuppliers; or contractual agreementswith suppliers establishing theoxygenate content of the received fuel.

The proposed modification of the PTDrequirement would not change theexisting requirement that detergentblenders use oxygenate-restricteddetergents only in fuel which complieswith the restriction. The newrequirement would merely substitute arange of alternative documentation forthe formerly required PTD informationprovided by the supplier, that could beused to help a party establish properusage of oxygenate-restricted detergent.Therefore, adoption of this proposalwould not impose an additionalinformation collection requirement, butrather would refocus the existingrequirement only on those parties whohave need of information on gasolineoxygenate content.


4 Memorandum to the Air Docket from JudithLubow, OECA, entitled, ‘‘8/28/1996 EPA PhoneConversation with Andrea Grant of the IndependentFuel Terminal Operators Association’’, Docket ItemVII–E–01.

5 Memorandum to the Air Docket from JudithLubow, OECA, entitled, ‘‘10/24/1996 and 12/2/1996Phone Conversations with J.E. Brown of ColonialPipeline’’, Docket Item VII–E–02.

EPA was advised by the IndependentFuel Terminal Operators Association(IFTOA) of a concern about thisproposed amendment.4 According toIFTOA, if suppliers will no longer berequired to identify on PTDs theoxygenate content of transferredgasoline, then detergent blenderswishing to use potentially lessexpensive oxygenate-restricteddetergents might be forced to test eachbatch of gasoline. IFTOA believed thatsuch testing would be necessary toestablish compliance with thedetergent’s oxygenate restriction.According to this commenter, these testsmight be prohibitively expensive forsmall detergent blenders. This partyasserted it was inequitable to place theentire burden of establishing oxygenatecontent on the fuel’s end-user.

The Agency believes that its proposal,as stated, is the most appropriate andequitable means of ensuring properoxygenate content of product blendedwith oxygenate-restricted detergents,while limiting disruption to the gasolinedistribution system. The Agency’sproposal places the burden of procuringoxygenate information only on thoseparties, self-selected, who will choose touse these restricted detergents, not onthe entire industry. In addition,although existing data indicates thatoxygenates increase gasoline depositforming tendency (severity) and thatdifferent oxygenates types might differin the magnitude of their impact on fuelseverity, EPA has no specificinformation on whether this will resultin the use of oxygenate restricteddetergents. Since there are many genericdetergents available that are notoxygenate use-restricted, parties notwishing to meet the documentationburden by performing oxygenate testingcould also choose to use non-oxygenaterestricted detergents.

In addition, self-performed oxygenatetesting is only one of several ways thata detergent blender could use to complywith the proposed oxygenateidentification requirement. Other meansspecifically approved by the proposedregulation include obtaining fullinformation about oxygenate contentfrom the gasoline supplier, and havinga contract with the supplier whichestablishes the oxygenate content of thesupplied gasoline. Use of thesealternative methods would generallypreclude the need for oxygenate testingby the detergent blender itself.

For these reasons, the Agency doesnot believe that the proposed removal ofthe PTD oxygenate identificationrequirement puts an unfair burden onend-users of oxygenate-restricteddetergents. On the contrary, theproposed oxygenate documentationrequirement regarding the volumetricaccounting reconciliation records (VAR)maintained by detergent blenders,which would only be triggered when anoxygenate-restricted detergent is beingused by the blender, seems the mostequitable means of identifyingoxygenates while ensuring properadditization with oxygenate-restricteddetergents. However, the Agency isinterested in receiving comments frominterested parties on any otherreasonable procedure that wouldequitably ensure proper oxygenateidentification and resultant additizationcompliance for oxygenate-restricteddetergents, while limiting disruption tothe gasoline distribution system.

IV. Product Codes as Substitutes forWarning Language on Certain BaseGasoline PTDs

A. BackgroundIt is common practice in the

petroleum industry to use product codeson commercially prepared transferdocuments to provide information aboutthe product being transferred. Industryuses these product codes to save spaceon the transfer documents, whichtypically provide a great deal ofinformation. The interim detergent ruledid not address the use of product codesor other non-regulatory language assubstitutes for required regulatorylanguage in fulfilling PTD requirements.In response to industry comments, theinterim program was amended toinclude a provision similar to one in thecertification program which addressesthis issue. In most instances, therequirements under both thecertification and interim programspermit the use of product codes or othernon-regulatory language to besubstituted for required productidentification information, providedcertain accuracy safeguards are met,such as that the codes are clear,standardized, and have been explainedto downstream parties. (40 CFR80.158(c) and 80.171(b))

The requirements under interim andcertification programs do not, however,permit the use of product codes or othernon-regulatory language to be used inplace of required warning languageabout non-additized, base gasoline. Therequired warning language, found in 40CFR 80.158(a)(6) and 80.171(a)(6),informs the transferee in specified

language that the base gasoline either isnot for sale to the ultimate consumer, oris for research and developmentpurposes only. At the time thecertification rule was published, theAgency believed that these warningswere too important to be the subject ofcoded language substitutions.

After the issuance of the finalcertification rule, the Agency wasnotified by Colonial Pipeline that theregulatory prohibition against usingproduct codes to substitute for the basegasoline language warning against thesale of the product to the ultimateconsumer was burdensome and was notnecessary for transfers betweenupstream parties.5 This commenterstated that its upstream customers werefamiliar with product code usage andwould not be confused by thesubstitution of product codes for thebase gasoline warning language. Thiscommenter believed that providing thewarning language in addition toproviding the base gasoline productcode was redundant and unnecessarilywasteful of needed PTD space.

B. Proposal

Upon consideration of this comment,the Agency now agrees that theprohibition against substituting aproduct code for the required basegasoline warning language is notnecessary for upstream bulk transfers ofordinary base gasoline which is notsubject to the research and developmentexemption. The Agency agrees thatupstream parties, long accustomed tothe use of product codes to identifyproduct information, should find suchcodes satisfactory conveyors of theneeded base gasoline information. Thisis especially true since gasoline isalmost always unadditized before itreaches the truck rack terminal, soconfusion about its status is unlikely.

However, the Agency is stillconcerned that the lack of such clearwarning language on PTDs fordownstream custody transfers ofunadditized product to truck carriers,retail outlets, or wholesale purchaser-consumer facilities (WPCs), might causeconfusion about product transfers andmight result in mis-use of theunadditized product. Agencyenforcement experience has also shownthat such downstream parties are notalways knowledgeable about themeaning of product codes on receivedPTDs. Further, the Agency continues tobelieve that base gasoline being used for


research and development purposes,being a special category of productexempt from the ordinary requirementsof the detergent program, must continueto be identified as such in clearlanguage.

Therefore, the Agency is todayproposing that product codes and othernon-regulatory language may be used tosubstitute on PTDs for the required basegasoline warning language, with twoexceptions: (1) transferors mustcontinue to provide the regulatorywarning language against sale to theultimate consumer on PTDs for productcustody transfers to truck carriers, retailoutlets, or WPCs; and (2) the warninglanguage as to exclusive research usemust continue to be provided on PTDsfor all transfers of research basegasoline. The Agency believes that thisproposal will lessen paperwork burdenson the upstream parties who would notbe confused by the product codes, andwill maintain the specific warninglanguage requirement for downstreamparties most in need of seeing the exactlanguage, and for all transfers of basegasoline for research purposes.

V. Public Participation

EPA seeks full public participation inarriving at its final decisions, andstrongly encourages comments on allaspects of this proposal from allinterested parties, including smallbusinesses. Whenever applicable, fullsupporting data and detailed analysisshould be submitted to allow EPA tomake maximum use of the comments.All comments should be directed to theEPA Air Docket, Docket No. A–91–77(see ADDRESSES). Comments on thisnotice will be accepted until the datespecified in DATES. EPA has not planneda public hearing to discuss the issuesraised in this proposal.

Commenters wishing to submitproprietary information forconsideration should clearly distinguishsuch information from other comments,and clearly label it ‘‘ConfidentialBusiness Information’’. Submissionscontaining such proprietary informationshould be sent directly to the contactperson listed above, and not to thepublic docket, to ensure that proprietaryinformation is not inadvertently placedin the docket. Information covered bysuch a claim of confidentiality will bedisclosed by EPA only to the extentallowed and by the procedures set forthin 40 CFR Part 2. If no claim ofconfidentiality accompanies thesubmission when it is received by EPA,it may be made available to the publicwithout further notice to thecommenter.

VI. Environmental and EconomicImpacts

The proposed revisions to the producttransfer document (PTD) requirementswould provide an equal degree ofassurance to the current requirementsthat specially-certified detergentadditives would only be used ingasoline stocks for which thesedetergents are certified for use.Therefore, the proposed requirementsare not expected to impact theenvironmental benefits of the detergentprogram.

Under the first proposal,documentation on the specificoxygenate content of gasolines is onlyrequired to be maintained by thoseparties who have a direct interest insuch information to support theirvoluntary use of specially-certifiedoxygenate-restricted detergents in thatgasoline. It would no longer be requiredthat all regulated parties transferringgasoline must indicate gasolineoxygenate content on the PTD for theproduct. Adoption of this proposalwould avoid the potentially significantdisruption of the current gasolinedistribution system which might resultfrom the current regulatory requirementof PTD oxygenate identification for alltransfers of gasoline.

Establishing the oxygenateinformation as proposed is not expectedto result in significant economichardship to downstream parties whowish to voluntarily use oxygenate-restricted detergents. Placing theresponsibility of establishinginformation on the specific oxygenatecontent of gasoline only on suchdetergent blending parties willeliminate unnecessary costs that wouldotherwise be incurred by others in thedistribution system.

The second proposed change to thePTD requirements would provideindustry additional flexibility bypermitting the use of product codesrather than the currently-requiredregulatory warning language on PTDsfor certain transfers of base gasoline.EPA expects that adoption of thisproposal would decrease the cost ofproducing and maintaining PTDs. Basedon the above discussion, EPA expectsthat adoption of the proposedrequirements would result in an overallreduction in the economic burden of theregulation.

VII. Administrative Requirements

A. Administrative DesignationUnder Executive Order 12866 (58 FR

51735, Oct. 4, 1993), the Agency mustdetermine whether this regulatoryaction is ‘‘significant’’ and therefore

subject to OMB review and therequirements of the Executive Order.The order defines ‘‘significantregulatory action’’ as any regulatoryaction that is likely to result in a rulethat may:

(1) Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;


(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or,

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

Pursuant to the terms of ExecutiveOrder 12866, EPA has determined thatthe proposed modifications to theregulation of deposit control additivescontained in today’s notice do not meetany of the criteria listed above, andtherefore do not constitute a ‘‘significantregulatory action’’.

B. Impact on Small EntitiesEPA has determined that the

proposed modifications to theregulation of deposit control additivescontained in today’s notice would nothave a significant economic impact ona substantial number of small entities,and that it is therefore not necessary toprepare a regulatory flexibility analysisin conjunction with this proposal.

Under the proposed requirements intoday’s notice, rather than requiring allparties in the gasoline distributionsystem to report the specific oxygenatecontent of gasoline on product transferdocuments as under the currentrequirements (which would typicallyrequire testing for oxygenates andwould disrupt current gasolinecommingling practices), only thoseparties who wish to voluntarily takeadvantage of the potential cost savingsfrom the use of specially-certifiedoxygenate-restricted detergents wouldbe required to produce suchinformation. A detergent blender whodoes not wish to incur this requirementcould use any generic-certifieddetergent (i.e., detergents that do nothave use restrictions).

Other proposed changes to theproduct transfer document (PTD)requirements would provide industrymore flexibility by allowing the use ofproduct codes rather than regulatory


warning language for certain upstreamtransfers of base gasoline not used forresearch purposes. This addedflexibility is expected to decrease thecost of producing and maintaining PTDsfor most regulated parties who transferbase gasoline. Based on the abovediscussion, EPA expects that adoptionof the proposed requirements in today’snotice would result in a reduction of theeconomic burden of the regulation formany parties and would notsignificantly increase the economicburden of compliance for any regulatedparty, including small entities.

C. Paperwork Reduction ActThe proposed actions in today’s

notice do not impose any newinformation collection burden. The firstproposal would eliminate the existingrequirement that product transferdocuments (PTDs) for gasoline mustidentify the oxygenates present. Underthe proposal, a range of alternativedocumentation could be used by thedetergent blender to help establish thespecific oxygenate content of gasoline inorder to allow the optional use ofoxygenate-restricted detergents ratherthan generic detergents (which do nothave oxygenate restrictions). No newinformation collection requirementswould result from implementation ofthis proposal. To the contrary, theproposed change would eliminate acompliance burden from the majority ofregulated parties, while continuing toallow blenders to choose to useoxygenate-restricted detergents.

The second proposal would allowgreater flexibility to industry byallowing the use of product codes oncertain non-research base gasoline PTDsrather than the currently requiredwarning language. The informationcollection requirements associated withthis provision would not change. Theincreased flexibility is expected to resultin a reduced compliance burden.

The Office of Management and Budget(OMB) has previously approved theinformation collection requirements ofthe Regulation of Deposit ControlAdditives contained in 40 CFR Part 80under the provisions of the PaperworkReduction Act, 44 U.S.C. 3501 et seq.and has assigned OMB control number2060–0275(EPA ICR Numbers 1655–01,1655–02, and 1655–03).

Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, or discloseor provide information to or for aFederal agency. This includes the timeneeded to review instructions; develop,acquire, install, and utilize technologyand systems for the purposes ofcollecting, validating, and verifying

information, processing andmaintaining information, and disclosingand providing information; adjust theexisting ways to comply with anypreviously applicable instructions andrequirements; train personnel to be ableto respond to a collection ofinformation; search data sources;complete and review the collection ofinformation; and transmit or otherwisedisclose the information.

Copies of the ICR documents may beobtained from Sandy Farmer,Information Policy Branch; EPA; 401 MSt., SW. (mail code 2136); Washington,DC 20460 or by calling (202) 260–2740.Include the ICR and/or OMB number inany correspondence.

D. Unfunded Mandates Reform ActTitle II of the Unfunded Mandates

Reform Act of 1995 (UMRA), PublicLaw 104–4, establishes requirements forFederal agencies to assess the effects oftheir regulatory actions on State, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘Federal mandates’’ that mayresult in expenditures to state, local,and tribal governments, in the aggregate,or to the private sector, of $100 millionor more for any one year.

Before promulgating an EPA rule forwhich a written statement is needed,section 205 of the UMRA generallyrequires EPA to identify and consider areasonable number of regulatoryalternatives and adopt the least costly,most cost effective, or least burdensomealternative that achieves the objectivesof the rule. The provisions of section205 do not apply when they areinconsistent with applicable law.Moreover, section 205 allows EPA toadopt an alternative other than the leastcostly, most cost effective, or leastburdensome alternative if theAdministrator publishes with the finalrule an explanation of why thatalternative was not adopted.

Before EPA establishes any regulatoryrequirements that may significantly oruniquely affect small governments,including tribal governments, it musthave developed under section 203 of theUMRA a small government agency plan.The plan must provide for notifyingpotentially affected small governments,enabling officials of affected smallgovernments to have meaningful andtimely input in the development of EPAregulatory proposals with significantFederal intergovernmental mandates,and informing, educating, and advisingsmall governments on compliance withthe regulatory requirements.

Today’s proposed revisions to theRegulation of Gasoline Deposit ControlAdditives contains no Federal mandates(under the regulatory provisions of TitleII of the UMRA) for State, local, or tribalgovernments. The proposed revisionsimpose no enforceable duties on any ofthese governmental entities. Nothing inthe proposal would significantly oruniquely affect small governments. EPAhas determined that the provisions intoday’s proposal do not contain Federalmandates that will result inexpenditures of $100 million or more inany one year for the private sector. Tothe contrary, EPA expects the proposedchanges would result in reducedcompliance costs. EPA believes that theproposed regulatory changes representthe least costly, most cost-effectiveapproach to addressing implementationconcerns expressed by industry, whileachieving the air quality goals of thegasoline detergent program.

VIII. Statutory Authority

The statutory authority for theproposed actions in this notice isgranted to EPA by sections 114, 211(a),(b), (c), and (l), and 301 of the Clean AirAct as amended: 42 U.S.C. 7414, 7545(a), (b), (c) and (l), and 7601.


Environmental protection, Fueladditives, Gasoline detergent additives,Gasoline, Motor vehicle pollution,Penalties, Reporting and recordkeepingrequirements.


For the reasons set forth in thepreamble, part 80 of title 40 of the Codeof Federal Regulations is proposed to beamended as follows:

PART 80—[AMENDED]


Authority: Sections 114, 211 and 301(a) ofthe Clean Air Act as amended (42 U.S.C.7414, 7545, and 7601(a)).

2. Section 80.158 is amended asfollows:

a. Paragraph (a)(5) is removed.b. Paragraphs (a)(6) through (a)(10) are


c. Paragraph (c)(1) is revised to readas follows:

§ 80.158 Product Transfer Documents(PTDs)

* * * * *(c) Use of product codes and other

non-regulatory language.


(1) Product codes and other non-regulatory language may not be used asa substitute for the specified PTDwarning language specified in paragraph(a)(6) of this section for custodytransfers of base gasoline to truckcarriers, retail outlets, and wholesalepurchaser-consumer facilities or fortransfers of exempt base gasoline to beused for research, development, or testpurposes.* * * * *

3. Section 80.170 is amended byadding a new paragraph (f)(7) to read asfollows:

§ 80.170 Volumetric additive reconciliation(VAR), equipment calibration, andrecordkeeping requirements.

* * * * *(f) * * *(7) If a detergent blender uses an

oxygenate -or PRC-restricted certifieddetergent to additize fuel,documentation must be maintained bythat blender fully identifying theoxygenate and/or PRC (as applicable)content of the fuel into which theoxygenate or PRC-restricted detergentwas blended, so as to confirm or tosubstantially confirm that the fuel intowhich the restricted detergent wasblended complied with the userestriction. Documentation which maybe used to fulfill this requirementincludes, but is not limited to: PTD(s)from the fuel supplier identifying all theoxygenates or PRC (as appropriate) inthe fuel; test results identifying all theoxygenates or PRC (as appropriate) inthe fuel; written contract languagebetween the supplier and the blenderestablishing the complete oxygenateand/or PRC (as appropriate) content ofthe supplied fuel.* * * * *

4. Section 80.171 is amended asfollows:

a. Paragraph (a)(5) is removed.b. Paragraphs (a)(6) through (12) are


c. Paragraph(b)(1) is revised to read asfollows:

§ 80.171 Product Transfer Documents(PTDs)

* * * * *(b) Use of product codes and other

non-regulatory language.(1) Product codes and other non-

regulatory language may not be used asa substitute for the PTD warninglanguage specified in paragraph (a)(6) ofthis section for custody transfers of basegasoline to truck carriers, retail outlets,and wholesale purchaser-consumerfacilities, or for transfers of exempt base

gasoline to be used for research,development, or test purposes.* * * * *[FR Doc. 97–29390 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 300

[FRL–5916–7]

National Oil and HazardousSubstances Pollution ContingencyPlan National Priorities List

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of intent to delete theBrowning-Ferris Industries—SouthBrunswick Landfill Site from theNational Priorities List; request forcomments.

SUMMARY: The Environmental ProtectionAgency (EPA) Region II announces itsintent to delete the Browning-FerrisIndustries—South Brunswick LandfillSite (Site) from the National PrioritiesList (NPL) and requests public commenton this action. The NPL constitutesAppendix B of 40 CFR part 300 whichis the National Oil and HazardousSubstances Pollution Contingency Plan(NCP), which EPA promulgatedpursuant to section 105 of theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct of 1980 (CERCLA), as amended, 42U.S.C 9601 et seq. EPA and the NewJersey Department of EnvironmentalProtection (NJDEP) have determinedthat the Site poses no significant threatto public health or the environment and,therefore, further remedial measurespursuant to CERCLA are notappropriate.DATES: Comments concerning this Sitemay be submitted on or beforeDecember 8, 1997.ADDRESSES: Comments may be mailedto: Mary Anne Rosa, Remedial ProjectManager, U.S. Environmental ProtectionAgency, Region II, 290 Broadway-19thFloor, New York, NY 10007–1866.

The deletion docket and othercomprehensive information on this Siteis available for viewing at the Browning-Ferris Industries—South BrunswickLandfill Site information repository atthe following location: Town of SouthBrunswick Municipal Building, P.O.Box 190, Monmouth Junction, NewJersey 08852, (908) 329–4000.FOR FURTHER INFORMATION CONTACT:Mary Anne Rosa, Remedial ProjectManager, U.S. Environmental Protection

Agency, Region II, 290 Broadway—19thFloor, New York, New York 10007–1866, (212) 637–4407.


Table of Contents

I. IntroductionII. NPL Deletion CriteriaIII. Deletion ProceduresIV. Basis for Intended Site Deletion

I. Introduction

EPA Region II announces its intent todelete the Browning-Ferris Industries—South Brunswick Landfill Site, which islocated in South Brunswick Township,Middlesex County, New Jersey, from theNPL, which constitutes Appendix B ofthe NCP, 40 CFR part 300, and requestscomments on this deletion. EPAidentifies sites that appear to present asignificant risk to public health, welfare,or the environment and maintains theNPL as the list of these sites. Asdescribed in § 300.425(e)(3) of the NCP,sites deleted from the NPL remaineligible for remedial actions in theunlikely event that conditions at the sitewarrant such action.

EPA will accept comments on theproposal to delete this Site untilDecember 8, 1997.

Section II of this notice explains thecriteria for deleting sites from the NPL.Section III discusses the procedures thatEPA is using for this action. Section IVdiscusses the Site and explains how theSite meets the deletion criteria.

II. NPL Deletion Criteria

Section 300.425(e) of the NCPprovides that sites may be deleted fromthe NPL where no further response isappropriate. In making a determinationto delete a site from the NPL, EPA inconsultation with NJDEP, shall considerwhether any of the following criteriahave been met:

(i) Responsible parties or other partieshave implemented all appropriateresponse actions required; or

(ii) All appropriate responses underCERCLA have been implemented, andno further action by responsible partiesis appropriate; or

(iii)The remedial investigation hasshown that the release of hazardoussubstances poses no significant threat topublic health or the environment and,therefore, remedial measures are notappropriate.

III. Deletion Procedures

The following procedures were usedfor the intended deletion of this Site: (1)EPA Region II issued a Record ofDecision (ROD) which documented theremedial action activities; (2) allappropriate responses under CERCLA


have been implemented as documentedin the Final Close-Out Report datedSeptember 1997; (3) the NJDEPconcurred with the proposed deletion;(4) a notice has been published in thelocal newspaper and has beendistributed to appropriate Federal, Stateand local officials and other interestedparties announcing the commencementof a 30-day public comment period onEPA’s Notice of Intent to Delete; and (5)all relevant documents have been madeavailable for public review in the localSite information repository.

Deletion of sites from the NPL doesnot itself create, alter, or revoke anyindividual’s rights or obligations. TheNPL is designed primarily forinformational purposes and to assistAgency management of Superfund sites.As mentioned in section II of thisdocument, § 300.425 (e)(3) of the NCPstates that the deletion of a site from theNPL does not preclude eligibility forfuture response actions.

For deletion of this Site, EPA’sRegional Office will accept and evaluatepublic comments before making a finaldecision to delete. If necessary, theAgency will prepare a ResponsivenessSummary to address any significantpublic comments received.

A deletion occurs when the RegionalAdministrator places a final notice inthe Federal Register. Generally, the NPLwill reflect deletions in the final updatefollowing the notice. Public notices andcopies of the Responsiveness Summarywill be made available to local residentsby the Regional Office.

IV. Basis for Intended Site Deletion

The following summary provides theAgency’s rationale for the proposal todelete this Site from the NPL.

A. Site Background

The Site is located along New Road,approximately one-half mile northwestof U.S. Route 1, in Middlesex County,New Jersey. The landfill occupies anarea of approximately 68 acres. Asignificant portion of the landsurrounding the Site is wooded. It isowned by Browning-Ferris Industries(BFI) of South Jersey. The Site, whichoperated for more than 20 years as asolid waste landfill, accepted municipalrefuse, pesticides, chemical wastes andhazardous wastes.

B. History

In June 1980, EPA conducted aninvestigation of the Site. The samplingresults revealed elevated levels ofvolatile organic compounds in severalon-site monitoring wells, as well as on-site surface water sampling locations.

The data from this sampling effortresulted in the Site being proposed forthe Superfund NPL on December 1,1982, and the Site was included on theNPL on November 1, 1983.

In April 1982, BFI and EPA enteredinto an agreement concerning theremedial efforts to be performed. Theagreement was in the form of a ResourceConservation and Recovery Act (RCRA)Administrative Order on Consent (IndexNo. RCRA–700320101) which outlinedthe remedial approach.

C. CharacterizationThe remedial action activities,

initiated in February 1983, consisted ofthe construction of a leachatecollection/treatment system, slurry wall,multi-layer cap and gas venting system.The remedial action was completed inSeptember 1985. EPA issued a Record ofDecision on September 30, 1987, whichaffirmed that the remedial actionundertaken was consistent withCERCLA, as amended, and to the extentpracticable, the NCP.

A public availability session wasconducted by EPA in August 1987 todiscuss with the community theremedial actions implemented and thepost-remedial environmentalmonitoring program. Public commentswere received and addressed in theResponsiveness Summary portion of theSeptember 30, 1987, Record of Decision.

D. MonitoringThe May 1993 EPA-approved Post-

Remedial Environmental MonitoringProgram (PREMP) Work Plan wasdesigned to assess the effectiveness ofthe completed Remedial Action andevaluate off-Site migration ofcontaminants. The PREMP wasconducted from May 1993 to January1994 and included the collection oftwenty-seven groundwater samples,thirty-four soil samples, eight surfacewater samples and twelve sedimentsamples. Post-remedial environmentalmonitoring indicated that volatileorganic compounds (VOCs), semi-VOCs,and inorganic contaminantconcentrations have decreased insurface water, groundwater, sedimentand soil samples. Therefore, the resultsfrom this investigation document theeffectiveness of the remedy and indicatethere is no significant off-Site migrationof contaminants. Although minimalgroundwater contamination wasdetected in the southeastern portion ofthe Site in the area of monitoring wellR–10, regulating the leachate collectionsystem to induce inward gradientsappears to have significantly reducedcontamination. As part of the overallSite Operation and Maintenance Plan

activities, EPA has required BFI toperiodically evaluate the effectivenessof the leachate collection system androutinely monitor well R–10 anddowngradient surface water quality toensure the effectiveness of the remedy.The multi-layered cap has effectivelyreduced infiltration, as indicated by thesignificant reduction in the amount ofleachate generation over time. Theleachate collection system and slurrywall have reduced leachate levelswithin the landfill, resulting in inwardhydraulic gradients over much of theSite. Historically, leachate was pre-treated to reduce iron concentrations inthe effluent. BFI has been notified bythe Stony Brook Regional SewerageAuthority (SBRSA) of a change in BFI’slicense classification from a Class 1 toRestricted Industrial User. BFI is nolonger required to treat for iron. BFIdischarges directly to the sanitary sewerline while still monitoring monthly perthe requirements of the license issuedby the SBRSA. Also, the gas ventingsystem is operating in accordance withthe existing NJDEP Air PollutionControl Program permit and a series ofperimeter gas monitoring probes areperiodically monitored. ProjectManagers from EPA and BFI conducteda Site inspection on September 12,1995. The purpose of this inspectionwas to determine the current status ofthe Site and the adequacy of the Sitecleanup. The remedial action,completed since September 1985,remains in place and is operating andfunctioning as designed.

E. Operation and MaintenanceThe cleanup of the Site was

performed in compliance with ‘‘cleanclosure’’ requirements and consistentwith the Resource Conservation andRecovery Act of 1976, as amended,CERCLA, as amended, and to the extentpracticable, the NCP. Pursuant to the1989 Administrative Order, BFI hascommitted to performing Operation andMaintenance (O&M) activities at theSite. In August 1997, EPA approved theSite O&M Plan, which defines the long-term O&M activities for the Site. TheO&M Plan addresses those activitiesrequired for controlling the groundwatergradient in the area of monitoring wellR–10, maintaining the effectiveness ofthe response action, and monitoring Siteconditions to determine the occurrenceof any environmental threat. O&Mactivities include periodic inspectionsand maintenance of waste containmentmeasures, periodic air, groundwater andsurface water monitoring, certaininstitutional controls, periodic leachatecollection and treatment measures, orany other activities necessary to ensure


the continued protection of publichealth and the environment.

F. Protectiveness

All the completion requirements forthis Site have been met as described inthe Final Close-Out Report (COR) datedSeptember 1997. The Final CORdocuments the effectiveness of the post-remedial environmental monitoring andthat the remedy (slurry wall, multi-layered cap, leachate collection system,gas venting system and installation of aSite security fence) remains protective.Site O&M activities will be performedby BFI, with EPA oversight.

EPA and NJDEP have determined thatall appropriate Fund-financed responsesunder CERCLA at the Site have beencompleted, and that no furtherconstruction activities by responsibleparties is necessary except for operationand maintenance requirements. EPAwill be providing oversight of alloperation and maintenance activities.Consequently, EPA is proposingdeletion of this Site from the NPL.Documents supporting this action areavailable in the docket.

Dated: September 29, 1997.William J. Muszynski,Acting Regional Administrator.[FR Doc. 97–29150 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration (NOAA)

50 CFR Part 679

[Docket No. 971015247–7247–01; I.D.091597D]

RIN 0648-AK19

Fisheries in the Exclusive EconomicZone Off Alaska; Modify IFQSurvivorship Transfer Provisions

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Proposed rule.

SUMMARY: NMFS proposes a regulatoryamendment to the Individual FishingQuota (IFQ) Program for fixed gearPacific halibut and sablefish fisheries inand off of Alaska. This action wouldmodify the survivorship transferprovisions to allow heirs of deceasedquota share (QS) or IFQ holders toreceive such QS or IFQ by transfer andto transfer the resulting IFQs to anyperson eligible to receive IFQ for up to3 years following the date of a QS

holder’s death. This action is necessaryto extend survivorship privileges toother heirs in addition to survivingspouses and to allow such heirs toobtain pecuniary benefit from such IFQ.The intended effect of this action is toprovide temporary financial relief forthe heirs of QS holders.DATES: Comments on the proposed ruleand Regulatory Impact Review (RIR)must be received December 8, 1997.ADDRESSES: Comments must be sent tothe Chief, Fisheries ManagementDivision, Alaska Region, NMFS, Room453, 709 West 9th Street, Juneau, AK99801, or P.O. Box 21668, Juneau, AK99802, Attention: Lori J. Gravel.FOR FURTHER INFORMATION CONTACT:James Hale, 907–586–7228.SUPPLEMENTARY INFORMATION:

BackgroundThe fixed gear halibut and sablefish

fisheries are managed by the IFQProgram, a limited access system forfixed gear Pacific halibut (Hippoglossusstenolepis) and sablefish (Anoplopomafimbria) fisheries in and off of Alaska.Under authority of the Magnuson-Stevens Fishery Conservation andManagement Act and the NorthernPacific Halibut Act of 1982 (HalibutAct), NMFS implemented the IFQProgram in 1995, on therecommendation of the North PacificFishery Management Council (Council),to reduce excessive fishing capacity inthe fixed gear Pacific halibut andsablefish fisheries, while maintainingthe social and economic character ofthese fisheries and the Alaskan coastalcommunities where many of thesefishermen are based.

Restrictions in the IFQ Program fosterthe transfer of QS among fishermenqualified to fish the annual allocationsof IFQ that QS generate. Theserestrictions are intended to discourageexcessive consolidation and theacquisition of QS by investmentspeculators. Persons who are notqualified to receive IFQ may receive QSby transfer, but such QS would berestricted from generating IFQ that maybe used to harvest IFQ halibut orsablefish.

The Council’s approved IFQ Programauthorizes temporary exceptions to thetransfer restrictions. In 1996, on theauthority of the transfer provisions inthe Fishery Management Plan for theGulf of Alaska Groundfish Fishery andthe Fishery Management Plan for theBering Sea/Aleutian Islands Groundfish,NMFS implemented an exception to thetransfer restrictions that grantstemporary transfer privileges to thespouse of a deceased QS holder who

receives QS by right of survivorship, butis otherwise unqualified to harvest IFQ(61 FR 41523, August 9, 1996). Theexception allows the surviving spousewho receives QS or IFQ, first, to transferany of the current year’s IFQ for theduration of the allocation year and,second, to lease the total annualallocations of IFQ resulting from the QStransferred by right of survivorship for3 calendar years from the date of thedeath of the deceased holder of QS orIFQ (§ 679.41(k)(2)).

In October 1996, the IFQ IndustryImplementation Team recommended aproposal to extend the survivorshiptransfer provisions to heirs in adeceased QS holder’s immediate family,in addition to a surviving spouse. InJune 1997, the Council took final actionto extend the survivorship transferprovisions to any individual whoreceives QS by right of survivorship.

This action would benefit heirs whowere not initially issued QS or who arenot IFQ crew members. Withoutmeeting those criteria, individuals whoreceive QS by right of survivorshipwould be otherwise ineligible to receiveIFQ. The new provision would allow anindividual who receives QS by right ofsurvivorship to transfer, for up to 3years, the total IFQ resulting from thatQS to anyone eligible to receive IFQ andthereby obtain pecuniary benefit fromthe QS for that period. The Councildetermined that 3 years would providean heir with adequate time to resolvepermanently any issues that may arisedue to receiving QS or IFQ by right ofsurvivorship, including subsequenttransfers. Upon the death of a QS or IFQholder, the Regional Administrator,upon application for transfer, wouldtransfer QS or IFQ to an individual whodemonstrates a right of succession tosuch QS or IFQ, through intestate ortestate succession. The RegionalAdministrator, upon application fortransfer, would transfer, for up to 3calendar years following the date ofdeath of an individual QS holder, IFQfrom an individual who received theoriginating QS through intestate ortestate succession to any person eligibleto receive IFQ.

This action would also correct anerror in the survivorship transferregulations that resulted from theconsolidation of regulations governingthe EEZ off Alaska in 61 FR 31228 (June19, 1997). In the consolidation of theregulations, the reference to paragraph(g)(2) in § 679.41(k) should have beenrevised to read (h)(2). This action wouldmake the necessary revision to correctthe oversight.


ClassificationThis proposed rule contains a

collection-of-information requirementsubject to the Paperwork Reduction Act,clarifying a requirement that haspreviously been approved by OMBunder Control Number 0648-0272. Theproposed clarification states that a deathcertificate is one of the forms ofsubstantiating evidence required uponthe death of a quota share holder inorder to transfer that quota share to anestate. The estimated response time forproviding the substantiating evidence is1 hour per response, including the timefor reviewing instructions, searchingexisting data sources, gathering andmaintaining the data needed, andcompleting and reviewing the collectionof information.

Comments are invited on: (a) Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the agency, includingwhether the information shall havepractical utility; (b) the accuracy of theagency’s estimate of the burden of theproposed collection of information; (c)ways to enhance the quality, utility, andclarity of the information to becollected; and (d) ways to minimize theburden of the collection of informationon respondents, including through theuse of automated collection techniquesor other forms of informationtechnology. Send comments on these orany other aspects of the collection ofinformation to NMFS/Alaska Region(see ADDRESSES), and to OMB at theOffice of Information and RegulatoryAffairs, Office of Management andBudget, Washington, DC 20503 (Attn:NOAA Desk Officer).

Notwithstanding any other provisionof the law, no person is required torespond to, nor shall any person besubject to a penalty for failure to complywith, a collection of information subjectto the requirements of the PRA, unless

that collection of information displays acurrently valid OMB Control Number.

The proposed rule has beendetermined to be not significant forpurposes of E.O. 12866.

The Assistant General Counsel forLegislation and Regulation of theDepartment of Commerce certified tothe Chief Counsel for Advocacy of theSmall Business Administration that thisproposed rule, if adopted, would nothave a significant economic impact ona substantial number of small entities:

The proposed change constitutes a minorregulatory amendment needed to extend thesurvivorship transfer provision (currentlyapplicable to surviving spouses only) to heirsgenerally of a deceased quota share (QS)holder. This action would allow heirs whoreceive QS of Individual Fishing Quota (IFQ)by right of survivorship to transfer IFQresulting from the inherited QS for 3 yearsfrom the date of the deceased QS holder’sdeath, notwithstanding the IFQ Program’srestrictions on transfers of IFQ.

This rule could potentially affect any smallentity able to fish IFQ in the Alaska fisheries.Currently, 4,187 persons are eligible to fishIFQ in Alaska. Most of these are believed tobe small entities. In addition, this rule couldaffect heirs of deceased QS holders. It is notpossible to predict the extent to which suchheirs might be considered small entities.Likewise, it is impossible to quantify theeconomic impact this proposed rule couldhave on small entities, because the impactsare speculative and depend on a variety offactors including the death of one or morecurrent QS holders and the decision by oneor more heirs to lease IFQ. However, to theextent that the proposed rule could impactsmall entities, the impact would be beneficialin that the result would be increasedopportunity for leasing IFQ shares. Eligiblefishermen who wanted to fish more shareswould have increased opportunity to leasemore shares, and heirs who otherwise wouldnot be eligible to fish the IFQ would be ableto recognize economic gain.

As a result, a regulatory flexibilityanalysis was not prepared.


Alaska, Fisheries, Reporting andrecordkeeping requirements.

Dated: October 31, 1997.David L. Evans,Deputy Assistant Administrator for Fisheries,National Marine Fisheries Service.

For the reasons set out in thepreamble, 50 CFR Part 679 is proposedto be amended as follows:

PART 679—FISHERIES OF THEEXCLUSIVE ECONOMIC zONE OFFALASKA

1. The authority citation for 50 CFRpart 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 etseq., and 3631 et seq.

2. In § 679.41, paragraph (k) is revisedto read as follows:

§ 679.41 Transfer of QS and IFQ

* * * * *(k) Transfer to an heir.(1) Upon the death of a QS or IFQ

holder, the Regional Administrator,upon application for transfer, willtransfer QS or IFQ to an individual whodemonstrates a right of succession tosuch QS or IFQ, through intestate ortestate succession.

(2) The Regional Administrator, uponapplication for transfer, will transfer, forup to 3 calendar years following thedate of death of an individual QSholder, IFQ from an individual whoreceived the originating QS throughintestate or testate succession to aperson eligible to receive IFQ under theprovisions of this section,notwithstanding the limitations on thetransfer of IFQ in paragraph (h)(2) ofthis section.* * * * *[FR Doc. 97–29382 Filed 11–3–97; 2:24 pm]BILLING CODE 3510–22–F

This section of the FEDERAL REGISTERcontains documents other than rules orproposed rules that are applicable to thepublic. Notices of hearings and investigations,committee meetings, agency decisions andrulings, delegations of authority, filing ofpetitions and applications and agencystatements of organization and functions areexamples of documents appearing in thissection.

Notices Federal Register

60062

Vol. 62, No. 215


DEPARTMENT OF AGRICULTURE

Submission for OMB Review;Comment Request

October 31, 1997.The Department of Agriculture has

submitted the following informationcollection requirement(s) to OMB forreview and clearance under thePaperwork Reduction Act of 1995,Public Law 104–13. Commentsregarding (a) whether the collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation will have practical utility;(b) the accuracy of the agency’s estimateof burden including the validity of themethodology and assumptions used; (c)ways to enhance the quality, utility andclarity of the information to becollected; (d) ways to minimize theburden of the collection of informationon those who are to respond, includingthrough the use of appropriateautomated, electronic, mechanical, orother technological collectiontechniques or other forms of informationtechnology should be addressed to: DeskOfficer for Agriculture, Office ofInformation and Regulatory Affairs,Office of Management and Budget(OMB), Washington, DC 20503 and toDepartment Clearance Office, USDA,OCIO, Mail Stop 7602, Washington, DC20250–7602. Comments regarding theseinformation collections are best assuredof having their full effect if receivedwithin 30 days of this notification.Copies of the submission(s) may beobtained by calling (202) 720–6746.

An agency may not conduct orsponsor a collection of informationunless the collection of informationdisplays a currently valid OMB controlnumber and the agency informs

potential persons who are to respond tothe collection of information that suchpersons are not required to respond tothe collection of information unless itdisplays a currently valid OMB controlnumber.

• Farm Service Agency

Title: Request for FSA CountyCommittee Ballot and Declaration ofEligibility to Vote.

OMB Control Number : 0560—New.Summary of Collection: Information

will be collected from personsrequesting eligibility to vote in countycommittee elections.

Need and Use of the Information: Theinformation will be used to ensure asmany eligible voters as possible receivean FSA County Committee electionballot.

Description of Respondents: Farms.Number of Respondents: 5,000.Frequency of Responses: Reporting:

Once.Total Burden Hours: 400.Emergency processing of this

submission has been requested.

• Food and Consumer Service

Title: Quality Control ReviewSchedule.

OMB Control Number : 0584–0299.Summary of Collection: The Quality

Control Review Schedule collects bothquality control and case characteristicdata. The information needed tocomplete this form is obtained from theFood Stamp case record and Statequality control findings.

Need and use of the Information: Theinformation is used to monitor andreduce errors, develop policy strategies,and analyze household characteristicdata.

Description of Respondents: State,Local or Tribal Government; Individualsor households; Federal Government.

Number of Respondents: 57,236.Frequency of Responses:

Recordkeeping; Recording: Weekly;Monthly.

Total Burden Hours: 61,499.Donald Hulcher,Departmental Clearance Officer.[FR Doc. 97–29315 Filed 11–5–97; 8:45 am]BILLING CODE 3410–01–M


Animal and Plant Health InspectionService

[Docket No. 95–078–5]

Agency Information CollectionActivities; OMB Approval Received

AGENCY: Animal and Plant HealthInspection Service, USDA.

ACTION: Notice.

SUMMARY: In accordance with thePaperwork Reduction Act of 1995, thisnotice announces the Office ofManagement and Budget’s approval of acollection of information contained inthe Animal and Plant Health InspectionService final rule amending theregulations for the humane treatment ofdogs under the Animal Welfare Act byremoving the provisions for tetheringdogs as a means of primary enclosure.

FOR FURTHER INFORMATION CONTACT: Mr.Gregg Ramsey, APHIS InformationCollection Coordinator, AIM, APHIS,suite 2C11, 4700 River Road Unit 103,Riverdale, MD 20737–1235, (301) 734–5682.


Background

On August 13, 1997, we published inthe Federal Register (62 FR 43272-43275, Docket No. 95–078–2) a finalrule amending the regulations at 9 CFRparts 1 and 3, ‘‘Humane Treatment ofDogs; Tethering.’’ This rule containsinformation collection requirements. OnOctober 3, 1997, the Office ofManagement and Budget (OMB)approved the collection of informationrequirements with respect to this finalrule under OMB control number 0579-0093 (expires April 30, 2000).

Done in Washington, DC, this 30th day ofOctober 1997.Craig A. Reed,Acting Administrator, Animal and PlantHealth Inspection Service.[FR Doc. 97–29322 Filed 11–5–97; 8:45 am]BILLING CODE 3410–34–P

60063Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Notices


Rural Housing Service

Notice of Request for Extension of aCurrently Approved InformationCollection

AGENCY: The Rural Housing Service,USDA.ACTION: Proposed collection; commentsrequest.

SUMMARY: In accordance with thePaperwork Reduction Act of 1995, thisnotice announces the Rural HousingService’s (RHS) intention to request anextension for a currently approvedinformation collection in support of theprogram for Rural Housing Site LoansPolicies, Procedures andAuthorizations.DATES: Comments on this notice must bereceived by January 5, 1998 to beassured of consideration.FOR FURTHER INFORMATION CONTACT:Carrie Schmidt, Loan Specialist, SingleFamily Housing Processing Division,RHS, U.S. Department of Agriculture,STOP 0783, 1400 Independence Ave.,S.W., Washington, DC 20250–0783,Telephone (202) 690–0510.


Title: 7 CFR 1822–G, Rural HousingSite Loans, Policies, Procedures andAuthorizations.

OMB Number: 0575–0071.Expiration Date of Approval: March

31, 1998.Type of Request: Extension of

currently approved informationcollection.

Abstract: Section 523 of the HousingAct of 1949 as amended (Public Law90–448) authorizes the Secretary ofAgriculture to establish the Self-HelpLand Development Fund to be used bythe Secretary as a revolving fund formaking loans on such terms andconditions and in such amounts asdeemed necessary to public or privatenonprofit organizations for theacquisition and development of the landas building sites to be subdivided andsold to families, nonprofit organizationsand cooperatives eligible for assistance.

Section 524 authorizes the Secretaryto make loans on such terms andconditions and in such amounts asdeemed necessary to public or privatenonprofit organizations for theacquisition and development of land asbuilding sites to be subdivided and soldto families, nonprofit organizations,public agencies and cooperativeseligible for assistance under any sectionof this title, or under any other lawwhich provides financial assistance for

housing low and moderate incomefamilies.

RHS will be collecting informationfrom participating organizations toinsure they are program eligible entities.This information will be collected at theRHS field office. If not collected, RHSwould be unable to determine if theorganization would qualify for loanassistance.

Estimate of Burden: Public reportingburden for this collection of informationis estimated to average 6 hours perresponse.

Respondents: Public or privatenonprofit organizations, State, Local orTribal Governments.

Estimated Number of Respondents: 6.Estimated Number of Responses per

Respondent: 1.Estimated Total Annual Burden on

Respondents: 36.Copies of this information collection

can be obtained from the BarbaraWilliams, Regulations and PaperworkManagement Branch, Support ServicesDivision at (202) 720–9734.

Comments

Comments are invited on: (a) whetherthe proposed collection of informationis necessary for the proper performanceof the functions of RHS, includingwhether the information will havepractical utility; (b) the accuracy ofRHS’s estimate of the burden of theproposed collection of informationincluding the validity of themethodology and assumptions used; (c)ways to enhance the quality, utility andclarity of the information to becollected; and (d) ways to minimize theburden of the collection of informationon those who are to respond, includingthrough the use of appropriateautomated, electronic, mechanical, orother technological collectiontechniques or other forms of informationtechnology. Comments may be sent toBarbara Williams, Regulations andPaperwork Management Branch,Support Services Division, U.S.Department of Agriculture, RuralDevelopment, STOP 0743, Washington,DC 20250–0743. All responses to thisnotice will be summarized and includedin the request for OMB approval. Allcomments will also become a matter ofpublic record.

Dated: October 25, 1997.

Jan E. Shadburn,Administrator, Rural Housing Service.[FR Doc. 97–29323 Filed 11–5–97; 8:45 am]

BILLING CODE 3410–XV–U

COMMISSION ON CIVIL RIGHTS

Sunshine Act Notice

AGENCY: U.S. Commission on CivilRights.DATE AND TIME: Friday, November 14,1997, 9:30 a.m.PLACE: U.S. Commission on Civil Rights,624 Ninth Street, N.W., Room 540,Washington, DC 20425.

STATUS:

Agenda

I. Approval of AgendaII. Approval of Minutes of October 10,

1997 MeetingIII. AnnouncementsIV. Staff Director’s ReportV. Regional Director’s DiscussionVI. Future Agenda ItemsCONTACT PERSON FOR FURTHERINFORMATION: Barbara Brooks, Press andCommunications (202) 376–8312.Stephanie Y. Moore,General Counsel.[FR Doc. 97–29485 Filed 11–4–97; 12:23 pm]BILLING CODE 6335–01–M


Bureau of Export Administration

[No. 97–BXA–9]

Decision and Order on Renewal ofTemporary Denial Order

In the Matters of: Thane-Coat, Inc. 12725Royal Drive, Stafford, Texas 77477; JerryVernon Ford, President, Thane-Coat, Inc.,12725 Royal Drive, Stafford, Texas 77477;and with an address at 7707 Augustine Drive,Houston, Texas 77036; Preston JohnEngebretson, Vice-President, Thane-Coat,Inc., 12725 Royal Drive, Stafford, Texas77477; and with an address at 8903Bonhomme Road, Houston, Texas 77074;Export Materials, Inc., 3727 Greenbrier Drive,No. 108, Stafford, Texas 77477; and Thane-Coat International, LTD., Suite C, RegentCentre, Explorers Way, P.O. Box F–40775,Freeport, The Bahamas, Respondents.

Background

On May 5, 1997, I entered an Ordertemporarily denying all United Statesexport privileges to Thane-Coat, Inc.;Jerry Vernon Ford, president, Thane-Coat, Inc.; Preston John Engebretson,vice-president, Thane-Coat, Inc.(hereinafter collectively referred to as‘‘T–CF&E’’), located in the State ofTexas; Export Materials, Inc.(hereinafter referred to as ‘‘EMI’’),located in the State of Texas; andThane-Coat International, Ltd.(hereinafter referred to as ‘‘TCIL’’),located in Freeport, the Bahamas.

60064 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Notices

1 The Act expired on August 20, 1994. ExecutiveOrder 12924 (3 C.F.R., 1994 Comp. 917 (1995)),extended by Presidential Notices of August 15, 1995(3 C.F.R., 1995 Comp. 501 (1996)), and August 14,1996 (3 C.F.R., Comp. 298 (1997)), continued theRegulations in effect under the InternationalEmergency Economic Powers Act (50 U.S.C.A.§§ 1701–1706 (1991 & Supp. 1997)).

2 ‘‘Opposition To Request for Renewal of OrderTemporarily Denying Export Privileges’’, datedOctober 24, 1997.

T–CF&E, EMI and TCIL appealed theTemporary Denial Order hereinafter‘‘TDO’’) to an Administrative Law Judge(hereinafter the ‘‘ALJ’’). On June 11,1997, the ALJ recommended to theUnder Secretary for ExportAdministration that the TDO beaffirmed. The Under Secretary affirmedthe TDO on June 20, 1997. T–CF&E, EMIand TCIL appealed the issuance of theTDO in the U.S. District Court in theSouthern District of Texas.

The TDO will expire on November 1,1997. Pursuant to Section 766.24 of theExport Administration Regulations (15C.F.R. parts 730–774 (1997)) (hereinafterthe ‘‘Regulations’’), issued pursuant tothe Export Administration Act of 1979,as amended (50 U.S.C.A. app §§ 2401–2420 (1991 & Supp. 1997)) (hereinafterthe ‘‘Act’’),1 the Office of ExportEnforcement, Bureau of ExportAdministration, United StatesDepartment of Commerce (hereinafter‘‘BXA’’) has requested that I renew theTDO against T–CF&E, EMI and TCIL foran additional 180 days.

T–CF&E, through its attorneys,opposed the Department’s request andsought a hearing as authorized bySection 766.24(d)(3)(i) of theRegulations. The hearing was held onOctober 28, 1997.

Neither EMI nor TCIL filed writtensubmissions opposing renewal of theTDO.

DiscussionThe sole issue presented is whether

the TDO should be renewed to preventan imminent violation of theRegulations. A violation may be‘‘imminent’’ either in time or likelihood.To establish grounds for a temporarydenial order, BXA may show either thata violation is about to occur or that thegeneral circumstances of the matterunder investigation demonstrate alikelihood of future violations. BXAmay show that the violation underinvestigation or charges is significant,deliberate, covert and/or likely to occuragain, rather than technical or negligent.BXA may show that it is appropriate togive notice to companies in the UnitedStates and abroad to cease dealing withthe persons in U.S.-origin goods andtechnology in order to reduce thelikelihood that the persons underinvestigation or charges continue toexport or acquire abroad such goods and

technology, risking subsequentdisposition contrary to export controlrequirements. Lack of informationestablishing the precise time a violationmay occur does not preclude a findingthat a violation is imminent, so long asthere is sufficient reason to believe thelikelihood of a violation. BXA mayrequest renewal of a TDO if BXAbelieves the TDO is necessary in thepublic interest to prevent an imminentviolation. 15 CFR 766.24.

In its request, BXA states that, as aresult of an ongoing investigation, it hasreason to believe that, during the periodfrom approximately June 1994 throughapproximately July 1996, Thane-Coat,Inc., through Ford and Engebretson, andusing its affiliated companies, TCIL andEMI, made approximately 100shipments of U.S.-origin pipe coatingmaterials, machines and parts to theDong Ah Consortium in Benghazi,Libya. BXA asserts the approximatevalue of these shipments was $35million. These items were used incoating the internal surface ofprestressed concrete cylinder pipe forthe Government of Libya’s Great Man-Made River Project, which is ongoing.BXA’s investigation gives it reason tobelieve that T–CF&E, EMI and TCILemployed a scheme to export U.S.-origin products from the United States,through the United Kingdom or Italy, toLibya, a country subject to acomprehensive economic sanctionsprogram, without the authorizationsrequired under U.S. law andregulations, including the Regulations.

BXA believes that the violations T–CF&E, EMI and TCIL are suspected ofhaving committed were significant,deliberate, covert and/or likely to occuragain unless a temporary denial ordernaming T–CF&E, EMI and TCIL isissued. Additionally, BXA believes thata temporary denial order is necessary togive notice to companies in the UnitedStates and abroad that they should ceasedealing with T–CF&E, EMI and TCIL inexport-related transactions involvingU.S.-origin goods.

Counsel for T–CF&E argues that BXAhas not shown that a TDO is needed toprevent an imminent violation of lawand that evidence of past allegedviolations of the Act do not show thata future violation is imminent.2Counsel’s arguments are not persuasive.

Counsel argues that the TDO is voidand should not be renewed because theAct has expired. I do not acceptCounsel’s argument.

Counsel argues that evidence of theviolations upon which BXA bases itsrequest is contained in privilegedcommunications. Counsel further arguesthat privileged communications may notbe considered in deciding whether torenew the TDO. The showing by BXA,that renewal of the TDO is appropriate,is compelling even without thecommunications to which counselclaims privilege. I do not concur inCounsel’s argument.

Counsel argues that the TDO is over-broad and, if renewed, should benarrowed. In its showing, BXAdescribed an elaborate internationalscheme put in place by T–CF&E, EMIand TCIL. BXA argues that, if the TDOis not renewed, T–CF&E can establish asimilar scheme and commit additionalviolations. Based on the showing byBXA, the scope of the TDO is in thepublic interest to prevent additionalviolations. BXA’s argument ispersuasive.

Counsel offers declarations by JerryVernon Ford, president of Thane-Coat,Inc., and Preston John Engebretson,vice-president of Thane-Coat, Inc. Eachcertified, under penalty of perjury, thatneither he nor Thane-Coat, Inc. willenter into any contract, agreement,understanding, or arrangement with anyother party to sell, export, ship ortransmit any coating products, of anykind, to any entity in any countrysubject to a general embargo, asindicated in Section 746.1(a) of theRegulations. Messrs. Ford andEngebretson, on behalf of themselvesand Thane-Coat, Inc., also consent topre-export and post-export monitoringby BXA of all export transactionsentered into by Thane-Coat.

The pledge by Messrs. Ford andEngebretson, to comply with Section746.1(a) of the Regulations, is notpersuasive in light of the showing byBXA.

Counsel requests that BXA producedocuments related to the mattersassociated with transactions to Libyainvolving T–CF&E, EMI and TCIL. Atthis point, this matter is not ripe fordiscovery.

FindingsBased on the record in this matter,

including the submissions of the partiesand the oral arguments at the hearingheld on October 28, 1997, I find that itis necessary to renew the ordertemporarily denying the exportprivileges of Thane-Coat, Inc.; JerryVernon Ford; Preston John Engebretson;Export Materials, Inc.; and Thane-CoatInternational, Ltd. I find such renewal isin the public interest to prevent animminent violation of the Regulations


and to give notice to companies in theUnited States and abroad to ceasedealing with these entities in goods andtechnical data subject to theRegulations. I find such renewal is inthe public interest in order to reduce thesubstantial likelihood that they willengage in activities which are inviolation of the Regulations.

OrderAccordingly, it is hereby ordered that:All outstanding validated export

licenses in which Thane-Coat, Inc.,12725 Royal Drive, Stafford, Texas; JerryVernon Ford, president, Thane-Coat,Inc., 12725 Royal Drive, Stafford, Texas77477, with an address at 7707Augustine Drive, Houston, Texas 77036;Preston John Engebretson, vice-president, Thane-Coat, Inc., 12725 RoyalDrive, Stafford, Texas 77477, with anaddress at 8903 Bonhomme Road,Houston, Texas 77074; Export Materials,Inc., 3727 Greenbrier Drive, No. 108,Stafford, Texas 77477; and/or Thane-Coat International, Ltd., Suite C, RegentCenter, Explorers Way, P.O. Box F–40775, Freeport, The Bahamas, appearor participate, in any manner orcapacity, are hereby revoked and shallbe returned forthwith to the Office ofExport Licensing for cancellation.Further, all privileges of T–CF&E, EMIand TCIL of participating, in anymanner or capacity, in any speciallicensing procedure, including, but notlimited to, distribution licenses, arehereby revoked.

Thane-Coat, Inc., and all of itssuccessors or assigns, officers,representatives, agents, and employeeswhen acting on its behalf; Jerry VernonFord; Preston John Engebretson; ExportMaterials, Inc., and all of its successorsor assigns, officers, representatives,agents, and employees when acting onits behalf; and Thane-Coat International,Ltd., and all of its successors or assigns,officers, representatives, agents, andemployees when acting on its behalf,may not directly or indirectly,participate in any way in anytransaction involving any commodity,software or technology (hereinaftercollectively referred to as ‘‘item’’)exported from the United States that issubject to the Regulations, or in anyother activity subject to the Regulations,including, but not limited to:

A. Applying for, obtaining, or usingany license, License Exception, orexport control document;

B. Carrying on negotiationsconcerning, or ordering, buying,receiving, using, selling, delivering,storing, disposing of, forwarding,transporting, financing, or otherwiseservicing in any way, any transaction

involving any item exported or to beexported from the United States that issubject to the Regulations, or in anyother activity subject to the Regulations;or

C. Benefiting in any way from anytransaction involving any item exported,or to be exported, from the United Statesthat is subject to the Regulations, or inany other activity subject to theRegulations.

No person may, directly or indirectly,do any of the following:

A. Export or reexport to or on behalfof any of the denied persons any itemsubject to the Regulations;

B. Take any action that facilitates theacquisition, or attempted acquisition, byany of the denied persons of theownership, possession, or control of anyitem subject to the Regulations that hasbeen or will be exported from theUnited States, including financing orother support activities related to atransaction whereby any of the deniedpersons acquires, or attempts to acquire,such ownership, possession or control;

C. Take any action to acquire from, orto facilitate the acquisition or attemptedacquisition from, any of the deniedpersons of any item subject to theRegulations that has been exported fromthe United States;

D. Obtain from any of the deniedpersons in the United States any itemsubject to the Regulations withknowledge or reason to know that theitem will be, or is intended to be,exported from the United States;

E. Engage in any transaction to serviceany item subject to the Regulations thathas been or will be exported from theUnited States and which is owned,possessed or controlled by any of thedenied persons, or service any item, ofwhatever origin, that is owned,possessed or controlled by any of thedenied persons if such service involvesthe use of any item subject to theRegulations that has been or will beexported from the United States. Forpurposes of this paragraph, servicingmeans installation, maintenance, repair,modification or testing.

After notice and opportunity forcomment, as provided in Section 766.23of the Regulations, any person, firm,corporation, or business organizationrelated to any of the denied persons byaffiliation, ownership, control, orposition of responsibility in the conductof trade or related services, may also bemade subject to the provisions of thisOrder.

This order does not prohibit anyexport, reexport, or other transactionsubject to the Regulations where theonly items involved that are subject tothe Regulations are the foreign-

produced direct product of U.S.-origintechnology.

In accordance with the provisions ofSection 766.24(e) of the Regulations,T–CF&E, EMI, and/or TCIL may, at anytime, appeal this Order by filing a fullwritten statement in support of theappeal with the Office of theAdministrative Law Judge, U.S. CoastGuard ALJ Docketing Center, 40 SouthGay Street, Baltimore, Maryland 21202–4022.

This order is effective immediatelyand shall remain in effect for 180 days.

In accordance with Section 766.24 ofthe Regulations, the Department mayseek renewal of this TDO by filing awritten request not later than 20 daysbefore the expiration date. Anyrespondent may oppose a request torenew this TDO by filing a writtensubmission with the Assistant Secretaryfor Export Enforcement, which must bereceived no later than seven days beforethe expiration of this order.

A copy of this order shall be servedon each respondent and this order shallbe published in the Federal Register.

Entered this 31st day of October 1997.Frank W. Deliberti,Acting Assistant Secretary for ExportEnforcement.[FR Doc. 97–29377 Filed 11–5–95; 8:45 am]BILLING CODE 3510–DT–M


National Institute of Standards andTechnology

Visiting Committee on AdvancedTechnology

AGENCY: National Institute of Standardsand Technology, Department ofCommerce.ACTION: Notice of partially closedmeeting.

SUMMARY: Pursuant to the FederalAdvisory Committee Act, 5 U.S.C. app.2, notice is hereby given that theVisiting Committee on AdvancedTechnology, National Institute ofStandards and Technology (NIST), willmeet on Tuesday, December 2 from 8:30a.m. to 5:00 p.m. The VisitingCommittee on Advanced Technology iscomposed of fifteen members appointedby the Director of NIST who are eminentin such fields as business, research, newproduct development, engineering,labor, education, managementconsulting, environment, andinternational relations. The purpose ofthis meeting is to review and makerecommendations regarding generalpolicy for the Institute, its organization,


its budget, and its programs within theframework of applicable nationalpolicies as set forth by the President andthe Congress. On December 2, 1997, theagenda will include an update on NISTprograms; presentations on the NISTAdvanced Technology Program (ATP),the Manufacturing ExtensionPartnership (MEP); a laboratory tour;and discussions on the Institute budgetand staffing of management positions.Discussions on the NIST budget,including funding levels of the MEP andATP programs scheduled to begin at8:30 a.m. and to end at 9:00 a.m. onDecember 2, 1997; and staffing ofmanagement positions at NISTscheduled to begin at 4:30 p.m. and toend at 5:00 p.m. on December 2, 1997,will be closed.DATES: The meeting will convene onDecember 2, 1997 at 8:30 a.m. and willadjourn at 5:00 p.m. on December 2,1997.ADDRESSES: The meeting will be held inthe Employees Lounge (seating capacity80, includes 38 participants),Administration Building, at NIST,Gaithersburg, Maryland.FOR FURTHER INFORMATION CONTACT:Chris E. Kuyatt, Visiting CommitteeExecutive Director, National Institute ofStandards and Technology,Gaithersburg, MD 20899, telephonenumber (301) 975–6090.SUPPLEMENTARY INFORMATION: TheAssistant Secretary for Administration,with the concurrence of the GeneralCounsel, formally determined on July25, 1997, that portions of the meeting ofthe Visiting Committee on AdvancedTechnology which involve discussion ofproposed funding of the ManufacturingExtension Partnership and theAdvanced Technology Program may beclosed in accordance with 5 U.S.C.552b(c)(9)(B), because those portions ofthe meetings will divulge matters thepremature disclosure of which would belikely to significantly frustrateimplementation of proposed agencyactions; and that portions of meetingswhich involve discussion of the staffingissues of management and otherpositions at NIST may be closed inaccordance with 5 U.S.C. 552b(c)(6),because divulging informationdiscussed in those portions of themeetings is likely to reveal informationof a personal nature where disclosurewould constitute a clearly unwarrantedinvasion of personal privacy.

Dated: October 30, 1997.Elaine Bunten-Mines,Director, Program Office.[FR Doc. 97–29381 Filed 11–5–97; 8:45 am]BILLING CODE 3510–13–M

COMMITTEE FOR THEIMPLEMENTATION OF TEXTILEAGREEMENTS

Adjustment of Import Limits for CertainCotton, Wool and Man-Made FiberTextile Products Produced orManufactured in Brazil

October 31, 1997.AGENCY: Committee for theImplementation of Textile Agreements(CITA).ACTION: Issuing a directive to theCommissioner of Customs adjustinglimits.

EFFECTIVE DATE: November 7, 1997.FOR FURTHER INFORMATION CONTACT: RoyUnger, International Trade Specialist,Office of Textiles and Apparel, U.S.Department of Commerce, (202) 482–4212. For information on the quotastatus of these limits, refer to the QuotaStatus Reports posted on the bulletinboards of each Customs port or call(202) 927–5850. For information onembargoes and quota re-openings, call(202) 482–3715.

SUPPLEMENTARY INFORMATION:Authority: Executive Order 11651 of March

3, 1972, as amended; section 204 of theAgricultural Act of 1956, as amended (7U.S.C. 1854); Uruguay Round AgreementsAct.

The current limits for certaincategories are being adjusted, variously,for swing and carryover.

A description of the textile andapparel categories in terms of HTSnumbers is available in theCORRELATION: Textile and ApparelCategories with the Harmonized TariffSchedule of the United States (seeFederal Register notice 62 FR 66263,published on December 17, 1996). Alsosee 61 FR 59420, published onNovember 22, 1996.

The letter to the Commissioner ofCustoms and the actions taken pursuantto it are not designed to implement allof the provisions of the Uruguay RoundAgreements Act and the Uruguay RoundAgreement on Textiles and Clothing, butare designed to assist only in theimplementation of certain of theirprovisions.Troy H. Cribb,Chairman, Committee for the Implementationof Textile Agreements.

Committee for the Implementation of TextileAgreementsOctober 31, 1997.Commissioner of Customs,Department of the Treasury, Washington, DC

20229.Dear Commissioner: This directive

amends, but does not cancel, the directive

issued to you on November 18, 1996, by theChairman, Committee for the Implementationof Textile Agreements. That directiveconcerns imports of certain cotton, wool andman-made fiber textile products, produced ormanufactured in Brazil and exported duringthe twelve-month period which began onJanuary 1, 1997 and extends throughDecember 31, 1997.

Effective on November 7, 1997, you aredirected to adjust the limits for the followingcategories, as provided for under the UruguayRound Agreements Act and the UruguayRound Agreement on Textiles and Clothing(ATC):

Category Adjusted twelve-monthlimit 1

Sublevels in the ag-gregate

218 ........................... 6,352,800 square me-ters.

225 ........................... 11,718,341 squaremeters.

300/301 .................... 8,615,858 kilograms.338/339/638/639 ...... 1,801,932 dozen.347/348 .................... 1,234,657 dozen.410/624 .................... 11,446,488 square

meters of which notmore than 2,950,338square meters shallbe in Category 410.

1 The limits have not been adjusted to ac-count for any imports exported after December31, 1996.

The Committee for the Implementation ofTextile Agreements has determined thatthese actions fall within the foreign affairsexception of the rulemaking provisions of 5U.S.C. 553(a)(1).

Sincerely,Troy H. Cribb,Chairman, Committee for the Implementationof Textile Agreements.[FR Doc. 97–29376 Filed 11–5–97; 8:45 am]BILLING CODE 3510–DR–F

COMMODITY FUTURES TRADINGCOMMISSION

Chicago Mercantile ExchangeProposed Amendments to theTermination of Trading Provision forExpiring E-Mini Standard & Poor’s 500Stock Price Index Futures and FuturesOption Contracts

AGENCY: Commodity Futures TradingCommission.ACTION: Notice of availability ofproposed amendments to thetermination of trading provision forexpiring E-Mini Standard & Poor’s 500Stock Price Index futures and futuresoption contracts.

SUMMARY: The Chicago MercantileExchange (CME) has submittedproposed amendments to thetermination of trading provision for


1 The final settlement price is a special openingquotation of the S&P 500 index and reflects theopening prices of the component stocks.

expiring the E-Mani Standard & Poor’s500 Stock Price Index (E-Mini S&P 500)futures and futures option contracts.The Director of the Division ofEconomic Analysis (Division) of theCommission, acting pursuant to theauthority delegated by CommissionRegulation 140.96, has determined thatpublication of the proposals forcomment is in the public interest, willassist the Commission in consideringthe views of interested persons, and isconsistent with the purposes of theCommodity Exchange Act.DATES: Comments must be received onor before November 21, 1997.ADDRESSES: Interested persons shouldsubmit their views and comments toJean A. Webb, Secretary, CommodityFutures Trading Commission, 1155 21stStreet NW, Washington, DC 20581. Inaddition, comments may be sent byfacsimile transmission to facsimilenumber (202) 418–5521 or by electronicmail to [email protected]. Referenceshould be made to the proposedamendments to the termination oftrading provision of the E-Mini S&P 500futures and futures option contracts.FOR FURTHER INFORMATION CONTACT:Please contact Michael Penick of theDivision of Economic Analysis,Commodity Futures TradingCommission, 1155 21st Street NW,Washington, DC 20581, telephone 202–418–5279. Facsimile number: (202) 418–5527. Electronic mail:[email protected] INFORMATION: Undercurrent rules, trading in expiring CMEE-Mini S&P 500 futures and optionsterminates at the close of the regulartrading session (i.e., 4:15 p.m. Easterntime) on the business day immediatelypreceding the day scheduled fordetermination of the final settlementprice.1 That is, trading in expiringfutures contracts ceases on the businessday before the third Friday of thecontract month. Under the proposal,trading in expiring futures and optionswould terminate on the following day—i.e., at the opening of trading at the NewYork Stock Exchange (9:30 a.m. Easterntime) on the third Friday of the contractmonth, which is the day scheduled fordetermination of the final settlementprice. The Division requests commenton this proposed change to thetermination of trading provision.

Copies of the proposed amendmentswill be available for inspection at theOffice of the Secretariat, CommodityFutures Trading Commission, 1155 21st

Street, N.W., Washington, DC 20581.Copies of the terms and conditions canbe obtained through the Office of theSecretariat by mail at the above addressor by phone at (202) 418–5100.

Other materials submitted by the CMEin support of the proposals may beavailable upon request pursuant to theFreedom of Information Act (5 U.S.C.552) and the Commission’s regulationsthereunder (17 CFR Part 145 (1987)),except to the extent they are entitled toconfidential treatment as set forth in 17CFR 145.5 and 145.9. Requests forcopies of such materials should be madeto the FOI, Privacy and Sunshine ActCompliance Staff of the Office of theSecretariat at the Commission’sheadquarters in accordance with 17 CFR145.7 and 145.8.

Any person interested in submittingwritten data, views, or arguments on theproposed amendments, or with respectto other materials submitted by the CMEshould send such comments to Jean A.Webb, Secretary, Commodity FuturesTrading Commission, 1155 21st Street,NW, Washington, DC 20581 by thespecified date.

Issued in Washington, DC, on October 31,1997.John R. Mielke,Acting Director.[FR Doc. 97–29356 Filed 11–5–97; 8:45 am]BILLING CODE 6351–01–M

COMMODITY FUTURES TRADINGCOMMISSION

Proposed Amendments to MinneapolisGrain Exchange Barley FuturesContract

AGENCY: Commodity Futures TradingCommission.ACTION: Notice of availability ofproposed amendments.

SUMMARY: The Minneapolis GrainExchange (MGE or Exchange) hasproposed amendments to MinneapolisGrain Exchange barley futures contract.The primary amendment will changethe par delivery location for barley fromTulare, California, to Portland, Oregon.Another amendment will provide theissuers of barley shipping certificatesthe opportunity to declare unit traindelivery. The proposal was submittedunder the Commission’s 45-day FastTrack procedures. The Acting Directorof the Division of Economic Analysis(Division) of the Commission, actingpursuant to the authority delegated byCommission Regulation 140.96, hasdetermined that publication of theproposals for comment is in the publicinterest, will assist the Commission in

considering the views of interestedpersons, and is consistent with thepurpose of the Commodity ExchangeAct.DATES: Comments must be received onor before November 21, 1997.ADDRESSES: Interested persons shouldsubmit their views and comments toJean A. Webb, Secretary, CommodityFutures Trading Commission, ThreeLafayette Centre, 21st Street NW,Washington, DC 20581. In addition,comments may be sent by facsimiletransmission to facsimile number (202)418–5521, or by electronic mail [email protected]. Reference should bemade to the MGE barley.FOR FURTHER INFORMATION CONTACT:Please contact John Bird of the Divisionof Economic Analysis, CommodityFutures Trading Commission, ThreeLafayette Centre, 21st Street NW,Washington, 20581, telephone (202)418–5274. Facsimile number: (202) 418–5527. Electronic mail: [email protected] INFORMATION:Theproposed amendments were submittedpursuant to the Commission’s FastTrack procedures for streamlining thereview of futures contract ruleamendments (62 FR 10434). Underthose procedures, the proposal, absentany contrary action by the Commission,may be deemed approved at the close ofbusiness on December 15, 1997, 45 daysafter receipt of the proposal. In view ofthe limited review period providedunder the Fast Track procedures, theCommission has determined to publishfor public comment notice of theavailability of the terms and conditionsfor 15 days, rather than 30 days asprovided for proposals submitted underthe regular review procedures.

Copies of the proposed amendmentswill be available for inspection at theOffice of the Secretariat, CommodityFutures Trading Commission, ThreeLafayette Centre, 21st Street NW,Washington, DC 20581. Copies of theproposed amendments can be obtainedthrough the Office of the Secretariat bymail at the above address, by phone at(202) 418–5100, or via the internet onthe CFTC website at www.cftc.govunder ‘‘What’s Pending’’.

Other materials submitted by the MGEin support of the proposal may beavailable upon request pursuant to theFreedom of Information Act (5 U.S.C.552) and the Commission’s regulationsthereunder (17 CFR Part 145 (1987)),except to the extent they are entitled toconfidential treatment as set forth in 17CFR 145.5 and 145.9. Requests forcopies of such materials should be madeto the FOI, Privacy and Sunshine ActCompliance Staff of the Office of


Secretariat at the Commission’sheadquarters in accordance with 17 CFR145.7 and 145.8.

Any person interested in submittingwritten data, views, or arguments on theproposed amendments, or with respectto other materials submitted by theMGE, should send such comments toJean A. Webb, Secretary, CommodityFutures Trading Commission, ThreeLafayette Centre, 21st Street NW,Washington, DC 20581 by the specifieddate.

Issued in Washington, DC, on October 31,1997.John R. Mielke,Acting Director.[FR Doc. 97–29355 Filed 11–5–97; 8:45 am]BILLING CODE 6351–01–P

DEPARTMENT OF DEFENSE

Office of the Secretary

Proposed Collection; CommentRequest

AGENCY: Office of the AssistantSecretary of Defense for Health Affairs,DOD.ACTION: Notice.

In accordance with Section3506(c)(2)(A) of the PaperworkReduction Act of 1995, the Office of theAssistant Secretary of Defense forHealth Affairs announces the proposedpublic information collection and seekspublic comment on the provisionsthereof. Comments are invited on: (a)whether the proposed collection ofinformation is necessary for the properperformance of the functions of theagency, including whether theinformation shall have practical utility;(b) the accuracy of the agency’s estimateof the burden of the informationcollection; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; and (d)ways to minimize the burden of theinformation collection on respondents,including through the use of automatedcollection techniques or other forms ofinformation technology.DATES: Consideration will be given to allcomments received by January 5, 1998.ADDRESSES: Written comments andrecommendations on the informationcollection should be sent to TRICARESupport Office, Program DevelopmentBranch, U.S. Army Garrison,Fitzsimons, ATTN: Tariq Shahid,Aurora, CO 80045–6900.FOR FURTHER INFORMATION CONTACT:To request more information on thisproposed information collection, please

write to the above address or callTRICARE Support Office, ProgramDevelopment Branch, at (303) 361–1401.

Title; Associated Form; and OMBNumber: Reimbursement Information,Psychiatric Residential TreatmentCenters Serving Children andAdolescents, TRICARE Form 771, OMBNumber 0704–0295.

Needs and Uses: The informationcollection requirement is necessary toobtain individual residential treatmentcenter (RTC) data that will be used incalculating the prospective per diemrates for new RTCs seeking certificationsunder the TRICARE program.

Affected Public: Business or other for-profit; non-profit institutions.

Annual Burden Hours: 240.Number of Respondents: 20.Responses per Respondents: 1.Average Burden per Response: 12

hours.Frequency: On occasion.


Summary of Information Collection

Respondents are psychiatricresidential treatment centers (RTCs)seeking certification under the TRICAREprogram to provide needed services toeligible children and adolescents. Thedata collection instrument, i.e.,TRICARE Form 771, will collect thenecessary reimbursement informationthat will be used in calculatingprospective all-inclusive per diem ratesfor new RTCs under the TRICAREprogram. Based on current trends, it isestimated that about 20 forms will becompleted and submitted to theTRICARE program per fiscal year forRTCs seeking certification under theprogram.

The TRICARE Support Office (TSO),formerly known as OCHAMPUS,published a proposed rule on 4December 1987, (52 FR 46098), and finalrule on 1 August 1988, (53 FR 28873),in the Federal Register clarifyingparticipation requirements andestablishing a new reimbursementsystem for payment of RTCs. Theseamendments outlined the methodologyused in calculating the individual RTCrates along with the capped amount.The amendments also described thedata collection elements and respondedto 23 distinct categories of comments.

The TRICARE program will beresponsible for: (1) sending out the datacollection instrument (TRICARE Form771) to all RTCs seeking certificationunder the TRICARE program; (2)answering all inquiries regarding thedata collection; (3) compiling andanalyzing the submitted data; (4)following up on missing or incomplete

data; (5) calculating the individualprospective all-inclusive per diem rates;and (6) sending out RTC participationagreements with the calculated rates.

The TRICARE’s failure to collect theinformation will jeopardize fulfillmentof the program requirements and wouldresult in the agency’s inability to collectthe necessary data for establishment ofRTC rates. The agency’s inability toestablish prospective per diem ratescould also result in a reduction inavailability of RTCs for TRICAREbeneficiaries.

The prospective paymentmethodology: (1) provides the potentialfor control over rapidly increasing costsfor mental health care within theDepartment of Defense; (2) ensures thatTRICARE beneficiaries are not subject toexaggerated or unjustified costs for RTCcare solely because of the TRICAREentitlement; and (3) provides for a rateof reimbursement for all participatingRTCs which reflects a reasonableamount consistent with rates charged bytheir peers nationally and withreimbursement they are accepting fromother third-party payers.

The use of improved informationtechnology has been a consideration incapturing RTC charge data necessary tocalculate new rates; however, thiswould create an excessiveadministrative burden on the agency forthe relatively small number of providersaffected by the request. RTCs representless than 0.13 percent of TRICAREinstitutional providers and less than0.04 percent of TRICARE individualprofessional providers. The agencywould have to make majormodifications to its payment recordsand data files in order to retrieve thisinformation.

In the data collection form design, wehave made every effort to eliminate anyduplication. The form consists of twomajor categories of data collection: (1)institutional per diem rates; and (2)additional ancillary or professionalcharges not included in the per diemrates. All data information systems havebeen queried to determine if there wasany duplication of data collectionelements. None of the routine datacollection reports maintained by theagency have the information formattedin a way that can be used to calculatethe new RTC rates.

While TSO generates RTC reports,these reports do not includeprofessional claims which are billedseparately from the institutionalcomponent. Since the professionalcharges arenot married up withinstitutional charges, an all-inclusiverate cannot be determined under theexisting reporting system. The marrying


up of claims would require extensivereprogramming of the current paymentsystem reports and would probablyresult in questionable data. Even if TSOcould modify its current reportingsystem, it would only provide one of thedata components necessary forestablishing the RTC rates. The rates forother third-party payers would remaininaccessible under the TSO reportingsystem. Other third-party information iscritical in establishing the mostfavorable rate for the RTC. The RTC isthe only one that can provide otherthird-party information.

The data collection form is simplisticin design to minimize administrativeburden on the RTCs. The requestedinformation should already bemaintained by the facility for normaloperation. It is anticipated that it shouldtake one person 8 to 10 hours to preparethe data, and an additional 2 to 4 hoursif TRICARE should have follow-upinquiries regarding their datasubmission. TSO or the TRICAREcontractor staff will be available toanswer any questions that the RTCs mayhave regarding completion of the form.

The issue of confidentiality has beenconsidered. The data submitted by RTCswill be kept in strict confidence andwill not be accessible to competitors.The only information accessible to thegeneral public will be the TRICARE all-inclusive rates calculated for each RTC.These rates will appear in the TRICARE/CHAMPUS Policy Manual and may bereleased under the Freedom ofInformation Act.

The information requested is financialin nature and may be considered private

or confidential in a business sense.Specific knowledge of a RTC’s financialposition may create an unfair advantagefor its competitors. However, theinformation requested is necessary forcalculating the individual prospectiveall-inclusive per diem rates. The RTCsare only being asked to provide thosedata (financial) elements used directlyin the reimbursement formula. Theyhave also been assured that facilityspecific information will be keptconfidential. The instruction sheet andcover letter will justify collection of theinformation and give a detailedexplanation of the data elementrequirements.

The number of one-time respondentsis 20. It is estimated that a maximum of12 hours will be required to completethe form since the requestedinformation should already bemaintained by the facility for normaloperation. Most of the administrativeburden will be associated with thereformatting of existing financialinformation. The burden of collectingthe data will be dependent on the typeof reporting system in use. Facilitieswhich maintain their financial recordson computers will be able to retrieve therequested information faster than thosewith manual systems. The use ofcomputerized data may cut thereporting time in half (6 hours). LargerRTCs are more likely to havesophisticated reporting systems thansmaller facilities. However, this isprobably more the exception than therule with the advent of more reasonablypriced ADP systems for small

businesses. The total one-time reportingburden is estimated to be 240 hours.

Dated: October 31, 1997.L.M. Bynum,Alternate OSD Federal Register LiaisonOfficer, Department of Defense.[FR Doc. 97–29309 Filed 11–5–97; 8:45 am]BILLING CODE 5000–04–M



[Transmittal No. 98–04]

36(b)(1) Arms Sales Notification

AGENCY: Defense Security AssistanceAgency, Department of Defense.ACTION: Notice.

SUMMARY: The Department of Defense ispublishing the unclassified text of asection 36(b)(1) arms sales notification.This is published to fulfill therequirements of section 155 of PublicLaw 104–164 dated 21 July 1996.FOR FURTHER INFORMATION CONTACT:Ms. J. Hurd, DSAA/COMPT/RM, (703)604–6575.

The following is a copy of a letter tothe Speaker of the House ofRepresentatives, Transmittal 98–04,with attached transmittal and policyjustification pages.

Dated: October 31, 1997.L.M. Bynum,Alternate OSD Federal Register LiaisonOfficer, Department of Defense.





[FR Doc. 97–29308 Filed 11–5–97; 8:45 am]BILLING CODE 5000–04–C



Department of the Army

Privacy Act of 1974; System ofRecords

AGENCY: Department of the Army, DOD.ACTION: Notice to amend a system ofrecords.

SUMMARY: The Department of the Armyis amending a system of records noticein its existing inventory of recordsystems subject to the Privacy Act of1974, (5 U.S.C. 552a), as amended.DATES: This proposed action will beeffective without further notice onDecember 8, 1997, unless comments arereceived which result in a contrarydetermination.ADDRESSES: Privacy Act Officer, RecordsManagement Program Division, U.S.Total Army Personnel Command,ATTN: TAPC-PDR-P, Stop C55, Ft.Belvoir, VA 22060–5576.FOR FURTHER INFORMATION CONTACT: Ms.Janice Thornton at (703) 806–4390 orDSN 656–4390.SUPPLEMENTARY INFORMATION: TheDepartment of the Army systems ofrecords notices subject to the PrivacyAct of 1974, (5 U.S.C. 552a), asamended, have been published in theFederal Register and are available fromthe address above.

The specific changes to the recordsystem being amended are set forthbelow followed by the notice, asamended, published in its entirety. Theproposed amendments are not withinthe purview of subsection (r) of thePrivacy Act of 1974, (5 U.S.C. 552a), asamended, which requires thesubmission of a new or altered systemreport.

Dated: October 31, 1997.

L.M. Bynum,Alternate OSD Federal Register LiaisonOfficer, Department of Defense.

A0725–1 AMC

SYSTEM NAME:

Small Arms Sales Record Files(February 22, 1993, 58 FR 10180).

CHANGES:

* * * * *

SYSTEM LOCATION:

Delete entry and replace with ‘U.S.Army Armament and ChemicalAcquisition and Logistics Activity,ATTN: AMSTA-AC-MMDL, RockIsland, IL 62199–7630.’* * * * *

SYSTEM MANAGER(S) AND ADDRESS:Delete entry and replace with ‘U.S.

Army Armament and ChemicalAcquisition and Logistics Activity,ATTN: AMSTA-AC-MMDL, RockIsland, IL 62199–7630.’* * * * *

A0725–1 AMC

SYSTEM NAME:Small Arms Sales Record Files.

SYSTEM LOCATION:U.S. Army Armament and Chemical

Acquisition andLogistics Activity,ATTN: AMSTA-AC-MMDL, RockIsland, IL 62199–7630.

CATEGORIES OF INDIVIDUALS COVERED BY THESYSTEM:

Any U.S. citizen considered eligibleunder Federal regulations whopurchased a firearm from the U.S.Government for personal use.

CATEGORIES OF RECORDS IN THE SYSTEM:Individual’s name, mailing address,

application for purchase of firearm, datepurchased, DA Form 3535 (WeaponSales Record), information concerningweapon caliber, model, type and serialnumber of firearm, relevantcorrespondence.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:10 U.S.C. 2574.

PURPOSE(S):To respond to individual citizen

requests to purchase firearms from theU.S. Government for personal use.

ROUTINE USES OF RECORDS MAINTAINED IN THESYSTEM, INCLUDING CATEGORIES OF USERS ANDTHE PURPOSES OF SUCH USES:

In addition to those disclosuresgenerally permitted under 5 U.S.C.552a(b) of the Privacy Act, these recordsor information contained therein mayspecifically be disclosed outside theDoD as a routine use pursuant to 5U.S.C. 552a(b)(3) as follows:

Federal, state and local lawenforcement investigative agencies maybe furnished information from thissystem of records to determine lastknown firearm ownership, to tracerecovered or confiscated firearms, andto assist in criminal prosecution or civilcourt actions.

The ‘Blanket Routine Uses’ set forth atthe beginning of the Army’s compilationof systems of records notices also applyto this system.

POLICIES AND PRACTICES FOR STORING,RETRIEVING, ACCESSING, RETAINING, ANDDISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:Paper records in file cabinets.

RETRIEVABILITY:

By purchaser’s surname; type ofweapon; and serial number.

SAFEGUARDS:

Records are maintained in areasaccessible only to designated personshaving official need therefor in theperformance of their duties. Buildinghousing records are protected bysecurity guards.

RETENTION AND DISPOSAL:

Records are permanent.

SYSTEM MANAGER(S) AND ADDRESS:

U.S. Army Armament and ChemicalAcquisition and Logistics Activity,ATTN: AMSTA-AC-MMDL, RockIsland, IL 62199–7630.

NOTIFICATION PROCEDURE:

Individuals seeking to determinewhether information about themselvesis contained in this system shouldaddress written inquiries to the U.S.Army Armament and ChemicalAcquisition andLogistics Activity,ATTN: AMSTA-AC-MMDL, RockIsland, IL 62199–7630.

Individual should provide their fullname; current address as well as addressat time of firearm purchase, if different;type, caliber, and serial number offirearm(s) purchases; and signature.

RECORD ACCESS PROCEDURES:

Individuals seeking access toinformation about themselves containedin this system should address writteninquiries to the U.S. Army Armamentand Chemical Acquisition and LogisticsActivity, ATTN: AMSTA-AC-MMDL,Rock Island, IL 62199–7630.

Individual should provide their fullname; current address as well as addressat time of firearm purchase, if different;type, caliber, and serial number offirearm(s) purchases; and signature.

CONTESTING RECORD PROCEDURES:

The Army’s rules for accessingrecords, and for contesting contents andappealing initial agency determinationsare contained in Army Regulation 340–21; 32 CFR part 505; or may be obtainedfrom the system manager.

RECORD SOURCE CATEGORIES:

From the individual; Army recordsand reports.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

None.[FR Doc. 97–29307 Filed 11–5–97; 8:45 am]BILLING CODE 5000–04–F


DEPARTMENT OF ENERGY

Federal Energy RegulatoryCommission

[Docket No. CP98–47–000]

ANR Pipeline Company; Notice ofRequest Under Blanket Authorization

October 31, 1997.Take notice that on October 24, 1997,

ANR Pipeline Company (ANR), 500Renaissance Center, Detroit, Michigan48243, filed in Docket No. CP98–47–000a request pursuant to Sections 157.205and 157.212 of the Commission’sRegulations under the Natural Gas Act(18 CFR 157.205 and 157.212) forauthorization to install and operate aturbine meter at its St. Henry MeterStation, located in Mercer County, Ohio,under ANR’s blanket certificate issuedin Docket No. CP82–480–000, pursuantto Section 7(c) of the Natural Gas Act,all as more fully set forth in the requestthat is on file with the Commission andopen to public inspection.

ANR proposes to install one 3-inchturbine meter at its existing St. HenryMeter Station, located in MercerCounty, Ohio. ANR states the St. HenryMeter Station currently consists of one4-inch turbine meter. ANR declares itprovides deliveries to West Ohio GasCompany at this location. ANR assertsit is proposing to add the turbine meterat the St. Henry Meter Station in orderto meet customer demand thatsometimes exceeds the capability of theexisting meter when gas pressure at thestation is low (less than 400 psig).

ANR states the total cost of theproposed facility is estimated to beapproximately $57,500.

Any person or the Commission’s staffmay, within 45 days after issuance ofthe instant notice by the Commission,file pursuant to Rule 214 of theCommission’s Procedural Rules (18 CFR385.214) a motion to intervene or noticeof intervention and pursuant to Section157.205 of the Regulations under theNatural Gas Act (18 CFR 157.205) aprotest to the request. If no protest isfiled within the time allowed therefor,the proposed activity shall be deemed tobe authorized effective the day after thetime allowed for filing a protest. If aprotest is filed and not withdrawnwithin 30 days after the time allowedfor filing a protest, the instant requestshall be treated as an application forauthorization pursuant to Section 7 ofthe Natural Gas Act.Lois D. Cashell,Secretary.[FR Doc. 97–29339 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. RP97–310–004]

Garden Banks Gas Pipeline, LLC;Notice of Proposed Changes in FERCGas Tariff


Garden Banks Gas Pipeline, LLC(GBGP), tendered for filing as part of itsFERC Gas Tariff, Original Volume No. 1,Substitute First Revised Sheet Nos. 89and 90 to reflect to correct Index Priceas approved in Docket No. RP97–487–000 on September 24, 1997, with aneffective date of November 1, 1997.

GBGP states the purpose of the filingis to properly state the Index Price beingequal to the spot price as published inNatural Gas Intelligence Gas Price Indexfor South Louisiana Region, TennesseeLine 500, effective November 1, 1997.

Any person desiring to protest thisfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with section385.211 of the Commission’s Rules andRegulations. All such protests must befiled in accordance with Section154.210 of the Commission’sRegulations. Protests will be consideredby the Commission in determining theappropriate action to be taken, but willnot serve to make Protestants parties tothe proceeding. Copies of this filing areon file with the Commission and areavailable for public inspection in thePublic Reference Room.Lois D. Cashell,Secretary.[FR Doc. 97–29330 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER98–181–000]

Howard/Avista Energy, LLC; Notice ofFiling


Howard/Avista Energy, LLC (Howard/Avista), petitioned the Commission foracceptance of its FERC Rate ScheduleNo. 1, and an order authorizingHoward/Avista to sell energy at market-based rates, and for certain blanketapprovals, and the waiver of certainCommission Regulations.

Howard/Avista intends to engage inwholesale electric power and energypurchases and sales as a marketer.Howard/Avista is a Washington limitedliability company formed by AvistaEnergy, Inc., a wholly-owned subsidiaryof The Washington Water PowerCompany, and Howard EnergyMarketing, Inc., a wholly-ownedaffiliate of Howard Publications, Inc.Howard/Avista is not in the business ofgenerating, transmitting, or distributingelectric power.

Any person desiring to be heard or toprotest such filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Rules 211and 214 of the Commission’s Rules ofPractice and Procedure (18 CFR 385.211and 18 CFR 385.214). All such motionsor protests should be filed on or beforeNovember 14, 1997. Protests will beconsidered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection.Lois D. Cashell,Secretary.[FR Doc. 97–29335 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M




Illinois Power Company; Notice ofFiling


Illinois Power Company (Illinois Power)tendered for filing firm transmissionagreements under which Illinois StateUniversity will take transmissionservice pursuant to its open accesstransmission tariff. The agreements arebased on the Form of Service Agreementin Illinois Power’s tariff.

Illinois Power has requested aneffective date of September 15, 1997.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Rules 211and 214 of the Commission’s Rules ofPractice and Procedure (18 CFR 385.211and 18 CFR 385.214). All such motions


or protests should be filed on or beforeNovember 14, 1997. Protests will beconsidered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection.Lois D. Cashell,Secretary.[FR Doc. 97–29337 Filed 11–5–97; 8:45 am]





Indeck Pepperell Power Associates,Inc.; Notice of Filing

October 31, 1997.

Take notice that on October 14, 1997,Indeck Pepperell Power Associates, Inc.,tendered for filing a summary of itsactivity for the quarter endingSeptember 30, 1997.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Rules 211and 214 of the Commission’s Rules ofPractice and Procedure (18 CFR 385.211and 18 CFR 385.214). All such motionsor protests should be filed on or beforeNovember 14, 1997. Protests will beconsidered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection.Lois D. Cashell,Secretary.[FR Doc. 97–29336 Filed 11–5–97; 8:45 am]




[Docket No. ER97–3200–001]

Montaup Electric Company; Notice ofFiling


Montaup Electric Company filedamendments to its open accesstransmission tariff to comply with theCommission’s order of September 12,1997, in this docket.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, NE., Washington, DC 20426,in accordance with Rules 211 or 214 ofthe Commission’s Rules of Practice andProcedure (18 CFR 385.211 and 18 CFR385.214). All such motions or protestsshould be filed on or before November10, 1997. Protests filed with theCommission will be considered by it indetermining the appropriate action to betaken but will not serve to make partiesto the proceeding. Any person wishingto become a party must file a motion tointervene. Copies of this filing are onfile with the Commission and areavailable for public inspection.Lois D. Cashell,Secretary.[FR Doc. 97–29338 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M




Natural Gas Pipeline Company ofAmerica; Notice of Compliance Filing


Natural Gas Pipeline Company ofAmerica (Natural) tendered for filing aspart of its FERC Gas Tariff, SixthRevised Volume No. 1, proposed tariffsheets to the effective on October 1,1997, and others on December 1, 1997.

Natural states that the purpose of thisfiling is to comply with theCommission’s order issued September26, 1997, in Docket No. RP97–469–000,which required Natural to submit tariffchanges relating to the recovery of gassupply realignment costs.

Natural requested any waivers whichmay be required to permit the tenderedtariff sheets to become effective October

1, 1997 and December 1, 1997, asindicated in the filing.

On October 28, 1997, Natural filed aletter with the Commission requestingthat the three tariff sheets proposed tobe effective December 1, 1997, bedeemed withdrawn. Natural furtherstated that Natural will refile the threesheets in a separate filing within 30days of the proposed effective date.

Natural states that copies of the filinghave been mailed to Natural’scustomers, interested state regulatoryagencies and all parties set out on theofficial service list in Docket No. RP97–469–000.

Any person desiring to protest saidfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426 in accordance with Section385.211 of the Commission’s Rules andRegulations. All such protests must befiled as provided in Section 154.210 ofthe Commission’s Regulations. Protestswill be considered by the Commissionin determining the appropriate action tobe taken, but will not serve to makeprotestants parties to the proceeding.Copies of this filing are on file with theCommission and are available for publicinspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–29327 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ES98–2–000]

New York State Electric & GasCorporation; Notice of Application


New York State Electric & GasCorporation (NYSE&G) filed anapplication, under § 204 of the FederalPower Act, seeking authorization toissue a short-term debt in the amount of$275,000,000 and funds necessary torelease its coal-fired generation assetsfrom the lien of NYSE&G’s mortgage.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, DC 20426in accordance with Rules 211 and 214of the Commission’s Rules of Practiceand Procedure (18 CFR 385.211 and385.214). All such motions or protestsshould be filed on or before November24, 1997. Protests will be considered by


the Commission in determining theappropriate action to be taken, but willnot serve to make the protestsantsparties to the proceeding. Any personwishing to become a party must file amotion to intervene. Copies of this filingare on file with the Commission and areavailable for public inspection.Lois D. Cashell,Secretary.[FR Doc. 97–29334 Filed 11–5–97; 8:45 am]





Tennessee Gas Pipeline Company;Notice of Compliance Filing

October 31, 1997.

Take notice that on October 27, 1997,Tennessee Gas Pipeline Company(Tennessee), tendered for filing as partof its FERC Gas Tariff, Fifth RevisedVolume No. 1, the tariff sheetsidentified in Appendix A to the filing.Tennessee requests an effective date ofDecember 1, 1997.

Tennessee states that these sheets arefiled in compliance with theCommission’s September 25, 1997,Order Granting Rehearing in Part,Accepting Compliance Filing, andRejecting Tariff Filing issued in theabove-referenced dockets (September25, Order). Tennessee Gas PipelineCompany, 80 FERC ¶61,359 (1997).

Any person desiring to protest thisfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, N.E., Washington, D.C.20426, in accordance with Section385.211 of the Commission’s Rules andRegulations. All such protests must befiled as provided in Section 154.210 ofthe Commission’s Regulations. Protestswill be considered by the Commissionin determining the appropriate action tobe taken, but will not serve to makeProtestants parties to this proceeding.Copies of this filing are on file with theCommission and available for publicinspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–29332 Filed 11–5–97; 8:45 am]





Texas Eastern TransmissionCorporation; Notice of ProposedChanges In FERC Gas Tariff


Texas Eastern Transmission Corporation(Texas Eastern), tendered for filing aspart of its FERC Gas Tariff, SixthRevised Volume No. 1 and OriginalVolume No. 2, the tariff sheets listed onAppendix A to the filing to becomeeffective December 1, 1997.

Texas Eastern asserts that the purposeof this filing is to comply with theStipulation and Agreement filed byTexas Eastern in Docket Nos. RP88–67,et al. (Phase II/PCBs) and with Section26 of Texas Eastern’s FERC Gas Tariff,Sixth Revised Volume No. 1.

Texas Eastern states that such tariffsheets reflect a small increase in thePCB-Related Cost component of TexasEastern’s currently effective rates. Forexample, the increase in the 100% loadfactor average cost of long-haul serviceunder Rate Schedule FT–1 to MarketZone 3 is $0.0015/dth.

Texas Eastern states that copies of thefiling were served on firm customers ofTexas Eastern and interested statecommissions. Copies of this filing havealso been mailed to all parties on theservice list in Docket Nos. RP88–67, etal. (Phase II/PCBs) and to all currentinterruptible shippers.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Sections385.211 and 385.214 of theCommission’s Rules and Regulations.All such motions or protests must befiled as provided in Section 154.210 ofthe Commission’s Regulations. Protestswill be considered by the Commissionin determining the appropriate action tobe taken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–29325 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. TQ98–1–35–000]

West Texas Gas, Inc.; Notice ofProposed Changes in FERC Gas Tariff

October 31, 1997.

Take notice that on October 29, 1997,West Texas Gas, Inc. (WTG), submittedfor filing as part of its FERC Gas Tariff,First Revised Volume No. 1, thefollowing tariff sheet, to be effectiveNovember 1, 1997:Twenty-Fifth Revised Sheet No. 4

WTG states that the tariff sheet andthe accompanying explanatoryschedules constitute an out-of-cyclePGA filing submitted pursuant to thepurchased gas adjustment provisions ofSection 19, of the General Terms andConditions of its tariff. WYG states thatcopies of the filing were served upon itscustomers and affected statecommissions.

WTG request the Commission toaccept the proposed tariff sheet, whichreflects an increase of $1,2399 per Mcfin its cost of gas, to be effectiveNovember 1, 1997. According to WTG,its gas costs have increased sharply dueto substantial recent increases in thespot price of gas. To prevent theaccumulation of a significant level ofcosts in its deferred account, WTGrequests the Commission to shorten orwaive the 30-day notice period topermit a prompt adjustment to is salesrates.

Any person desiring to be heard or toprotest said filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street N.E., Washington, D.C.20426, in accordance with Sections385.214 and 385.211 of theCommission’s Rules and Regulations.All such motions or protests must befiled as provided in Section 154.210 ofthe Commission’s Regulations. Protestswill be considered by the Commissionin determining the appropriate action tobe taken, but will not serve to make theprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–29324 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M





Wyoming Interstate Company Ltd.;Notice in Proposed Changes in FERCGas Tariff


Wyoming Interstate Company Ltd.(WIC), tendered for filing to become partof its FERC Gas Tariff, First RevisedVolume No. 1, the tariff sheets listed inAppendix A to the filing, to be effectiveNovember 1, 1997.

WIC states the purposes of this filingis to conform WIC’s Volume No. 1 tariff(individually certificated services) to thechanges made to WIC’s Volume No. 2Tariff (open access service) to complywith Order No. 587–C requirements.

WIC states that copies of this filinghave been served on WIC’sjurisdictional customers and publicbodies.

Any person desiring to be heard or toprotest this filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, N.E., Washington, D.C.20426, in accordance with Section385.214 and Section 385.211 of theCommission’s Regulations. All suchmotions or protests must be filed asprovided in Section 154.210 of theCommission’s Regulations. Protests willbe considered by the Commission indetermining the appropriate action to betaken, but will not serve to makeprotestants parties to the proceeding.Any person wishing to become a partymust file a motion to intervene. Copiesof this filing are on file with theCommission and are available for publicinspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–29326 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M




Wyoming Interstate Company, Ltd.;Notice of Informal SettlementConference

October 31, 1997.Take notice that an informal

settlement conference in this proceedingwill be convened on November 13,

1997, at 10:00 a.m. The settlementconference will be held at the offices ofthe Federal Energy RegulatoryCommission, 888 First Street, N.E.,Washington, D.C. 20426, for the purposeof exploring the possible settlement ofthe above referenced docket.

Any party, as defined by 18 CFR385.102(c), or any participant as definedin 18 CFR 385.102(b), is invited toattend. Persons wishing to become aparty must move to intervene andreceive intervenor status pursuant to theCommission’s regulations (18 CFR385.214).

For additional information, contactArnold Meltz at (202) 208–2161 or JohnRoddy at (202) 208–0053.Lois D. Cashell,Secretary.[FR Doc. 97–29328 Filed 11–5–97; 8:45 am]BILLING CODE 6717–01–M


[FRL–5918–4]

Retrofit/Rebuild Requirements for 1993and Earlier Model Year Urban Buses;Public Review of a Notification ofIntent to Certify Equipment

AGENCY: Environmental ProtectionAgency.ACTION: Notice of Agency receipt of anotification of intent to certifyequipment and initiation of 45-daypublic review and comment period.

SUMMARY: Detroit Diesel Corporation(DDC) has submitted to the Agency anotification of intent to certify urbanbus retrofit/rebuild equipment to a 0.1gram per brake-horsepower-hr(g/bhp-hr)particulate matter (PM) standardpursuant to 40 CFR Part 85, Subpart O.The equipment, referred to by DDCconsists of the base engine componentsused on the 25% reduction retrofit/rebuild kit certified by DDC (October 2,1995), components from the 25%retrofit catalyst kit previously certifiedunder the program by Engine ControlSystems, Ltd. (January 6, 1997), and aTurboPac supercharger system suppliedby Turbodyne Systems, Inc. whichsupplies additional charge air duringengine acceleration. The candidate kit isapplicable to all 6V–92TA MUI enginemodels made by DDC for model years1979 to 1989 and equipped withmechanical unit injectors (MUI).

DDC intends this equipment to becertified to the particulate matter levelof 0.10 g/bhp-hr. If the Agency certifiesthat this equipment complies with the0.10 g/bhp-hr level, then operators with

affected engines will have the choice ofusing this equipment or otherequipment that is already required foruse and certified to the 0.10 g/bhp-hrstandard within the cost limitation.

Pursuant to § 85.1407(a)(7), today’sFederal Register notice summarizes thenotification, announces that thenotification is available for publicreview and comment, and initiates a 45-day period during which comments canbe submitted. The Agency will reviewthis notification of intent to certify, aswell as any comments it receives, todetermine whether the equipmentdescribed in the notification of intent tocertify should be certified. If certified,the equipment can be used by urban busoperators to reduce the particulatematter of urban bus engines.

The notification of intent to certify, aswell as other materials specificallyrelevant to it, are contained in CategoryXX–A of Public Docket A–93–42,entitled ‘‘Certification of Urban BusRetrofit/Rebuild Equipment’’. Thisdocket is located at the address listedbelow.

Today’s notice initiates a 45-dayperiod during which the Agency willaccept written comments relevant towhether or not the equipment includedin this notification of intent to certifyshould be certified. Comments shouldbe provided in writing to the addressesbelow.DATES: Comments must be submitted onor before December 22, 1997.ADDRESSES: Submit separate copies ofcomments to each of the two followingaddresses:

1. U.S. Environmental ProtectionAgency, Public Air Docket A–93–42(Category XX–A), Room M–1500, 401 MStreet S.W., Washington, DC 20460.

2. Anthony Erb, Engine CompliancePrograms Group, Engine Programs andCompliance Division (6403J), U.S.Environmental Protection Agency, 401‘‘M’’ Street S.W., Washington, DC20460.

The DDC notification of intent tocertify, as well as other materialsspecifically relevant to it, are containedin the public docket indicated above.Docket items may be inspected from8:00 a.m. until 5:30 p.m., Mondaythrough Friday. As provided in 40 CFRPart 2, a reasonable fee may be chargedby the Agency for copying docketmaterials.FOR FURTHER INFORMATION CONTACT:Anthony Erb, Engine Programs andCompliance Division (6403J), U.S.Environmental Protection Agency, 401M St. SW, Washington, D.C. 20460.Telephone: (202) 233–9259.



I. Background

On April 21, 1993, the Agencypublished final Retrofit/RebuildRequirements for 1993 and EarlierModel Year Urban Buses (58 FR 21359).The retrofit/rebuild program is intendedto reduce the ambient levels ofparticulate matter (PM) in urban areasand is limited to 1993 and earlier modelyear (MY) urban buses operating inmetropolitan areas with 1980populations of 750,000 or more, whoseengines are rebuilt or replaced afterJanuary 1, 1995. Operators of theaffected buses are required to choosebetween two compliance options:Option 1 establishes particulate matteremissions requirements for each urbanbus engine in an operator’s fleet whichis rebuilt or replaced; Option 2 is a fleetaveraging program that establishes aspecific annual target level for averagePM emissions from urban buses in anoperator’s fleet.

A key aspect of the program iscertification of retrofit/rebuildequipment, which begins when anequipment manufacturer submits anapplication for certification (referred toin the rule as a notification of intent tocertify). To meet either of the twocompliance options, operators of theaffected buses must use equipment thathas been certified by EPA. Emissionsrequirements under either of the twooptions depend on the availability ofretrofit/rebuild equipment certified foreach engine model. To be used forOption 1, equipment must be certifiedas meeting a 0.10 g/bhp-hr PM standardor as achieving a 25 percent reductionin PM. Equipment used for Option 2must be certified as providing somelevel of PM reduction that would in turnbe claimed by urban bus operators whencalculating their average fleet PM levelsattained under the program.

Under Option 1, additionalinformation regarding cost must besubmitted in the notification, in orderfor certification of that equipment toinitiate (or trigger) programrequirements for a particular enginemodel. In order for the equipment toserve as a trigger, the certifier mustguarantee that the equipment will beoffered to affected operators for $7,940or less at the 0.10 g/bhp-hr PM level, orfor $2,000 or less for the 25 percent orgreater reduction in PM. Both of theabove amounts are based on 1992dollars and include life cycle costsincremental to the cost of a standardrebuild.

II. Notification of Intent To Certify

In a notification of intent to certifyequipment signed July 16, 1997, DDChas applied for certification ofequipment under the EnvironmentalProtection Agency’s (the Agency) UrbanBus Retrofit/Rebuild Program. Thecandidate kit is applicable to all 6V–92TA, urban bus engine models madeby DDC from model year 1979 to 1989and equipped with mechanical unitinjectors (MUI). The equipment,consists of the base engine componentsused on the 25% reduction retrofit/rebuild kit certitied by DDC ,components from the 25% retrofitcatalyst kit certified by Engine ControlSystems, Ltd.(ECS) and a TurboPacsupercharger system supplied byTurbodyne Systems, Inc. that suppliesadditional charge air during engineacceleration. The kit would be availablein three horsepower levels (253, 277,and 294) for 6V–92TA engines.

The equipment to be certifiedincludes three distinct hardware sets.The three sets included are as follows:

Base engine components include theequipment certified by DDC to providea 25% reduction in PM (60 FR 51472;October 2, 1995. These components areprovided in two separate sets of parts.The first set of components is comprisedof newly manufactured parts, includinga gasket kit, air inlet hose, cylinder kits(piston assemblies and cylinder liners) aby-pass valve and a truck type throttledelay. The second set of componentsincludes ReliabiltTM remanufacturedparts, including the fuel injectors,camshafts, blower assembly,turbocharger, and head assemblies. Kitusage is based on engine rotation(righthand (RH) or lefthand (LH)),engine orientation, right bank cam gearmounting (bolt or nut), and enginepower output based on injector size.The only differences from thepreviously certified equipmentaccording to DDC is the inclusion of atruck style throttle delay, adjustment tothe throttle delay and injector timingsettings to improve driveability. Thecylinder kit components were modifiedto improve durability.

The converter/muffler supplied byECS was certified by EPA (see 62 FR746; January 6, 1997) to provide a 25%reductionn in PM emsssions. The kitconsists of an oxidation converter/muffler (CM) which was developedspecifically for diesel applications, andis packaged as a direct replacement forthe vehicle’s muffler. Several kits willbe provided to accommodate theinstallation requirements of the variousengine and vehicle configurations.

The third component set consists ofan electrically powered superchargersystem which is supplied by TurbodyneSystems, Inc. This component set,referred to as the TurboPacTM suppliesadditional intake air during engineacceleration from low engine speeds.DDC states that in addition todecreasing PM emissions and visiblesmoke during engine acceleration, thesupercharger also improves engineresponse and vehicle driveability byreducing the fuel modulation duringacceleration. The basic kit consists of ablower, a diverter valve, a boostpressure sensor, an electrical controlbox and power cables, and a throttleswitch for detecting the start of theengine acceleration mode. Theequipment will be supplied in two kits,one includes those componentscommon to all installations and asecond kit to accommodate theinstallation requirements of the variousengine and vehicle configurations.

To complete an engine rebuild two (2)base engine component kits, one (1)converter muffler kit, and two (2)supercharger kits would be required.The specific kits used will depend onthe engine/vehicle combination.

DDC states there are no differences inthe service intervals or maintenancepractices for the base engine associatedwith the installlation of the upgrade kit.The converter/muffler requires noregularly scheduled maintenance, onlyan occasional cleaning if the maximumbackpressure of the exhaust system isexceeded according to DDC. Thesupercharger does not require scheduledmaintenance: however, a visualinspection for air leaks is recommendedwhenever the engine is serviced.

Standard procedures as described inthe service manual for 92 Series enginesare to be used when rebuilding the baseengines using the candidate equipment.No unique rebuild procedures arerequired.

Use of the candidate kit is restrictedto 6V–92TA Detroit Diesel enginesmanufactured from January 1979through December 1989, equipped withmechanical unit fuel injectors (MUI),and originally certified to meet Federalemission standards. The required fuel islow sulfur (0.05% max by weight) dieselfuel, either number 1 or number 2.

The notification states that thecandidate equipment achieves aparticulate matter (PM) level of 0.10 g/bhp-hr. DDC has not supplied life cyclecost information and is not requestingcertification based on cost to operators.The use of the equipment by transitoperators to meet program requirementsis discussed below.


DDC presents exhaust emissions datafrom testing a Detroit Diesel Corporation(DDC) engine in accordance withprocedures set forth at 40 CFR Part 86,Subparts N and I. A 1984 model yearDDC 6V92TA MUI model engine (277HP) was rebuilt to the 1989 urban busconfiguration as per the previouslycertified DDC kit and was retrofit withthe specified components of the 0.1 g/bhp-hr kit prior to testing. In the rebuildprocess, all parts not included in therebuild kit were inspected. Prior totesting the engine was tuned with theinjector timing set at 1.460 in. Thethrottle delay was set for optimumvehicle driveability according to DDC.The data is summarized in Table Abelow.

TABLE A.—EXHAUST EMISSIONSSUMMARY

g/bhp-hr

1989 HDDEstandards

6V92TAMUI with kit

Gaseous andparticulatetest:

HC .............. 1.3 0.1CO .............. 15.5 0.4NOX ............ 10.7 9.8PM .............. 0.60 0.091BSFC1 ........ — 0.464

Standards

Smoke test:ACCEL ....... 20% 3.3%LUG ............ 15% 2.5%PEAK ......... 50% 4.2%

1 Brake Specific Fuel Consumption (BSFC)is measured in units of lb/bhp-hr.

The data of Table A indicate that,when rebuilt with the kit, PM emissionsof the test engine are less than 0.10 g/bhp-hr, and emissions of hydrocarbon(HC), carbon monoxide (CO), and smokeopacity are within applicable Federalstandards. The Agency requestscomments on whether the emissions testdata presented by DDC demonstrate thatall engines for which certification isrequested will meet applicable Federalstandards with the candidate kitinstalled.

Applicability of the candidate isrestricted to 6V92TA, urban bus enginemodels made by Detroit DieselCorporation (DDC) from model years1979 to 1989 and equipped withmechanical unit injectors (MUI). TheAgency requests comments on whetherthe emissions data presented by DDCdemonstrate that all engines for whichcertification is intended will meet the0.10 g/bhp-hr PM standard. The partnumbers of the specified rebuild

components are provided in DDC’snotification.

DDC’s notification does not providelife cycle cost information for thecandidate kit. Therefore, this kit will notbe certified to comply with the life-cyclecost requirements of the program. The0.10 g/bhp-hr PM level has already beentriggered for all the engines covered bythis notification. If certified as proposedin the notification, this equipment maybe used by operators who are requiredto use equipment that meets the 0.10 g/bhp-hr PM level based on earlier triggercertification.

DDC indicates that the engine is to berebuilt according to the enginemanufacturer’s standard written rebuildprocedures and specifications exceptwhere amended by DDC writteninstructions. The incrementalmaintenance cost and fuel economyimpact are not provided in DDC’snotification and are not necessary forcertification as the cost limitation is notbeing certified to by DDC.

The DDC notification provides aproduct warranty that references theemissions performance and emissionsdefect warranties required inaccordance with section 85.1409 of theprogram regulations.

Even if ultimately certified by theAgency, the equipment described inDDC’s notification may requireadditional review by the California AirResources Board (CARB) before use inCalifornia. The Agency recognizes thatspecial situations may exist inCalifornia that are reflected in theunique emissions standards, enginecalibrations, and fuel specifications ofthe State. While requirements of theFederal urban bus program apply toseveral metropolitan areas in California,the Agency understands the view ofCARB that equipment certified underthe urban bus program, to be used inCalifornia, must be provided with anexecutive order exempting it from theanti-tampering prohibitions of thatState. Those interested in additionalinformation should contact theAftermarket Part Section of CARB, at(818) 575–6848.

If the Agency certifies the candidateequipment, then urban bus operatorswho choose to comply with complianceOption 1 of this regulation will have theoption to use this equipment or otherequipment which has previously beencertified to the 0.10 g/bhp-hr standardwhen applicable engines are rebuilt orreplaced. If certified, then operatorsusing Option 2 will use the 0.10 g/bhp-hr certification level in calculations forfleet level attained (FLA).

The date of this notice initiates a 45-day period during which the Agency

will accept written comments relevantto whether the equipment described inthe DDC notification of intent to certifyshould be certified pursuant to theurban bus retrofit/rebuild regulations.Interested parties are encouraged toreview this notification, and providewritten comments during the 45-dayreview period. Separate commentsshould be provided in writing to each ofthe addresses listed under theADDRESSES section of this notice.

At a minimum, the Agency expects toevaluate this notification of intent tocertify, and other materials submitted asapplicable, to determine whether thereis adequate demonstration ofcompliance with: (1) the certificationrequirements of § 85.1406, includingwhether the testing accuratelysubstantiates the claimed emissionreduction or emission levels; and, (2)the requirements of § 85.1407 for anotification of intent to certify.

The Agency requests that thosecommenting also consider theseregulatory requirements, plus providecomments on any experience orknowledge concerning: (a) problemswith installing, maintaining, and/orusing the equipment on applicableengines; and, (b) whether the equipmentis compatible with affected vehicles.

The Agency will review thisnotification of intent to certify, alongwith comments received from theinterested parties, and attempt toresolve or clarify issues as necessary.During the review process, the Agencymay add additional documents to thedocket as a result of the review process.These documents will also be availablefor public review and comment withinthe 45-day period.

Dated: October 29, 1997.Richard D. Wilson,Acting Assistant Administrator for Air andRadiation.[FR Doc. 97–29394 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P


[FRL–5918–5]

Retrofit/Rebuild Requirements for 1993and Earlier Model Year Urban Buses;Certification of Equipment

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of EPA certification ofequipment provided by JohnsonMatthey Incorporated.

SUMMARY: Today’s Federal Registernotice announces EPA’s decision to


certify equipment to the 0.10 g/bhp-hrstandard for the Urban Bus Retrofit/Rebuild Program. The equipment isprovided by Johnson MattheyIncorporated (JMI).

JMI submitted to EPA a notification ofintent to certify equipment, in materialssigned December 9, 1996, pursuant tothe program regulations at 40 CFR part85, subpart O. On January 30, 1997, EPApublished a notice in the FederalRegister that the JMI notification hadbeen received and made the notificationavailable for public review andcomment for a period of 45 days (62 FR4528). EPA has completed its reviewand the Director of the Engine Programsand Compliance Division hasdetermined that it meets allrequirements for certification.Therefore, EPA certified this equipmentin a letter to JMI dated September 8,1997.

The certified equipment, initiallyreferred to by JMI as the CatalyticReduction Technology-Cam kit, is a kitconsisting of proprietary camshafts,CEM II catalytic exhaust muffler, andspecific engine rebuild parts and certainengine settings. The nomenclature of thekit, Catalytic Reduction Technology-Cam, has been discontinued by JMI. Thekit will be marketed by JMI under thename, Cam Converter Technology(CCTTM) upgrade kit. Therefore, today’snotice will refer to the equipment as theCCTTM kit.

The kit is applicable to 6V92TA urbanbus engine models made by DetroitDiesel Corporation (DDC) from modelyears 1979 to 1989 and equipped withmechanical unit injectors (MUI), andmay be used immediately by transitoperators in compliance with programrequirements. The kit is available infour horsepower ratings (253, 277, 294,and 325 horsepower).

EPA has determined that the CCTTM

kit complies with the 0.10 gram perbrake horsepower-hour (g/bhp-hr)particulate matter (PM) standard for theapplicable engines. In addition, becauseJMI will offer the kit to all parties for$7,940 (in 1992 dollars) or less,incremental to the cost of a standardrebuild, EPA has determined that JMI’snotification complies with the life cyclecost requirements of the programregulations. JMI may make analternative supply option available topurchasers.

Today’s Federal Register noticetriggers requirements for transitoperators utilizing compliance Program1 that have engines rated above 294horsepower in their fleet covered by thiscertification (excluding engines certifiedto meet California emissions standards).

The notification of intent to certify, aswell as other materials specificallyrelevant to it, are contained in CategoryXV–A of Public Docket A–93–42,entitled ‘‘Certification of Urban BusRetrofit/Rebuild Equipment’’. Thisdocket is located at the address listedbelow.

Additional details concerning thiscertification, the JMI CCTTM kit, andresponsibilities of transit operators, areprovided below.DATES: EPA certified this equipment ina letter to JMI dated September 8, 1997.Today’s Federal Register noticeannounces this certification, andtriggers the 0.10 g/bhp-hr standard forapplicable engines above 294 hp. The0.10 g/bhp-hr standard was triggered onMarch 14, 1997 (62 FR 12166) forapplicable engines rated at 294 hp andbelow.ADDRESSES: The JMI notification, as wellas other material specifically relevant toit, are contained at the U.S.Environmental Protection Agency’sPublic Air Docket A–93–42 (CategoryXV–A), Room M–1500, 401 ‘‘M’’ StreetSW, Washington, DC 20460.

The JMI notification of intent tocertify, as well as other materialsspecifically relevant to it, are containedin the public docket indicated above.Docket items may be inspected from8:00 a.m. until 5:30 p.m., Mondaythrough Friday. As provided in 40 CFRpart 2, a reasonable fee may be chargedby EPA for copying docket materials.FOR FURTHER INFORMATION CONTACT:William Rutledge, Engine Programs andCompliance Division (6403J), U.S.Environmental Protection Agency, 401‘‘M’’ St. SW, Washington, D.C. 20460.Telephone: (202) 233–9297.


I. Description of the Certified CCTTM KitThe certified CCTTM kit described in

today’s Federal Register notice, the CamConverter Technology (CCTTM) upgradekit, is provided by Johnson MattheyIncorporated (JMI). It is certified to the0.10 g/bhp-hr standard, and complieswith the applicable life cycle costrequirements.

The certification described in today’snotice applies to 1979 though 1989model year DDC 6V92TA engines thatare equipped with mechanical unitinjectors (MUI) and certified to federalemissions standards. It does not applyto engines certified to Californiaemissions standards. The impact of thisdecision on transit operators isdiscussed in more detail in the ‘‘TransitOperator Requirements’’ section below.

The CCTTM kit, described furtherbelow, consists of a CEM II catalytic

exhaust muffler, proprietary cam shafts,specified emissions-related enginerebuild parts, and specified enginesettings. The kit is available in fourhorsepower (hp) ratings (253, 277, 294and 325 horsepower).

The CEM II is the same size and shapeas the CEM catalytic exhaust muffler(certified for the Urban Bus Program asdescribed in the Federal Register onApril 17, 1996, at 61 FR 16773), is adirect, bolt-on replacement for theoriginal equipment muffler, and isdesigned to fit the specific bus/enginecombination.

The camshafts, a proprietary JMIdesign, change exhaust valve lift andduration. The CCTTM kit includes atiming height gauge for the uniquetiming height of the fuel injectors. Theprocedure and specifications for settingthe exhaust valve clearance isunchanged from the DDC recommendedprocedure.

For retrofit with the CCTTM kit, anengine is rebuilt in accordance withstandard DDC rebuild procedures, usingspecified engine parts that produceunique engine configurations. Thespecified emissions-related engine partsconsist of the following DDCcomponents: turbocharger, fuelmodulator, piston dome kit, piston skirt,piston ring set, cylinder liner, blowerdrive gear, blower assembly, fuelinjectors, blower by-pass valve, andgovernor assembly. The specified enginesettings apply to the fuel injector heightand fuel modulator setting. Thespecified settings and part numbers forthe emissions related DDC parts areprovided in letters from JMI dated July18, 1997 and August 21, 1997.

For service of a CCTTM-equippedengine, the DDC compression checkprocedure remains applicable and JMIwill provide compression specificationswith the kit instructions. Other DDCservice procedures remain applicable.

All configurations of the CCTTM

include a fuel modulator to limitthrottle advance during acceleration, asreplacement of the standard throttledelay of the original coach engineconfiguration. The CCTTM kit includesinstructions for installation of the fuelmodulator, and adjustment settings forthe fuel modulator.

All affected transit operators maypurchase the specified emissions-relatedparts from JMI as part of a CCTTM kit.Additionally, JMI may make available asecond supply option whereby the kitconsists of the CEM II, proprietarycamshafts, and a list of the specifiedemissions-related parts and enginesettings. With the second supply option,an operator is responsible for acquiringthe specified parts from sources of its


own choosing, as discussed furtherbelow. Neither option includes partsthat are rebuilt by transit operators.

All of the testing presented by JMI forthis certification was conducted usingOE parts, except for the CEM II andcamshafts. As a result, EPA has noassurance that engines rebuilt usingparts that are not original equipment(OE) would comply with the 0.10 g/bhp-hr standard. Therefore, use of engineparts that are not the specified OE parts,or engine parts rebuilt in-house, are notcovered by the certification described intoday’s Federal Register notice.

Pursuant to 40 CFR 85.1409, JMI willprovide a 100,000-mile defect warrantyand a 150,000-mile emissionsperformance warranty for the CCTTM kit,and all of its components regardless ofwhich of the two supply options is usedby a transit operator.

JMI states that the maximum cost ofthe CCTTM kit for 6V92TA MUI enginesis $11,495.00 (in 1997 dollars), whichincludes the CEM II, proprietarycamshafts, specified emissions-relatedparts, and specified engine settings. JMIindicates that installation of the wholeCCTTM kit requires an additional twohours (for installation of the CEM II)

beyond the labor associated with astandard rebuild.

EPA’s certification of the EngelhardCorporation’s ETXTM kit (62 FR 12166;March 14, 1997) triggered the 0.10g/bhp-hr standard for 1979—19896V92TA MUI engines. That kit providedthree power ratings: 253, 277, and 294horsepower (hp). JMI will offer theCCTTM kit in four power ratings: 253,277, 294, and 325 hp. Certification ofthe CCTTM kit described in today’sFederal Register notice, which includescompliance with life cycle costrequirements, triggers the 0.10 g/bhp-hrstandard for engines rated above 294 hp.This topic is discussed further below.

II. Background and Bases forCertification

In a notification of intent to certifyequipment, composed of an initialdocument signed December 9, 1996 andsubsequent documents, JohnsonMatthey (JMI) applied for certification ofthe CCTTM kit under the EnvironmentalProtection Agency’s (EPA) Urban BusRetrofit/Rebuild Program. Enginesapplicable to the certified kit are6V92TA urban bus engine models madeby Detroit Diesel Corporation (DDC)

from model years 1979 to 1989 that areequipped with mechanical unit injectors(MUI) and certified to comply withfederal emissions standards.

The equipment, referred to in initialdocuments as the Catalytic ReductionTechnology—Cam kit, was renamed byJMI to the Cam Converter Technology(CCTTM) upgrade kit. The certifier’sprincipal place of business is: JohnsonMatthey Incorporated, EnvironmentalProducts, Catalytic Systems Division,460 East Swedesford Road, Wayne,Pennsylvania 19087–1880.

Using engine dynamometer (transient)testing in accordance with the FederalTest Procedure for heavy-duty dieselengines, JMI demonstrated compliancewith the 0.10 g/bhp-hr particulatematter (PM) emissions standard. Enginedynamometer data, shown below inTable 1, are the bases for thecertification approval of the CCTTM kitwhen used on applicable engines. Theemissions test data are part of JMI’snotification of intent to certify, which isavailable in the public docket located atthe above-mentioned address. Alltesting was conducted using #2 low-sulfur diesel fuel.

TABLE 1.—SUMMARY OF JMI TESTING

Gaseous and particulate test g/bhp–hr

1988 HDDE standards

19846V92TA

MUIbaseline1

19846V92TA

MUIbaseline1

6V92TAMUI withCCTTM 1

19836V71TA

MUIbaseline

6V71TAMUI withCCTTM

HC ................................................................................................... 1.3 0.7 0.5 0.3 0.6 0.2CO ................................................................................................... 15.5 1.1 0.9 0.5 1.7 0.8NOX ................................................................................................. 10.7 9.5 13.0 10.2 10.4 10.2PM ................................................................................................... 0.6 0.56 0.251 0.08 0.329 0.096BSFC2 ............................................................................................. .......................... 0.475 0.456 0.470 0.468 0.464Hp (R/O)3 ........................................................................................ .......................... 253/249 277/269 277/274 225/211 265/254

Smoke Test Standards (%) Percent Opacity

ACCEL ............................................................................................ 20 3.1 1.3 2.9 2.0 2.3LUG ................................................................................................. 15 2.0 0.5 2.0 2.6 1.3PEAK ............................................................................................... 50 4.8 3.3 3.6 3.0 2.9

1 All 6V92TA testing was performed on engine identification number 6VF–118287.2 Brake Specific Fuel Consumption (BSFC) is measured in units of lb/bhp–hr.3 Horsepower (Rated/Observed during testing).

The exhaust emissions data presentedby JMI are from testing Detroit DieselCorporation (DDC) engine models6V71TA and 6V92TA, in accordancewith procedures set forth at 40 CFR part86, Subparts N and I. The two enginemodels were tested in baselineconfigurations and equipped with theCCTTM kit. The baseline 6V92 enginewas tested in two horsepower ratings:253 and 277.

The data of Table 1 demonstrate thatfor both test engines, when rebuilt withthe CCTTM kit, PM emissions are less

than 0.10 g/bhp–hr and, emissions ofhydrocarbon (HC), carbon monoxide(CO), and smoke opacity are withinapplicable federal standards. The datafor the 6V92TA engine indicate that thekit increases NOX emissions roughlyseven (7) percent above the level of thebaseline 6V92TA rated at 253 hp. Thedata for the 6V71TA engine indicatethat the CCTTM kit does not increaseNOx emissions. With CCTX kitsinstalled, the NOX levels for both the6V92 and 6V71 certification engines are

less than the federal standard for modelyears 1985—1989 (10.7 g/bhp–hr).

To facilitate the review process, JMIrequested in a letter dated August 6,1997, that EPA temporarily restrict itsreview to 6V92TA engine models.Therefore, today’s Federal Registernotice describes certification ofequipment only for 6V92TA MUI enginemodels. The emissions data for the6V71TA engine is included in today’snotice to support the demonstration ofcompliance of the CCTTM kit with the0.10 g/bhp–hr standard. Further action


taken with regard to 6V71 engineswould be done by subsequent FederalRegister notice.

This action applies a PM emissionslevel of 0.10 g/bhp–hr to all 1979

through 1989 DDC 6V92TA MUI urbanbus engines, when properly equippedwith the CCTTM kit and when usingeither diesel fuel #1 or #2. Table 2 lists

the applicable engine models andcertification levels associated with thecertification announced in today’sFederal Register.

TABLE 2.—CERTIFICATION LEVEL OF CCTTM KIT

Engine models Engine codes Certification PMlevel

1979–1989 DDC 6V92TA MUI .................................................. All certified to meet federal emissions standards ..................... 0.10 g/bhp–hr.

All engines for which the CCTTM kitis intended to apply are expected tomeet the 0.10 g/bhp–hr PM standardbecause the kit instructs the rebuilder toreplace all emissions-related partsduring the rebuild with JMI-specifiedparts, and install a CEM II. The engine-out emissions level (upstream of theCEM–II catalyst) is expected to bepredictable because all emission-relatedparts are replaced using the JMIspecified emissions-related parts andsettings of the kit. As demonstrated bythe two test engines, the combination ofthe specified parts, proprietarycamshafts, specified settings of the kit,and CEM–II, results in a PM level lessthan 0.10 g/bhp–hr.

Summarized below in Table 3 is a lifecycle cost analysis presented by JMI forthe CCTTM kit. A cost analysis is

necessary only for certification ofequipment that is meant to trigger aprogram emissions standard.Certification of Engelhard Corporation’sETXTM kit triggered the 0.10 g/bhp–hrstandard for 6V92TA MUI engines, andmade available kits rated at 253, 277,and 294 hp. The Engelhard certificationdoes not provide a kit rated above 294horsepower. JMI’s emissionsdemonstration and cost analysis appliesto engines rated at 253, 277, 294, and325 hp. Therefore, the certificationdescribed in today’s notice triggers the0.10 g/bhp–hr standard for engines ratedabove 294 horsepower.

JMI’s initial notification presented alife cycle cost analysis based on theCCTTM kit containing the CEM II, theproprietary cam shafts, and a list ofspecified emissions related parts and

settings. In a letter dated June 2, 1997,JMI stated its intent to market theCCTTM kit to include all emissionsrelated parts. In a letter dated July 3,1997, JMI presented a cost analysis inaccordance with section 85.1403, for thesupply option where JMI provides allcomponents of the CCTTM kit, includingthe specified engine parts. EPAdetermines that, based on thisinformation, the notification meets lifecycle cost requirements. The analysis isdiscussed below.

As shown in the summary of Table 3,total life cycle costs are less than the lifecycle cost ceiling specified in theprogram regulations ($7,940 in 1992dollars). The life cycle cost ceiling,updated to May 1997, is to $9,060.54.

TABLE 3.—LIFE CYCLE COST ANALYSIS OF CCTTM Kit for 6V92TA ENGINES

1997 dollars

CCTTM Upgrade Kit Maximum Cost ...................................................................................................................................................... $11,495.00Cost Offset (for Kit parts normally replaced during standard rebuild) .................................................................................................. 1 (3,978.58)Installation Labor for CEM II (2 hours) .................................................................................................................................................. 79.883% Fuel penalty ..................................................................................................................................................................................... 964.30

Total Life Cycle Costs .................................................................................................................................................................... 8,560.60LCC Ceiling 2 ($7,940 x 160.1÷ 140.3) .................................................................................................................................................. 9,060.54

1 Weighted Rebuild Costs for parts, normally replaced during a standard rebuild, are from 62 FR 12166, March 14, 1997, and adjusted to 1997dollars using a base CPI of 158.3 for October 1996, and the CPI of 160.1 for May 1997.

2 CPI for 1992=140.3. CPI for May 1997=160.1.

As shown above in Table 3, JMI statesthat the maximum cost of the CCTTM kit,including all specified engine parts, is$11,495.

The proprietary camshafts and otherspecified engine components providedwith the CCTTM kit result in an ‘‘offset’’for parts which otherwise are replaced

during a standard engine rebuild. Thecosts for the individual rebuild partsthat are offset by the kit parts, as shownin Table 4 below, were determined byEPA in (1996 dollars) for certification ofEngelhard Corporation’s ETXTM kit (see62 FR 12166; March 14, 1997). JMI

updates the costs to May 1997 based ona ratio of the Consumer Price Indexes(CPI) noted in Table 4. These ‘‘offset’’costs are subtracted from the maximumpurchase cost of the CCTTM kit, asshown above in the summary of Table3.

TABLE 4.—CCTTM UPGRADE KIT PARTS LIST FOR 6V92TA MUI ENGINES

No. Part Part of standardrebuild?

October1996 cost

(CPI=158.3)

May 1997cost

(CPI=160.1)

1 ...................................................................................................................... CEM II .............. No ..................... ....................2 ...................................................................................................................... Cam RB ............ Yes ................... $607.45 ...... $614.3633 ...................................................................................................................... Cam LB ............ Yes ................... 607.45 ........ 614.3644 ...................................................................................................................... Modulator ......... No ..................... ....................


TABLE 4.—CCTTM UPGRADE KIT PARTS LIST FOR 6V92TA MUI ENGINES—Continued

No. Part Part of standardrebuild?

October1996 cost

(CPI=158.3)

May 1997cost

(CPI=160.1)

5 ...................................................................................................................... Blower drivegear 40T.

No ..................... ....................

6 ...................................................................................................................... Blower bypassvalve.

No ..................... ....................

7 ...................................................................................................................... Governor Ass’y No ..................... ....................8 ...................................................................................................................... Governor cover

ass’y.No ..................... ....................

9 ...................................................................................................................... Turbocharger .... Yes ................... 464.43 ........ 469.7110 ...................................................................................................................... Fuel Injectors .... Yes ................... 420.50 ........ 425.2811 ...................................................................................................................... Dome kit or

crown.Yes ................... 1,522.74 ..... 1,540.05

12 ...................................................................................................................... Piston Skirt ....... Yes ................... With #11 ..... With #1113 ...................................................................................................................... Ring Set ........... Yes ................... With #11 ..... With #1114 ...................................................................................................................... Cylinder Liner ... Yes ................... With #11 ..... With #1115 ...................................................................................................................... Blower Ass’y ..... Yes ................... 311.28 ........ 314.82

Offset Total ................................................................................................ ........................... ........................... .................... 3,978.58

Except where amended by JMI writteninstructions, an engine is to be rebuiltaccording to the engine manufacturer’sstandard written rebuild procedures andspecifications. Therefore, installation ofthe CCTTM kit is essentially identical toa standard engine rebuild plus theinstallation of the CEM II catalystexhaust muffler. Therefore, the laborcost for installation of the kit,incremental to a standard rebuild, isbased on an additional two hours forinstallation of the CEM II. The twohours additional installation time isadded to the life cycle costs of the kit,as shown above in Table 3. Inaccordance with section 85.1403, thelabor rate specified in the regulation,$35/hour (in 1992 dollars), whenupdated to May 1997, is $39.94/hour.

JMI states that engines equipped withthe CCTTM kit will have no additionalmaintenance or service requirements.Therefore, incremental maintenancecosts for engines equipped with theCCTTM kit is zero.

JMI presents baseline data fromtesting two standard 1984 model yearconfigurations rated at 253 and 277horsepower. Based on comparison withthe testing of the baseline 277 hpengine, fuel consumption when theCCTTM kit is installed is determined tobe three (3) percent higher. Based onthis 3 percent penalty, the incrementalfuel cost for the kit is calculated inaccordance with section85.1403(b)(1)(ii)(c)(1), and added to thelife cycle costs as shown above in Table3.

The total life cycle costs for theCCTTM kit, as shown above in Table 3,is determined to be $8,560.60. The lifecycle cost ceiling ($7,940 in 1992dollars), when updated to May 1997

using a ratio of the CPIs noted in Table3, is $9,060.54. In conclusion, based onthe above analysis, EPA determines thatthe CCTTM kit for 6V92TA MUI enginescomplies with the life cycle costrequirements of the urban bus program.

In a letter dated August 6, 1997, JMIrequested the ability to supply transitsunder two supply option scenarios.Under supply option 1, JMI wouldsupply the CCTTM kit including theCEM II, the proprietary camshafts, andall of the specified emissions relatedengine parts. Under supply option 2, theCCTTM kit would include the CEM II,the proprietary camshafts, and a list ofspecified parts with certain fuel injectorand fuel modulator settings. JMIindicated that supply option 2 mightinclude specific parts that could berebuilt by transits to JMI specificationsand subject to strict controls by JMI.

EPA approves supply option 1 andpart of supply option 2. For supplyoption 1, transit operators purchase theentire CCTTM kit from JMI or itsdistributors. This supply option is theoption upon which life cycle costs havebeen determined, and upon which the0.10 g/bhp-hr standard is triggered forengines having ratings above 294horsepower. Therefore, the supplyoption 1 is required to be available toany and all operators. Supply option 2,described below, may be made availableat JMI’s discretion. Operators thatchoose the supply option 2, do sovoluntarily, and EPA makes norepresentation concerning the impact ofthis supply option on life cycle costs.The certification of today’s FederalRegister notice does not include use ofparts that are rebuilt by transit operatorsbecause EPA lacks assurance that parts

rebuilt by transit operators would havethe same emissions performance.

For supply option 2, JMI will providethe list of specified DDC emissions-related engine parts and engine settingsto transit operators upon purchase of theCEM II and proprietary camshafts.Transit operators will then purchase thespecified emissions-related parts(excluding the CEM II and proprietarycamshafts, which must be obtained fromJMI) through supply channels of theoperator’s choosing. The certification oftoday’s Federal Register notice does notinclude use of parts that are rebuilt bytransit operators.

III. Summary and Analysis ofComments and Concerns

Comments were received from threeparties in response to the FederalRegister notice of January 30, 1997 (62FR 4528). The commenters are DetroitDiesel Corporation (DDC), EngelhardCorporation, and New York City TransitAuthority (NYCTA). DDC andEngelhard, provided extensivecomment. DDC is the originalmanufacturer of the engine models towhich the CCTTM kit applies, and hasapplied for certification of equipment tocomply with the 0.10 g/bhp-hr standard.Engelhard is the manufacturer ofequipment certified under the urban busprogram that triggered the 0.10 g/bhp-hrstandard for the 1979–1989 6V92TAMUI engines (see 62 FR 12166; March14, 1997). NYCTA, as a large transit busoperator in a major metropolitan area, issubject to requirements of the urban busprogram.

Comments or issues fell into thefollowing general categories: (A)applicability of the kit; (B) descriptionof the kit; (C) testing demonstration anddocumentation; (D) life cycle cost


analysis; and, (E) warranty. Allcorrespondence, comments, and otherdocumentation are located in the publicdocket at the address above.

(A) ApplicabilityIn the January 30, 1997, Federal

Register notice, EPA stated that theinformation provided in JMI’s initialnotification did not support certificationof engines beyond model year 1989,because the federal new engine standardfor NOX dropped in 1990 to 6.0 g/bhp-hr and in 1991 to 5.0 g/bhp-hr. (TheNOX level of either certification testengine, when rebuilt with the kit, isgreater than 10 g/bhp-hr.) Additionally,EPA noted that the JMI notificationlacked support for certification of DDC’s‘‘DDEC’’ engines, because neither testengine is equipped with electronically-controlled fuel injection.

In comments dated March 14, 1997,DDC stated that the CCTTM kit shouldnot be certified for numerous types ofDDC two stroke/cycle engines includingall California engine models. In general,DDC indicated that the JMI notificationlacked support of testing demonstrationand/or documentation, and because thetest data showed that the kit exceeds theCalifornia NOX standards. DDC alsonoted that engines rated at 325 and 340hp are beyond the range normally usedin urban bus applications.

In a letter dated December 17, 1996,JMI restricted its notification to DDC6V92TA, 6V71T, and 6V71TA MUIengines of model years 1979 through1989. Furthermore, in a letter datedAugust 6, 1997, JMI requested that EPAtemporarily restrict its review to6V92TA MUI engines in order toexpedited the certification process.Therefore, today’s Federal Registernotice pertains only to EPA’scertification of the CCTTM kit asapplicable to 6V92TA MUI enginemodels. EPA also notes thatdocumentation from Dallas Area RapidTransit indicates that it has busesequipped with 325 hp 6V92TA MUIengines. EPA therefore believes itappropriate to include the 325 hp ratingin the certification described in today’snotice.

In a letter to JMI dated March 17,1997, the California Air ResourcesBoard (CARB) indicated that, withoutfurther test data showing that California-certified engines are not adverselyaffected by the CCTTM kit, CARB cannotallow use of the CCTTM kit. EPArecognizes that special situations mayexist in California that are reflected inthe unique emissions standards, enginecalibrations, and fuel specifications ofthe State. While requirements of thefederal urban bus program apply to

several metropolitan areas in California,EPA understands the view of CARB thatequipment certified under the urban busprogram, to be used in California, mustbe provided with an executive orderexempting it from the anti-tamperingprohibitions of that State. Thoseinterested in additional informationshould contact the Aftermarket PartSection of CARB, at (818) 575–6848.

(B) Description of the CCTTM KitEngelhard commented that the CCTTM

kit specifies use of a fuel modulator, andnotes that it is not standard on 6V92TAcoach engines. Standard equipment onsuch coach engines is a throttle delay.Engelhard claims that the fuelmodulator will cause serious busdriveability problems if not properly setand used in combination with theappropriate engine configuration. DDCstates that it has no experience with thehardware combinations for which JMIhas requested certification. Both DDCand Engelhard indicate that the effect ofthe CCTTM kit on bus driveability needsto be determined before the kit iscertified.

EPA notes that field experience todate, although limited, does not indicatedriveability problems. (Field experienceis discussed further below.) The basisfor Engelhard’s claim concerningdriveability problems appear to beconjecture based on theory of how animproperly set fuel modulator wouldfunction in conjunction with an engineoperating on ‘‘low’’ boost pressure.Given the field experience presented byJMI, EPA does not believe there isjustification for a delay in certification.

DDC questions JMI’s original proposalto allow operators to use aftermarketparts equivalent to original equipment,noting that DDC’s design andmanufacturing specifications andtolerances are proprietary and notavailable to aftermarket part suppliers.Relatedly, NYCTA questions the use ofnon-DDC components, and expressesconcern regarding the maintenance,durability, emissions levels, andwarranty coverage associated with suchparts.

In response, JMI modified itsnotification in a letter dated June 2,1997, to restrict the specified parts ofthe CCTTM kit to DDC-supplied originalequipment. EPA notes that JMI’s6V92TA certification engines wereequipped with DDC components.

DDC questions the applicability of itsprocedures for checking cylindercompression and camshaft timing, giventhe unique combination of parts in theCCTTM kit. JMI states that the injectorcam maintains a standard profile, andthe exhaust valves open less and for a

shorter time. JMI states that the DDCservice method for checking camshafttiming by measuring cam lift versuscrank angle remains applicable. JMIindicates that the procedure forchecking cylinder compression remainsappropriate, but that the compressionspecifications are different as a result ofthe lower compression ratio of theCCTTM engine. JMI will providecylinder compression specificationswith the CCTTM kit.

DDC references section 85.1406(d) ofthe program regulations, which includesthe requirement that ‘‘* * * installationof any certified retrofit/rebuildequipment shall not * * * result in anyadditional range of parameteradjustability or accessibility toadjustment than that of the vehiclemanufacturer’s emission related part’’,and notes that the JMI injector heightsetting of 1.420 inches is outside therange of 1.460 to 1.520 inches whichDDC allows and supports with gaugesfor service adjustment.

EPA notes that the purpose of thecited passage of section 85.1406(d) is toprevent retrofit/rebuild equipment fromincreasing the likelihood or potential fortampering. Although the CCTTM kitrequires a unique fuel injector timingheight, the kit does not change theinherent ‘‘range of adjustability’’ or‘‘accessibility to adjustment’’ of DDC’sbasic fuel injector system. The heightsetting of the CCTTM kit is nottampering, indeed it is a requirement ofthe kit to ensure compliance withemissions levels demonstrated by JMI’stesting. JMI will provide a gauge, forsetting fuel injector height, with theCCTTM kit.

Both Engelhard and DDC providenumerous comment on the uniquecomponents and settings in the CCTTM

kit, and are concerned that there is notsufficient field or in-use experience.DDC notes that the JMI fuel injectionheight specification (1.420 inches) isless than the minimum DDC allows(1.460 inches), and states that apotential unfavorable stack-up ofcomponent and adjustment tolerancesmay cause engine problems due toinjector follower bottoming in real-world operating conditions. DDC notesthat its minimum timing heightspecification takes into considerationsuch unfavorable stack-up plus thepotential separation of the injectoractuation linkage which can occurunder engine overspeed (over-revving)conditions. Engelhard notes that JMI’s277 and 294 hp ratings use the sameinjector, asks how much power the JMI325 hp rating actually produces, andasks for explanation of why the CCTTM


kit use larger injectors than thecorresponding original DDC ratings.

JMI acknowledges that the fuelinjector height setting (1.420 inches) ofthe CCTTM kit is outside DDC’s normalrange. However, JMI states that testingperformed on injectors at SouthwestResearch Institute and JMI distributorsindicate that the injectors bottom-outbetween 1.380 and 1.390, and thatsuccessful operation has been sustainedat a setting of 1.400. JMI believes thatthe specified injector setting willpresent no risk to the correct operationof the engine. JMI notes that the CCTTM

technology, including the 1.420 setting,has been used extensively in otherindustry applications, as describedfurther below. JMI will provide a gaugefor setting injector height with theCCTTM kit.

EPA does not know whether or howprevalent engine over-speed conditionsoccur in transit operation (for example,whether it may occur during longdownhill conditions when a bus mightdrive its engine to high speeds), or howsignificant of a problem it presents tothe JMI settings for the injectors.Consequently, EPA does not knowwhether there is an adequate margin ofsafety in the injector height setting ofthe CCTTM kit to preclude any engineproblems under all potential bus engineoperating conditions. JMI, however, hasdemonstrated engine-dynamometerexperience, some in-use transit busoperation (discussed further below), andin-use experience in other industrieswith no noted problems. Additionally,an emissions defect warranty, pursuantto section 85.1409 of the programregulations, is provided by JMI for allcomponents of the CCTTM kit, whichinclude the fuel injectors andproprietary camshaft. The warranty mayleave other parts of the injectoractuating mechanism without coverage.However, EPA does not believe suchcoverage to be necessary at present. EPAmay take additional action, if significantin-use problem develop. For example,EPA has authority under section85.1413 of the program regulations todecertify equipment if, for example, useof certified equipment severely degradesdriveability, operation, or function.

EPA does not believe it necessary forJMI to explain why injectors in theCCTTM kit are larger than those typicallyused in corresponding DDC ratings. EPArecognizes that the CCTTM-equippedengine is a unique combination ofcomponents, and fuel injectors areclearly emissions-related components.

Engelhard comments that the severeinjection advance plus lowercompression ratio of the CCTTM kit willresult in problems, including cold

weather starting problems, shorterengine life, reduction in low speedperformance and higher fuelconsumption, and calls for JMI todemonstrate the need for the injectionadvance and the affect on durability,fuel economy and performance.Engelhard states that JMI should use anon-biased third party test facility todemonstrate that the kit does notdegrade performance. DDC notes thatthe kit differs from DDC configurationsand that they have no experience withit.

Engelhard and DDC also comment onthe design of the proprietary camshaft,indicating that a change in camshaftdesign can impact engine performanceand durability. Engelhard’s concernsrange from the dynamics of the valvetrain, which might affect durability ofvalve train parts, to increased internalexhaust gas recirculation (EGR), whichmight increase wear of cylinder linersand rings due to increased oilcontamination with soot. Engelhardcalls for durability data to verify that thevalve train will not fail prematurely,and to ensure that the CCTTM kit willnot cause additional maintenance and/or engine failure.

JMI has presented information insupport of the durability andperformance of the CCTTM kit. JMI statesthat it has two field trials underway.One is a 1983 Gillig powered by a6V92TA MUI at Kitsap Transit inBremerton, Washington. No problemshave been reported as of July, with16,000 miles of routine transit service.A second transit trial on a 6V92TADDEC II engine has been initiated in anun-named northern city. JMI presentsthree routine analyses of the lubricationoil from the Kitsap transit bus, andindicates that the analyses show typical,normal patterns of engine break-in withno unusual results. Soot isunmeasurable in the oil at 4,451 miles.In a letter to EPA dated June 10, 1997,the Kitsap Director of VehicleMaintenance, acknowledging that sixweeks and 12,000 miles of accumulatedservice is a relatively short period oftime, notes that the bus is responsive todriver demands in a fashion that is inkeeping with this engine (somewhatmore powerful), and no increase in fuelor oil consumption.

Additionally, JMI presentsinformation that the engine componentsof the CCTTM kit have been used onseveral engines in the oil and waterpumping industries in stationary sourcelocations, with no reported problems. Ingeneral, these stationary engines operatein a cyclic mode from low speed towide-open-throttle, full load, to supplypower for drilling and pumping rigs.

One such engine, a 6V92TA, has beenrun for more than 3,500 hours with noreported problems. Another dieselengine has been run more than 13,000hours with no reported problems.

In comments dated July 21, 1997,DDC states that the differences in fuelmodulator and throttle delay responsecharacteristics may also be observed inreal world driving conditions. DDCfurther notes that, although the Kitsaptests may not be representative of allengine, bus, and driving patterncombinations, it suggests that theCCTTM kit can be employed withoutserious loss of vehicle performance andthe tests go a long way to allaying theconcern expressed in DDC’s originalcomments.

Regarding its proprietary camshaft,JMI states that the injector cam profileof its proprietary cam is identical to theoriginal equipment (OE) cam profile,and the ramps and acceleration of theexhaust cam are the same as the originalequipment (OE) camshaft. Additionally,the transition from the cam base circleto the first rise is slightly more gradualthan the OE camshaft. JMI states that thedynamics of the CCTTM camshaft(exhaust valves open less and for ashorter time) may result in improvedmechanical durability compared to theOE camshaft. While noting that theCCTTM technology slightly increases theamount of internal EGR, JMI notes theabove-described long-term experience inthe oil and pumping industry. Further,oil analyses being conducted in theKitsap field trial, described above,indicates no additional sootcontamination of the lubrication oil.

JMI presented the above-discussedinformation in support of the operabilityand durability of the CCTTM kit. Noevidence has been presented thatindicates a specific problem with thedesign, operability, or durability of theCCTTM kit. While there is norequirement under the programregulations for a certifier to demonstrateoperability or durability of equipment,EPA remains concerned about the long-term performance of all certifiedequipment. However, any conclusionsregarding decreased performance,durability, or operability of CCTTM-equipped engines are speculative atpresent, and the in-use informationpresented by JMI does not indicateconcern with the CCTTM kit. As notedabove, EPA has authority under section85.1413 to decertify equipment that failsto comply with requirements of theregulations.

EPA notes that JMI is required tocover the fuel injectors, camshaft,cylinder liners, pistons, piston rings,and other components of the CCTTM kit,


regardless of supply option, under theemissions defect warranty requiredpursuant to section 85.1409.

DDC notes that its maximum backpressure limit for the 6V92TA MUI busengines is typically 3 inches of mercury,and expresses concern that the additionof the CEM II catalytic muffler couldcause DDC exhaust back pressure limitsto be exceeded in many businstallations. DDC also is concernedabout the JMI’s field service procedurefor checking exhaust back pressure,which states that it should be measuredat full stall conditions. DDC indicatesthat the only way to check back pressurefor conformance with DDC backpressure limits is with an engineoperating at rated speed and wide-open-throttle. Back-pressure measurementsmade at any other condition will under-represent the full engine exhaust backpressure, and checking back pressureunder these conditions may lead toexcessive back pressure when theengine is operated in service. DDC callsfor assurances that the CEM II will notcause DDC back pressure limits to beexceeded for any affected busapplication. Verification must accountfor not only for the restriction of a cleancatalyst core, but must also account forrestrictions imposed by other exhaustsystem components, and the effects ofcore aging and ash accumulation overtime.

JMI states that the CEM II isphysically identical to the design of theoriginal CEM, and its back pressureperformance will be identical to theback pressure performance of the CEMunder the same conditions. JMI notesthat back pressure due to standardcommercial mufflers vary, and mayrange from less than 0.5′′ mercury (Hg)to more than 1.0′′ Hg. Additionally, totalback pressure may vary according toexhaust system design, engine speed orhorsepower. JMI states that backpressure testing was conducted, asstandard production practice, on CEMand CEM II units, using a 6V92TA of322 hp, to ensure compliance with the3.0′′ Hg maximum set by DDC. All CEMmodels tested had back pressure valuesbetween 1.0′′ to 1.5′′ mercury.

EPA, in general, is concerned with in-use problems resulting from excessiveback pressure. However, no informationpresented by commenters substantiate aconcern for excessive back pressurewith the CEM II. More specifically, EPAhas not received comments from transitoperators or others indicating significantproblems with high back pressure fromthe CEM catalyst muffler, which JMIindicates is physically identical to theCEM II.

Regarding the ‘‘full stall’’ method ofchecking back pressure, JMI states thatit is a common, practical tool used bytransit operators to measure exhaustbackpressure. JMI notes that conductingmeasurements at rated speed and wide-open-throttle is difficult because transitoperators typically do not have chassisdynamometers available to permit suchmeasurements. EPA notes that, as ageneral diagnostic tool, suchmeasurement of back pressure could beuseful with any exhaust system (catalystor muffler). While the full transmissionstall test may under represent full backpressure, it appears to provide someusefulness as a back pressure check. Aswith other CCTTM kit components, JMIis required to warrant the CEM II underthe warranties required pursuant tosection 85.1409. As noted previously,EPA can take action in the event ofsignificant in-use problems and,ultimately, has authority to decertifyequipment.

Few certifiers have extensiveexperience from in-use transit service tocomprehensively demonstrate thedurability and performance ofequipment certified for the urban busretrofit/rebuild program. Nor does theprogram regulation require suchcomprehensive demonstration. JMI haspresented information of in-useexperience in support of thesecharacteristics of the CCTTM kit, andEPA knows of no reason at this time tooppose certification.

(C) Testing Demonstration andDocumentation

NYCTA comments that the PMemissions levels of the certificationengines are close to the 0.10 g/bhp-hrstandard, expresses concern that CCTTM

equipped engines will emit above thestandard after in-use operation, and askswhether deterioration factors have beenincluded in the certification levels.NYCTA also notes that the emissionsdata for the 6V92TA engine indicatesthat NOX emissions increase, andNYCTA believes that some busesequipped with the CCTTM kit will emitabove the 1988 emissions standard (10.7g/bhp-hr).

The urban bus program regulations donot specifically require manufacturers todemonstrate the durability of theircandidate equipment. Similarly, there isno requirement for certifiers to developan empirical basis for determining adeterioration factor. During the initialdesign of the urban bus program, EPArecognized that durabilitydemonstration would impose asignificant burden on certifiers, andexpected that such burden wouldprevent technologies from coming

forward. A program without certifiedtechnology would provide minimalemission reductions. Instead ofrequiring a durability demonstration,the program is based on the requirementfor certifiers to warrant their equipmentfor defects and emissions performance(as specified in section 85.1409), onEPA’s authority to perform in-usetesting of certified equipment, and onEPA’s authority to decertifynoncompliant equipment (as specifiedin section 85.1413). As stated in thepreamble to the final rule of April 21,1993 (58 FR 21379): ‘‘EPA believes that,therefore, it is sufficient to holdmanufacturers responsible for theemissions performance of theirequipment through an emissionsperformance warranty * * *’’ and‘‘Manufacturers will want to evaluatethe durability of their equipment beforeselling it under this program tominimize their liability risk.’’ Section85.1413 provides authority to EPA todecertify equipment that EPAdetermines does not meet emissionsrequirements in-use. These emissionsrequirements include the HC, CO, NOX,and smoke standards of a particularengine, in addition to the PM standardsof the urban bus regulation.

The JMI notification indicates that thetest engines were selected as ‘‘worstcase’’ based on Table 3 of 58 FR 21373(April 23, 1993). Engelhard commentsthat the test engine is not worst case foremissions from a catalyst-equippedengine, basically because the exhaustflow from higher horsepower engineswould increase engine exhaust backpressure and reduce residence time ofthe exhaust within the catalyst,lowering catalyst effectiveness.Engelhard also claims that the CEM II,subject to higher exhaust temperaturesfrom the higher horsepower engines,will have a greater tendency to makesulfate. DDC comments that the exhaustflow from higher hp engines is expectedto be greater, but the 277 hp engine isthe most popular for transit usage andtherefore makes it the proper choice forcertifying equipment for use on enginesrated at 253, 277, and 294 horsepower.

For several reasons, EPA believes thatthe 6V92TA test engine equipped withthe CCTTM kit, and rated by JMI at 277hp, is acceptable to demonstratecompliance for 253, 277, 294, and 325hp ratings. First, the test engine isclearly the engine model for which JMIis claiming applicability of the CCTTM

kit. Further, the rating of thecertification test engine is the mostpopular power rating according to theengine manufacturer. It therefore is themost representative power rating.Second, JMI has also presented


emissions testing data from a 6V71TAengine model, which also demonstratescompliance of the CCTTM kit with the0.10 g/bhp-hr standard.

Regarding Engelhard’s concern forhigher exhaust flow with higherhorsepower, no information is presentedfor the potential increase in sulfateemissions and that contribution to thetotal particulate emissions of any of theengine ratings. Additionally, it is notclear that an engine of the JMI-rated 294hp or 325 hp, would have significantlydifferent exhaust emissions or flow ratefrom the certification test engine. This isbecause, as DDC notes, higherhorsepower ratings generally producehigher exhaust temperatures which maycompensate for lower catalyst residencetime (that is, higher temperatures aregenerally conducive to higher catalyticconversion efficiency). Furthermore, JMIanalyzed data published for DDC engineconfigurations, to show that exhaustflow rates of higher horsepower enginesmay increase only in the order of a fewpercent over the flow rate of a 277 hpengine. JMI notes that one 330 hp6V92TA has a standardized flow ratethat is 1.4 percent greater, and another330 hp 6V92TA has a standardized flowrate that is 3.7 percent less, than thepublished flow rate for a 277 hp6V92TA coach engine. JMI states thatthis increase in flow rate is well withinthe margin of safety that is engineeredinto the CEM II and will represent noloss in conversion. In summary, EPA isnot convinced that exhaust flow isclearly related to engine horsepowerrating, or that a higher horsepower testengine would necessarily be worst case.EPA is not aware of evidence suggestinga problem with back pressure from thiscatalytic muffler design. Also, JMI hasmore than one catalyst biscuit size, andthe emissions testing on the 6V92TAwas performed on its smallest biscuit.JMI bears the burden of the emissionperformance warranty required byprogram regulations.

In its letter of August 11, 1997,Engelhard comments that the same fuelinjectors are used in the CCTTM kit forthe 277 hp rating and 294 hp rating, andconcludes that there is no 294 hp kit.Engelhard indicates that JMI needs toprovide an explanation regarding theinjector specifications.

EPA is aware that typical industrypractice is to use larger fuel injectors forhigher horsepower, because, asEngelhard notes in its comments, largerinjectors result in higher horsepower.JMI has not provided EPA with torquecurves for its power ratings other thanthe certification test engine rated at 277hp. The requirements of the urban busprogram were designed to minimize

testing burden, while demonstratingemissions compliance, but not to verifyperformance of every engine rating.While JMI has demonstrated compliancewith the 0.10 g/bhp-hr standard,operators should be aware that EPA hasnot verified the power output of ratingsother than that which JMI tested forexhaust emissions.

Engelhard compares the engine torquecurves developed during JMI’s testing ofthe CCTTM kit and baseline engine, andcomments that the CCTTM kit results inan significant loss of low torque andhorsepower compared to a standardurban bus engine. Engelhard concludesthat this will cause significantperformance, acceleration, and fueleconomy problems for users of theCCTTM kit. In its initial comments ofMarch 14, 1997, DDC also notes the lowtorque developed at low engine speeds.DDC and Engelhard call fordemonstration of in-use performanceand durability evaluation.

In response, JMI states that low speedacceleration of a bus equipped with theCCTTM kit is improved, because the kitincludes replacement of the throttledelay (standard equipment on busengines) with a fuel modulator. JMIstates that a bus equipped with astandard throttle delay experiences alimit on the full fuel acceleration. Thethrottle delay is designed to make fullengine torque developed available in 4to 7 seconds. An engine equipped withthe CCTTM kit will immediately have allthe torque developed available to thedriver for acceleration. Therefore, lowspeed acceleration is improved.

Comments from Kitsap Transit,reflecting limited experience with theCCTTM-equipped engine, state that‘‘* * * our drivers believe that on boardpower has been improved.’’ In itscomments of July 21, 1997, DDC notesthat, although the Kitsap tests may notbe representative of all engine, bus, anddriving pattern combinations, it suggeststhat the CCTTM kit can be employedwithout serious loss of vehicleperformance and the tests go a long wayto allaying the concern expressed inDDC’s original comments.

EPA recognizes differences betweenthe torque maps generated for thebaseline and the certification engine.However, EPA believes that the torquecurve (that is, the torque map) generatedfor transient emissions testing can be amisleading representation of the torquethat would be available at any instantfrom a similar engine during in-useservice. This is due to the manner inwhich the torque map is generated forthe transient emissions test and theparticular fuel control means (such asthrottle delay or fuel modulator) used

on an engine. As DDC notes in itscomments, the torque map is generatedwith the throttle delay fully dischargedand the fuel rack in the full fuelposition. Therefore, the influence of thethrottle delay on fuel control is notreflected in the torque reported for thetorque map. DDC states that thedifferences in fuel modulator andthrottle delay response characteristicsmay also be observed in real worlddriving conditions. EPA thereforebelieves that conclusions based solelyon comparison of torque maps may bemisleading.

In summary, regarding the relativeperformance of CCTTM-equippedengines, EPA is not aware of any clearevidence indicating a performanceconcern. Actual in-use experience,although limited, suggests that theCCTTM kit provides performancecomparable to an original configuration.

DDC notes that during certificationtesting the CEM II was installed at adistance of six feet from the exhaustoutlet of the turbocharger turbine, andcomments that if the CEM II is installedin a location on a bus which is morethan 6 feet from the turbine outlet, thenthe exhaust gases will be cooler and theeffectiveness of the catalyst in oxidizingsoot emissions will be less than wasobserved in the certification testing.

JMI presents exhaust temperature datafrom testing performed duringcertification of the CEM, which indicatea reduction of 10 degrees in exhaust gastemperature (from 627 degrees F to 617degrees F) over a six-foot lengthbetween the turbine outlet and CEM.JMI states that if the CEM II is locatedan additional three or even six feet awayfrom the outlet, then the exhausttemperature would decline by only anadditional 5 to 10 degrees, which wouldhave no effect on catalyst activity.

The temperature of the exhaust gasesfrom a bus engine is continuallychanging during in-use operation due tovariations in engine speed and load.EPA has no information that anadditional few degrees drop in exhaustgas temperature is of significant concernregarding catalyst effectiveness. EPA hasaccepted in the past, as demonstrationof compliance with emissionsrequirement of the urban bus program,emissions data developed from testingcatalysts at a distance of six feet fromthe turbine outlet.

(D) Life Cycle Cost AnalysisNYCTA comments that the power

ratings of the JMI certification testengine is above the range normally usedin urban bus applications, and thisshould be included in the incrementallife cycle cost analysis because of


implications related to higher wear ondriveline components and higher fuelconsumption. Also, NYCTA states thatit is not clear what power ratings arebeing offered by JMI.

JMI states that it will offer the CCTTM

kit for the 6V92TA models in fourhorsepower ratings (253, 277, 294, and325) that are for the most part, typicalto the transit industry. (JMI has askedEPA to temporarily restrict its review toCCTTM kits applicable to 6V92TAengine models.) While JMI has notprovided EPA with torque curves for itsratings other than the certification testengine rated at 277 hp, EPA notes thatthe certification engine produced amaximum power of 274 hp during thetorque map, which is within roughly 1percent of the JMI rating (277 hp).Therefore, EPA believes that JMI’snomenclature (that is, the ‘‘rating’’) forthe CCTTM kit configuration it tested,277 hp, is consistent with the actualpower produced for the emissions test.EPA believes that operators havingengines originally rated at 277 hp willmost likely choose a retrofit kit of thesame horsepower rating.

NYCTA also comments that data isneeded, such as periodic catalystinspection or replacement, in order toestimate the incremental maintenancecost component of the life-cycle costs.NYCTA also indicates that field testingexperience in transit service is neededin order to estimate incremental lifecycle costs.

JMI states that there is no incrementalmaintenance costs associated with theCCTTM kit—the maintenance checksrequired for a standard DDC engine alsoapply, at the same interval, to a CCTTM-equipped engine. There is no scheduledreplacement of the CEM II catalyst.

NYCTA notes the significantdifference in the torque characteristicsof the CCTTM equipped enginecompared to the original configuration.NYCTA comments that modifications tothe drive train may be required tomaintain acceptable acceleration, andthis should be included in the life-cycleestimates.

The need for drive train modificationsappear to be speculative at present. EPAbelieves that comparing the torque mapsof the baseline and CCTTM equippedengine as discussed above, may bemisleading for purposes of predictingvehicle acceleration. Additionally, JMIstates that the field trial beingconducted at Kitsap Transit indicatethat the performance, power andacceleration of the CCTTM equippedengine is not impaired.

The JMI cost analysis includesincremental costs for 2 hours of labor forinstallation of the CEM II catalytic

muffler. Both DDC and Engelhardquestion this cost. Engelhard commentsthat an installation time of 4 to 6 hoursis more appropriate. DDC questions theappropriateness of the time estimate forinstallation of the CEM II, given that theinstallation time budgeted for theconverter muffler of the EngelhardETXTM kit (see 62 FR 12166; March 14,1997) is 6 hours, and installation of thetwo converters are ‘‘* * * seeminglysimilar activities * * *’’. DDC alsostates that installation time shouldinclude time to check that back pressurelimits are not exceeded, and shouldaccount for installation of the waterdrainage device required for someapplications of the kit, and incrementalmaintenance costs associated withroutine vehicle maintenance.

JMI indicates that over 54 designs ofCEMs have been engineered to cover thebroad range of coach and enginecombinations. The initial application forthe CEM estimated a maximuminstallation time of 6.5 hours as a bestestimate. JMI’s installation time for theCEM II of 2 hours is based on fieldexperience with actual installation ofthe CEM. JMI also has provided dataand statements from operatorssupporting the accuracy of the two-hourinstallation time.

EPA believes that 2 hour installationtime is appropriate for the cost analysis,and is included above in Table 3. JMIstates that the water drainage device isnot necessary on any vertical exhauststack, and is therefore not included inthe LCC analysis. JMI provides anemissions defect warranty, pursuant tosection 85.1409 of the programregulations, which includes coverage ofthe CEM II. JMI also states that theCCTTM kit does not have additionalroutine maintenance requirements,incremental to standard DDCmaintenance, service or installationprocedures, including routine checks ofthe CEM II.

Engelhard comments that JMI’s initialbaseline engine, a DDC 6V92TA engineconfigured to a 253 hp rating, is invalidfor comparison because of the specificparts used in the JMI certificationengine. Engelhard claims that theturbocharger and fuel injectors of JMI’scertification engine are from a 294 hpconfiguration and, therefore, for anaccurate comparison of fuel economyand emissions, the CCTTM kit of 277rating needs to be compared with abaseline engine of 294 hp. Engelhardclaims that comparing the JMI enginewith a 294 hp baseline engine from aprevious Engelhard test program showsa 12 percent loss in fuel economy for theCCTTM kit.

In response, JMI subsequently tested asecond baseline engine, a DDCconfiguration rated at 277 hp as shownabove in Table 1. Engelhard commentsthat this baseline engine is notperforming properly because the NOxemissions (13.0 g/bhp-hr) aresignificantly higher than the federalstandard (10.7 g/bhp-hr) applicable to1985 through 1989 model year.

EPA notes that JMI’s 6V92TAcertification engine produced amaximum power of 274 hp during thetorque map, which is within roughly 1percent of the JMI rating (277 hp).Therefore, EPA believes that JMI’snomenclature (that is, the ‘‘rating’’) forthe CCTTM kit configuration it tested,277 hp, is consistent with the actualpower produced for the emissions test.The actual combination of partsdeveloped by JMI for its 277 hp rating,while perhaps unique, is not relevant tochoice of baseline engine for fuelconsumption comparison. EPA believesthat operators having engines originallyrated at 277 hp will most likely choosea retrofit kit of the same horsepowerrating. Therefore, for comparison of fuelconsumption, engines of the same ratingshould be compared.

Regarding the NOX emission level ofthe 277 hp baseline engine, themeasured value (13.0 g/bhp-hr) may behigher than typical for this rating.However, EPA believes that the test ofthe 277 hp baseline engine is adequatefor its sole purpose—to determine theimpact of the CCTTM kit on fuelconsumption.

DDC comments that the only properway to make fuel economy comparisonsis at equivalent power ratings, andEngelhard in its comments notes thepotential for significant cell-to-cellvariations that make correlating databetween test cells unreliable.

DDC also comments that comparisonmade at maximum hp and maximumtorque with DDC’s published valuessuggests that the CCTTM kit imposes a 6to 7 percent fuel economy penalty.

EPA believes that a typical operatingcycle for urban buses cannot becharacterized by fuel consumptiondetermined at steady state, full poweroutput, as DDC has suggested. EPAnotes that a comparison of the 253 hpbaseline engine with the certificationengine (JMI-rated at 277 hp) indicates aone percent improvement with the kit.Additionally, JMI referencespreliminary in-service experience fromthe Kitsap field trial that indicates a 20percent improvement in fuel economy,and states that JMI’s position is that nofuel penalty should apply. Section85.1407 of the program regulationsrequire that incremental fuel cost be


determined based on testing performedover the heavy-duty engine federal testprocedure, or an approved alternativetest procedure. EPA believes that it isappropriate to compare data fromengines of the same horsepower andfrom the same test cell, when available,for determining the fuel economyimpact. This data is available from theJMI testing and such comparison isconsistent with the requirements of theregulations. Comparison of the baselineDDC-rated 277 hp engine to the JMI-rated 277 hp certification engineindicates a fuel penalty of 3 percent forthe CCTTM kit. Using the calculationsrequired for this determination, as setforth at section 85.1403(b)(1), the impacton the life cycle cost analysis of theCCTTM kit, as shown above in Table 3,is determined to be a penalty of $964.30.

Engelhard states that fuel modulatorsare not standard on 6V92TA coachengines. The standard throttle delay willhave to be removed and the fuelmodulator installed and the additionallabor associated with this should beincluded in the LCC analysis. JMIindicates that a standard rebuild wouldinclude the removal, and reinstallationand re-calibration of the throttle delay.This is necessary in order to remove andreplace the fuel injectors and other keyengine components. When an engine isrebuilt with the CCTTM kit, the fuelmodulator is installed in place of thethrottle delay. EPA believes that use ofthe fuel modulator in a CCTTM kitpresents no costs, incremental to thecosts of a standard rebuild.

In its comments of July 21, 1997, DDCindicates that it is in fundamentalagreement with the JMI life cycle costanalysis, except for the cost offset of theproprietary cam of the CCTTM kit. Thecost offset in the analysis is $1229, andDDC believes that the offset should be$320, which is the cost forremanufactured camshafts availablefrom DDC. DDC believes that mostoperators would be expected to useremanufactured parts when replacingcamshafts at the time of rebuild.

EPA determined the cost of a‘‘weighted’’ rebuild for the costevaluation of DDC’s upgrade kit for the6V92TA MUI (61 FR 37734; July 19,1996), and later updated that cost forcertification of the Engelhard ETXTM kit(62 FR 12166; March 14 1997), bothusing cost information provided byDDC, and others, at those times. For theevaluation of the CCTTM kit, EPA relieson the cost determination for a‘‘weighted’’ rebuild published in theFederal Register on March 14, 1997,updated to May 1997. EPA has notmodified its March 14th determinationof the cost because it has no data on the

fraction of operators which are expectedto use remanufactured camshafts.

(E) WarrantyDDC commented that the JMI

warranty does not provide coverage fornon-JMI parts that are used inconjunction with a CCTTM kit inrebuilding an engine, and does notcover any liability for labor costs or forany incidental or consequentialdamages. DDC also noted that use ofstandard DDC parts in conjunction withthe CCTTM kit could result in the partsbeing subjected to unduly harshoperating environments, and DDC’sparts warranty does not extend to partsthat have been misapplied or misused.DDC noted that the warranty appliescoverage only if an engine is operatedwith ‘‘unadulterated’’ diesel fuel, yet itis common practice for many operatorsto use fuel additives.

During the review process, JMI’swarranty language underwent changes,as did the description of the CCTTM kitof today’s notice. As noted previously,JMI restricted the specified emissions-related parts of the kit to DDC-suppliedparts. Also, JMI changed its warrantylanguage to make clear that it covers theemissions-related parts that JMIspecifies to be used with the CCTTM kit.Warranty coverage applies to bothsupply options. The JMI warranty wasalso modified so that coverage is notconditioned on the use of‘‘unadulterated’’ fuel. JMI states thatadditives are permissible, but requeststo review the constituents of anyadditives used by transit operatorsbefore they are used by the transit.

With regard to labor costs, JMI is notrequired to cover labor costs associatedwith warranty repair because laborassociated with equipment installationand maintenance is the responsibility ofthe transit operator. (Maintenanceincludes warranty repair.) This point isstated in the preamble to the final ruleof April 21, 1993 ( 58 FR 21381): ‘‘Busoperators will be responsible for theproper installation and maintenance ofthe equipment.’’ Additionally,incidental or consequential damages, ornon-JMI parts used in conjunction withretrofitting with a CCTTM kit, are notrequired to be covered pursuant to thewarranty requirements of the programregulations (section 85.1409). EPA is notaware of any evidence that incidental orconsequential damages will occur. Ifsignificant in-use problems develop,then EPA may take action.

IV. CertificationThe Agency has reviewed the

notification of intent to certify and otherinformation provided by JMI, along with

comments received from interestedparties, and finds that the CCTTM kitdescribed above:

(1) Complies with the particulatematter exhaust emissions standard of0.10 g/bhp-hr, without causing theapplicable engine families to exceedother exhaust emissions standards;

(2) Complies with the life cycle costrequirements pursuant to section85.1403(b)(1);

(3) Will not cause an unreasonablerisk to the public health, welfare, orsafety;

(4) Will not result in any additionalrange of parameter adjustability; and,

(5) Meets other requirementsnecessary for certification under theRetrofit/Rebuild Requirements for 1993and Earlier Model Year Urban Buses (40CFR Sections 85.1401 through 85.1415).

Therefore, today’s Federal Registernotice announces certification of theabove-described Johnson MattheyCCTTM kit for use in the urban busretrofit/rebuild program as discussedbelow in section V.

V. Transit Operator ResponsibilitiesToday’s Federal Register notice

announces certification of the above-described CCTTM kit, when properlyapplied, as meeting the 0.10 g/bhp-hrparticulate matter standard of the UrbanBus Retrofit/Rebuild Program.

In a Federal Register notice datedMarch 14, 1997 (62 FR 12166), EPAannounced certification of a retrofit/rebuild kit produced by the EngelhardCorporation (the ETXTM kit). Thatcertification means that urban busoperators using compliance program 1must use equipment certified to the 0.10g/bhp-hr standard when rebuilding orreplacing applicable 1979 through 1989model year DDC 6V92TA MUI modelengines after September 14, 1997. Thecertified JMI equipment described intoday’s notice may be used by operatorsin compliance with the 0.10 g/bhp-hrstandard. Operators using complianceprogram 2 having applicable enginesmay use the certified CCTTM kit andclaim the certification PM level fromTable 2 above, when calculating theirFleet Level Attained (FLA). Underprogram 2, an operator must usesufficient certified equipment so that itsactual fleet emission level complieswith the target level for its fleet.

As mentioned above, certification ofthe Engelhard ETXTM kit triggered the0.10 g/bhp-hr standard for applicable1979–1989 6V92TA MUI engines. Thatkit provides three power ratings: 253,277, and 294 horsepower. JMI will offerthe CCTTM kit in four power ratings:253, 277, 294, and 325 hp. Certificationof the CCTTM kit described in today’s


Federal Register notice triggers the 0.10g/bhp-hr standard for engines ratedabove 294 hp. This means that urbanbus operators using compliance program1 must use equipment certified to the0.10 g/bhp-hr standard when rebuildingor replacing applicable engines above294 hp after May 6, 1998.

Urban bus engines certified to meetCalifornia emissions standards are notapplicable to the CCTTM kit discussed intoday’s Federal Register notice.Additionally, the 0.10 g/bhp–hr PMstandard is not triggered for enginescertified to meet California emissionstandards. Operators of such urbanbuses, who choose to comply withprogram 1, are not required to useequipment certified to the 0.10 g/bhp–hr PM standard until the standard hasbeen triggered for such engines.Operators of urban buses having enginescertified to meet California emissionstandards, and who choose to complywith program 2, may not use the CCTTM

kit described in today’s notice to meetprogram requirements.

As stated in the program regulations(40 CFR 85.1401 through 85.1415),operators must, beginning January 1,1995, maintain records for each enginein their fleet to demonstrate that theyare in compliance with the requirementsof the Urban Bus Retrofit/RebuildProgram. These records includepurchase records, receipts, and partnumbers for the parts and componentsused in the rebuilding of urban busengines. Urban bus operators using thesupply option 2, as described previouslyin today’s Federal Register notice, mustbe aware of their responsibility formaintenance of records pursuant to 40CFR Sections 85.1403 through 85.1404,because they do not purchase thecomplete CCTTM kit from JMI. Urbanbus operators using supply option 2must be able demonstrate that all partsused in the rebuilding of engines are incompliance with program requirements.In other words, such urban busoperators must be able to demonstratethat all components of the kit certifiedin today’s Federal Register notice areinstalled on applicable engines.

Dated: October 29, 1997.Richard D. Wilson,Acting Assistant Administrator for Air andRadiation.[FR Doc. 97–29397 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTIONAGENCY[FRL–5917–6]

Underground Injection ControlProgram; Hazardous Waste InjectionRestrictions; Petition for Exemption—Class I Hazardous Waste Injection;CECOS International, Inc. (CECOS)

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of final decision onpetition modification.

SUMMARY: Notice is hereby given thatmodification of an exemption to theland disposal restrictions under the1984 Hazardous and Solid WasteAmendments to the ResourceConservation and Recovery Act hasbeen granted to CECOS, for the Class Iinjection well located at Sulphur,Louisiana. As required by 40 CFR part148, the company has adequatelydemonstrated to the satisfaction of theEnvironmental Protection Agency bypetition and supporting documentationthat, to a reasonable degree of certainty,there will be no migration of hazardousconstituents from the injection zone foras long as the waste remains hazardous.This final decision allows theunderground injection by CECOS, of thespecific restricted hazardous wasteidentified in the exemptionmodification, into the Class I hazardouswaste injection well at the Sulphur,Louisiana facility specifically identifiedin the modified exemption, for as longas the basis for granting an approval ofthis exemption remains valid, underprovisions of 40 CFR 148.24. Asrequired by 40 CFR 124.10, a publicdocument was issued July 31, 1997, andclosed on September 15, 1997. Nocomments were received. This decisionconstitutes final Agency action andthere is no Administrative appeal.DATES: This action is effective as ofOctober 28,1997.ADDRESSES: Copies of the modifiedpetition and all pertinent informationrelating thereto are on file at thefollowing location: EnvironmentalProtection Agency, Region 6, WaterQuality Protection Division, SourceWater Protection Branch (6WQ–S), 1445Ross Avenue, Dallas, Texas 75202–2733.FOR FURTHER INFORMATION CONTACT:Philip Dellinger, Chief, Ground Water/UIC Section, EPA—Region 6, telephone(214) 665–7165.Oscar Ramirez, Jr.,Acting Director, Water Quality ProtectionDivision (6WQ).[FR Doc. 97–29387 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–U


[FRL–5918–9]

National Environmental JusticeAdvisory Council; Notification ofMeeting Public Comment Period(s) andEnvironmental Justice EnforcementRoundtable Open Meetings

Pursuant to the Federal AdvisoryCommittee Act (FACA), Public Law 92–463, we now give notice that theNational Environmental JusticeAdvisory Council (NEJAC) along withthe subcommittees will meet on thedates and times described below inconjunction with a NEJAC and EPA-sponsored Environmental JusticeEnforcement Roundtable. All timesnoted are Eastern Standard Time. Allmeetings are open to the public. Due tolimited space, seating at the NEJACmeeting will be on a first-come basis.Documents that are the subject ofNEJAC reviews are normally availablefrom the originating EPA office and arenot available from the NEJAC. TheNEJAC and subcommittee meetings willoccur at the Regal University Hotel,2800 Campus Walk Avenue, Durham,NC 27705–4479, telephone number:919/383–8575. The NEJAC and EPA-sponsored Environmental JusticeEnforcement Roundtable will occur atNorth Carolina Central University inDurham, NC.

The full NEJAC will convene Monday,December 8 from 9:00 a.m. to 10:30 a.m.and from 6:30 p.m. to 9:00 p.m., andWednesday, December 10 from 9:00a.m. to 5:00 p.m. and from 6:45 p.m. to9:00 p.m. to follow-up on pending itemsfrom the May 1997 meeting, to hear apresentation from the newly createdEPA’s Office of Children HealthProtection, and several NEJAC newbusiness interest items. NEJAC willhave a break in the meeting scheduleMonday, December 8 at 10:30 a.m. toconduct a bus tour of localenvironmental justice sites. There willbe public comment periods scheduledfrom 7:00 p.m.—9:00 p.m. on Monday,December 8 and on Wednesday,December 10.

The six subcommittees will meetTuesday, December 9 from 9:00 a.m. to6:30 p.m. Any member of the publicwishing additional information on thesubcommittee meetings should contactthe specific Designated Federal Officialat the telephone number listed below.


SubcommitteeFederal officialand telephone

number

Enforcement ..................... Ms. SherryMilan—202/564–2619.

Health & Research ........... Mr. LawrenceMartin—202/564–6497.

Ms. CarolChristensen—202/260–2301.

International ..................... Ms. DonaCanales—202/564–6442.

Indigenous Peoples ......... Ms. ElizabethBell—202/260–8106.

Public Participation .......... Ms. ReneeGoins—202/564–2598.

Waste/Facility Siting ......... Mr. Kent Ben-jamin—202/260–2822.

The NEJAC and EPA-sponsoredEnvironmental Justice EnforcementRoundtable will meet December 11–13,1997 at North Carolina CentralUniversity in Durham, North Carolina.The public comment session is from6:00 p.m.—9:00 p.m. on Thursday,December 11 and the Roundtablesessions are from 9:00 a.m.—5:00 p.m.on Friday, December 12 and Saturday,December 13.

Members of the public who wish tomake a brief oral presentation shouldcontact Tama Clare of Tetra Tech EMInc. by November 28 to have timereserved on the agenda. Individuals orgroups making oral presentations willbe limited to a total time of fiveminutes. We should receive writtencomments of any length (at least 35copies) by November 28, commentsreceived after that date will be providedto the Council as logistics allow. Sendyour written comments to Tetra TechEM Inc., 1593 Spring Hill Road, Suite300, Vienna, VA 22182. NEJACRegistration Toll-Free HotlineTelephone number is 888/335–4299 orFAX: 703/287–8843. Internet E-mailaddress is [email protected] FURTHER INFORMATION CONTACT: Forhearing impaired individuals or non-English speaking attendees wishing toarrange for a sign language or foreignlanguage interpreter, please call or faxTama Clare of Tetra Tech EM Inc. atPhone: 703/287–8880 or Fax: 703/287–8843.

Registration for all events can be donethrough the Internet at our World WideWeb’s home page via the followingaddress: http://www.ttemi.com/nejac orthrough the NEJAC Registration Toll-free Hotline at 888/335–4299.

Dated: October 31, 1997.Robert J. Knox,Designated Federal Official, NationalEnvironmental Justice Advisory Council.[FR Doc. 97–29398 Filed 11–5–97; 8:45 am]BILLING CODE 6560–50–U


Notice of Public Information CollectionBeing Reviewed by the FederalCommunications Commission forExtension Under Delegated Authority 5CFR 1320 Authority; CommentsRequested

October 30, 1997.SUMMARY: The Federal CommunicationsCommission, as part of its continuingeffort to reduce paperwork burden,invites the general public and otherFederal agencies to take thisopportunity to comment on thefollowing information collection, asrequired by the Paperwork ReductionAct of 1995, Public Law 104–13. Anagency may not conduct or sponsor acollection of information unless itdisplays a currently valid controlnumber. No person shall be subject toany penalty for failing to comply witha collection of information subject to thePaperwork Reduction Act (PRA) thatdoes not display a valid control number.Comments are requested concerning (a)whether the proposed collection ofinformation is necessary for the properperformance of the functions of theCommission, including whether theinformation shall have practical utility;(b) the accuracy of the Commission’sburden estimate; (c) ways to enhancethe quality, utility, and clarity of theinformation collected; and (d) ways tominimize the burden of the collection ofinformation on the respondents,including the use of automatedcollection techniques or other forms ofinformation technology.DATES: Persons wishing to comment onthis information collection shouldsubmit comments January 5, 1998.ADDRESSES: Direct all comments to JerryCowden, Federal CommunicationsCommission, Room 240–B, 2000 M St.,N.W., Washington, DC 20554, or viainternet to [email protected] FURTHER INFORMATION CONTACT: Foradditional information or copies of theinformation collection contact JerryCowden at 202–418–0447 or via internetat [email protected].

SUPPLEMENTARY INFORMATION:OMB Approval Number: 3060–0308.Title: Section 90.505 Developmental

operation, showing required.

Form No.: N/A.Type of Review: Extension of existing

collection.Respondents: Businesses or other for-

profit, state, local or tribal government,not-for-profit institutions.

Number of Respondents: 100.Estimated Time Per Response: 2

hours.Total Annual Burden: 200 hours.Needs and Uses: The information

collection requirement contained inSection 90.505 is needed to gather dataon developmental programs for which adevelopmental authorization is sought.The information is used to evaluate thedesirability of issuing such anauthorization from spectrum use andinterference potential considerations. Ifthe information was not collected thevalue of developmental programs wouldbe severely limited.Federal Communications Commission.William F. Caton,Acting Secretary.[FR Doc. 97–29302 Filed 11–5–97; 8:45 am]BILLING CODE 6712–01–P


Notice of Public InformationCollection(s) Being Reviewed by theFederal Communications Commission

October 30, 1997.SUMMARY: The Federal CommunicationsCommission, as part of its continuingeffort to reduce paperwork burdeninvites the general public and otherFederal agencies to take thisopportunity to comment on thefollowing information collection(s), asrequired by the Paperwork ReductionAct of 1995, Pub. L. 104–13. An agencymay not conduct or sponsor a collectionof information unless it displays acurrently valid control number. Noperson shall be subject to any penaltyfor failing to comply with a collectionof information subject to the PaperworkReduction Act (PRA) that does notdisplay a valid control number.Comments are requested concerning: (a)Whether the proposed collection ofinformation is necessary for the properperformance of the functions of theCommission, including whether theinformation shall have practical utility;(b) the accuracy of the Commission’sburden estimate; (c) ways to enhancethe quality, utility, and clarity of theinformation collected; and (d) ways tominimize the burden of the collection ofinformation on the respondents,including the use of automatedcollection techniques or other forms ofinformation technology.


DATES: Written comments should besubmitted on or before January 5, 1998.If you anticipate that you will besubmitting comments, but find itdifficult to do so within the period oftime allowed by this notice, you shouldadvise the contact listed below as soonas possible.ADDRESSES: Direct all comments to JudyBoley, Federal CommunicationsCommission, Room 234, 1919 M St.,N.W., Washington, DC 20554 or viainternet to [email protected] FURTHER INFORMATION CONTACT: Foradditional information or copies of theinformation collection(s), contact JudyBoley at 202–418–0214 or via internet [email protected].


OMB Control No.: 3060–0004.Title: Guidelines for Evaluating the

Environmental Effects ofRadiofrequency Radiation (SecondMemorandum Opinion and Order, ETDocket No. 93–2).

Form No.: N/A.Type of Review: Extension of a

currently approved collection.Respondents: Not-for-profit

institutions; businesses or other forprofit; small businesses andorganizations.

Number of Respondents: 126,108.Estimated Time Per Response: 2 hours

per response (avg.). This time will varywith the number of transmittersconsidered; e.g., a site with a singletransmitter might require one hour todetermine compliance, while a site withmany co-located transmitters mayrequire considerably more time.

Frequency of Response: On occasionreporting requirement and third partydisclosure.

Total Annual Burden: 223,376 totalannual burden hours.

Estimated Annual Reporting andRecordkeeping Cost Burden: Theestimated cost to respondents toperform the environmental evaluationsper service varies. For example,complex situations that require aconsulting engineer @ $100 per hourmay require additional time to performan evaluation; portable devicesauthorized under Part 2 of the Rulesrequire a specific absorption rate of RFenergy test with an average cost ofapproximately $5,000 per test; and otherapplicants will use OET Bulletin No. 65to perform environmental evaluations,and will have no financial burdenassociated with the evaluation.

Needs and Uses: The NationalEnvironmental Policy Act of 1969(NEPA) requires agencies of the FederalGovernment to evaluate the effects of

their actions on the quality of thehuman environment. To meet itsresponsibilities under NEPA, theCommission has adopted revised RFexposure guidelines for purposes ofevaluating potential environmentaleffects of RF electromagnetic fieldsproduced by FCC-regulated facilities.The new guidelines reflect more recentscientific studies of the biological effectsof RF electromagnetic fields. The use ofthese new guidelines will ensure thatthe public and workers receive adequateprotection from exposure to potentiallyharmful RF electromagnetic fields. ThisSecond Memorandum Opinion andOrder addresses a number of concernsthat were raised in petitions andcomments received in response to theReport and Order.

The collections of environmentalinformation required by Section 1.1307of the Rules will be used by theCommission staff to determine whetherthe environmental evaluation issufficiently complete and in compliancewith the Commission’s Rules to beacceptable for filing. The collection ofthis information is necessary to ensurecompliance with NEPA, specifically, tominimize the potential for significantenvironmental impact fromradiofrequency (RF) radiation from FCC-regulated transmitters and facilities.Federal Communications Commission.William F. Caton,Acting Secretary.[FR Doc. 97–29303 Filed 11–5–97; 8:45 am]BILLING CODE 6712–01–P


Notice of Public InformationCollection(s) Submitted to OMB forReview and Approval

October 29, 1997.SUMMARY: The Federal CommunicationsCommission, as part of its continuingeffort to reduce paperwork burdeninvites the general public and otherFederal agencies to take thisopportunity to comment on thefollowing information collection(s), asrequired by the Paperwork ReductionAct of 1995, Public Law 104–13. Anagency may not conduct or sponsor acollection of information unless itdisplays a currently valid controlnumber. No person shall be subject toany penalty for failing to comply witha collection of information subject to thePaperwork Reduction Act (PRA) thatdoes not display a valid control number.Comments are requested concerning (a)whether the proposed collection ofinformation is necessary for the proper

performance of the functions of theCommission, including whether theinformation shall have practical utility;(b) the accuracy of the Commission’sburden estimate; (c) ways to enhancethe quality, utility, and clarity of theinformation collected; and (d) ways tominimize the burden of the collection ofinformation on the respondents,including the use of automatedcollection techniques or other forms ofinformation technology.DATES: Written comments should besubmitted on or before December 8,1997. If you anticipate that you will besubmitting comments, but find itdifficult to do so within the period oftime allowed by this notice, you shouldadvise the contact listed below as soonas possible.ADDRESSES: Direct all comments to JudyBoley, Federal CommunicationsCommission, Room 234, 1919 M St.,NW., Washington, DC 20554 or viainternet to [email protected] FURTHER INFORMATION CONTACT:For additional information or copies ofthe information collection(s) contactJudy Boley at 202–418–0214 or viainternet at [email protected].


OMB Control Number: 3060–0589.Title: FCC Remittance Advice and

Continuation Sheet.Form Number: FCC Form 159/159–C.Type of Review: Extension of a

currently approved collection.Respondents: Individuals or

households; business or other for-profit;not-for-profit institutions.

Number of Respondents: 635,738.Estimated Time Per Response: 0.5

hours.Cost to Respondents: N/A.Total Annual Burden: 317,869 hours.Needs and Uses: FCC Form 159/159–

C is required for payment of regulatoryfees and for use when paying formultiple filings with a single paymentinstrument, or when paying by creditcard. The forms require specificinformation to track payment history, tofacilitate the efficient and expeditiousprocessing of collections by a lockboxbank. The forms were revised to includeTaxpayer Identification Number (TIN)which is used for anyone who requestsservices from the FCC. The TaxpayerIdentification Number is required by theDebt Collection Improvement Act of1996.Federal Communications Commission.William F. Caton,Acting Secretary.[FR Doc. 97–29301 Filed 11–5–97; 8:45 am]BILLING CODE 6712–01–M


FEDERAL HOUSING FINANCE BOARD

[No. 97–N–8]

Proposed Collection; CommentRequest

AGENCY: Federal Housing FinanceBoard.ACTION: Notice.

SUMMARY: In accordance with therequirements of the PaperworkReduction Act of 1995, the FederalHousing Finance Board (Finance Board)hereby gives notice that it is seekingpublic comments concerning a three-year extension by the Office ofManagement and Budget (OMB) of thepreviously approved informationcollection entitled ‘‘PersonalCertification and Disclosure Forms.’’DATES: Interested persons may submitcomments on or before January 5, 1998.ADDRESSES: Address written commentsand requests for copies of theinformation collection to Elaine L.Baker, Secretary to the Board, 202/408–2837, Federal Housing Finance Board,1777 F Street, N.W., Washington, D.C.20006.FOR FURTHER INFORMATION CONTACT:Patricia L. Sweeney, Program Analyst,Compliance Assistance Division, Officeof Policy, 202/408–2872, or Janice A.Kaye, Attorney-Advisor, Office ofGeneral Counsel, 202/408–2505, FederalHousing Finance Board, 1777 F Street,N.W., Washington, D.C. 20006.


A. Need For and Use of InformationCollection

Section 7 of the Federal Home LoanBank Act (Bank Act) and parts 931 and932 of the Finance Board’s regulationsestablish eligibility and reportingrequirements and the procedures forelecting and appointing Federal HomeLoan Bank (FHLBank) directors. See 12U.S.C. 1427; 12 CFR parts 931 and 932.The information collection contained inthe FHLBank director personalcertification and disclosure forms and§§ 932.18 and 932.21 of the FinanceBoard’s regulations is necessary toenable the Finance Board to determinewhether prospective and incumbentFHLBank directors satisfy the statutoryand regulatory eligibility and reportingrequirements. See Finance Board FormsE–1, E–2, A–1, and A–2; 12 CFR 932.18(appointive directors) and 932.21(elective directors). Finance Board staffuses the information collection todetermine whether such individualsmeet the statutory and regulatoryeligibility and reporting requirements.

The likely respondents include onlyprospective and incumbent FHLBankdirectors. Currently, there are 109elective directors and 72 appointivedirectors serving on the boards ofdirectors of the FHLBanks. Theinformation collection requires eachrespondent to complete and submit tothe Finance Board for review a personalcertification and disclosure form priorto election or appointment and, onceelected or appointed, annually duringthe term of service. See 12 CFR932.18(f)(1), (3) and 932.21(g)(1), (3).Incumbent directors also have acontinuing obligation promptly to notifythe Finance Board of any known orsuspected ineligibility. Id.§§ 932.18(f)(2) and 932.21(g)(2).

The OMB number for the informationcollection is 3069–0002. The OMBclearance for the information collectionexpires on January 31, 1997.

B. Burden Estimate

The Finance Board estimates the totalannual average number of respondentsat 286, with one response perrespondent. The estimate for the averagehours per response is 1.3 hours. Theestimate for the total annual hourburden is 376 hours (286 respondents x1 response/respondent x approximately1.3 hours). The estimated annualizedcost to respondents of the informationcollection is $35,175.00.

C. Comment Request

The Finance Board requests writtencomments on the following: (1) whetherthe collection of information isnecessary for the proper performance ofFinance Board functions, includingwhether the information has practicalutility; (2) the accuracy of the FinanceBoard’s estimates of the burdens of thecollection of information; (3) ways toenhance the quality, utility, and clarityof the information collected; and (4)ways to minimize the burden of thecollection of information onrespondents, including through the useof automated collection techniques orother forms of information technology.

By the Federal Housing Finance Board.Dated: October 31, 1997.

William W Ginsberg,Managing Director.[FR Doc. 97–29368 Filed 11–5–97; 8:45 am]BILLING CODE 6725–01–U

FEDERAL MARITIME COMMISSION

Notice of Agreement(s) Filed

The Commission hereby gives noticeof the filing of the following

agreement(s) under the Shipping Act of1984.

Interested parties can review or obtaincopies of agreements at the Washington,DC offices of the Commission, 800North Capitol Street, N.W., Room 962.Interested parties may submit commentson an agreement to the Secretary,Federal Maritime Commission,Washington, DC 20573, within 10 daysof the date this notice appears in theFederal Register.

Agreement No.: 232–011539–001.Title: CMN/Ivaran/TMM Space

Charter and Sailing Agreement.Parties:Companhia Maritima Nacional

(‘‘CMN’’)Ivaran Lines AS (‘‘Ivaran’’)Transportacion Maritima Mexicana

S.A. De C.V. (‘‘TMM’’).Synopsis: The proposed modification

changes the identity of A/S IvaransRederi to Ivaran Lines AS, changes thecontact person for TMM, and clarifiesthat the geographic scope of theAgreement includes Venezuela.

Agreement No.: 203–011593.Title: N.S. Inman Chassis Program

L.L.C. Limited Liability CompanyOperating Agreement.

Parties:COSCO Americas, Inc.‘‘K’’ Line AmericaNYK Line (North America), Inc.Yang Ming LineSynopsis: The proposed Agreement

would establish a container chassis poolwhich would primarily service theNorfolk Southern Railway facility atAtlanta, Georgia.

Dated: October 31, 1997.By Order of the Federal Maritime

Commission.Joseph C. Polking,Secretary.[FR Doc. 97–29329 Filed 11–5–97; 8:45 am]BILLING CODE 6730–01–M

OFFICE OF GOVERNMENT ETHICS

Notice of Planned Termination of theEthics Bulletin Board System

AGENCY: Office of Government Ethics(OGE).ACTION: Notice.

SUMMARY: The Office of GovernmentEthics is planning to terminate TheEthics Bulletin Board System (TEBBS),its electronic bulletin board service forexecutive branch Government ethicsinformation, effective January 1, 1998.In its place, OGE will continue toenhance its Internet World Wide Web


site, established last year, whichcontains most of the same electronicmaterials as well as additionalinformational resources and links toother pertinent Internet sites.DATES: Comments by the agencies andthe public are invited and should besubmitted to OGE by December 8, 1997.ADDRESSES: Send comments to theOffice of Government Ethics, Suite 500,1201 New York Avenue, NW.,Washington, DC 20005–3917, Attention:James V. Parle.FOR FURTHER INFORMATION CONTACT:James V. Parle, Chief, Office ofInformation Resources Management,Office of Government Ethics; telephone:202–208–8000; TDD: 202–208–8025;FAX: 202–208–8037; Internet E-mailaddress: [email protected] (for E-mailmessages, the subject line shouldinclude the following reference—Comment on planned TEBBStermination).SUPPLEMENTARY INFORMATION: Notice ishereby given that, effective January 1,1998, the Office of Government Ethics isplanning to terminate the operation ofits ‘‘The Ethics Bulletin Board System’’(TEBBS). This notice is also beingposted on TEBBS and OGE’s Web site.In light of the creation last year of OGE’snew Web site on the Internet, OGE hasinitially determined that TEBBS is nolonger needed for electronicdissemination of OGE Governmentethics information to the agencies andthe public. Nonetheless, OGE invitescomments from the agencies and thepublic on this planned termination ofTEBBS, to be received by December 8,1997, and will carefully consider anycomments received before reaching afinal decision. If OGE does decide todelay or reverse the plannedtermination of TEBBS, OGE will publisha further notice to this effect in theFederal Register, as well as posting it onboth TEBBS and the OGE Web site.

The Office of Government Ethicsintroduced TEBBS to the executivebranch ethics community at theSeptember 1992 Government EthicsConference. Since then, TEBBS has beenused to disseminate electronic copies ofOGE’s executive branchwide ethicsregulations, along with its advisorymemoranda and letters. The TEBBSbulletin board also electronicallyprovides access to various ethicsprogram administration aids, such asethics reporting forms, trainingmaterials, and OGE publications.

When OGE introduced the TEBBSservice in 1992, electronic bulletinboards were the principal means for theGovernment to disseminate informationelectronically. However, since that time,

information technology has changedsignificantly. Today, the World WideWeb on the Internet has become theprimary electronic means ofdisseminating information. The Officeof Government Ethics introduced itsown Web site at the September 1996Government Ethics Conference.

The current uniform resource locator(URL) address for OGE’s Internet WorldWide Web site is http://www.usoge.gov.The OGE Web site contains, either on-site or via links to other Web sites, mostof the same electronic information thatis available on TEBBS as noted above,as well as that on OGE’s ethics CD–ROM, which OGE will continue topublish twice a year. The Web site alsoprovides access to additionalinformational resources, such aselectronic copies of pertinentGovernment ethics laws and Executiveorders. Further, the Web site includesall the current OGE forms andpublications in Adobe Acrobat portabledocument format (PDF) files that can bedownloaded and used as needed byagencies and their employees. TheOffice of Government Ethics continuallyupdates its Web site as new materialbecomes available for electronicdissemination.

Response to OGE’s Web site has beenbetter than expected. Since OGE put itsWeb site into service a year ago, thenumber of ‘‘hits’’ (visits to a page ordownloading of a document) has grownsteadily. The volume now averagessome 34,000 ‘‘hits’’ a month. The Officeof Government Ethics expects thisnumber to continue to grow as it addsadditional functionality and informationto the site. Not surprisingly, there hasbeen a corresponding decrease in theuse of TEBBS. With OGE’s limitedresources, the largely redundant andless flexible capabilities offered byTEBBS has become too expensive tooperate and maintain. The additionalresources and capabilities of OGE’s Website should more than compensate forthe termination of the TEBBS electronicbulletin board service.

Approved: October 31, 1997.

Stephen D. Potts,Director, Office of Government Ethics.[FR Doc. 97–29333 Filed 11–5–97; 8:45 am]


DEPARTMENT OF HEALTH ANDHUMAN SERVICES

Program Support Center; AgencyInformation Collection Activities:Proposed Collections; CommentRequest

The Department of Health and HumanServices, Program Support Center (PSC),will periodically publish summaries ofproposed information collectionsprojects and solicit public comments incompliance with the requirements ofSection 3506(c)(2)(A) of the PaperworkReduction Act of 1995. To request moreinformation on the project or to obtaina copy of the information collectionplans and instruments, call the PSCReports Clearance Officer on (301) 443–2045.

Comments are invited on: (a) Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the agency, includingwhether the information shall havepractical utility; (b) the accuracy of theagency’s estimate of the burden of theproposed collection of information; (c)ways to enhance the quality, utility andclarity of the information to becollected; and (d) ways to minimize theburden of the collection of informationon respondents, including through theuse of automated collection techniquesor other forms of informationtechnology.

1. Application Packets for RealProperty for Public Health Purposes—0937–0191—Revision

The Department of Health and HumanServices Administers a program toconvey or lease surplus real property toStates and their political subdivisionsand instrumentalities, to tax-supportedinstitutions, and to nonprofitinstitutions to be used for healthpurposes. State and local governmentsand nonprofit organizations use theseapplications to apply for excess/surplus,underutilized/unutilized and off-siteGovernment real property. Informationin the application is used to determineeligibility to purchase, lease, or useproperty under the provisions of thesurplus property program. Theinstructions have been reduced from six(6) packets to three (3) to streamline andconsolidate the health and homelessapplication processes. TheEnvironmental information form, usedto evaluate potential environmentaleffects of a proposal as required by theNational Environmental Policy Act of1969, is being revised to provide factualdata to support the response to eachquestion and to leave no doubt aboutwhat conditions or adverse effects are


being considered as well as to make itmore user friendly. Respondents: State,Local or Tribal Governments; not-for-profit institutions; Total Number ofRespondents: 114 per calendar year;Number of Responses per Respondent:One response per request; AverageBurden per Response: 200 hours;Estimated Annual Burden: 22,800hours.

Send comments to Douglas F. Mortl,PSC Reports Clearance Officer, Room17A08, Parklawn Building, 5600 FishersLane, Rockville, MD 20857. Writtencomments should be received within 60days of this notice.

Dated: October 30, 1997.Lynnda M. Regan,Director, Program Support Center.[FR Doc. 97–29349 Filed 11–5–97; 8:45 am]BILLING CODE 4160–17–M


Food and Drug Administration

[Docket No. 97F-0440]

Cytec Industries, Inc.; Filing of FoodAdditive Petition

AGENCY: Food and Drug Administration,HHS.ACTION: Notice.SUMMARY: The Food and DrugAdministration (FDA) is announcingthat Cytec Industries, Inc., has filed apetition proposing that the food additiveregulations be amended to provide forthe safe use of 1,6-hexanediamine, N,N′-bis(2,2,6,6-tetramethyl-4-piperidinyl)-,polymers with morpholine-2,4,6-trichloro-1,3,5-triazine reactionproducts, methylated, as a stabilizer forolefin polymers intended for use incontact with food.FOR FURTHER INFORMATION CONTACT: VirD. Anand, Center for Food Safety andApplied Nutrition (HFS-216), Food andDrug Administration, 200 C St. SW.,Washington, DC 20204, 202-418-3081.SUPPLEMENTARY INFORMATION: Under theFederal Food, Drug, and Cosmetic Act(sec. 409(b)(5) (21 U.S.C. 348(b)(5))),notice is given that a food additivepetition (FAP 8B4562) has been filed byCytec Industries, Inc., c/o Keller andHeckman, 1001 G St. NW., suite 500West, Washington, DC 20001. Thepetition proposes to amend the foodadditive regulations in § 178.2010Antioxidants and/or stabilizers forpolymers (21 CFR 178.2010) to providefor the safe use of 1,6-hexanediamine,N,N′-bis(2,2,6,6-tetramethyl-4-piperidinyl)-, polymers with

morpholine-2,4,6-trichloro-1,3,5-triazinereaction products, methylated, as astabilizer for olefin polymers complyingwith 21 CFR 177.1520 intended for usein contact with food.

The agency has determined under 21CFR 25.32(i) that this action is of thetype that does not individually orcumulatively have a significant effect onthe human environment. Therefore,neither an environmental assessmentnor an environmental impact statementis required.

Dated: October 16, 1997.Alan M. Rulis,Director, Office of Premarket Approval,Center for Food Safety and Applied Nutrition.[FR Doc. 97–29347 Filed 11–5–97; 8:45 am]BILLING CODE 4160–01–F


Food and Drug Administration

Peripheral and Central NervousSystem Drugs Advisory CommitteeMeeting; Cancellation

AGENCY: Food and Drug Administration,HHS.ACTION: Notice.

SUMMARY: The Food and DrugAdministration (FDA) is canceling themeeting of the Peripheral and CentralNervous System Drugs AdvisoryCommittee scheduled for November 18and 19, 1997. The meeting wasannounced in the Federal Register ofOctober 17, 1997 (62 FR 54118).FOR FURTHER INFORMATION CONTACT:Ermona B. McGoodwin or DanyielD’Antonio, Center for Drug Evaluationand Research (HFD–21), Food and DrugAdministration, 5600 Fishers Lane,Rockville, MD 20857, 301–443–5455, orFDA Advisory Committee InformationLine, 1–800–741–8138 (301–443–0572in the Washington, DC area), code12543.

Dated: October 30, 1997.Michael A. Friedman.Deputy Commissioner for Operations.[FR Doc. 97–29348 Filed 11–5–97; 8:45 am]BILLING CODE 4160–01–F


National Institutes of Health

National Cancer Institute; Notice ofClosed Meetings

Pursuant to Section 10(d) of theFederal Advisory Committee Act, as

amended (5 U.S.C. Appendix 2), noticeis hereby given of the followingNational Cancer Institute SpecialEmphasis Panel (SEP) meetings:

Name of SEP: Phase II Clinical Trails ofNew Chemopreventive Agents.

Date: November 18, 1997.Time: 9:00 a.m. to adjournment.Place: Double Tree Hotel-Rockville, 1750

Rockville Pike, Rockville, MD 20852.Contact Person: Wilna Woods, Ph.D.,

Scientific Review Administrator, NationalCancer Institute, NIH, Executive Plaza North,Room 622B, 6130 Executive Boulevard, MSC7405, Bethesda, MD 20892–7405, Telephone:301/496–7903.

Purpose/Agenda: To review, discuss andevaluate responses to Request for Proposal.

Name of SEP: Phase I Clinical Studies ofChemopreventive Agents.

Date: November 29–20, 1997.Time: November 19–9:00 a.m. to recess;

November 20–9:00 a.m. to adjournment.Place: Double Tree Hotel-Rockville, 1750

Rockville Pike, Rockville, MD 20852.Contact Person: Wilna Woods, Ph.D.,

Scientific Review Administrator, NationalCancer Institute, NIH, Executive Plaza North,Room 622B, 6130 Executive Boulevard, MSC7405, Bethesda, MD 20892–7405, Telephone:301/496–7903.


This notice is being published less than 15days prior to the meeting due to the urgentneed to meet timing limitations imposed bythe review and funding cycle.

The meetings will be closed in accordancewith the provisions set for in secs. 552b(c)(4)and 552b(c)(6), Title 5, U.S.C. Proposals andthe discussions could reveal confidentialtrade secrets or commercial property such aspatentable material and personal informationconcerning individuals associated with theproposals, the disclosure of which wouldconstitute a clearly unwarranted invasion ofpersonal privacy.(Catalog of Federal Domestic AssistanceProgram Numbers: 93.393, Cancer Cause andPrevention Research; 93.394, CancerDetection and Diagnosis Research; 93.395,Cancer Treatment Research; 93.396, CancerBiology Research; 93.397, Cancer CentersSupport; 93.398, Cancer Research Manpower;93.399, Cancer Control)

Dated: October 30, 1997.LaVerne Y. Stringfield,Committee Management Officer, NIH.[FR Doc. 97–29359 Filed 11–5–97; 8:45 am]BILLING CODE 4140–01–M



National Cancer Institute; Notice ofClosed Meeting

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), notice


is hereby given of the followingNational Cancer Institute SpecialEmphasis Panel (SEP) meeting:

Name of SEP: Preclinical ToxicologyStudies of Chemopreventive Agenda.

Date: November 14, 1997.Time: 9:00 a.m. to Adjournment.Place: Executive Plaza North, Conference

Room J, 6130 Executive Boulevard, Bethesda,MD 20892.

Contact Person: Lalita Palekar, Ph.D.,Scientific Review Administrator, NationalCancer Institute, NIH, 6130 ExecutiveBoulevard, EPN, Room 622B, Bethesda, MD20892–7405, Telephone: 301/496–7575.

Purpose/Agenda: To review, discuss andevaluate responses to a Request for Proposal.

This notice is being published less than 15days prior to the meeting due to the urgentneed to meet timing limitations imposed bythe review and funding cycle.

The meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552b(c)(6), Title 5 U.S.C.Proposals and the discussions could revealconfidential trade secrets or commercialproperty such as patentable material andpersonal information concerning individualsassociated with the applications, thedisclosure of which would constitute aclearly unwarranted invasion of personalprivacy.(Catalog of Federal Domestic AssistanceProgram Numbers: 93.393, Cancer Cause andPrevention Research; 93.394; CancerDetection and Diagnosis Research; 93.395,Cancer Treatment Research; 93.396, CancerBiology Research; 93.397, Cancer CentersSupport; 93.398, Cancer Research Manpower;93.399, Cancer Control)




National Cancer Institute; Notice ofClosed Meeting

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of the followingNational Cancer Institute SpecialEmphasis Panel (SEP) meeting:

Name of SEP: Phase III Science EnrichmentProgram (Telephone Conference Call).

Date: November 17, 1997.Time: 8:00 a.m. to Adjournment.Place: National Cancer Institute, Executive

Plaza North, Conference Room C, 6130Executive Boulevard, Bethesda, MD 20892.

Contact Person: Wilna Woods, Ph.D.,Scientific Review Administrator, NationalCancer Institute, NIH, Executive Plaza North,Room 622B, 6130 Executive Boulevard, MSC

7405, Bethesda, MD 20892–7405, Telephone:301/496–7903.


This notice is being published less than 15days to the meeting due to the urgent needto meet timing limitations imposed by thereview and funding cycle.

The meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552b(c)(6), Title 5, U.S.C.Proposals and the discussions could revealconfidential trade secrets or commercialproperty such as patentable material andpersonal information concerning individualsassociated with the proposals, the disclosureof which would constitute a clearlyunwarranted invasion of personal privacy.(Catalog of Federal Domestic AssistanceProgram Numbers: 93.393, Cancer Cause andPrevention Research; 93.394, CancerDetection and Diagnosis Research; 93.395,Cancer Treatment Research; 93.396, CancerBiology Research; 93.397, Cancer CentersSupport; 93.398, Cancer Research Manpower;93.399, Cancer Control)




National Cancer Institute; Notice ofMeeting

Pursuant to Section 10(a) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of a meeting of theNational Cancer Institute (NCI) Board ofScientific Advisors on November 13–14,1997 in Conference Room 10, Building31C, National Institutes of Health, 9000Rockville Pike, Bethesda, Maryland.

This meeting will be open onNovember 13 from 8 a.m. to recess andon November 14 from 8:00 a.m. toadjournment. Agenda items will includethe following: NCI Director’s Report;Deputy Director of Extramural Science’sReports; Legislative Update; ScientificPresentation(s); Concept Reviews;program review updates and reports,and discussions pertaining to new andongoing Board business. Attendance bythe public will be limited to spaceavailable.

Individuals who plan to attend andneed special assistance such as signlanguage interpretation or otherreasonable accommodations andadditional information pertaining to themeeting should contact Dr. Paulette S.Gray, Executive Secretary, NCI Board ofScientific Advisors, 6130 Executive

Blvd., EPN, Rm. 600C, Bethesda, MD20892 (301–496–4218).

This notice is being published lessthan 15 days prior to the meeting dueto the urgent need to meet timinglimitations imposed by the review andfunding cycle.





Purusant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of the following meetingof the National Cancer Institute,Frederick Cancer Research andDevelopment Center AdvisoryCommittee.

The open portion of the meeting willbe limited to space available.Individuals who plan to attend andneed special assistance, such as signlanguage interpretation or otherreasonable accommodations, shouldnotify the contact person in advance ofthe meeting.

Committee Name: Frederick CancerResearch and Development Center AdvisoryCommittee.

Date: December 11–12, 1997.Palce: Frederick Cancer Research and

Development Center, Building 549, ExecutiveBoard Room, Frederick, Maryland 21702–1201.

Open: December 11—8:30 a.m.–10:00 a.m..Agenda: Discussion of administrative

matters such as future meetings, budget, andinformation items related to the operation ofthe NCI Frederick Cancer Research andDevelopment Center.

Closed: December 11—10 a.m. to recess,December 12–8:30 a.m. to adjournment.

Agenda/Purpose: Discussion of previoussite visit report and response for the GeneRegulation and Chromosome BiologyLaboratory and Molecular Aspects of DrugDesign Section both under contract withABL—Basic Research Program review heldJune 9–10, 1997. The majority of the closedsession will be devoted to a site review of theMolecular Basis of Carcinogenesis Laboratorywith ABL—Basic Research Program contract.

Contact Person: Donald F. Summers, M.D.,Acting Executive Secretary, Frederick CancerResearch and Development Center, P.O. BoxB, Frederick, MD 21702–1201, Telephone:301–846–5096.

The meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552b(c)(6), Title 5, U.S.C. The


report and the discussions could revealconfidential trade secrets or commercialproperty such as patentable material andpersonal information concerning individualassociated with the programs, disclosure ofwhich would constitute a clearlyunwarranted invasion of personal privacy.(Catalog Of Federal Domestic AssistanceProgram Numbers: 93.393, Cancer Cause andPrevention Research, 93.394, CancerDetection and Diagnosis Research; 93.395,Cancer Treatment Research, 93.396, CancerBiology Research; 93.397, Cancer CentersSupport; 93.398, Cancer Research Manpower;93,399, Cancer Control)





Pursuant to Pub. L. 92–463, notice ishereby given of the meeting of theAcrylonitrile Study Advisory Panel,National Cancer Institute, NationalInstitutes of Health, on Thursday,December 11, 1997. The meeting will beheld in Conference Room G, ExecutivePlaza North, 6130 Executive Boulevard,Rockville, Maryland 20892.

This meeting will be open to thepublic from 10:00 a.m. to adjournmentto discuss results of the epidemiologicstudy of workers exposed toacrylonitrile, describe plans for workernotification of the results, and presentplans for future mortality follow-up ofthe cohort. Attendance by the publicwill be limited to space available.

Mrs. Linda Quick-Cameron,Committee Management Officer,National Cancer Institute, ExecutivePlaza North, Room 601, NationalInstitutes of Health, Bethesda, Maryland20892 (301/496–5708) will providesummaries of the meeting and rosters ofcommittee members, upon request.

Dr. Aaron Blair, Executive Secretary,Division of Cancer Etiology, NationalCancer Institute, National Institutes ofHealth, Executive Plaza North, Room415, 6130 Executive Boulevard,Rockville, Maryland 20892–7364 (301/496–9093) will furnish substantiveprogram information.

Individuals who plan to attend andneed special assistance, such as signlanguage interpretation or other specialaccommodations, should contact Dr.Aaron Blair, (301) 496–9093, in advanceof the meeting.




National Heart, Lung, and BloodInstitute; Notice of Closed Meetings

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of the followingNational Heart, Lung, and BloodInstitute Special Emphasis Panel (SEP)meetings in conjunction with theNational Institute of Dental Researchand the National Institute of Arthritisand Musculoskeletal and Skin Diseases:

Name of SEP: Tissue Engineering,Biomimetics, and Medical Implant ScienceSession I, NHLBI/NIDR/NIAMS.

Date: January 28–29, 1998.Time: 7:00 p.m. EST.Place: Bestheda Marriott Hotel, 5151 Pooks

Hill Road, Bethesda, Maryland 20814.Contact Person: Diane M. Reid, M.D., Two

Rockledge Center, Room 7182, 6701Rockledge Drive, Bethesda, MD 20892–7924,(301) 435–0277.

Purpose/Agenda: To review and evaluategrant applications.

Name of SEP: Tissue Engineering,Biomimetics, and Medical Implant ScienceSession II, NHLBI/NIDR/NIAMS.

Date: January 29–30, 1998.Time: 7:00 p.m. EST.Place: Bethesda Marriott Hotel, 5151 Pooks

Hill Road, Bethesda, Maryland 20814.Contact Person: Diane M. Reid, M.D., Two

Rockledge Center, Room 7182, 6701Rockledge Drive, Bethesda, MD 20892–7924,(301) 435–0277.


These meetings will be closed inaccordance with the provisions set forth insecs. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C.Applications and/or proposals and thediscussions could reveal confidential tradesecrets or commercial property such aspatentable material and personal informationconcerning individuals associated with theapplications and/or proposals, the disclosureof which would constitute a clearlyunwarranted invasion of personal privacy.(Catalog of Federal Domestic AssistancePrograms Nos. 93.837, Heart and VascularDiseases Research; 93.838, Lung DiseasesResearch; and 93.839, Blood Diseases andResources Research, National Institutes ofHealth)




National Heart, Lung, and BloodInstitute; Notice of Closed Meeting

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of the followingNational Heart, Lung, and BloodInstitute Special Emphasis Panel (SEP)meeting:

Name of SEP: Sarcoidosis Genetic LinkageConsortium.

Dates: December 12, 1997.Time: 8:30 a.m. EST.Place: Sheraton Crystal City Hotel, 1800

Jefferson Davis Highway, Arlington, Virginia22202.

Contact Person: C. James Scheirer, Ph.D.,Two Rockledge Center, Room 7220, 6701Rockledge Drive, Bethesda, MD 20892–7924,(301) 435–0266.


This meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552b(c)(6), Title 5, U.S.C.Applications and/or proposals and thediscussions could reveal confidential tradesecrets or commercial property such aspatentable material and personal informationconcerning individuals associated with theapplications and/or proposals, the disclosureof which would constitute a clearlyunwarranted invasion of personal privacy.(Catalog of Federal Domestic AssistancePrograms Nos. 93.837, Heart and VascularDiseases Research; 93.838, Lung DiseasesResearch; and 93.839, Blood Diseases andResources Research, National Institutes ofHealth)




National Institute of Diabetes andDigestive and Kidney Diseases; Noticeof Closed Meeting

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 U.S.C. Appendix 2), noticeis hereby given of the followingNational Institute of Diabetes andDigestive and Kidney Diseases SpecialEmphasis Panel meeting:

Name of SEP: ZDK1–GRB–6–J–1.Date: December 3, 1997.Time: 11:30 AM.Place: Room 6as–25E, Natcher Building,

NIH (Telephone Conference Call).


Contact Person: Sharee Pepper, Ph.D.,Scientific Review Administrator, ReviewBranch, DEA, NIDDK, Natcher Building,Room 6as–25E, National Institutes of Health,Bethesda, Maryland 20892–6600, Phone:(301) 594–7798.


This meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552b(c)(6), Title 5 U.S.C.Applications and/or proposals and thediscussions could reveal confidential tradesecrets or commercial property such aspatentable material and personnelinformation concerning individualsassociated with the applications and/orproposals, the disclosure of which wouldconstitute a clearly unwarranted invasion ofpersonal privacy.(Catalog of Federal Domestic AssistanceProgram No. 93.847–849, Diabetes, Endocrineand Metabolic Diseases; Digestive Diseasesand Nutrition; and Kidney Diseases, Urologyand Hemotology Research, National Institutesof Health)



Substance Abuse and Mental HealthServices Administration

Current List of Laboratories WhichMeet Minimum Standards To Engage inUrine Drug Testing for FederalAgencies, and Laboratories That HaveWithdrawn From the Program

AGENCY: Substance Abuse and MentalHealth Services Administration, HHS(Formerly: National Institute on DrugAbuse, ADAMHA, HHS)ACTION: Notice.

SUMMARY: The Department of Health andHuman Services notifies Federalagencies of the laboratories currentlycertified to meet standards of Subpart Cof Mandatory Guidelines for FederalWorkplace Drug Testing Programs (59FR 29916, 29925). A similar noticelisting all currently certified laboratorieswill be published during the first weekof each month, and updated to includelaboratories which subsequently applyfor and complete the certificationprocess. If any listed laboratory’scertification is totally suspended orrevoked, the laboratory will be omittedfrom updated lists until such time as itis restored to full certification under theGuidelines.

If any laboratory has withdrawn fromthe National Laboratory CertificationProgram during the past month, it will

be identified as such at the end of thecurrent list of certified laboratories, andwill be omitted from the monthly listingthereafter.

This Notice is now available on theinternet at the following website: http://www.health.orgFOR FURTHER INFORMATION CONTACT: Mrs.Giselle Hersh or Dr. Walter Vogl,Division of Workplace Programs, Room13A–54, 5600 Fishers Lane, Rockville,Maryland 20857; Tel.: (301) 443–6014.SUPPLEMENTARY INFORMATION:Mandatory Guidelines for FederalWorkplace Drug Testing were developedin accordance with Executive Order12564 and section 503 of Pub. L. 100–71. Subpart C of the Guidelines,‘‘Certification of Laboratories Engagedin Urine Drug Testing for FederalAgencies,’’ sets strict standards whichlaboratories must meet in order toconduct urine drug testing for Federalagencies. To become certified anapplicant laboratory must undergo threerounds of performance testing plus anon-site inspection. To maintain thatcertification a laboratory mustparticipate in a quarterly performancetesting program plus periodic, on-siteinspections.

Laboratories which claim to be in theapplicant stage of certification are not tobe considered as meeting the minimumrequirements expressed in the HHSGuidelines. A laboratory must have itsletter of certification from SAMHSA,HHS (formerly: HHS/NIDA) whichattests that it has met minimumstandards.

In accordance with Subpart C of theGuidelines, the following laboratoriesmeet the minimum standards set forthin the Guidelines:ACL Laboratory, 8901 W. Lincoln Ave.,

West Allis, WI 53227, 414–328–7840(formerly: Bayshore ClinicalLaboratory)

Aegis Analytical Laboratories, Inc., 345Hill Ave., Nashville, TN 37210, 615–255–2400

Alabama Reference Laboratories, Inc.,543 South Hull St., Montgomery, AL36103, 800–541–4931/334–263–5745

American Medical Laboratories, Inc.,14225 Newbrook Dr., Chantilly, VA22021, 703–802–6900

Associated Pathologists Laboratories,Inc., 4230 South Burnham Ave., Suite250, Las Vegas, NV 89119–5412, 702–733–7866/800–433–2750

Associated Regional and UniversityPathologists, Inc. (ARUP), 500 ChipetaWay, Salt Lake City, UT 84108, 801–583–2787/800–242–2787

Baptist Medical Center—ToxicologyLaboratory, 9601 I–630, Exit 7, LittleRock, AR 72205–7299, 501–202–2783

(formerly: Forensic ToxicologyLaboratory Baptist Medical Center)

Cedars Medical Center, Department ofPathology, 1400 Northwest 12th Ave.,Miami, FL 33136, 305–325–5784

Clinical Reference Lab, 8433 QuiviraRd., Lenexa, KS 66215–2802, 800–445–6917

CompuChem Laboratories, Inc., 1904Alexander Drive, Research TrianglePark, NC 27709, 919–572–6900 / 800–833–3984 (formerly: CompuChemLaboratories, Inc., A Subsidiary ofRoche Biomedical Laboratory, RocheCompuChem Laboratories, Inc., AMember of the Roche Group)

Cox Health Systems, Department ofToxicology, 1423 North JeffersonAve., Springfield, MO 65802, 800–876–3652 / 417–269–3093 (formerly:Cox Medical Centers)

Dept. of the Navy, Navy Drug ScreeningLaboratory, Great Lakes, IL, P.O. Box88–6819, Great Lakes, IL 60088–6819,847–688–2045 / 847–688–4171

Diagnostic Services Inc., dba DSI, 4048Evans Ave., Suite 301, Fort Myers, FL33901, 941–418–1700 / 800–735–5416

Doctors Laboratory, Inc., P.O. Box 2658,2906 Julia Dr., Valdosta, GA 31604,912–244–4468

DrugProof, Division of Dynacare/Laboratory of Pathology, LLC, 1229Madison St., Suite 500, NordstromMedical Tower, Seattle, WA 98104,800–898–0180 / 206–386–2672(formerly: Laboratory of Pathology ofSeattle, Inc., DrugProof, Division ofLaboratory of Pathology of Seattle,Inc.)

DrugScan, Inc., P.O. Box 2969, 1119Mearns Rd., Warminster, PA 18974,215–674–9310

ElSohly Laboratories, Inc., 5 IndustrialPark Dr., Oxford, MS 38655, 601–236–2609

General Medical Laboratories, 36 SouthBrooks St., Madison, WI 53715, 608–267–6267

Harrison Laboratories, Inc., 9930 W.Highway 80, Midland, TX 79706,800–725–3784 / 915–563–3300(formerly: Harrison & AssociatesForensic Laboratories)

Jewish Hospital of Cincinnati, Inc., 3200Burnet Ave., Cincinnati, OH 45229,513–569–2051

LabOne, Inc., 8915 Lenexa Dr., OverlandPark, Kansas 66214, 913–888–3927 /800–728–4064 (formerly: Center forLaboratory Services, a Division ofLabOne, Inc.)

Laboratory Corporation of America, 888Willow St., Reno, NV 89502, 702–334–3400 (formerly: Sierra NevadaLaboratories, Inc.)

Laboratory Corporation of AmericaHoldings, 69 First Ave., Raritan, NJ08869, 800–437–4986 / 908–526–2400


(formerly: Roche BiomedicalLaboratories, Inc.)

Laboratory Specialists, Inc., 1111Newton St., Gretna, LA 70053, 504–361–8989 / 800–433–3823

Marshfield Laboratories, ForensicToxicology Laboratory, 1000 NorthOak Ave., Marshfield, WI 54449, 715–389–3734 / 800–331–3734

MedExpress/National LaboratoryCenter, 4022 Willow Lake Blvd.,Memphis, TN 38118, 901–795–1515 /800–526–6339

Medical College Hospitals ToxicologyLaboratory, Department of Pathology,3000 Arlington Ave., Toledo, OH43614, 419–381–5213

Medlab Clinical Testing, Inc., 212Cherry Lane, New Castle, DE 19720,302–655–5227

MedTox Laboratories, Inc., 402 W.County Rd. D, St. Paul, MN 55112,800–832–3244 / 612–636–7466

Methodist Hospital Toxicology Servicesof Clarian Health Partners, Inc.,Department of Pathology andLaboratory Medicine, 1701 N. SenateBlvd., Indianapolis, IN 46202, 317–929–3587

Methodist Medical Center ToxicologyLaboratory, 221 N.E. Glen Oak Ave.,Peoria, IL 61636, 800–752–1835 /309–671–5199

MetroLab-Legacy Laboratory Services,235 N. Graham St., Portland, OR97227, 503–413–4512, 800–237–7808(x4512)

Minneapolis Veterans Affairs MedicalCenter, Forensic ToxicologyLaboratory, 1 Veterans Drive,Minneapolis, Minnesota 55417, 612–725–2088

National Toxicology Laboratories, Inc.,1100 California Ave., Bakersfield, CA93304, 805–322–4250

Northwest Toxicology, Inc., 1141 E.3900 South, Salt Lake City, UT 84124,800–322–3361 / 801–268–2431

Oregon Medical Laboratories, P.O. Box972, 722 East 11th Ave., Eugene, OR97440–0972, 541–341–8092

Pacific Toxicology Laboratories, 1518Pontius Ave., Los Angeles, CA 90025,310–312–0056, (Formerly: CentinelaHospital Airport ToxicologyLaboratory

Pathology Associates MedicalLaboratories, 11604 E. Indiana,Spokane, WA 99206, 509–926–2400 /800–541–7891

PharmChem Laboratories, Inc., 1505-AO’Brien Dr., Menlo Park, CA 94025,415–328–6200 / 800–446–5177

PharmChem Laboratories, Inc., TexasDivision, 7606 Pebble Dr., Fort Worth,TX 76118, 817–595–0294 (formerly:Harris Medical Laboratory)

Physicians Reference Laboratory, 7800West 110th St., Overland Park, KS66210, 913–339–0372 / 800–821–3627

Poisonlab, Inc., 7272 Clairemont MesaBlvd., San Diego, CA 92111, 619–279–2600 / 800–882–7272

Premier Analytical Laboratories, 15201East I–10 Freeway, Suite 125,Channelview, TX 77530, 713–457–3784 / 800–888–4063 (formerly: DrugLabs of Texas)

Presbyterian Laboratory Services, 1851East Third Street, Charlotte, NC28204, 800–473–6640

Quest Diagnostics Incorporated, 4444Giddings Road, Auburn Hills, MI48326, 810–373–9120/800–444–0106,(formerly: HealthCare/PreferredLaboratories, HealthCare/MetPath,CORNING Clinical Laboratories)

Quest Diagnostics Incorporated,National Center for Forensic Science,1901 Sulphur Spring Rd., Baltimore,MD 21227, 410–536–1485, (formerly:Maryland Medical Laboratory, Inc.,National Center for Forensic Science,CORNING National Center forForensic Science)

Quest Diagnostics Incorporated, 4770Regent Blvd., Irving, TX 75063, 800–526–0947/972–916–3376, (formerly:Damon Clinical Laboratories, Damon/MetPath, CORNING ClinicalLaboratories)

Quest Diagnostics Incorporated, 875Greentree Rd., 4 Parkway Ctr.,Pittsburgh, PA 15220–3610, 800–574–2474/412–920–7733, (formerly: Med-Chek Laboratories, Inc., Med-Chek/Damon, MetPath Laboratories,CORNING Clinical Laboratories)

Quest Diagnostics Incorporated, 2320Schuetz Rd., St. Louis, MO 63146,800–288–7293/314–991–1311,(formerly: Metropolitan ReferenceLaboratories, Inc., CORNING ClinicalLaboratories, South Central Division)

Quest Diagnostics Incorporated, 7470Mission Valley Rd., San Diego, CA92108–4406, 800–446–4728/619–686–3200, (formerly: Nichols Institute,Nichols Institute Substance AbuseTesting (NISAT), CORNING NicholsInstitute, CORNING ClinicalLaboratories)

Quest Diagnostics Incorporated, OneMalcolm Ave., Teterboro, NJ 07608,201–393–5590 , (formerly: MetPath,Inc., CORNING MetPath ClinicalLaboratories, CORNING ClinicalLaboratory)

Quest Diagnostics Incorporated, 1355Mittel Blvd., Wood Dale, IL 60191,630–595–3888, (formerly: MetPath,Inc., CORNING MetPath ClinicalLaboratories, CORNING ClinicalLaboratories Inc.)

Scientific Testing Laboratories, Inc. 463Southlake Blvd., Richmond, VA23236, 804–378–9130

Scott & White Drug Testing Laboratory,600 S. 25th St., Temple, TX 76504,800–749–3788/254–771–8379

S.E.D. Medical Laboratories, 500 WalterNE, Suite 500, Albuquerque, NM87102, 505–727–8800/800–999-LABS

SmithKline Beecham ClinicalLaboratories, 3175 Presidential Dr.,Atlanta, GA 30340, 770–452–1590,(formerly: SmithKline Bio-ScienceLaboratories)

SmithKline Beecham ClinicalLaboratories, 8000 Sovereign Row,Dallas, TX 75247, 214–637–7236,(formerly: SmithKline Bio-ScienceLaboratories)

SmithKline Beecham ClinicalLaboratories, 801 East Dixie Ave.,Leesburg, FL 34748, 352–787–9006,(formerly: Doctors & PhysiciansLaboratory)

SmithKline Beecham ClinicalLaboratories, 400 Egypt Rd.,Norristown, PA 19403, 800–877–7484/610–631–4600, (formerly:SmithKline Bio-Science Laboratories)

SmithKline Beecham ClinicalLaboratories, 506 E. State Pkwy.,Schaumburg, IL 60173, 847–447–4379/800–447–4379, (formerly:International Toxicology Laboratories)

SmithKline Beecham ClinicalLaboratories, 7600 Tyrone Ave., VanNuys, CA 91405, 818–989–2520/800–877–2520

South Bend Medical Foundation, Inc.,530 N. Lafayette Blvd., South Bend,IN 46601, 219–234–4176

Southwest Laboratories, 2727 W.Baseline Rd., Tempe, AZ 85283, 602–438–8507

St. Anthony Hospital ToxicologyLaboratory, P.O. Box 205, 1000 N. LeeSt., Oklahoma City, OK 73101, 405–272–7052

Toxicology & Drug MonitoringLaboratory, University of MissouriHospital & Clinics, 2703 Clark Lane,Suite B, Lower Level, Columbia, MO65202, 573–882–1273

Toxicology Testing Service, Inc., 5426N.W. 79th Ave., Miami, FL 33166,305–593–2260

TOXWORX Laboratories, Inc., 6160Variel Ave., Woodland Hills, CA91367, 818–226–4373 / 800–966–2211, (formerly: LaboratorySpecialists, Inc.; Abused DrugLaboratories; MedTox Bio-Analytical,a Division of MedTox Laboratories,Inc.)

UNILAB, 18408 Oxnard St., Tarzana,CA 91356, 800–492–0800 / 818–996–7300, (formerly: MetWest-BPLToxicology Laboratory)

Universal Toxicology Laboratories, LLC,10210 W. Highway 80, Midland,Texas 79706, 915–561–8851 / 888–953–8851


UTMB Pathology-ToxicologyLaboratory, University of TexasMedical Branch, Clinical ChemistryDivision, 301 University Boulevard,Room 5.158, Old John Sealy,Galveston, Texas 77555–0551, 409–772–3197The Standards Council of Canada

(SCC) Laboratory Accreditation Programfor Substances of Abuse (LAPSA) hasbeen given deemed status by theDepartment of Transportation. The SCChas accredited the following Canadianlaboratories for the conduct of forensicurine drug testing required byDepartment of Transportationregulations:Dynacare Kasper Medical Laboratories,

14940–123 Ave., Edmonton, Alberta,Canada T5V 1B4, 800–661–9876 /403–451–3702

MAXXAM Analytics Inc., 5540McAdam Rd., Mississauga, ON,Canada L4Z 1P1, 905–890–2555(formerly: NOVAMANN (Ontario)Inc.)

Richard Kopanda,Executive Officer, Substance Abuse andMental Health Services Administration.[FR Doc. 97–29414 Filed 11–5–97; 8:45 am]BILLING CODE 4160–20–U

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

Notice of Availability and PubicComment Period on Draft Protocols forScientific Studies To Be Performed atWard Valley, California

AGENCY: Bureau of Land Management,DOI.ACTION: Notice of 30 day publiccomment period.

SUMMARY: The Department of Interior(DOI) and Bureau of Land Management(BLM) announce the availability of draftSampling Protocols for scientific studiesto be performed at the Ward Valley site,The draft Sampling Protocols have beenprepared pursuant to a contract withBLM by two scientists who served on aNational Academy of Sciences (NAS)panel on Ward Valley. The NAS panelmade recommendations in 1995 thatprovide the basis for testing andanalysis of tritium and relatedsubstances. The testing is intended toinvestigate the extent to which tritiumreleased into the atmosphere in the1950’s and 1960’s has migrated belowthe surface of the soil at the Ward Valleysite.DATES: Public comments on the draftSampling Protocols must be received byDecember 8, 1997.

ADDRESSES: Copies of the draftSampling Protocols may be obtainedupon request. Submit requests to: WardValley Project Coordinator, 2135 ButanoDrive, Sacramento. CA 95825–0451. Thedraft Sampling Protocols are availableon the Internet at: www.ca.blm.gov.FOR FURTHER INFORMATION CONTACT:Jack Mills, Contract OfficerRepresentative, U.S.D.I., Bureau of LandManagement, California State Office,2135 Butano Drive, Sacramento,California 95825, tel: (916) 978–4636.SUPPLEMENTARY INFORMATION: DOI andBLM are preparing a SupplementalEnvironmental Impact Statement (SEIS)on a proposed land transfer to the Stateof California for the purpose ofdeveloping a low-level radioactivewaste facility at Ward Valley. The siteof the proposed federal transfer islocated in San Bernardino County,California, approximately 20 miles westof the City of Needles. Following receiptand consideration of comments, it isintended that Sampling Protocols willbe finalized and testing carried outpursuant to the final SamplingProtocols. The proposed testing issubject is subject to an environmentalassessment (EA) prepared pursuant tothe National Environmental Policy Act.The EA is being released for publicreview and comment on this date. Inaddition to this opportunity to reviewthe draft protocol and comment underthis notice, the public will also have theopportunity to review and comment onthe results of the tritium, and relatedmaterials testing and analysis in thedraft SEIS.Duane A. Marti,Acting Deputy State Director for NaturalResource.[FR Doc. 97–29233 Filed 11–5–97; 8:45 am]BILLING CODE 4310–40–P–M


Bureau of Land Management

Notice of Availability and PublicComment Period on EnvironmentalAssessment (EA) of Tritium andRelated Materials Testing on PublicLands in Ward Valley, San BernardinoCounty, California

AGENCY: California State Office, Bureauof Land Management, DOI.ACTION: Notice of 30 day publiccomment period.

SUMMARY: The Department of theInterior (DOI), Bureau of LandManagement (BLM) has prepared an EAof proposed plans regarding tritium andrelated materials testing in Ward Valley.

The proposed plans were separatelyprepared by DOI/BLM and the State ofCalifornia, Department of HealthServices.EFFECTIVE DATE: Public comments on theEA must be received by December 8,1997.SUPPLEMENTARY INFORMATION: Thepurpose of this comment period is toensure that the public has sufficientopportunity to review and comment onall pertinent information on the impactsassociated with separate federal andstate proposals for testing for tritiumand related materials in Ward Valley.The testing for tritium and relatedmaterials will be carried out toeffectuate the recommendations of aNational Academy of Sciences panel.Data obtained from the federal samplingand analysis, and from the State’s ifavailable, will be included in a draftSupplemental Environmental ImpactStatement (SEIS), analyzing theproposed transfer of federal land to theState of California for construction of aLow-Level Radioactive Waste DisposalFacility.ADDRESSES: Copies of the EA may beobtained upon request. Submit requeststo: Ward Valley Project Coordinator,2135 Butano Drive, Sacramento, CA95825–0451. The EA is available on theInternet at: www.ca.blm.gov.FOR FURTHER INFORMATION CONTACT: JackMills, Contract Officer Representative,U.S.D.I., Bureau of Land Management,California State Office, 2135 ButanoDrive, Sacramento, California 95825, tel:(916) 978–4636.Duane A. Marti,Acting Deputy State Director for NaturalResources.[FR Doc. 97–29234 Filed 11–5–97; 8:45 am]BILLING CODE 4310–40–P–M

INTERNATIONAL TRADECOMMISSION

[Investigation 332–387]

North American Free TradeAgreement: Probable Economic Effecton U.S. Industries and Consumers ofAccelerated Elimination of U.S. Tariffson Certain Articles From Mexico,Round Two

AGENCY: United States InternationalTrade Commission.ACTION: Institution of investigation andscheduling of public hearing.

EFFECTIVE DATE: October 30, 1997.SUMMARY: Following receipt on October20, 1997, of a request from the Office ofthe United States Trade Representative


(USTR), the Commission institutedinvestigation No. 332–387, undersection 332(g) of the Tariff Act of 1930(19 U.S.C. 1332 (g)), to advise thePresident, with respect to each dutiablearticle listed in Annex I of the USTR’snotice published in the Federal Registerof October 21, 1997 (62 FR 54671), of itsjudgment as to the probable economiceffect of the immediate elimination ofthe U.S. tariff under the North AmericanFree Trade Agreement (NAFTA) ondomestic industries producing like ordirectly competitive articles and onconsumers. Annex I is available fromthe USTR Internet home page at http://www.ustr.gov and from theCommission Internet home page athttp://www.usitc.gov.

The USTR asked that the Commissionprovide its advice not later than 120days following the Commission’s receiptof the request, or by February 17, 1998,and has indicated that it may classify allor part of the Commission’s report asConfidential.FOR FURTHER INFORMATION CONTACT:General information may be obtainedfrom the project leader, Carl Seastrum(202–205–3493), Minerals, Metals,Machinery, and MiscellaneousManufactures Division, Office ofIndustries, U.S. International TradeCommission, Washington, DC 20436.For information on the legal aspects ofthis investigation contact WilliamGearhart of the Office of the GeneralCounsel (202–205–3091). The mediashould contact Margaret O’Laughlin,Office of External Relations (202–205–1819). Hearing impaired individuals areadvised that information on this mattercan be obtained by contacting the TDDterminal on (202) 205–1810. Forinformation on a product basis, contactthe appropriate member of theCommission’s Office of Industries asfollows:

• Agriculture and Forest ProductsDivision, Stacey Linn (202–205–3317).

• Energy, Chemicals, and TextilesDivision, Elizabeth Howlett (202–205–3365).

• Minerals, Metals, Machinery, andMiscellaneous Manufactures Division,Josephine Spalding (202–205–3498).

• Services, Electronics, andTransportation Division, Heidi Colby(202–205–3391).

Background: As stated by the USTR ina letter dated October 20, 1997, theGovernments of the United States,Mexico, and Canada have agreed toenter into consultations to consider theacceleration of the elimination of theimport duty on certain articles. TheUSTR further stated that the President isauthorized by section 201(b) of the

North American Free Trade AgreementImplementation Act, subject to theconsultation and lay-over requirementsof section 103(a) of the Act, to proclaimany accelerated schedule for dutyelimination that may be agreed to by theUnited States, Mexico, and Canadaunder Article 302(3) of the NAFTA.Section 103(a) requires that thePresident obtain advice regarding theproposed action from the United StatesInternational Trade Commission. Theaccelerated elimination of tariffs in thissecond round of negotiations betweenthe United States and Mexico will bepursued on a reciprocal basis inresponse to petitions submitted to theGovernments of Canada, Mexico, andthe United States. The USTR includedwith its request a list of products to beconsidered for immediate reciprocalelimination of tariffs.

Public Hearing: A public hearing inconnection with the investigation willbe held at the U.S. International TradeCommission Building, 500 E Street SW,Washington, DC, beginning at 9:30 a.m.on January 7, 1998, and continuing onJanuary 8 if an additional day is needed.All persons will have the right toappear, by counsel or in person, topresent information and to be heard.Requests to appear at the public hearingshould be filed with the Secretary,United States International TradeCommission, 500 E Street SW,Washington, DC 20436, not later than5:15 p.m., December 11, 1997. Anyprehearing briefs (original and 14copies) should be filed not later than5:15 p.m., December 12, 1997; thedeadline for filing post-hearing briefs orstatements is 5:15 p.m., January 14,1998.

In the event that, as of the close ofbusiness on December 16, 1997, nowitnesses are scheduled to appear at thehearing, the hearing will be canceled.Any person interested in attending thehearing as an observer or non-participant may call the Secretary to theCommission (202–205–1816) afterDecember 16, to determine whether thehearing will be held.

Written Submissions: In lieu of or inaddition to participating in the hearing,interested parties are invited to submitwritten statements concerning thematters to be addressed by theCommission in its report on thisinvestigation. Commercial or financialinformation that a submitter desires theCommission to treat as confidentialmust be submitted on separate sheets ofpaper, each clearly marked‘‘Confidential Business Information’’ atthe top. All submissions requestingconfidential treatment must conformwith the requirements of section 201.6

of the Commission’s Rules of Practiceand Procedure (19 CFR 201.6). Allwritten submissions, except forconfidential business information, willbe made available in the Office of theSecretary to the Commission forinspection by the public. To be assuredof consideration by the Commission,written statements relating to theCommission’s report should besubmitted at the earliest practical dateand should be received no later than theclose of business on January 14, 1998.All submissions should be addressed tothe Secretary, United StatesInternational Trade Commission, 500 EStreet SW, Washington, DC 20436.

Persons with mobility impairmentswho will need special assistance ingaining access to the Commissionshould contact the Office of theSecretary at 202–205–2000. Generalinformation concerning the Commissionmay also be obtained by accessing itsInternet server (http://www.usitc.gov).

Issued: October 31, 1997.By order of the Commission.

Donna R. Koehnke,Secretary.


DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

DNA Advisory Board Meeting

Pursuant to the provisions of theFederal Advisory Committee Act, noticeis hereby given that the DNA AdvisoryBoard (DAB) will meet on December 6,1997, from 10:00 a.m. until 4:00 p.m. atThe University of Chicago ConferenceCenter, 450 North Cityfront Plaza Drive,Chicago, Illinois 60611. All attendeeswill be admitted only after displayingpersonal identification which bears aphotograph of the attendee.

The DAB’s scope of authority is: Todevelop, and if appropriate, periodicallyrevise, recommended standards forquality assurance to the Director of theFBI, including standards for testing theproficiency of forensic laboratories, andforensic analysts, in conducting analysisof DNA; To recommend standards to theDirector of the FBI which specifycriteria for quality assurance andproficiency tests to be applied to thevarious types of DNA analysis used byforensic laboratories, includingstatistical and population geneticsissues affecting the evaluation of thefrequency of occurrence of DNA profilescalculated from pertinent populationdatabase(s); To recommend standards


for acceptance of DNA profiles in theFBI’s Combined DNA Index System(CODIS) which take account of relevantprivacy, law enforcement and technicalissues; and, To make recommendationsfor a system for grading proficiencytesting performance to determinewhether a laboratory is performingacceptably.

The topics to be discussed at thismeeting include: a review of minutesfrom the September 23, 1997, meeting;discussion of comments on the QualityAssurance Standards for DNA TestingLaboratories, as approved at theFebruary 22, 1997 meeting; and adiscussion of topics for the next DNAAdvisory Board meeting.

The meeting is open to the public ona first-come, first seated basis. Anyonewishing to address the DAB must notifythe Designated Federal Employee (DFE)in writing at least twenty-four hoursbefore the DAB meets. The notificationmust include the requestor’s name,organizational affiliation, a shortstatement describing the topic to beaddressed, and the amount of timerequested. Oral statements to the DABwill be limited to five minutes andlimited to subject matter directly relatedto the DAB’s agenda, unless otherwisepermitted by the Chairman.

Any member of the public may file awritten statement for the recordconcerning the DAB and its work beforeor after the meeting. Written statementsfor the record will be furnished to eachDAB member for their considerationand will be included in the officialminutes of a DAB meeting. Writtenstatements must be type-written on 81⁄2′′× 11′′ xerographic weight paper, oneside only, and bound only by a paperclip (not stapled). All pages must benumbered. Statements should includethe Name, Organizational Affiliation,Address, and Telephone number of theauthor(s). Written statements for therecord will be included in minutes ofthe meeting immediately following thereceipt of the written statement, unlessthe statement is received within threeweeks of the meeting. Under thiscircumstance, the written statement willbe included with the minutes of thefollowing meeting. Written statementsfor the record should be submitted tothe DFE.

Inquiries may be addressed to theDFE, Dr. Dwight E. Adams, Chief,Scientific Analysis Section, LaboratoryDivision—Room 3266, Federal Bureauof Investigation, 935 PennsylvaniaAvenue, NW., Washington, DC 20535–0001, (202) 324–4416, FAX (202) 324–1462.

Dated: November 3, 1997.Dwight E. Adams,Chief, Scientific Analysis Section, FederalBureau of Investigation.[FR Doc. 97–29379 Filed 11–5–97; 8:45 am]BILLING CODE 4410–02–P

DEPARTMENT OF LABOR


Submission for OMB EmergencyReview; Comment Request

Date: November 3, 1997.

The Department of Labor hassubmitted the Work Opportunity TaxCredit (WOTC) and Welfare-to-Work(W-to-W) Tax Credit Addendum to thefirst edition of ETA Handbook No. 408,July 1997, administrative forms andinformation collection request (ICR),utilizing emergency review procedures,to the Office of Management and Budget(OMB) for review and clearance inaccordance with the PaperworkReduction Act of 1995 (P.L. 104–13, 44U.S.C. Chapter 35). OMB approval hasbeen requested by November 10, 1997.A copy of this ICR, with applicablesupporting documentation, may beobtained by calling the Department ofLabor Departmental Clearance Officer,Theresa O’Malley ((202) 219–5096x 166).

Comments and questions about theWOTC/W-to-W ICR should beforwarded to the Office of Informationand Regulatory Affairs, Attn: OMB DeskOfficer for the Employment andTraining Administration, Office ofManagement and Budget, Room 10235,Washington, D.C. 20503 ((202)395–7316).

The Office of Management and Budgetis particularly interested in commentswhich:

• Evaluate whether the proposedcollection of information is necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

• Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection, and including thevalidity of the methodology andassumptions used;

• Enhance the quality, utility, andclarification of the information to becollected; and

• Minimize the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or other

technological, e.g., permittingsubmissions of responses.

Agency: Employment and TrainingAdministration.

Title: Work Opportunity Tax Credit(WOTC) and Welfare-to-Work TaxCredit.

OMB Number: 1205–0371.

Agency Number: ETA 9057–59; 9061–9063 and 9065.

Number of Respondents: 52.

Estimated Time per Response: 20minutes.

Total Burden Hours: 2,600.

Frequency: Quarterly.

Affected Public: State, Local or TribalGovernment.

Total Burden Cost (capital/startup): 0.

Total Burden Cost (operating/maintaining): 0.

Description: The Employment andTraining Administration (ETA) hasoversight responsibilities for the WorkOpportunity Tax Credit (WOTC) underthe Small Business Jobs Protection Actof 1996 (P.L. 104–188) and the Welfare-to-Work Tax Credit under the TaxpayerRelief Act of 1997 (P.L. 105–34). Datacollected on the WOTC and the W-to-Wwill be collected by the StateEmployment Security Agencies andprovided to the U.S. EmploymentService, Division of Planning andOperations, Washington, DC, throughthe appropriate Department of Laborregional office. The data will be use,primarily, to supplement IRS Form8850, help expedite the processing of,either, employer requests forCertifications generated through IRSFrom 8850 or issuance of ConditionalCertifications (CCs) and processing ofemployer requests for Certifications as aresult of individuals’ bearing SESAs orparticipating agencies’ generated CCs,help streamline SESAs verificationmandated activities, aid and expeditethe preparation of the quarterly reports,and provide a significant source ofinformation for the Secretary’s AnnualReport to Congress on the WOTCprogram and the W-to-W Tax Credit.The data recorded through the use ofthese forms will also help in thepreparation of an annual report to theCommittee House Ways and Means ofthe U.S. House of Representatives.John Saracco,

Project Manager, Office of Internet Servicesand Information Management.[FR Doc. 97–29372 Filed 11–5–97; 8:45 am]



DEPARTMENT OF LABOR


Senior Executive Service; Appointmentof a Member to the PerformanceReview Board

Title 5 U.S.C. 4314(c)(4) provides thatNotice of the appointment of anindividual to serve as a member of thePerformance Review Board of the SeniorExecutive Service shall be published inthe Federal Register.

The following individuals are herebyappointed to a three-year term on theDepartment’s Performance ReviewBoard: David C. Zeigler.FOR FURTHER INFORMATION CONTACT: Mr.Larry K. Goodwin, Director of HumanResources, Room C5526, U.S.Department of Labor, Frances PerkinsBuilding, 200 Constitution Avenue,N.W., Washington, D.C. 20210,telephone: (202) 219–6551.

Signed at Washington, D.C., this 31st dayof October, 1997.Alexis M. Herman,Secretary of Labor.[FR Doc. 97–29369 Filed 11–5–97; 8:45 am]BILLING CODE 4510–33–M

DEPARTMENT OF LABOR

Employment and TrainingAdministration

Federal-State UnemploymentCompensation Program: CertificationsUnder the Federal Unemployment TaxAct of 1997

On October 31, 1997, the Secretary ofLabor signed the annual certificationsunder the Federal Unemployment TaxAct, 26 U.S.C. 3301 et seq., therebyenabling employers who makecontributions to State unemploymentfunds to obtain certain credits for theirliability for the Federal unemploymenttax. By letter of the same date thecertifications were transmitted to theSecretary of the Treasury. The letter andcertifications are printed below.

Dated: November 3, 1997.Raymond J. Uhalde,Acting Assistant Secretary of Labor.

U.S. Department of Labor

Secretary of Labor

Washington, D.C.

October 31, 1997.The Honorable Robert E. Rubin,Secretary of the Treasury, Washington, D.C.

20220Dear Secretary Rubin: Transmitted

herewith are an original and one copy of thecertifications of the States and their

unemployment compensation laws for the12-month period ending on October 31, 1997.One is required with respect to normalFederal unemployment tax credit by Section3304 of the Internal Revenue Code of 1986(IRC), and the other is required with respectto additional tax credit by Section 3303 of theCode. Both certifications list all jurisdictionsexcept the State of Washington. Washingtonis omitted from both certifications becausewe have not yet exhausted the administrativeprocess regarding issues arising in that Stateunder the requirements of Section 3304(a) ofthe IRC. These omissions, therefore, do notconstitute final denials of certification. Ifthese issues are resolved satisfactorily, I willforward to you the certifications with respectto Washington.

Sincerely,Alexis M. Herman,Enclosures

United States Department of Labor


Washington, D.C.

Certification of State UnemploymentCompensation Laws to the Secretary of theTreasury Pursuant to Section 3303(b)(1) ofthe Internal Revenue Code of 1986

In accordance with the provisions ofparagraph (1) of Section 3303(b) of theInternal Revenue Code of 1986 (26U.S.C. 3303(b)(1)), I hereby certify theunemployment compensation laws ofthe following named States, whichheretofore have been certified pursuantto paragraph (3) of Section 3303(b) ofthe Code, to the Secretary of theTreasury for the 12-month periodending on October 31, 1997:AlabamaAlaskaArizonaArkansasCaliforniaColoradoConnecticutDelawareDistrict of ColumbiaFloridaGeorgiaHawaiiIdahoIllinoisIndianaIowaKansasKentuckyLouisianaMaineMarylandMassachusettsMichiganMinnesotaMississippiMissouriMontanaNebraskaNevadaNew Hampshire

New JerseyNew MexicoNew YorkNorth CarolinaNorth DakotaOhioOklahomaOregonPennsylvaniaPuerto RicoRhode IslandSouth CarolinaSouth DakotaTennesseeTexasUtahVermontVirginiaVirgin IslandsWest VirginiaWisconsinWyoming

This certification is for the maximumadditional credit allowable underSection 3302(b) of the Code.

Signed at Washington, D.C., on October 31,1997.Alexis M. Herman,Secretary of Labor.

United States Department of Labor


Washington, D.C.

Certification of States to the Secretary of theTreasury Pursuant to Section 3304 of theInternal Revenue Code of 1986

In accordance with the provisions ofSection 3304(c) of the InternationalRevenue Code of 1986 (26 U.S.C.3304(c)), I hereby certify the followingnamed States to the Secretary of theTreasury for the 12-month periodending on October 31, 1997, in regard tothe unemployment compensation lawsof those States which heretofore havebeen approved under the FederalUnemployment Tax Act:AlabamaAlaskaArizonaArkansasCaliforniaColoradoConnecticutDelawareDistrict of ColumbiaFloridaGeorgiaHawaiiIdahoIllinoisIndianaIowaKansasKentuckyLouisianaMaine


MarylandMassachusettsMichiganMinnesotaMississippiMissouriMontanaNebraskaNevadaNew HampshireNew JerseyNew MexicoNew YorkNorth CarolinaNorth DakotaOhioOklahomaOregonPennsylvaniaPuerto RicoRhode IslandSouth CarolinaSouth DakotaTennesseeTexasUtahVermontVirginiaVirgin IslandsWest VirginiaWisconsinWyoming

This certification is for the maximumnormal credit allowable under Section3302(a) of the Code.

Signed at Washington, DC, on October 31,1997.Alexis M. Herman,Secretary of Labor.[FR Doc. 97–29371 Filed 11–5–97; 8:45 am]BILLING CODE 4510–30–M

DEPARTMENT OF LABOR

Employment and TrainingAdministration

Federal-State UnemploymentCompensation Program:Unemployment Insurance ProgramLetters Interpreting FederalUnemployment Insurance Law

The Employment and TrainingAdministration interprets Federal lawrequirements pertaining tounemployment compensation (UC) aspart of its role in the administration ofthe Federal-State UC program. Theseinterpretations are issued inUnemployment Insurance ProgramLetters (UIPLs) to the State EmploymentSecurity Agencies. The UIPLs describedbelow are published in the FederalRegister in order to inform the public.

UIPL 41–97

UIPL 40–79, dated August 3, 1979, setforth the Department of Labor’s position

on whether Head Start agencies are‘‘educational institutions’’ for purposesof the ‘‘between and within termsdenial’’ provisions of Section3304(a)(6)(A) of the FederalUnemployment Tax Act (FUTA). Thissection of FUTA has been amendedsince that time. As such, questions havebeen raised as to whether the treatmentof Head Start services has changed as aresult of the amendments. UIPL 41–97reiterates the Department’s positionregarding Head Start agencies andprovides specific discussion of theapplication of the between and withinterms denial to Head Start programpersonnel.

UIPL 44–97

The Balanced Budget Act of 1997(BBA) and the Taxpayer Relief Act of1997 (TPRA), both enacted on August 6,1997, made several changes affecting theUC program. UIPL 44–97 providesinformation on the amendments madeby the BBA and the TPRA. This UIPLalso discusses whether States arerequired to amend their UC lawsregarding disclosure of UC information,Reed Act transfers, and levy onpayments of UC as a result of theamendments to these Acts.

Dated: October 31, 1997.Raymond J. Uhalde,Acting Assistant Secretary of Labor.U.S. Department of Labor, Employment and

Training Administration, Washington,D.C. 20210

Classification: UICorrespondence Symbol: TEULDate: 09/30/97Rescissions: NoneExpiration Date: ContinuingDirective: Unemployment Insurance Program

Letter No. 41–97To: All State Employment Security AgenciesFrom: Grace A. Kilbane, Director,

Unemployment Insurance ServiceSubject: Application of Between and Within

Terms Denial to Head Start ProgramPersonnel

1. Purpose. To clarify the application of thebetween and within terms denial provisionsof Section 3304(a)(6)(A) of the FederalUnemployment Tax Act (FUTA) to HeadStart program personnel.

2. References. Section 3304(a)(6)(A),FUTA; P.L. 94–566; P.L. 95–19, DraftLanguage and Commentary to Implement theUnemployment Compensation Amendmentsof 1976—P.L. 94–566 and Supplement 4,1976 Draft Legislation, dated August 26,1977; Unemployment Insurance ProgramLetter (UIPL) No. 40–79, dated August 3,1979; UIPL No. 41–83, dated September 13,1983; UIPL No. 30–85, dated July 12, 1985;UIPL No. 15–92, dated January 27, 1992; andUIPL No. 43–93, dated September 13, 1993.

3. Background. UIPL No. 40–79 set forththe Department’s position on whether HeadStart agencies are ‘‘educational institutions’’

for purposes of the ‘‘between and withinterms denial’’ provisions required and/orallowed by Section 3304(a)(6)(A), FUTA.Subsequent amendments to the ‘‘betweenand within terms denial’’ provisions haveraised questions about whether the treatmentof Head Start services has changed. ThisUIPL reiterates the Department’s position andprovides specific discussion of theamendments made following the issuance ofUIPL 40–79.

4. Discussion. Section 3304(a)(6)(A),FUTA, requires, as a condition for employersin a State to receive credit against the Federalunemployment tax, that the State lawprovide that unemployment compensation(UC) be payable based on services to whichSection 3309(a)(1), FUTA, applies, in thesame amount, on the same terms, and subjectto the same conditions as UC payable on thebasis of other service subject to State law.The major mandates of this Section are: (1)coverage of services performed for State andlocal governments and their instrumentalitiesand nonprofit organizations as defined underSection 3309(a)(1), FUTA; (2) equal treatmentin the payment of UC to employees of suchentities; and (3) denial of UC based on certaineducational services performed for suchentities between and within academic terms.These conditions are required for employersin a State to receive credit against the Federalunemployment tax. UIPL No. 43–93describes the optional and required denialprovisions in clauses (i) through (vi) ofSection 3304(a)(6)(A), FUTA. The six clausesare described below:

• Clause (i) requires, unless the specifiedconditions are met, the denial between twosuccessive academic years or terms based oninstructional, research, and principaladministrative services performed for aneducational institution.

• Clause (ii) permits, under specifiedconditions, the between years or terms denialbased on all other (i.e., ‘‘nonprofessional’’)services performed for an educationalinstitution, and retroactive payment based onthose services, if no work is available in thesecond term, and the individuals haveotherwise met the eligibility requirements.

• Clause (iii) requires the within termsdenial of benefits during an established andcustomary vacation period or holiday recessbased on all services performed for aneducational institution.

• Clause (iv) requires the between andwithin terms denial of benefits based on allservices performed in an educationalinstitution while in the employ of aneducational service agency (ESA).

• Clause (v) permits the State toimplement the denial provisions of (i)through (iv) for services performed bygovernmental entities or nonprofitorganizations if such services are provided toor on behalf of an educational institution.

• Clause (vi) permits the State to make thebetween and within terms denial provisionsof clauses (iii) and (iv) optional based on the‘‘nonprofessional’’ services described inclause (ii).

5. Interpretation and Application. Thebetween and within terms denial provisionsapply only to services performed (1) for aneducational institution, (2) in an educational


institution while employed by an ESA, or (3)to or on behalf of an educational institutionby a governmental entity or nonprofitorganization.

Whether Head Start Agencies areEducational Institutions under Clauses (i)and (ii) of Section 3304(a)(6)(A), FUTA. HeadStart programs are comprehensivedevelopmental programs designed to meetchildren’s needs in the health (medical,dental, mental, nutritional), social, andeducation areas. The goal is child adjustmentand development at the emotional and sociallevels, rather than school-type training.

Whether Head Start agencies are‘‘educational institutions’’ was discussed inUIPL 40–79. That UIPL stated that Head Startprograms operated by Community ActionGroups do not meet the criteria of‘‘educational institutions,’’ and the betweenand within terms denial does not, therefore,apply to services performed for such groups.UIPL 40–79 stated, however, that when alocal board of education operates a HeadStart program as an integral part of the schoolsystem in facilities of an educationalinstitution, with Head Start workers asemployees of the board and the schools inevery respect, subject to all employingpolicies, such as hiring, firing, workingconditions, as other employees performingservices for the educational institution, thensuch workers are considered to be employedby an educational institution. As such, theseworkers are subject to the denial provisionsin the same manner as are all othereducational institution employees. Thisremains the Department’s position.

Application of Clauses (iv) and (v), Section3304(a)(6)(A), FUTA to Head Start Services.UIPL 40–79 did not address clauses (iv) and(v), as these provisions were not added until1983. UIPL 41–83 advised the States of theaddition of these clauses to Federal law, butdid not discuss Head Start agencies.

Clause (iv) applies to services performedfor an ESA. Clause (iv) defines an ESA as ‘‘agovernmental agency or governmental entitywhich is established and operatedexclusively for the purpose of providing suchservices to one or more educationalinstitutions.’’ Since Head Start agencies donot exist exclusively for the purpose ofproviding services to educationalinstitutions, they are not ESAs.

Clause (v) permits States to apply thebetween and within terms denial to services‘‘provided to or on behalf of’’ an educationalinstitution by a governmental entity ornonprofit organization to which Section3309(a)(1), FUTA, applies. UIPL 41–83 statesthat the words ‘‘provided to’’ require onlythat the services provided to the educationalinstitution give some benefit or support tothe institution. The words ‘‘on behalf of’’ aremore restrictive. They apply—to those employees of a governmental entityor nonprofit organization who performservices as an agent of or on the part of aneducational institution. This situation couldarise, therefore, only where an employee ofa governmental entity or nonprofitorganization performed services as an agentof or on the part of an educational institutionin such a representative capacity.

Whether services are ‘‘provided to orperformed on behalf’’ of an educational

institution depends on the facts present ineach individual case. Thus, if State lawcontains a provision implementing optionalclause (v), a case-by-case determination mustbe made to determine if Head Start servicesare ‘‘provided to or on behalf of aneducational institution,’’ assuming that theHead Start agency is a governmental entity ornonprofit organization to which Section3309(a)(1), FUTA, applies.

If a State law implements optional clause(v), the application to Head Start programsmay be limited as to scope and/or time by aState, but, as discussed in UIPL 43–93, thelimitation must be uniformly appliedthroughout the State. A State may not treatHead Start services ‘‘provided to or on behalfof’’ one school district differently from HeadStart services ‘‘provided to or on behalf of’’those performed for another school district.Also, a State may not treat the servicesperformed for a governmental entitydifferently from services performed for anonprofit organization.

6. Action Required. Administrators are toprovide this information to appropriate staff.

7. Inquiries. Inquiries should be directed tothe appropriate Regional Office.U.S. Department of Labor, Employment and

Training Administration, Washington,D.C. 20210

Classification: UICorrespondence School: TEULDate: October 9, 1997Rescissions: NoneExpiration Date: ContinuingDirective: Unemployment Insurance Program

Letter No. 44–97To: All State Employment Security AgenciesFrom: Grace A. Kilbane, Director,

Unemployment Insurance ServiceSubject: The Balanced Budget Act of 1997

and the Taxpayer Relief Act of 19971. Purpose. To advise the States of

amendments made to Federal law by theBalanced Budget Act of 1997 and theTaxpayer Relief Act of 1997 affecting theFederal-State Unemployment Compensation(UC) program.

2. References. The Balanced Budget Act of1997 (BBA), P.L. 105–33; the Taxpayer ReliefAct of 1997 (TPRA), P.L. 105–34; thePersonal Responsibility and WorkOpportunity Reconciliation Act of 1996(PRWORA), P.L. 104–193; the InternalRevenue Code of 1986 (IRC), including theFederal Unemployment Tax Act (FUTA); theSocial Security Act (SSA); andUnemployment Insurance Program Letters(UIPLs) Nos. 28–87, 45–89, 12–91, 11–92 and37–96.

3. Background. The BBA and the TPRA,both enacted on August 6, 1997, madeseveral changes affecting the UC program.This UIPL provides information on elevenamendments made by the BBA and fouramendments made by the TPRA. Theamendment discussed in item 4.a., related todisclosure of UC information, may requireStates to amend their laws to meet FederalUC law requirements. In addition, States willneed to amend their laws to implement thespecial Reed Act transfers discussed in item6.b. Finally, States will need to determinewhether they need to amend their laws topermit the continuous levy discussed in item12.

4. Sections 5201 and 5533, BBA: NationalDirectory of New Hires (‘‘NationalDirectory’’).

a. Section 5201, BBA, Disclosure toNational Directory. Section 303(h)(1), SSA,as amended by the PRWORA, requires States,as a condition of receiving UC administrativegrants, to disclose wage and claiminformation to the Secretary of Health andHuman Services for purposes of the NationalDirectory. Section 303(h)(1)(C), as amendedby the PRWORA, also required States toestablish such safeguards as the Secretary ofLabor determines are necessary to insure thatsuch information is used ‘‘only for purposesof section 453(i)(1) [SSA] in carrying out thechild support enforcement program undertitle IV’’ of the SSA. (Emphasis added.) TheBBA deleted the underscored language andsubstituted ‘‘subsections (i)(1), (i)(3) and (j) ofsection 453.’’ This amendment makes clearthat States must authorize the disclosure ofUC information to the National Director for:

• Use by programs funded under theTransitional Assistance to Needy Familiesprogram, the child support enforcementprogram, and any ‘‘other purposes’’ specifiedin Section 453. (Section 453(i)(1), SSA.) The‘‘other purposes’’ are specified in Section453(i)(3) and (j), SSA, described below.

• Use in the administration of the earnedincome tax credit by the Internal RevenueService (IRS). (Section 453(i)(3), SSA.)

• Verification of information in theNational Directory by the Social SecurityAdministration; comparisons with theFederal Case Registry of Child SupportOrders and other child support enforcementpurposes; use by the Social SecurityAdministration; and research related toTransitional Assistance to Needy Families orchild support enforcement. In the case ofresearch, personal identifiers may not beused. (Section 453(j), SSA.)

As no effective date is provided, thisamendment is effective as of the date ofenactment of the BBA. However, as discussedin UIPL 37–96, pages 6 and 7, the effectivedate of the disclosure requirements inSection 303(h), SSA, for UC conformitypurposes is either October 1, 1997, or, if theState qualifies for a grace period, January 1,1998.

States will need to review their UC lawsand regulations to determine if their lawspermit disclosure in view of the aboverequirement concerning redisclosures ofinformation provided to the NationalDirectory. Each State must take all actionsnecessary to ensure that it will make suchdisclosures by the effective date discussed inthe previous paragraph.

b. Section 5533, BBA: TechnicalAmendment. Section 453A, SSA, requireseach State to establish a Directory of NewHires. Section 453A(g)(2)(B), SSA, as addedby PRWORA, specifically cited a provision ofFederal UC law:

Wage and Unemployment CompensationInformation.—The State Directory of NewHires shall, on a quarterly basis, furnish tothe National Directory of New Hires extractsof the reports required under section303(a)(6) [SSA] to be made to the Secretaryof Labor concerning the wages andunemployment compensation paid to


individuals, by such dates, in such format,and containing such information as theSecretary of Health and Human Servicesshall specify in regulations. [Emphasisadded.]

Since the Secretary of Labor does notrequire the submittal of data on individualsunder Section 303(a)(6), SSA, this provisioncreated a technical problem. The BBAdeleted the underscored language andsubstituted ‘‘information.’’ This amendmentdoes not affect what information must beprovided to the Secretary of Health andHuman Services. Nor does it change the factthat both the FUTA and the SSA continue torequire UC agencies to provide wage andclaim information to the State directory. SeeUIPL 37–96.

5. Section 5401, BBA: Base Periods and thePennington Case. In 1994 and 1997, the U.S.Court of Appeals for the Seventh Circuitissued two opinions in litigation commonlyknown as Pennington. 22 F.3d 1376 (7th Cir.1994), 110 F.3d. 502 (7th Cir. 1997). In its1994 decision, the Court decided that aState’s base period was not an eligibilityrequirement, but instead was a ‘‘method ofadministration’’ under Section 303(a)(1),SSA, and, therefore, subject to Federaljurisdiction. In its 1997 decision, the Courtruled that Illinois’ base period, consisting ofthe first four of the last five completedcalendar quarters, was not consistent withthe ‘‘methods of administration’’requirement. This was because the existenceof the lag period between the base period andbenefit year meant some claimants had towait for their recent wages to fall within thebased period to qualify for UC. As a resultof these decisions, States anticipated thatthey might be required to provide foralternative base periods to reduce the lag.

The BBA clarifies that the base period isnot subject to the ‘‘methods ofadministration’’ requirement. Therefore, inthe Department’s view, this legislation freesStates to determine their base periodswithout regard to the ‘‘methods ofadministration’’ requirement. Section 5401,BBA, provides as follows:

(a) In General. No provision of a State lawunder which the base period for such Stateis defined or otherwise determined shall, forpurposes of section 303(a)(1) of the SocialSecurity Act (42 U.S.C. 503(a)(1)), beconsidered a provision for a method ofadministration.

(b) Definitions. For purposes of thissection, the terms ‘‘State law’’, ‘‘base period’’,and ‘‘State’’ shall have the meanings giventhem under section 205 of the Federal-StateExtended Unemployment Compensation Actof 1970 [EUCA] (26 U.S.C. 3304 note.)

(c) Effective Date. This section shall applyfor purposes of any period beginning before,on, or after the date of the enactment of thisAct.

‘‘State law,’’ as defined in Section 205(10),EUCA, ‘‘means the unemploymentcompensation law of the State, approved bythe Secretary under section 3304’’ of theFUTA. ‘‘Base period,’’ as defined in Section205(6), EUCA, ‘‘means the base period asdetermined under applicable State law forthe benefit year.’’ ‘‘State,’’ as defined inSection 205(8), EUCA, includes the 50 States,

the District of Columbia, Puerto Rico, and theU.S. Virgin Islands.

This amendment does not require States toamend their laws.

6. Sections 5402 and 5403, BBA: Increasein Federal Unemployment Account (FUA)Ceiling and Special Distribution to Statesfrom the Unemployment Trust Fund. Section903, SSA, provides that when, among otherthings, three accounts in the UnemploymentTrust Fund reach their statutory limits, theexcess amounts will be transferred to theStates. These are called ‘‘Reed Act’’distributions. The three accounts are theEmployment Security AdministrationAccount (ESAA), which pays for theadministration of the UC and employmentservice programs; the ExtendedUnemployment Compensation Account,which pays for the Federal share of extendedbenefits; and the FUA, which provides foradvances to States for the payment of UC.

a. Section 5402, BBA: Increase in FUCCeiling. Prior to amendment, the balance inthe FUA as of the end of any Federal fiscalyear (September 30) could not exceed 0.25percent of the total wages subject tocontributions under all State UC laws. TheBBA changes this maximum balance to 0.5percent effective October 1, 2001.

b. Sections 5403, BBA: Special Distributionto States from the Unemployment TrustFund. The BBA amended Section 903 of theSSA to cap the amount of Reed Act transfersmade with respect to the Federal fiscal yearsending in 1999, 2000 and 2001 at$100,000,000 per year. Each State’s share ofthese transfers will be based on the ratio ofthe amount of ‘‘funds to be allocated to suchState for such fiscal year pursuant to the baseallocation formula under title III’’, SSA, to‘‘the total amount of funds to be allocated toall States for such fiscal year pursuant to thebase allocation formula under title III.’’ Anyamounts in excess of the $100,000,000which, but for the BBA amendments, wouldhave been transferred to the States ‘‘shall, asof the beginning of the succeeding fiscal year,accrue to the Federal unemploymentaccount, without regard’’ to its statutorylimit.

Reed Act moneys transferred with respectto these fiscal years may be used ‘‘only to payexpenses incurred by [the State] for theadministration of its’’ UC law. Unlikeprevious Reed Act transfers, States areprohibited from using the amountstransferred with respect to these three yearsfor the payment of UC or the administrationof State public employment offices. However,among other uses, States may, as in the past,use these Reed Act moneys for purchasingreal property for UC purposes. Thesepurchases could be amortized against UCgrant funds consistent with the UC grantagreement.

Finally, the restrictions applicable to ReedAct transfers in Section 903(c)(2), SSA, arenot applicable to the transfers made withrespect to fiscal years 1999, 2000 and 2001.This means the amounts transferred to theStates may be used without obtaining anappropriation from the State’s legislativebody.

State UC laws usually contain provisionsaddressing the use of Reed Act moneys

transferred under Section 903, SSA. Theselaws usually mirror the requirements ofSection 903(c)2), SSA, including arequirement that the moneys be used for thepayment of UC unless appropriated by thelegislative body. States must amend theseprovisions to prohibit the use of transfersmade with respect to fiscal years 1999, 2000,and 2001 for the payment of UC. States mayfurther amend these provisions to authorizeuse for administrative purposes without aspecific appropriation from the Statelegislature. Nothing prohibits a Statelegislature from appropriating such money orfrom attaching conditions to the use of suchmoney, provided the money is used for UCadministration.

Draft language for State Reed Actprovisions was provided in UIPL 12–91. Werecommend that, using that language as abasis, States insert the following language inState law:

(4) Notwithstanding paragraph (1), moneycredited with respect to Federal fiscal years1999, 2000 and 2001, shall be used solely forthe administration of the UC program and arenot subject to appropriation by thelegislature. [Emphasis added.]

The underscored language is necessaryonly if the State chooses to avoid theappropriation process. As an alternative, aState could appropriate the moneys withoutsubjecting them to the various restrictionsfound in Section 901(c)(3), SSA. (Forexample, under Section 901(c)(2), SSA, ReedAct moneys may be used only for expensesincurred after the date of enactment of theState appropriation.) In this case, thefollowing language is recommended:

(4) Notwithstanding paragraph (1), moneycredited with respect to Federal fiscal years1999, 2000 and 2001, shall be used solely forthe administration of the UC program, andsuch money shall not otherwise be subject tothe requirements of paragraph (1) whenappropriated by the legislature.

c. Reasons for Change. The House Reportdescribes the reason for increasing the FUAceiling and providing for the specialtransfers:

The provision has two main effects: (1)raising the ceiling in the FederalUnemployment Account whole [sic] limitingReed Act transfers allows for further buildupof funds pending a future recession requiringincreased administrative resources; and (2)allowing $100 million in Reed Act transferswill assist States in the administration oftheir UI programs. (H. Rep. No. 105–149,104th Cong. 1st Sess. 106 (1997).)

7. Section 5404, BBA: Interest-FreeAdvances from the Unemployment TrustFund. Under Section 1202(b)(2), SSA,advances made from the FUA during acalendar year are interest free if the followingconditions are met:

• The advance is repaid in full before theclose of September 30 of the calendar year inwhich the advances were made, and

• Following this repayment, no otheradvance was made to the State during thecalendar year.

The BBA adds a third condition to Section1202(b)(2). States must now meet ‘‘fundinggoals, established under regulations issuedby the Secretary of Labor, relating to the


accounts of the States in the UnemploymentTrust Fund.’’ The amendment applies tocalendar years beginning after the date ofenactment of the BBA. The Department iscommencing work on the requiredregulations.

According to the House Committee report,this amendment is intended to encouragesolvency of State unemployment funds:

Should a State account become insolventduring an economic downturn, adverseconditions can result for the State and itsemployers. Borrowing Federal funds imposesa cost on the State at a time when it may faceother financial difficulties. The State mayreact by raising taxes on its employers,thereby discouraging economic activityduring a period when its economy is alreadyin decline * * *. The provision wouldencourage States to maintain sufficientunemployment trust fund balances to coverthe needs of unemployed workers in theevent of a recession. (H. Rep. No. 105–149,104th Cong. 1st Sess. 108 (1997).)

8. Sections 5405 and 5407, BBA: ElectionWorkers and Employees of Schools OperatedPrimarily for Religious Purposes. Section3304(a)(6)(A), FUTA, requires, as a conditionfor employers in a State to receive creditagainst the Federal unemployment tax, thatUC be payable based on services performedfor State and local governmental entities,their instrumentalities, and certain nonprofitorganizations. The BBA amended FUTA toprovide for two new exceptions to thisrequired coverage.

Section 5405 of the BBA added newsubparagraph (F) to Section 3309(b)(3),FUTA, to permit States to exclude servicesperformed:as an election official or election worker ifthe amount of remuneration received by theindividual during the calendar year forservices as an election official or electionworker is less than $1,000.

Section 5407 of the BBA added newsubparagraph (C) to Section 3309(b)(1) topermit States to exclude services performedfor:

(C) an elementary or secondary schoolwhich is operated primarily for religiouspurposes, which is described in section501(c)(3), and which is exempt from taxunder section 501(a).

States were not previously permitted toexclude services performed for a religiously-oriented school from coverage where theschool was not operated, supervised,controlled, or principally supported by achurch or convention or association ofchurches. See UIPL 28–87. Since the newexclusion is limited to elementary andsecondary schools, services performed byemployees of other nonaffiliated religiously-oriented entities are still required to becovered. (For example, day-care centers,post-secondary schools or cemeteryassociations.) Both exclusions ‘‘apply withrespect to service performed after the date ofthe enactment of’’ the BBA. With respect toelection workers, this means that, if theindividual earned less than $1,000 incalendar year 1997, the services are notrequired to be covered after August 6, 1997.

States are not required to exclude theseservices. The Department recommends that

States choosing to do so follow the languagein Federal law verbatim. However, thelanguage following ‘‘religious purposes’’ insubparagraph (C) of Section 3309(b)(1) maybe omitted if, as is commonly the case, Statelaw provisions relating to coverage ofnonprofit organizations are already limited tothose organizations described in Section501(c)(3), IRC, which are exempt from taxunder Section 501(a), IRC.

9. Section 5406, BBA: Coverage of ServicesPerformed by Inmates. The BBA added anexclusion to the definition of employment inSection 3306(c), FUTA, for:

(21) service performed by a personcommitted to a penal institution.

This exclusion applies only for purposes ofthe FUTA tax. However, as a result of thisnew exclusion, States may elect to amendtheir laws to exclude these services withoutthe employers for whom the services areperformed losing credit against the FUTAtax.

The effective date of this amendmentapplies ‘‘with respect to service performedafter January 1, 1994.’’ Should State law beamended retroactively, amounts previouslypaid into the State’s unemployment fundwith respect to these services under the Statelaw in effect at that time may not be refundedto employers. This prohibition is explainedin UIPL 11–92.

10. Section 5608, BBA: State ProgramIntegrity Activities for UnemploymentCompensation. Section 901(c)(1)(A), SSA,authorizes appropriations from the ESAA forassisting States in the administration of theirUC laws. (Henceforth, these amounts will becalled the ‘‘regular’’ grant.) The BBAamended this section to create a specialauthorization for State program integrityactivities. Specifically, a new paragraph wasadded to Section 901(c):

(5)(A) There are authorized to beappropriated out of the employment securityadministration account to carry out programintegrity activities, in addition to anyamounts available under paragraph(1)(A)(i)—

(i) $89,000,000 for fiscal year 1998;(ii) $91,000,000 for fiscal year 1999;(iii) $93,000,000 for fiscal year 2000;(iv) $96,000,000 for fiscal year 2001; and(v) $98,000,000 for fiscal year 2002.(B) In any fiscal year in which a State

receives funds appropriated pursuant to thisparagraph, the State shall expend aproportion of the funds appropriatedpursuant to paragraph (1)(A)(i) to carry outprogram integrity activities that is not lessthan the proportion of the funds appropriatedunder such paragraph that was expended bythe State to carry out program integrityactivities in fiscal year 1997.

(C) For purposes of this paragraph, theterm ‘‘program integrity activities’’ meansinitial claims review activities, eligibilityreview activities, benefit payments controlactivities, and employer liability auditingactivities.

This amendment merely authorizesamounts for appropriation for integritypurposes; Congress must still appropriate theamounts. If and when ‘‘integrity’’ moneys arereceived by the States, their use is limited tothe integrity activities described in 901(c)(5)(C), SSA.

Since Section 901(c)(5)(B), SSA, providesthat the State must expend the sameproportion of ‘‘regular’’ granted funds onintegrity activities as was expended in fiscalyear 1997, States may not use these integritymoneys to reduce integrity costs to the‘‘regular’’ grant as determined by fiscal year1997 expenditures.

11. Section 221, TPRA: Employer-ProvidedEducational Assistance. Section 3306(b)(13),FUTA, excludes from the definition of wages‘‘any payment made, or benefit furnished, toor for the benefit of an employee if at thetime of such payment or such furnishing itis reasonable to believe that the employeewill be able to exclude such payment orbenefit from income under section 127* * *’’ of the IRC. Section 127, IRC, excludesfrom gross income of the employee certainamounts paid, or expenses incurred, up to$5,250 in a calendar year, by the employerfor educational assistance to the employee.Section 127 did not apply to taxable yearsbeginning after May 31, 1997. In the case oftax year 1997, only expenses paid withrespect to courses beginning before July 1,1997, could be taken into account.

The TPRA extends this exclusion. It nowapplies to expenses paid with respect tocourses beginning through May 31, 2000. Theamendment applies to taxable yearsbeginning after December 31, 1996. The IRSis responsible for administering thisprovision.

12. Section 921, TPRA: Securities Brokers.For purposes of determining whether anindividual is an ‘‘employee,’’ Section 3306(i),FUTA, references Section 3121(d), IRC. Thatsection provides that, among other things, an‘‘employee’’ is ‘‘any individual who, underthe usual common law rules applicable indetermining the employer-employeerelationship, has the status of employee.’’

The TPRA provides a clarificationconcerning the employment tax status ofregistered representatives of a securitiesbroker-dealer. It provides that ‘‘no weightshall be given to instructions from the servicerecipient which are imposed only incompliance with investor protectionstandards imposed by the FederalGovernment, any State government, or agoverning body pursuant to a delegation bya Federal or State agency.’’ The IRS isresponsible for administering this provision.

The provision is effective for ‘‘servicesperformed after December 31, 1997.’’

13. Section 1024, TPRA: Continuous Levyon Payments of UC. Federal UC law providesthat payments of UC may not be subjected tolevy. See UIPL 45–89. (A levy is the seizureof a person’s property or rights to propertyto pay a debt.) Although the TPRA did notamend these UC provisions, it authorized theIRS to impose a continuous levy on certainpayments, including UC, until the levy isreleased. This continuous levy may beimposed on any individual who is liable foran internal revenue tax and who does not paysuch tax within 10 days of notice anddemand by the IRS. Specifically, the TPRAadded new subsection (h) to Section 6331,IRC—

(1) In General.—The effect of a levy onspecified payments to or received by ataxpayer shall be continuous from the date


1 Any portion of the closed session consistingsolely of staff briefings does not fall within theSunshine Act’s definition of the term ‘‘meeting’’and, therefore, the requirements of the SunshineAct do not apply to any such portion of the closedsession. 5 U.S.C. 552(b)(a)(2) and (b). See also 45CFR § 1622.2 & 1622.3.

such levy is first made until such levy isreleased. Notwithstanding section 6334, suchcontinuous levy shall attach to up to 15percent of any specified payment due to thetaxpayer.

(2) Specified Payment.—For the purposesof paragraph (1), the term ‘‘specifiedpayment’’ means—

(A) any Federal payment other than apayment for which eligibility is based on theincome or assets (or both) of a payee,

(B) any payment described in paragraph (4)[pertaining to unemployment benefits], (7)[workers compensation], (9) [wages, salaryand other income], or (11) [certain publicassistance] of section 6334(a), and

(C) any annuity or pension payment underthe Railroad Retirement Act or benefit underthe Railroad Unemployment Insurance Act.

Under new Section 6331(h)(2)(C), anypayment described in paragraph (4) ofSection 6334(a), IRC, may be continuouslylevied up to 15 percent. Paragraph (4) appliesto any ‘‘amount payable to an individualwith respect to his unemployment (includingany portion thereof payable with respect todependents) under an unemploymentcompensation law of the United States, orany State, or of the District of Columbia orof the Commonwealth of Puerto Rico.’’ Underthis authority, the IRS may levy any paymentunder State or Federal UC law, includingpayments under the UC for Federalemployees (UCFE), UC for Ex-servicemembers (UCX) and the DisasterUnemployment Assistance (DUA) programsas well as trade readjustment allowances(TRA) under the Trade AdjustmentAssistance and NAFTA-TransitionalAdjustment Assistance programs.

The IRS may continuously levy up to 15percent of ‘‘any specified payment.’’ Theamendment applies to levies issued after theAugust 6, 1997, date of the enactment of theTPRA.

The continuous levy is administered by theIRS. The IRS may implement the continuouslevy through computer crossmatches withState UC agencies. The UC agencies will beresponsible for deducting amounts leviedfrom UC, UCFE, UCX, DUA, and TRA and forforwarding such amounts to the IRS. As theIRS does not pay for costs of levies, theDepartment is examining the fundingimplications for the UC system.

Since, in accordance with Federal UC law,all State laws currently prohibit the levy ofUC, the Department recommends that Statesamend their laws to specifically authorizecontinuous levy in accordance with Section6331, IRC. Alternatively, States may viewSection 6331, IRC, as superseding State law.

14. Section 1035, TPRA: Extension ofTemporary Tax. Section 3301, FUTA,imposes a tax of 6.2 percent on wages paidin employment by employers. This tax wasto have dropped to 6.0 percent beginning incalendar year 1999.

Under the TPRA amendments, the 6.2percent tax will remain in effect throughcalendar year 2007. The tax is now scheduledto drop to 6.0 percent beginning withcalendar year 2008.

15 Action. Appropriate staff should beadvised of these amendments.

16. Inquiries. Please direct inquiries to theappropriate Regional Office.

[FR Doc. 97–29370 Filed 11–5–97; 8:45 am]BILLING CODE 4510–30–M

LEGAL SERVICES CORPORATION

Sunshine Act Meeting of the Board ofDirectors

CORRECTION: As published on Oct. 28,1997 (62 FR 55833) and on Nov. 4, 1997(62 FR 59749), the agenda for themeeting scheduled for Nov. 15, 1997, isincorrect. The agenda is corrected asfollows:

OPEN SESSION:

1. Approval of agenda.2. Approval of minutes of the Board’s

meeting of Sept. 20, 1997.3. Approval of minutes of the Board’s

executive session meeting of Sept.20, 1997.

4. Chairman’s and Members’ Reports.5. President’s Report.6. Appointment of an ad hoc committee

for annual performance evaluationsof the President and InspectorGeneral.

7. Consider and act on the report of theBoard’s Operations and RegulationsCommittee.

a. Consideration of public commentand action on final revisions to 45CFR Part 1630, Costs Standards andProcedures.

b. Consideration of public commentand action on final rule 45 CFR Part1643, Restriction on AssistedSuicide, Euthanasia and Mercykilling.

c. Consider and act on proposedchanges to the structure of theCorporation’s management.

8. Consider and act on the report of theBoard’s Finance Committee.

9. Consider and act on the report of theAd Hoc Committee on PerformanceReviews of the President andInspector General.

a. Consider and act on proceduralmatters, including personalperformance plans for the Presidentand the Inspector General, writtensubmissions prior to interviews,and interview protocols.

10. Consider and act on report ondevelopment of a strategic planningprocess.

11. Inspector General’s Report.12. Consider and act on proposed

Report of the Board of Directors toaccompany the Inspector General’sSemi-annual Report to the Congressfor the period of April 1, 1997–September 30, 1997.

CLOSED SESSION:

13. Briefing 1 by the Inspector Generalon the activities of the OIG.

14. Consider and act on an internalpersonnel issue relating to theCorporation’s employee pensionplan.

15. Consider and act on the GeneralCounsel’s report on potential andpending litigation involving theCorporation.

OPEN SESSION:

16. Consider and act on whether tochange the date of the next annualmeeting and, if so, to what date.

17. Public comment.18. Consider and act on other business.

Dated: November 4, 1997.Victor M. Fortuno,General Counsel.[FR Doc. 97–29488 Filed 11–4–97; 12:41 pm]BILLING CODE 7050–01–P

NATIONAL SCIENCE FOUNDATION

Notice of Permits Issued Under theAntarctic Conservation Act of 1978

AGENCY: National Science Foundation.ACTION: Notice of permits issued underthe Antarctic Conservation of 1978,Public Law 95–541.

SUMMARY: The National ScienceFoundation (NSF) is required to publishnotice of permits issued under theAntarctic Conservation Act of 1978.This is the required notice.FOR FURTHER INFORMATION CONTACT:Nadene G. Kennedy, Permit Office,Office of Polar Programs, Rm. 755,National Science Foundation, 4201Wilson Boulevard, Arlington, VA 22230.SUPPLEMENTARY INFORMATION: OnOctober 2, 1997, the National ScienceFoundation published a notice in theFederal Register of permit applicationsreceived. Permits were issued onOctober 31, 1997 to the followingapplicants:Brenda Hall & George Denton—Permit No.

98–014Frederick W. Taylor, Sr.—Permit No. 98–015Nadene G. Kennedy,Permit Officer.[FR Doc. 97–29383 Filed 11–5–97; 8:45 am]BILLING CODE 7555–01–M



Special Emphasis Panel in MaterialsResearch; Notice of Meeting

In accordance with the FederalAdvisory Committee Act (Pub. L. 92–463 as amended), the National ScienceFoundation announces the followingmeetings:

Name and Committee Code: SpecialEmphasis Panel in Materials Research #1203.

Date & Time: November 25, 1997; 9:00 am–5:00 pm.

Place: NSF Conference Room 1060, 4201Wilson Boulevard, Arlington, VA 22230.

Type of Meeting: Closed.Contact Person: Dr. Carmen Huber,

Program Director, Division of MaterialsResearch, Room 1065, National ScienceFoundation, 4201 Wilson Boulevard,Arlington, VA 22230, Telephone: (703) 306–1996.

Purpose of Meeting: To provide advice andrecommendations concerning support for the1998 Research Experience forUndergraduates (REU) Site competition inthe area of materials research.

Agenda: To review and evaluate proposalssubmitted to NSF as a part of the selectionprocess for awards.

Reason for Closing: The activity beingevaluated may include information of aproprietary or confidential nature, includingtechnical information; financial data, such assalaries and personal information concerningindividuals associated with the proposals.These matters are exempt under 5 U.S.C.552b.(c) (4) and (6) of the Government in theSunshine Act.

Dated: October 31, 1997.M. Rebecca Winkler,Committee Management Officer.[FR Doc. 97–29320 Filed 11–5–97; 8:45 am]BILLING CODE 7555–01–M


Advisory Panel for Social and PoliticalScience; Notice of Meetings

In accordance with the FederalAdvisory Committee Act (Pub. L. 92–463, and amended), the NationalScience Foundation announces thefollowing meetings:

Name: Advisory Panel for Social andPolitical Science (#1761).

Date and Time: November 20–21, 1997;9:00 a.m. to 5:00 p.m.

Place: Department of Political Science,University of California, Los Angeles, CA90095–1472.

Contact Person: Dr. Frank Scioli and Dr.Rick Wilson, Program Directors for PoliticalScience, National Science Foundation.Telephone: (703) 306–1761.

Agenda: To review and evaluate thepolitical science proposals as part of theselection process for awards.

Date & Time: December 8–9, 1997; 9:00a.m. to 5:00 p.m.

Place: National Science Foundation,Stafford Place, 4201 Wilson Boulevard, Room970, Arlington, VA 22230.

Contact Person: Dr. Harmon Hosch,Program Director, Law and Social Science,National Science Foundation. Telephone(703) 306–1762.

Agenda: To review and evaluate the Lawand Social Science Proposals as a part of theselection process for awards.

Date & Time: December 11–12, 1997 9:00a.m. to 5:00 p.m.

Place: National Science Foundation,Stafford Place, 4201 Wilson Boulevard, Room380, Arlington, VA 22230

Contact Person: Dr. William S. Bainbridge,National Science Foundation, Telephone(703) 306–1756

Agenda: To review and evaluate theSociology proposals as a part of the selectionprocess for awards.

Type of Meetings: ClosedPurpose of Meeting: To provide advice and

recommendations concerning support forresearch proposals submitted to the NSF forfinancial support.

Reason for Closing: The proposals beingreviewed include information of aproprietary or confidential nature, includingtechnical information; financial data, such assalaries; and personal informationconcerning individuals associated with theproposals. These matters are exempt under 5U.S.C. 552b(c)(4) and (6) of the Governmentin the Sunshine Act.

Dated: October 31, 1997.M. Rebecca Winkler,Committee Management Officer.[FR Doc. 97–29321 Filed 11–5–97; 8:45 am]BILLING CODE 7555–01–M

NUCLEAR REGULATORYCOMMISSION

[Docket No. 50–416]

Exemption

In the matter of Entergy Operations, Inc.,System Energy Resources, Inc., SouthMississippi Electric Power Association,Entergy Mississippi, Inc.; (Grand GulfNuclear Station, Unit 1)

I

Entergy Operations, Inc. (the licensee)is the holder of Facility OperatingLicense No. NPF–29, which authorizesoperation of Grand Gulf Nuclear Station,Unit 1 (GGNS). The operating licenseprovides, among other things, that thelicensee is subject to all rules,regulations, and orders of the NuclearRegulatory Commission (NRC or theCommission) now and hereafter ineffect.

The facility is a General Electricboiling water reactor at the licensee’ssite in Claiborne County, Mississippi.

II

Title 10 CFR 70.24, ‘‘CriticalityAccident Requirements,’’ paragraph (a)states, in part, that ‘‘Each licenseeauthorized to possess special nuclearmaterial [SNM] in a quantity exceeding700 grams of contained uranium-235,520 grams of contained uranium-233,450 grams of plutonium, 1,500 grams ofcontained uranium-235 if no uraniumenriched to more than 4 percent byweight of uranium-235 is present, 450grams of any combination thereof, orone-half such quantities if massivemoderators or reflectors made ofgraphite, heavy water or beryllium maybe present, shall maintain in each areain which such licensed special nuclearmaterial is handled, used, or stored, amonitoring system meeting therequirements of [10 CFR 70.24](a)(1) or(a)(2), as appropriate, and using gamma-or neutron-sensitive radiation detectorswhich will energize clearly audiblealarm signals if accidental criticalityoccurs. This section is not intended torequire underwater monitoring whenspecial nuclear material is handled orstored beneath water shielding or torequire monitoring systems whenspecial nuclear material is beingtransported when packaged inaccordance with the requirements ofPart 71 [(i.e., 10 CFR Part 71, ‘‘Packagingand Transportation of RadioactiveMaterial,’’)] of this chapter.’’

The licensee meets the quantitycriteria in 10 CFR 70.24(a) and is,therefore, required to have a criticalityaccident monitoring system in each areain which SNM in any form is handled,used, or stored. The licensee hasproposed an exemption to thisrequirement for the storage of two formsof SNM at the site: (1) not-in-use in-corenuclear instrumentation (e.g., sourcerange monitors) and (2) onsiteunirradiated fuel. For the unirradiatedfuel, the exemption is requested for thefollowing cases:

• The interval when the fuel,packaged for shipment to the site inaccordance with 10 CFR Part 71, istaken from the shipping truck to theplant area where the Part 71 packagingis removed.

• The storage of the unirradiated fuelin the new fuel vault (NFV), instead ofthe spent fuel pool, after the packagingis removed.

The very small quantity of SNMpresent in the nuclear instrumentationis in the form of thin coatings within theinstrumentation and the unirradiatedfuel assemblies would only be removedfrom the NRC-approved packaging inareas where criticality monitors are inuse, and stored in either the NFV or the


spent fuel pool. The unirradiated fuelthat is stored in the spent fuel poolwould be monitored in accordance with10 CFR 70.24(a), whereas there is not acriticality accident monitor in the NFV.

An exemption from 10 CFR 70.24(a) isrequired for the licensee to store SNMat the site and not have a criticalityaccident monitoring system for thestorage areas.

IIIPursuant to 10 CFR 70.14, ‘‘Specific

exemptions,’’ the Commission may,upon application of any interestedperson or upon its own initiative, grantsuch exemptions from the requirementsof the regulations in this part as itdetermines are authorized by law andwill not endanger life or property or thecommon defense and security, and areotherwise in the public interest.

Pursuant to 10 CFR 70.24(d), anylicensee who believes that good causeexists why it should be granted anexemption in whole or in part from therequirements of this section may applyto the Commission for such anexemption. Such application shallspecify the reason for the reliefrequested.

By letter dated July 15, 1996, assupplemented by letters dated March 7and April 29, 1997, the licenseerequested an exemption from themonitoring requirements of 10 CFR70.24(a) for the storage of these twoforms of SNM at the site. In thoseletters, the licensee provided thejustification and reasons for requestingthe exemption. The licensee did notrequest an exemption to theperformance requirements of acriticality accident monitoring systemthat are specified in 10 CFR 70.24(a)(1)or (a)(2).

A previous exemption from theprovisions of 10 CFR 70.24 for thestorage of SNM was granted for GGNSin the July 15, 1981, SNM License No.1882. This exemption expired with theSNM license when the operating licensewas issued for GGNS because theexemption was not reissued at that time.Therefore, the licensee has requested anexemption from the criticality accidentmonitoring requirements of 10 CFR70.24(a) specifically for the areascontaining in-core instrumentationdetectors (which are not in use) andunirradiated (fresh) fuel. Forunirradiated fuel, the exemption isrequested for the unirradiated fuel thatis in NRC-approved packaging while thefuel is taken from the shipping trucks tothe spent fuel pool area to be removedfrom the packaging, and for theunirradiated fuel that is stored in theNFV, instead of the spent fuel pool.

The principal form of SNM at GGNSis in the form of nuclear fuel. Otherquantities of SNM are also used orstored at the facility in the form offissile material incorporated into in-corenuclear instrumentation (e.g., sourcerange monitors, intermediate rangemonitors, local power range monitors,and traversing in-core probes). Theinstrumentation is being stored at thesite within the security fence indifferent plant areas.

The SNM in the nuclearinstrumentation is in small quantities inthin coatings applied to the inside ofsealed fission chambers containedwithin the instruments. The licenseehas stated that the total amount of SNMcontained in the nuclear instrumentsmeets the ‘‘forms not sufficient to forma critical mass’’ in Section 1.1 ofRegulatory Guide 10.3, ‘‘Guide for thePreparation of Applications for SpecialNuclear Material Licenses of Less ThanCritical Mass Quantities,’’ Revision 1,dated April 1977. Thus, the licensee hascommitted that the total amount of SNMcontained within in-core nuclearinstrumentation will be less than acritical mass. Therefore, the smallquantity of SNM in the nuclearinstrumentation precludes inadvertentcriticality.

Unirradiated nuclear fuel is receivedat the site only in NRC-approved Part 71packaging. The entire Part 71 packagingconsists of two right rectangular boxesconsisting of an outer wooden containersurrounding a inner metal containerhousing the unirradiated fuel. There isonly cushioning material between thetwo boxes. The containers are designedin accordance with a certificate ofcompliance for radioactive materialspackages issued by the NRC, in this casefor the shipment of unirradiated fuelassemblies. It is the inner metalcontainer that ensures that ageometrically safe configuration of thefuel is maintained during transport,handling, storage, and accidentconditions, and that the introduction ofany moderating agents to the fuel isprecluded due to its leak-tightconstruction. Criticality is precludeddue to the construction of the packageand the storage configuration of the fuelin the package. This is based on acriticality analysis of the Part 71packaging which limits the number ofsuch packages on a shipping truck.

The handling of unirradiated fuel atthe site is governed by administrativeand departmental procedures thatspecify New Fuel Processing andCriticality Rules to ensure that fuel isnot inadvertently removed from theinner metal container until it ispositioned in the fuel inspection area

near the spent fuel pool of the auxiliarybuilding where a criticality accidentmonitoring system meeting 70.24(a) ispresent. It is the metal container that isreferred to when the licensee stated thatthe unirradiated fuel will only beremoved from the NRC-approvedpackaging in the presence of a criticalityaccident monitoring system meeting70.24(a).

The unirradiated fuel is broughtonsite on shipping trucks. The woodencontainers are removed from the innermetal containers, and the unirradiatedfuel is lifted in the metal container tothe 208-foot level of the auxiliarybuilding, and adjacent to the caskwashdown pit and NFV of the spent fuelpool area. Only one metal container islifted at a time, and the crane and liftingequipment used for the lift are certified.The plant areas that the metalcontainers would be moved throughwere inspected during a visit to the siteand it was determined that the areashave drains to prevent the possibility ofsubmerging the metal containers underwater and creating a possible criticalitycondition. The only practical plant areawhere the new fuel could be submergedin water to introduce moderation is thespent fuel pool and there are 70.24(a)monitors in that area.

In the spent fuel pool area, the fuel isremoved from the containers, inspectedand channeled, and then placed eitherin the spent fuel pool or the NFV.Currently the unirradiated fuel is placedonly in the spent fuel pool and, whilethe fuel is in the spent fuel pool, it ismonitored by a 70.24(a) monitoringsystem; however unirradiated fuel maybe stored inside the NFV and there isnot a criticality accident monitor in theNFV. The design basis criticality marginrequirements for the NFV is to maintainthe unirradiated fuel in the vault at asubcriticality margin of at least 0.05(i.e., a k effective no more than 0.95).The new fuel would be stored in racksthat are designed to withstand allcredible static and dynamic loadings toprevent damage and distortion of theracks, and to maintain the designsubcriticality margin of 0.05 whetherthe vault is dry or flooded withunborated water, because unboratedwater would moderate the fuel andreduce the subcriticality margin. Theracks are constructed in accordancewith the quality assurance requirementsof Appendix B to 10 CFR Part 50 andare categorized as Safety Class 2 andSeismic Category I. The vault is in aconcrete, Seismic Category I buildingthat is designed to Regulatory Guides1.13 and 1.29 which precludes thedeleterious effects on the fuel in theNFV by natural phenomena such as


earthquakes, tornados, hurricanes,tornado missiles, and floods. To preventwater moderation, there is a drain at thelow point of the vault to remove waterin the vault to prevent accumulation ofwater within the NFV and no fuel isplaced in the vault if there is water inthe vault. The licensee also hasprocedures to prevent the introductionof an optimum moderation inside thevault (e.g., using pressurized water fireextinguishers instead of foam forcombating fires around fuel) whichcould decrease the subcriticality marginto a value greater than the design valueof 0.05. Although the TechnicalSpecifications for Grand Gulf do notspecifically limit the enrichment of thefuel onsite including the NFV, the k-effective for spent fuel or new fuel inthe fuel racks and submerged in wateris limited to 0.95 by the TechnicalSpecifications and the enrichment of thefuel onsite is limited because the k-effective for the NFV is not allowed tobe greater than 0.95. The fuelenrichment is a contributor to the valueof k-effective. Therefore, the design ofthe NFV will preclude inadvertentcriticality of the new fuel in the vault.

Therefore, based on the licensee’sletters and the staff’s evaluation, theCommission concludes that good causeexists for granting an exemption to thecriticality monitoring requirements of10 CFR 70.24(a) in storage areas for (1)in-core instrumentation detectors whichare not in use and (2) unirradiated fuelstored in the NFV. Based on theinformation provided by the licensee,there is reasonable assurance that thenuclear instrumentation andunirradiated fuel will remain subcriticalduring handling and storage in areaswhere critically accident monitorsrequired by 10 CFR 70.24(a) are notpresent. Additionally, all fuel storageand handling areas will continue to bemonitored to detect conditions that mayresult in excessive radiation levels asrequired by General Design Criterion 63.

IVFor the foregoing reasons, pursuant to

10 CFR 70.24(d), the NRC staff hasdetermined that good cause has beenshown for granting an exemption to thecriticality monitoring requirements of10 CFR 70.24(a).

Accordingly, the Commission hasdetermined that, pursuant to 10 CFR70.14, an exemption is authorized bylaw, will not endanger life or propertyor common defense and security, and isotherwise in the public interest.Therefore, with the total amount ofSNM contained in the in-core nuclearinstruments less than a critical mass, asdefined by Section 1.1 of Regulatory

Guide 10.3 (Revision 1, dated April1977), with the unirradiated fuelassemblies only removed from the NRC-approved metal containers in areaswhere criticality monitors are present,and with administrative controls toprevent optimum moderation of theunirradiated fuel in the NFV, theCommission hereby grants EntergyOperations, Inc. an exemption from thecriticality monitoring requirements of10 CFR 70.24(a) for the storage of not-in-use in-core nuclear instrumentationand of unirradiated fuel in the NFV.

Pursuant to 10 CFR 51.32, theCommission has determined that thegranting of this exemption will have nosignificant impact on the quality of thehuman environment (62 FR 55837). Thisexemption is effective upon issuance.

Dated at Rockville, Maryland, this 31st dayof October 1997.

For the Nuclear Regulatory Commission.Samuel J. Collins,Director, Office of Nuclear ReactorRegulation.[FR Doc. 97–29343 Filed 11–5–97; 8:45 am]BILLING CODE 7590–01–P


Correction to Biweekly Notice;Applications and Amendments toOperating Licenses Involving NoSignificant Hazards Consideration

On October 22, 1997, the FederalRegister published a Biweekly Notice ofApplications and Amendments toOperating Licenses Involving NoSignificant Hazards Consideration. Onpage 54881, under Baltimore Gas andElectric Company, information fromanother notice was electronicallymerged with this notice causing aninaccurate publication. A copy of thenotice, in its entirety, as it should haveappeared follows:

Baltimore Gas and Electric Company,Docket Nos. 50–317 and 50–318, Calvert

Cliffs Nuclear Power Plant, Unit Nos.1 and 2, Calvert County, Maryland.

Date of application for amendments:March 28, 1996, as supplementedNovember 20, 1996, and July 31, 1997.

Brief description of amendments: Theamendments reduce the moderatortemperature coefficient limit shown onTechnical Specification Figure 3.1.1–1.This proposed change is necessary tosupport changes in the safety analysesmade to accommodate a larger numberof plugged steam generator tubes forfuture operating cycles.

Date of issuance: October 2, 1997.

Effective date: As of the date ofissuance to be implemented within 30days.

Amendment Nos.: 222 and 198.Facility Operating License Nos. DPR–

53 and DPR–69: Amendments revisedthe Technical Specifications.

Date of initial notice in FederalRegister: May 8, 1996 (61 FR 20843).

The November 20, 1996, and July 31,1997, letters provided clarifyinginformation that did not change theinitial proposed no significant hazardsconsideration determination.

The Commission’s related evaluationof these amendments is contained in aSafety Evaluation dated October 2, 1997.

No significant hazards considerationcomments received: No.

Local Public Document Roomlocation: Calvert County Library, PrinceFrederick, Maryland 20678.

Dated at Rockville, Maryland, this 31st dayof October 1997.

For the Nuclear Regulatory Commission.Elinor G. Adensam,Acting Director, Division of Reactor ProjectsIII/V, Office of Nuclear Reactor Regulation.[FR Doc. 97–29345 Filed 11–5–97; 8:45 am]BILLING CODE 7590–01–P


Consolidated Guidance AboutMaterials Licenses: Applications forSealed Sealed Source and DeviceEvaluation and Registration,Availability of Draft NUREG

AGENCY: Nuclear RegulatoryCommission.ACTION: Notice of availability andrequest for comments.

SUMMARY: The Nuclear RegulatoryCommission is announcing theavailability of and requesting commenton draft NUREG–1556, Vol. 3,‘‘Consolidated Guidance about MaterialsLicenses: Applications for Sealed SealedSource and Device Evaluation andRegistration,’’ dated September 1997.

NRC is consolidating and updatingnumerous guidance documents into aseries of program specific guidancedocuments to be published in a NUREGformat. All NUREGs in the series willcarry the number and title: NUREG1556, Volume X, ‘‘ConsolidatedGuidance About Materials Licenses.’’Each specific guidance document willhave an identifying volume number,and the title of the specific guidancewill appear as the sub-title of theNUREG. This draft NUREG is the thirdguidance document to be published in


this series; therefore it is listed asVolume 3.

The guidance NUREG is intended foruse by applicants, licensees, registrationcertificate holders, NRC licensereviewers, and other NRC personnel. Itcombines and updates the guidance forapplicants and licensees previouslyfound in draft Regulatory Guides 10.10,‘‘Guide for the Preparation ofApplications for Radiation SafetyEvaluation and Registration of DevicesContaining Byproduct Material,’’ andRegulatory Guide 10.11, ‘‘Guide for thePreparation of Applications forRadiation Safety Evaluation andRegistration of Sealed SourcesContaining Byproduct Material,’’ andguidance for persons reviewing suchapplications found in NUREG–1550,‘‘Standard Review Plan for Applicationsfor Sealed Source and DeviceEvaluations and Registrations.’’ Inaddition, this draft report also containsinformation found in pertinent Policyand Guidance Directives, TechnicalAssistance Requests, and InformationNotices.

This draft NUREG report has beendistributed for comment to encouragepublic participation in its development.It represents the current position of theNRC staff, which is subject to changeafter the review of public comments.Comments received will be consideredin developing the final NUREG reportthat represents the official NRC staffposition. Once the final NUREG reportis published, NRC staff will use it in itsreview of applications for registrations.DATES: The comment period endsDecember 17, 1997. Comments receivedafter that time will be considered ifpracticable.ADDRESSES: Submit written commentsto: Chief, Rules and Directives Branch,Division of Administrative Services,Office of Administration, U. S. NuclearRegulatory Commission, Washington,DC 20555–0001. Hand delivercomments to 11545 Rockville Pike,Rockville, Maryland, between 7:15 a.m.and 4:30 p.m. on Federal workdays.Comments may also be submittedthrough the Internet by addressingelectronic mail to [email protected].

Those considering public commentmay request a free single copy of draftNUREG–1556, Volume 3, by writing tothe U.S. Nuclear RegulatoryCommission, ATTN: John W. Lubinski,Mail Stop TWFN 8–F5, Washington, DC20555–0001. Alternatively, submitrequests through the Internet byaddressing electronic mail [email protected]. A copy of draftNUREG–1556, Volume 3, is alsoavailable for inspection and/or copying

for a fee in the NRC Public DocumentRoom, 2120 L Street, NW. (LowerLevel), Washington, DC 20555–0001.FOR FURTHER INFORMATION CONTACT: JohnW. Lubinski, Mail Stop TWFN 8-F5,Division of Industrial and MedicalNuclear Safety, Office of NuclearMaterials Safety and Safeguards, U.S.Nuclear Regulatory Commission,Washington, DC 20555, telephone (301)415–7868; electronic mail address:[email protected].

Electronic Access

Draft NUREG–1556, Vol. 3 is alsoavailable electronically by visitingNRC’s Home Page (http://www.nrc.gov/NRC/NUREGS/SR1556/V3/index.html).

Dated at Rockville, Maryland, this 30th dayof October, 1997.

For the Nuclear Regulatory Commission.Frederick C. Combs,Acting Director, Division of Industrial andMedical Nuclear Safety, Office of NuclearMaterial Safety and Safeguards.[FR Doc. 97–29344 Filed 11–5–97; 8:45 am]BILLING CODE 7590–01–P

NUCLEAR WASTE TECHNICALREVIEW BOARD

Field trip: December 3–4, 1997—Amargosa Valley, Nevada, Ground-Water Discharge, Yucca Mountain AreaGeology, Volcanism, and Tour ofYucca Mountain

Pursuant to its authority undersection 5051 of Public Law 100–203, theNuclear Waste Policy Amendments Actof 1987, the Nuclear Waste TechnicalReview Board (Board) will conduct twofield trips, December 3 and 4, 1997,beginning at 8:30 a.m. both days. Thefield trips, which are open to the public,will focus on ground-water discharge,geology, and volcanism in the vicinityof Yucca Mountain on December 3 andthe Yucca Mountain site on December 4.

During the morning of December 3,participants on the first field trip willstop at and hear presentations onFranklin Lake Playa (alkali flats wherewater beneath Yucca Mountain is likelyto discharge), Ash Meadows (an oasisformed by discharging groundwater),and Devil’s Hole (a site where muchclimate data has been gathered).Participants will return to the LongstreetInn for lunch. In the afternoon,participants will stop and hearpresentations at Steves Pass (with aview of Crater Flat and other geologicsurroundings of Yucca Mountain), theLathrop Wells volcanic cone (a possiblesite of evidence for predicting thelikelihood of future volcanic activity),

Lathrop Wells diatomite (a pastdischarge area near Yucca Mountain),an Amargosa Valley farming area (thelikely basis for defining the futureYucca Mountain biosphere), TravetinePoint (another past discharge area), and,time permitting, Death Valley.

Participants on the second field trip(December 4) will visit the YuccaMountain site. Visits and presentationswill include the crest of YuccaMountain and the view of surroundingvolcanic cones, geologic features, andthe exploratory studies facility portals.Other stops will include well pad UZ7a, which offers a view of the GhostDance Fault, and the large block testfacility. Following a break for lunch, thefield trip will split. One portion will goundergound to tour the exploratorystudies facility, including the thermalresponse test alcove. Due to health andsafety requirements at the site, thenumber participating in this portion ofthe tour will be extremely limited. Theother portion will visit the C-wellcomplex, the sample-managementfacility, or other sites at YuccaMountain.

The Board will provide bustransportation for both field trips, whichwill begin and end at the Longstreet Inn& Casino, HCR 70, Box 559, AmargosaValley, Nevada 89020; telephone (702)372–1777; fax (702) 372–1280. Roomsare available. You must mention thatyou are attending the Nuclear WasteTechnical Review Board’s field trip toreceive the preferred rate.

You may register for either field tripby telephoning Davonya Barnes orFrank Randall at (703) 235–4473. Youwill be required to provide your fullname, social security number, date ofbirth, place of birth, current address,and telephone number. To preventpotential reservation errors, FAX andEMAIL requests will not be honored. Asseating is limited, spaces will be filledon a first-come/first-served basis. Ifthere are more requests than spaceavailable, a waiting list will bemaintained in case there arecancellations.

Itineraries for both field trips will beavailable on or about November 19 atthe Board’s website, www.nwtrb.gov orby fax or first class mail upon request.For further information, contact FrankRandall, External Affairs, 2300Clarendon Blvd., Suite 1300, Arlington,Virginia 22201–3367; (Tel) 703–235–4473; (Fax) 703–235–4495; (E-mail)[email protected].

The Nuclear Waste Technical ReviewBoard was created by Congress in theNuclear Waste Policy Amendments Actof 1987 to evaluate the technical andscientific validity of activities


1 FAIF was incorporated in 1987 as ‘‘SECURALMutual Funds, Inc.’’ an changed its name to ‘‘FirstAmerican Investment Funds, Inc.’’ in 1991.

2 In addition, 2 new shell series are being createdin FAIF and will constitute Acquiring Funds.

3 FAF was incorporated under the name ‘‘FirstAmerican Money Fund, Inc.’’ and changed its nameto ‘‘First American Funds, Inc.’’ in 1990.

4 A new series, the ‘‘Tax Free Obligations Fund,’’is being created in FAF and will be an AcquiringFund.

undertaken by the DOE in its programto manage the disposal of the nation’shigh-level radioactive waste andcommercial spent nuclear fuel. In thatsame legislation, Congress directed theDOE to characterize a site at YuccaMountain, Nevada, for its suitability asa potential location for a permanentrepository for the disposal of that waste.

Dated: October 31, 1997.William Barnard,Executive Director, Nuclear Waste TechnicalReview Board.[FR Doc. 97–29331 Filed 11–5–97; 8:45 am]BILLING CODE 6820–AM–M

SECURITIES AND EXCHANGECOMMISSION

[Investment Company Act Release No.22868; 812–10726]

First American Investment Funds, Inc.,et al.; Notice of Application

October 30, 1997.AGENCY: Securities and ExchangeCommission (‘‘SEC’’).ACTION: Notice of application undersection 17(b) of the InvestmentCompany Act of 1940 (the ‘‘Act’’) for anexemption from section 17(a) of the Act.

SUMMARY OF APPLICATION: Orderrequested to allow certain series of threeregistered open-end investmentcompanies to acquire all of the assetsand liabilities of the series of anotherregistered open-end investmentcompany. Because of certain affiliations,applicants may not rely on rule 17a–8under the Act.APPLICANTS: First American InvestmentFunds, Inc. (‘‘FAIF’’), First AmericanFunds, Inc. (‘‘FAF’’), First AmericanStrategy Funds, Inc. (‘‘FASF’’), FirstBank National Association (the‘‘Adviser’’), First Trust NationalAssociation (‘‘First Trust’’), TheQualivest Funds (the ‘‘Trust’’),Qualivest Capital Management, Inc.(‘‘Qualivest’’), and United StatesNational Bank of Oregon (‘‘U.S. Bank’’).FILING DATES: The application was filedon July 18, 1997. Applicants haveagreed to file an amendment, thesubstance of which is included in thisnotice, during the notice period.HEARING OR NOTIFICATION OF HEARING: Anorder granting the application will beissued unless the SEC orders a hearing.Interested persons may request ahearing by writing to the SEC’sSecretary and serving applicants with acopy of the request, personally or bymail. Hearing requests should bereceived by the SEC by 5:30 p.m. on

November 20, 1997 and should beaccompanied by proof of service onapplicants, in the form of an affidavit or,for lawyers, a certificate of service.Hearing requests should state the natureof the writer’s interest, the reason for therequest, and the issues contested.Persons who wish to be notified of ahearing may request notification bywriting to the SEC’s Secretary.ADDRESSES: Secretary, SEC, 450 FifthStreet, N.W., Washington, D.C. 20549.Applicants: FAIF, FAF, and FASF,Oaks, PA 19546; First Bank NationalAssociation, First Bank Place, 601Second Avenue South, Minneapolis,MN 55480; First Trust NationalAssociation, 180 East Fifth Street, St.Paul, MN 55101; The Qualivest Funds,3435 Stelzer Road, Columbus, OH43219–3035; Qualivest, P.O. Box 2758,Portland, OR 97208; and U.S. Bank, 111S.W. Fifth Avenue, Suite T–2, Portland,OR 97204.FOR FURTHER INFORMATION CONTACT:Mary T. Geffroy, Senior Counsel, at(202) 942–0553, or Christine Y.Greenlees, Branch Chief, at (202) 942–0564 (Division of InvestmentManagement, Office of InvestmentCompany Regulation).SUPPLEMENTARY INFORMATION: Thefollowing is a summary of theapplication. The complete applicationmay be obtained for a fee at the SEC’sPublic Reference Branch, 450 FifthStreet, N.W., Washington, D.C. 20549(tel. 202–942–8090).

Applicants’ Representations

1. The Trust, a Massachusettsbusiness trust, is an open-endmanagement investment companyregistered under the Act. The Trustcurrently consists or thirteen series (the‘‘Acquired Funds’’), Qualivest is asubsidiary of U.S. Bank, and is theinvestment adviser to the AcquiredFunds. U.S. Bank is a wholly-ownedsubsidiary of U.S. Bancorp. U.S. Bankand certain of its affiliates hold ofrecord more than 5% of the outstandingshares of certain Acquired Funds. Inaddition, defined benefits plans forwhich Qualivest, U.S. Bank, or theiraffiliates have funding obligations ownmore than 5% of the outstanding sharesof certain Acquired Funds.

2. FAIF, FAF, and FASF are open-endinvestment companies registered underthe Act and each offers shares in certainseries (some of which constitute the‘‘Acquiring Funds’’). FAIF 1, a Marylandcorporation, offers shares in 20 series,

four of which are Acquiring Funds.2FAF 3, a Minnesota corporation,currently consists of three series, two ofwhich are Acquiring Funds.4 FASF, aMinnesota corporation, offers shares infour series, each of which is anAcquiring Fund.

3. The Adviser is registered under theInvestment Advisers Act of 1940 and isthe investment adviser for each of theAcquiring Funds. The Adviser and FirstTrust are wholly-owned subsidiaries ofFirst Bank System, Inc. (‘‘FBS’’). FirstTrust and certain of its affiliates hold ofrecord more than 5% of the outstandingshares of certain Acquiring Funds. Inaddition, defined benefit plans forwhich FBS, the Adviser, First Trust, ortheir affiliates have funding obligationsown more than 5% of the outstandingshares of certain Acquiring Funds.

4. FBS and U.S. Bancorp entered intoan Agreement and Plan of Merger onMarch 19, 1997, which provided thatU.S. Bancorp would merge with andinto FBS, with FBS continuing as thesurviving corporation (the ‘‘Merger’’).The Merger was consummated on orabout September 2, 1997. At that time,the Adviser and First Trust becameaffiliated with Qualivest and U.S. Bank,and all of those entities became part ofa common control group.

5. On June 4, 1997, the boards ofdirectors of FAIF, FAF, and FASF (the‘‘First American Boards’’), includingtheir disinterested directors,unanimously approved thereorganization (the ‘‘Reorganization’’),and on June 17, 1997, the Board ofTrustees of the Trust (the ‘‘Trustees’’)unanimously approved theReorganization, including a draftAgreement and Plan of Reorganization(the ‘‘Reorganization Agreement’’).Pursuant to the ReorganizationAgreement, each Acquiring Fundproposes to acquire all of the assets andassume all of the liabilities of itscorresponding Acquired Fund inexchange for shares of the AcquiringFund based on the Funds’ relative netasset values. The number of AcquiringFund shares to be issued in exchange foreach Acquired Fund share of each classwill be determined by dividing the netasset values of one Acquiring Fundshare of the appropriate correspondingclass by the net asset value of oneAcquired Fund share of such class,computed as of the close of trading on


the New York Stock Exchange on thedate that the conditions to closing aresatisfied or on a later date as the partiesmay agree (the ‘‘Effective Time’’).

6. The Acquiring Funds generallyoffer shares in three classes (Classes A,B, and C). Only Class A and Class Cshares will be issued in theReorganization. Class A shares generallyare sold with a front-end sales charge.Purchases of $1 million or more of ClassA shares that are sold within 24 monthsafter purchase are subject to acontingent deferred sales charge. ClassA shares are not subject to any othercontingent deferred sales charge, othersale charge, or any redemption fee. ClassA shares are subject to shareholderservicing fees under a rule 12b–1 plan.Class C shares are not subject to a front-end, contingent deferred, or other salescharge, a redemption fee, or rule12b–1 distribution or shareholderservicing fees.

7. The Acquired Funds offer shares infour classes (Classes A, C, Y, and Q).Class A shares generally are subject toa front-end sales charge, and undercertain circumstances, a contingentdeferred sales charge is imposed. ClassA shares are subject to distribution feesunder a rule 12b–1 plan. Class C sharesof certain of the Acquired Funds may besubject to a contingent deferred salescharge, or distribution and shareholderservices fees under a rule 12b–1 plan.Class Y shares are not subject to acontingent deferred sales charge or anyother sales charge. These shares areoffered only through trust departmentsof banks and other institutionalinvestors for monies that are held in afiduciary, agency, custodial, or similarcapacity. Class Q shares are offered withno sales charge and no contingentdeferred sales charge. Class Q sharesgenerally are subject to rule 12b–1 fees.As a result of the Reorganization,holders of Class A shares and Class Cshares of the Acquired Funds willbecome holders of Class A shares of theAcquiring Funds, and holders of ClassQ shares and Class Y shares of theAcquired Funds will become holders ofClass C shares of the Acquiring Funds,and will be subject to the sales charges,and the rule 12b–1 distribution andshareholder servicing fees applicable tothe class of Acquiring Fund sharesissued to them (as well as fund levelexpenses, such as investment advisoryfees, of the relevant Acquiring Fund). Inapplying the deferred sales chargeapplicable to purchases of Class Ashares with respect to which the front-end sales charge was waived, andapplicable purchases of Class C shares,credit will be given for the period anAcquired Fund shareholder who is

subject to the deferred sales charge heldhis or her shares of the Acquired Fund.

8. Each Fund pays the Adviser aninvestment advisory fee annually,which the Adviser currently is waivingto the extent that total fund expensesexceed the average daily net assets ofthe respective Acquiring Funds. Inaddition, certain classes of each Fundpay annual distribution fees based on apercentage of the Fund’s average dailynet assets.

9. The investment objectives of eachAcquired Fund and its correspondingAcquiring Fund are similar. Theinvestment restrictions and limitationsof each Acquired Fund andcorresponding Acquiring Fund aresubstantially similar, but in some casesinvolve differences that reflect thedifferences in the general investmentstrategies utilized by the Funds.

10. On or before the Effective Time,the Acquired Fund will have declared adividend and/or other distribution sothat it will have distributed all of itsinvestment company taxable income,exempt-interest income, and realizednet capital gain, if any, for the taxableyear ending on or prior to the EffectiveTime.

11. The Reorganization Agreementprovides that, at the Effective Time ofthe Reorganization, each AcquiringFund will issue and distribute to itscorresponding Acquired Fund’sshareholders of record, determined as ofthe Effective Time, the Acquiring Fundshares issued in exchange for theAcquired Fund shares. Afterwards, noadditional shares representing interestsin the Acquired Fund will be issued,and the Acquired Fund will beliquidated. The distribution will beaccomplished by the issuance of theAcquiring Fund shares to open accountson the share records of the AcquiringFund in the names of the AcquiredFund shareholders representing thenumber of Acquiring Fund shares dueeach shareholder pursuant to theReorganization Agreement.Simultaneously, all issued andoutstanding shares of the AcquiredFund will be canceled on the books ofthe Acquired Fund. No sales charge willbe incurred by Acquired Fundshareholders in connection with theiracquisition of Acquiring Fund sharespursuant to the ReorganizationAgreement.

12. In considering the Reorganization,the First American Boards, includingthe disinterested directors, and theTrustees, including the disinterestedtrustees, found that participation in theReorganization is in the best interests ofeach Acquired Fund and AcquiringFund, and that the interests of existing

shareholders of the Funds will not bediluted as a result of the Reorganization.

13. The First American Boards andthe Trustees considered a number offactors in making their findings,including: (a) the terms and conditionsof the Reorganization; (b) the tax-freenature of the Reorganization; (c) thecosts of the Reorganization to the Funds;(d) the compatibility of the objectives,policies, and restrictions of the Funds;(e) the investment advisory fees, rule12b–1 fees, and the sales charges thatwould become applicable to formershareholders of the Acquired Funds;and (f) the potential benefits to theAdviser. The First American Boards andthe Trustees noted also that the largersize of the Acquiring Funds enables theAcquired Funds to achieve certaineconomies of scale, and potentially mayincrease operating efficiencies andfacilitate portfolio management.

14. The Adviser will be responsiblefor the expenses incurred in connectionwith the Reorganization and anyunamortized organizational expenses ofthe Acquired Funds existing at theEffective Time.

15. The Reorganization Agreementmay be terminated by the mutualconsent of the relevant First AmericanBoards and the Trustees at any timeprior to the Effective Time.

16. On August 8, 1997, applicantsfiled with the SEC a registrationstatement on Form N–14 containing acombined prospectus/proxy statement.Applicants sent the prospectus/proxystatement to shareholders of eachAcquired Fund on or about September15, 1997.

17. The consummation of theReorganization is subject to thefollowing conditions set forth in theReorganization Agreement: (a) theshareholders of the Acquired Fund willhave approved the ReorganizationAgreement; (b) applicants will havereceived exemptive relief from the SECwith respect to the issues that are thesubject of the application; (c) an opinionof counsel with respect to the federalincome tax aspects of theReorganization will have been receivedby applicants; and (d) the Adviser, or anaffiliate of the Adviser, will have paidany unamortized organizationalexpenses on the books of the relevantAcquired Fund, and those expenses willnot be reflected in the net asset valuecalculations made in connection withthe Reorganization. Applicants agree notto make any material changes to theReorganization Agreement that affectthe application without prior SECapproval.


5 Applicants state that the Acquiring Funds inwhich First Trust does not hold of record more than5% of the outstanding shares also are unable to relyon rule 17a–8 because they are affiliated with theAcquired Funds for reasons other than those setforth in the rule. Applicants state that these Fundsare affiliated with the Acquired Funds because theyare affiliated with the Adviser under section2(a)(3)(E) and, after the Merger (in which U.S. Bankand the Adviser will be merged), the Adviser willbe an affiliate of the Acquired Funds under section2(a)(3)(A) by virtue of U.S. Bank’s ownership ofmore than 5% of the outstanding shares of certainof the Acquired Funds.

6 Applicants state that the one Acquired Fund(the U.S. Treasury Money Market Fund) that U.S.Bank does not hold of record 5% or more of theoutstanding shares also is unable to rely on rule17a–8 because it is affiliated with the AcquiringFund for reasons other than those set forth in rule17a–8. Applicants state that the Acquired Fund isaffiliated with the Adviser under section 2(a)(3)(E)and, after the Merger, the Adviser will be anaffiliate of the Acquiring Funds under section2(a)(3)(C).

Applicants’ Legal Analysis1. Section 17(a) of the Act generally

prohibits an affiliated person of aregistered investment company, or anyaffiliated person of that person, acting asprincipal, from selling any security to,or purchasing any security from thecompany. Section 2(a)(3) of the Actdefines an ‘‘affiliated person’’ of anotherperson to include any person that owns5% or more of the outstanding votingsecurities of the other person, and anyperson directly or indirectly controlling,controlled by, or under common controlwith the other person; or, if the otherperson is an investment company, anyinvestment adviser of the investmentcompany.

2. Rule 17a–8 under the Act exemptsfrom the prohibitions of section 17(a)mergers, consolidations, or purchases orsales of substantially all of the assets ofregistered investment companies thatare affiliated persons solely by reason ofhaving a common investment adviser,common directors/trustees, and/orcommon officers, provided that certainconditions are satisfied.

3. Applicants believe that they maynot rely upon rule 17a–8 because theFunds may be affiliated for reasonsother than those set forth in the rule.First Trust and its affiliates hold ofrecord more than 5% of the outstandingshares of certain Acquiring Funds andhold or share voting power and/orinvestment discretion with respect to aportion of those shares.5 In addition,U.S. Bank and its affiliates hold ofrecord more than 5% of the outstandingshares of certain Acquired Funds andhold or share voting power and/orinvestment discretion with respect to aportion of those shares.6 Because ofthese ownership interests, the AcquiringFund may be deemed an affiliatedperson of an affiliated person of the

Acquired Fund, and vice versa, forreasons not based solely on theircommon adviser. Consequently,applicants are requesting an orderpursuant to section 17(b) of the Actexempting them from section 17(a) tothe extent necessary to consummate theReorganization.

4. Section 17(b) of the act providesthat the SEC may exempt a transactionfrom the provisions of section 17(a) ifthe terms of the proposed transaction,including the consideration to be paidor received, are reasonable and fair anddo not involve overreaching on the partof any person concerned; the proposedtransaction is consistent with the policyof each registered investment companyconcerned; and the proposedtransaction is consistent with thegeneral purposes of the Act.

5. Applicants submit that the terms ofthe Reorganization satisfy the standardsset forth in section 17(b), in that theterms are fair and reasonable and do notinvolve overreaching on the part of anyperson concerned. Applicants note thatthe First American Boards and theTrustees, including the disinteresteddirectors and trustees, found thatparticipation in the Reorganization is inthe best interests of each Fund and thatthe interests of the existing shareholdersof each Fund will not be diluted as aresult of the Reorganization. Applicantsalso note that the exchange of theAcquired Funds’ shares for theAcquiring Funds’ shares will be basedon the Funds’ relative net asset values.

For the SEC, by the Division of InvestmentManagement, under delegated authority.Jonathan G. Katz,Secretary.[FR Doc. 97–29354 Filed 11–5–97; 8:45 am]BILLING CODE 8010–01–M



Reports, Forms and RecordkeepingRequirements Agency InformationCollection Activity Under OMB Review

AGENCY: Office of the Secretary, DOT.ACTION: Notice and request forcomments.

SUMMARY: In compliance with thePaperwork Reduction Act of 1995 (44U.S.C. 3501 et seq.), this noticeannounces that the InformationCollection (ICR) abstracted below hasbeen forwarded to the Office ofManagement and Budget (OMB) forreview and comment. The ICR describesthe nature of the information collectionand its expected burden. The Federal

Register Notice with a 60-day commentperiod soliciting comments on thefollowing collection of information waspublished on April 9, 1997, (62 FR17276–17277).

DATES: Comments must be submitted onor before December 8, 1997.

FOR FURTHER INFORMATION CONTACT:Judith Street, ABC–100; FederalAviation Administration; 800Independence Avenue, SW.;Washington, DC 20591; Telephonenumber (202) 267–9895.


Federal Aviation Administration (FAA)

Title: Representatives of theAdministrator, FAR 183.

OMB control number: 2120–0033.Type of request: Extension of

currently approved collection.Affected Public: Individuals seeking

to represent the Administrator inexamining, testing, and certifyingairmen for the purpose of issuing themairmen certificates.

Abstract: Title 49, U.S.C., Section44702, authorizes appointment ofproperly qualified private persons to berepresentatives of the Administrator forexamining, testing, and certifyingairmen for the purpose of issuing themairmen certificates. The informationcollected is used to determine eligibilityof the representatives. This submissionwill no longer cover the application forairmen medical examiners since thatreporting burden now has its own OMBcontrol number of 2120–0604.

Annual Estimated Burden Hours:3,114.

Number of Respondents: 7,152.Addressee: Send comments to the

Office of Information and RegulatoryAffairs, Office of Management andBudget, 725–17th Street, NW.,Washington, DC 20503, Attention FAADesk Officer.

Comments are Invited on: whether theproposed collection of information isnecessary for the proper performance ofthe functions of the Department,including whether the information willhave practical utility; the accuracy ofthe Department’s estimate of the burdenof the proposed information collection;ways to enhance the quality, utility andclarity of the information to becollected; and ways to minimize theburden of the collection of informationon respondents, including the use ofautomated collection techniques orother forms of information technology.


Issued in Washington, DC on October 31,1997.

Vanester M. Williams,Clearance Officer, United States Departmentof Transportation.[FR Doc. 97–29318 Filed 11–5–97; 8:45 am]




Minority Business Resource CenterAdvisory Committee

AGENCY: Office of the Secretary, (DOT).

ACTION: Notice of meeting.

SUMMARY: Pursuant to section 10(a)(2) ofthe Federal Advisory Committee Act(Pub. L. 92–463; 5 U.S.C. App. 1), noticeis hereby given of a meeting of theMinority Business Resource CenterAdvisory Committee to be heldWednesday, December 10, 1997, from9:30–11:30 a.m. at the Department ofTransportation, 400 7th Street, SW.,Conference Room 8236–8240,Washington, DC 20590. The agenda forthe meeting is as follows:

—Advocacy—DOT DBE Program (SNPRM)—Affirmative Action Issues

—Outreach—Financial Services

Attendance is open to the interestedpublic but limited to the spaceavailable. With the approval of theChairman, members of the public maypresent oral statements at the meeting.Persons wishing to attend and personswishing to present oral statementsshould notify the Office of Small andDisadvantaged Business Utilization,Minority Business Resource Center by4:00 p.m. on Monday, December 8,1997. Information pertaining to themeeting may be obtained from Mrs.Marie A. Hendricks, Office of Small andDisadvantaged Business Utilization, 4007th Street, SW., Washington, DC 20590,telephone (202) 366–1930 or (800) 532–1169. Any member of the public maypresent a written statement to theCommittee at any time.

Issued in Washington, D.C. on October 31,1997.

Luz A. Hopewell,Director, Office of Small and DisadvantagedBusiness Utilization.[FR Doc. 97–29317 Filed 11–5–97; 8:45 am]




Technical Standard Orders: AircraftBearings

AGENCY: Federal AviationAdministration.

ACTION: Notice of availability for publiccomment.

SUMMARY: This notice announces theavailability of and requests commentson a proposed Technical StandardOrder (TSO) pertaining to aircraftbearings. The proposed TSO prescribesthe regulatory performance standardsthat manufacturer-specified parts andappliances must meet to be identifiedwith the marking ‘‘TSO–C149.’’

DATES: Comments must identify theTSO file number and be received on orbefore January 5, 1998.

ADDRESSES: Send all comments on theproposed technical standard order to:Technical Programs and ContinuedAirworthiness Branch, AIR–120,Aircraft Engineering Division, AircraftCertification Service—File No. TSO–C149, Federal Aviation Administration,800 Independence Avenue, SW.,Washington, DC 20591. Or delivercomments to: Federal AviationAdministration, Room 815, 800Independence Avenue, SW.,Washington, DC 20591.

FOR FURTHER INFORMATION CONTACT:Ms. Bobbie J. Smith, TechnicalPrograms and Continued AirworthinessBranch, AIR–120, Aircraft EngineeringDivision, Aircraft Certification Service,Federal Aviation Administration, 800Independence Avenue, SW.,Washington, DC 20591, FAX No. (202)267–5340.

Comments Invited

Interested persons are invited tocomment on the proposed TSO listed inthis notice by submitting such writtendata, views, or arguments as they desireto the above specified address.Comments received on the proposedtechnical standard order may beexamined, before and after the commentclosing date, in Room 815, FAAHeadquarters Building (FOB–10A), 800Independence Avenue, SW.,Washington, DC 20591, weekdaysexcept Federal holidays, between 8:30a.m. and 4:30 p.m. All communicationsreceived on or before the closing datefor comments specified above will beconsidered by the Director of theAircraft Certification Service beforeissuing the final TSO.

Background

The FAA established the AviationRulemaking Advisory Committee(ARAC) in January 1991 to provide anongoing mechanism to acceptrecommendations from the aviationindustry in the regulatory process (56FR 2190; January 22, 1991; and 58 FR9230; February 19, 1993). In March1993, the FAA established the PartsWorking Group as part of ARAC (58 FR16572; March 29, 1993). The PartsWorking Group was tasked withrecommending to ARAC newregulations and guidance material, asappropriate, pertaining to the issuanceand administration of approvals ofreplacement and modification parts forcivil aircraft. The proposed TSO in thisnotice is based on a draft proposed TSOdeveloped by the Parts Working Groupand recommended to the FAA by theARAC.

The standards or proposed TSO–C149apply to aircraft bearings intended foranti-friction rotation and/or oscillatoryapplications in the manufacture andmaintenance of aircraft products.Proposed TSO–C149 providesalternative requirements for makingeach individual bearing. Each bearingmust be marked with at least the nameor symbol of the manufacturer, themanufacturer’s part number, and theTSO number. When this is not practical,marking may be accomplished in amanner approved by the Administrator.Also, in addition to the markingspecified in 14 CFR 607(d), the sealtype, the lubrication date (if applicable),and the manufacturer’s inspection lotnumber shall be marked on eachpackage and container.

How to Obtain Copies

A copy of the proposed TSO–C149may be obtained via Internet (http:/www.faa.gov/avr/air/100home.htm) oron request from the office listed underFOR FURTHER INFORMATION CONTACT.

Issued in Washington, DC, on October 27,1997.Abbas A. Rizvi,Acting Manager, Aircraft EngineeringDivision, Aircraft Certification Service.[FR Doc. 97–29351 Filed 11–5–97; 8:45 am]BILLING CODE 4910–13–M



Technical Standard Orders: AircraftSeals

AGENCY: Federal AviationAdministration.


ACTION: Notice of availability for publiccomment.

SUMMARY: This notice announces theavailability of and requests commentson a proposed Technical StandardOrder (TSO) pertaining to aircraft seals.The proposed TSO prescribes theregulatory performance standards thatmanufacturer-specified parts andappliances must meet to be identifiedwith the marking ‘‘TSO–C150.’’DATES: Comments must identify theTSO file number and be received on orbefore January 5, 1998.ADDRESSES: Send all comments on theproposed technical standard order to:Technical Programs and ContinuedAirworthiness Branch, AIR–120,Aircraft Engineering Division, AircraftCertification Service—File No. TSO–C150, Federal Aviation Administration,800 Independence Avenue, SW.,Washington, DC 20591. Or delivercomments to: Federal AviationAdministration, Room 815, 800Independence Avenue, SW.,Washington, DC 20591.FOR FURTHER INFORMATION CONTACT:Ms. Bobbie J. Smith, TechnicalPrograms and Continued AirworthinessBranch, AIR–120, Aircraft EngineeringDivision, Aircraft Certification Service,Federal Aviation Administration, 800Independence Avenue, SW.,Washington, DC 20591, FAX No. (202)267–5340.


comment on the proposed TSO listed inthis notice by submitting such writtendata, views, or arguments as they desireto the above specified address.Comments received on the proposedtechnical standard order may beexamined, before and after the commentclosing date, in Room 815, FAAHeadquarters Building (FOB–10A), 800Independence Avenue, SW.,Washington, DC 20591, weekdaysexcept Federal holidays, between 8:30a.m. and 4:30 p.m. All communicationsreceived on or before the closing datefor comments specified above will beconsidered by the Director of theAircraft Certification Service beforeissuing the final TSO.

BackgroundThe FAA established the Aviation

Rulemaking Advisory Committee(ARAC) in January 1991 to provide anongoing mechanism to acceptrecommendations from the aviationindustry in the regulatory process (56FR 2190; January 22, 1991; and 58 FR9230; February 19, 1993). In March1993, the FAA established the Parts

Working Group as part of ARAC (58 FR16572; March 29, 1993). The PartsWorking Group was tasked withrecommending to ARAC newregulations and guidance material, asappropriate, pertaining to the issuanceand administration of approvals ofreplacement and modification parts forcivil aircraft. The proposed TSO in thisnotice is based on a draft proposed TSOdeveloped by the Parts Working Groupand recommended to the FAA by theARAC.

The standards of proposed TSO–C150apply to aircraft seals intended for staticand dynamic applications in themanufacture and maintenance of aircraftproducts. Proposed TSO–C150 providesalternative requirements for markingeach individual seal. Each seal must bemarked with at least the name or symbolof the manufacturer, the manufacturer’spart number, and the TSO number.When this is not practical, marking maybe accomplished in a manner approvedby the Administrator. Also, in additionto the marking specified in 14 CFR607(d), the seal type, the manufacturer’sinspection lot number, and the expectedshelf life shall be marked on eachpackage and container.

How To Obtain Copies

A copy of the proposed TSO–C150may be obtained via Internet (http:/www.faa.gov/avr/air/100home.htm) oron request from the office listed underFOR FURTHER INFORMATION CONTACT.

Issued in Washington, DC, on October 29,1997.Brain A. Yanez,Acting Manager, Aircraft EngineeringDivision, Aircraft Certification Service.[FR Doc. 97–29352 Filed 11–5–97; 8:45 am]BILLING CODE 4910–13–M


Saint Lawrence Seaway DevelopmentCorporation

Notice of Request for Reinstatement,Without Change, of a PreviouslyApproved Collection for WhichApproval Is Scheduled To Expire

AGENCY: Saint Lawrence SeawayDevelopment Corporation, DOT.ACTION: Notice and request forcomments.

SUMMARY: In accordance with thePaperwork Reduction Act of 1995 (44U.S.C. Chapter 35, as amended), thisnotice announces the Saint LawrenceSeaway Development Corporation’s(SLSDC’s) intention to request thereinstatement, without change, of a

previously approved collection forwhich approval is scheduled to expire.DATES: Comments on this notice must bereceived by January 5, 1998.ADDRESSES: Send comments to Marc C.Owen, Chief Counsel, Saint LawrenceSeaway Development Corporation, 400Seventh Street, S.W., Suite 5424,Washington, D.C. 20590.FOR FURTHER INFORMATION CONTACT:Scott A. Poyer, Chief Economist, SaintLawrence Seaway DevelopmentCorporation, Office of Great LakesPilotage, United States Department ofTransportation, 400 7th Street SW.,Suite 5424, Washington, DC 20590,(800) 785–2779, or Marc C. Owen, ChiefCounsel, Saint Lawrence SeawayDevelopment Corporation, 400 SeventhStreet, S.W., Suite 5424, Washington,D.C. 20590, (800) 785–2779.


Title: Great Lakes Pilotage RateMethodology.

OMB Control Number: 2135–0501.Expiration Date: February 28, 1998.Type of Request: Reinstatement

without change, of a previouslyapproved collection for which approvalis scheduled to expire.

Abstract: The Great Lakes Pilotage Actof 1960 authorizes the Director of GreatLakes Pilotage to prescribe a uniformsystem of accounts and to performaudits and inspections of Great Lakespilot associations. The Director uses thisinformation to carry out financialoversight of the Great Lakes pilotassociations and to set pilotage rates.The specific information to be filed byrespondents is set forth in 33 CFR Parts404–407.

Respondents: Great Lakes PilotAssociations.

Estimated Number of Respondents: 3.Average Annual Burden Per

Respondent: 6 hours.Estimated Total Burden on

Respondents: 18 hours.This information collection is

available for inspection at the SaintLawrence Seaway DevelopmentCorporation, 400 Seventh Street, S.W.,Suite 5424, Washington, D.C. 20590.Copies of 33 CFR Parts 404–407 can beobtained from Mr. Scott Poyer at theaddress and telephone number shownabove.

Comments are invited on: (a) Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the SLSDC, includingwhether the information will havepractical utility; (b) the accuracy of theSLSDC’s estimate of the burden of theproposed information collection; (c)ways to enhance the quality, utility and


clarity of the information to becollected; and (d) ways to minimize theburden of the collection of informationon respondents, including the use ofautomated collection techniques orother forms of information technology.

All responses to this notice will besummarized and included in the requestfor OMB approval. All comments willalso become a matter of public record.

Issued at Washington, D.C. on November 3,1997.Saint Lawrence Seaway DevelopmentCorporation.David G. Sanders,Acting Administrator.[FR Doc. 97–29384 Filed 11–5–97; 8:45 am]BILLING CODE 4910–61–U

DEPARTMENT OF THE TREASURY

Submission to OMB for Review;Comment Request

October 23, 1997.The Department of Treasury has

submitted the following publicinformation collection requirement(s) toOMB for review and clearance under thePaperwork Reduction Act of 1995, Pub.L. 104–13. Copies of the submission(s)may be obtained by calling the TreasuryBureau Clearance Officer listed.Comments regarding this informationcollection should be addressed to theOMB reviewer listed and to theTreasury Department Clearance Officer,Department of the Treasury, Room 2110,1425 New York Avenue, NW.,Washington, DC 20220.

Internal Revenue Service (IRS)

OMB Number: 1545–0794.Form Number: IRS Form 8554.Type of Review: Revision.Title: Application for Renewal of

Enrollment to Practice Before theInternal Revenue Service.

Description: This information relatedto the approval of continuingprofessional education programs andthe renewal of the enrollment status forthose individuals admitted (enrolled) bythe Internal Revenue Service.

Respondents: Individuals orhouseholds.

Estimated Number of Respondents/Recordkeepers: 39,500.

Estimated Burden Hours PerRespondent/Recordkeeper: 1 hour, 12minutes.

Frequency of Response: Other (One-time filing).

Estimated Total Reporting/Recordkeeping Burden: 47,400 hours.

OMB Number: 1545–1096.Form Number: Form 9117.

Type of Review: Revision.Title: Excise Tax Program Order Blank

for Forms and Publications.Description: Form 9117 allows

taxpayers who must file Form 720returns a systemic way to orderadditional tax forms and informationalpublications.

Respondents: Business or other for-profit.

Estimated Number of Respondents:15,000.

Estimated Burden Hours PerRespondent: 3 minutes.

Frequency of Response: Annually.Estimated Total Reporting Burden:

500 hours.OMB Number: 1545–1271.Regulation Project Number: REG–

208165 (formerly INTL–54–91) andREG–209035–86 (formerly INTL–178–86) NPRM.

Type of Review: Extension.Title: Transfers of Stock or Securities

by U.S. Persons to Foreign Corporations,and Foreign Liquidations andReorganizations.

Description: A U.S. person mustgenerally file a gain recognitionagreement with the Service in order todefer gain on a section 367(a) transfer ofstock to a foreign corporation, and mustfile a notice with the Service if itrealizes any income in a section 367(b)exchange. These requirements ensurecompliance with the respective sections.

Respondents: Business or other for-profit.

Estimated Number of Respondents:600.

Estimated Burden Hours PerRespondent: 4 hours.

Frequency of Response: Annually.Estimated Total Reporting Burden:

2,400 hours.Clearance Officer: Garrick Shear (202)

622–3869, Internal Revenue Service,Room 5571, 1111 Constitution Avenue,NW., Washington, DC 20224.

OMB Reviewer: Alexander T. Hunt(202) 395–7860, Office of Managementand Budget, Room 10226, NewExecutive Office Building, Washington,DC 20503.Lois K. Holland,Departmental Reports Management Officer.[FR Doc. 97–29313 Filed 11–5–97; 8:45 am]BILLING CODE 4830–01–P

UNITED STATES INFORMATIONAGENCY

Summer Institute for the Study of theUnited States for Foreign SecondarySchool Teachers and Teacher Trainers

ACTION: Notice—Request for Proposals.

SUMMARY: The Branch for the Study ofthe U.S. of the Office of AcademicPrograms of the United StatesInformation Agency’s Bureau ofEducational and Cultural Affairsannounces an open competition for anassistance award program entitled‘‘Summer Institute for the Study of theUnited States for Foreign SecondarySchool Teachers and Teacher Trainers.’’Public and private non-profitorganizations meeting the provisionsdescribed in IRS regulation 26 CFR1.501(c) may apply to develop a six-week graduate-level program designedfor a multinational group of up to 30secondary school teachers and teachertrainers. The program is intended toprovide participants with a deeperunderstanding of the United States sothat textbooks, curricula and teachingabout U.S. society, culture andinstitutions in foreign secondary schoolsand teacher training institutions will beimproved. Tentative program dates areJune 20 through July 31, 1998.

USIA is seeking detailed proposalsfrom colleges, universities, consortia ofcolleges and universities, and other not-for-profit academic organizations thathave an established reputation in thedisciplines and sub-disciplines thatcomprise American Studies, and thatcan demonstrate expertise in conductinggraduate-level programs for foreigneducators. Applicant institutions musthave a minimum of four years’experience in conducting internationalexchange programs. The project directoror one of the key program staffresponsible for the academic programmust have a doctoral degree inAmerican studies or a related discipline.Staff escorts traveling under the USIAcooperative agreement support must beU.S. citizens with demonstratedqualifications for this service.

Overall grant making authority forthis program is contained in the MutualEducational and Cultural Exchange Actof 1961, Pub. L. 87–256, as amended,also known as the Fulbright-Hays Act.The purpose of the Act is ‘‘to enable theGovernment of the United States toincrease mutual understanding betweenthe people of the United States and thepeople of other countries * * *; tostrengthen the ties which unite us withother nations by demonstrating theeducational and cultural interests,developments, and achievements of thepeople of the United States and othernations * * * and thus to assist in thedevelopment of friendly, sympatheticand peaceful relations between theUnited States and the other countries ofthe world.’’

Programs and projects must conformwith Agency requirements and


guidelines outlined in the SolicitationPackage. USIA projects and programsare subject to the availability of funds.

Announcement Name and Number:All communications with USIAconcerning this announcement shouldrefer to the above title and referencenumber E/AAS–98–10.

Deadline For Proposals: All copiesmust be received at the U.S. InformationAgency by 5:00 p.m. Washington D.C.time on Friday, January 16, 1998. Faxeddocuments will not be accepted, norwill documents postmarked January 16,1998 but received at a later date. It is theresponsibility of each applicant toensure that proposal submissions arriveby the deadline.FOR FURTHER INFORMATION CONTACT:U.S. Information Agency, Office ofAcademic Programs, Branch of theStudy of the United States (E/AAS), 3014th Street, S.W., Room 256, Washington,D.C. 20547, Attn: Program Officer SusanZapotoczny, Telephone number (202)619–4557, Fax number (202) 619–6790,Email address: [email protected].

Please use the above information torequest a Solicitation Package, whichcontains more detailed award criteria;required application forms; andstandard guidelines for preparingproposals (including specificinformation on budget preparation).

Please specify USIA Program OfficerSusan Zapotoczny on all inquiries andcorrespondence. Interested applicantsshould read the complete FederalRegister announcement beforeaddressing inquiries to the office listedabove or submitting their proposals.Once the RFP deadline has passed,USIA staff may not discuss thiscompetition in any way with applicantsuntil after the Bureau proposal reviewprocess has been completed.

To Download a Solicitation PackageVia Internet: The Solicitation Packagemay be downloaded from USIA’swebsite at http://www.usia.gov/education/rfps. Please read allinformation before downloading.

To receive a solicitation Package ViaFax On Demand: The entire SolicitationPackage may be received via theBureau’s ‘‘Grants Information Fax onDemand System,’’ which is accessed bycalling 202/401–7616. Please request a‘‘Catalog’’ of available documents andorder numbers when first enteringsystem.

Submissions: Applicants must followall instructions given in the SolicitationPackage. The original and 13 copies ofthe complete application should be sentto: U.S. Information Agency, Ref.: E/AAS–98–10, Office of GrantsManagement, E/XE, Room 326, 301 4thStreet, S.W., Washington, D.C. 20547.

Applicants must also submit the‘‘Executive Summary’’ and ‘‘ProposalNarrative’’ section of the proposal on a3.5 inch diskette formatted for DOS.This material must be provided in asciitext (DOS) format with a maximum linelength of 65 characters.

Diversity, Freedom and DemocracyGuidelines: Pursuant to the Bureau’sauthorizing legislation, programs mustmaintain a non-political character andshould be balanced and representativeof the diversity of American political,social, and cultural life. Diversity shouldbe interpreted in the broadest sense andencompass differences including, butnot limited to ethnicity, race, gender,religion, geographic location, socio-economic status, and physicalchallenges. Applicants are stronglyencouraged to adhere to theadvancement of this principle both inprogram administration and in programcontent. Please refer to the reviewcriteria under the ‘‘Support forDiversity’’ section for specificsuggestions on incorporating diversityinto the total proposal. Pub. L. 104–319provides that ‘‘in carrying out programsof educational and cultural exchange incountries whose people do not fullyenjoy freedom and democracy,’’ USIA‘‘shall take appropriate steps to provideopportunities for participation in suchprograms to human rights anddemocracy leaders of such countries.’’Proposals should account foradvancement of this goal in theirprogram contents, to the full extentdeemed feasible.


Overview

The Summer Institute for the Study ofthe U.S. for Foreign Secondary SchoolTeachers and Teacher Trainers aims toprovide a deeper understanding of U.S.civilization among foreign educatorswho are concerned professionally withteaching about the United States. It isfurther intended to encourage andsupport their efforts to improve thequality of teaching, textbooks, andcurricular materials about the UnitedStates at secondary schools and teachertraining institutions abroad.

The program should offer participantsa specially-designed series of lecutures,presentations, discussions, site visits,and curricular research opportunities.All activities should be related to acentral theme in U.S. civilization, andthe program as a whole should examinevarious aspects of U.S. society, culture,values and institutions, past andpresent, providing a good overview forparticipants.

The program should be six weeks inlength, including a residency segment ata U.S. college or university campus (aminimum of four weeks in length), anda study tour segment (a maximum oftwo weeks in length) to up to threeadditional regions of the U.S., includinga visit to Washington, D.C. at theconclusion of the program.

Institute Objectives—to present an intensive, academically

stimulating program that presents amulti-dimensional view of the UnitedStates through an integrated series oflectures, readings, interactivediscussions, individual research andstudy opportunities, and site visits.

—to draw from a variety of academicdisciplines in order to deepen theparticipants’ understanding of theunity, diversity, and complexity ofU.S. society, culture, and institutions.Major issues, debates, and conflicts inU.S. society, past and present,including their origins and the rolethey have played in the developmentof U.S. civilization, should also beexamined.

—to enhance teaching about the U.S. inforeign secondary schools and teachertraining institutions by makingappropriate scholarly resources,pedagogical materials and ideasavailable to participants. Participantsshould return home with an ability tocommunicate a deeper and moreinformed view of the U.S. to studentsand colleagues.

Program DatesTentative program dates are June 20

through July 31, 1998. Participantswould arrive on June 19 and departAugust 1. USIA will make every effortto award the grant by March 1, 1998.

ParticipantsThe program should be designed for

a total of 30 highly-motivated foreignsecondary school teacher trainers,textbook writers, curriculumdevelopers, education ministry officialsand classroom teachers, whoseprofessional assignments requiresignificant knowledge of U.S.civilization, and who have broadresponsibility for curriculum design andimprovement. Participants will beinvolved in the teaching of Englishlanguage, American literature, U.S.government, history, geography, socialstudies, or other courses that includeU.S. studies content. Participants willbe drawn from all regions of the world,and will be fluent in the Englishlanguage.

Participants will be nominated byFulbright Commissions abroad, and


selected by the staff of USIA’s Branch ofthe Study of the United States inWashington, D.C. USIA and theCommissions will cover allinternational travel costs directly.

GuidelinesThe conception, design, structure,

and, ultimately, the content of theinstitute program is entirely theresponsibility of the organizers.However, given the many possibleapproaches to a program on U.S.civilization, organizers are expected tosubmit proposals that articulate inconcrete detail how they intend toorganize and implement the institute.

Consistent with the institute’s overallthematic organization, the programshould engage the constituentdisciplines that make up Americanstudies (e.g., literature, history, politicalscience, economics, geography,sociology, etc.) as vehicles for helpingforeign educators understand, teach,and write about the United States.

The selected grant organizations willbe responsible for most arrangementsassociated with this program. Thisincludes the organization andimplementation of all presentations andprogram activities, arrangement of alldomestic travel, provision ofappropriate lodging, subsistence, andground transportation for participants,orientation and briefing of participants,preparation of any necessary supportmaterials (including a pre-programmailing to participants), and workingwith program presenters to achievemaximum program coordination andeffectiveness.

Please refer to the Solicitation Package forfurther details on program design andimplementation, as well as additionalinformation on all other requirements.

Proposed BudgetUnless special circumstances warrant,

based on a group of 30 participants, thetotal USIA-funded budget (program andadministrative) should not exceed$236,000, and USIA-fundedadministrative costs as defined in thebudget details section of the solicitationpackage should not exceed $56,000.Justification for any costs above theseamounts must be clearly indicated inthe proposal submission. Any grantsawarded to eligible organizations willless than four years of experience inconducting international exchangeprograms will be limited to $60,000.Applicant proposals should try tomaximize cost-sharing in all facets ofthe program and to stimulate U.S.private sector, including foundation andcorporate, support. Applicants mustsubmit a comprehensive line item

budget for the entire program, based onthe specific guidance provided in theSolicitation Package. The Agencyreserves the right to reduce, revise, orincrease proposal budgets in accordancewith the needs of the program, andavailability of U.S. Government funding.

Please refer to the ‘‘POGI’’ in theSolicitation Package for complete budgetguidelines and formatting instructions for theinstitute program.

Review ProcessUSIA will acknowledge receipt of all

proposals and will review them fortechnical eligibility. Proposals will bedeemed ineligible if they do not fullyadhere to the guidelines stated hereinand in the Solicitation Package. Eligibleproposals will be forwarded to panels ofUSIA officers for advisory review. Alleligible proposals will also be reviewedby the program office, as well as theUSIA Georgraphic Area Offices.Proposals may also be reviewed by theOffice of the General Counsel or byother Agency elements. Fundingdecisions are at the discretion of theUSIA Associate Director for Educationaland Cultural Affairs. Final technicalauthority for assistance awards (grantsor cooperative agreements) resides withthe USIA grants officer.

Review CriteriaTechnically eligible applications will

be competitively reviewed according tothe criteria stated below. These criteriaare not rank ordered, and all carry equalweight in the proposal evaluation:

1. Overall Quality: Proposals shouldexhibit originality and substance,consonant with the highest standards ofAmerican teaching and scholarship.Program should reflect an overall designwhose various elements are coherentlyand thoughtfully integrated. Lectures,panels, field visits and readings, takenas a whole, should offer a balancedpresentation of issues, reflecting boththe continuity of the Americanexperience as well as the diversity anddynamism inherent in it.

2. Program Planning: Proposalsshould demonstrate careful and detailedplanning. The organization andstructure of the Institute should beclearly delineated and be fullyresponsive to all program objectives.The travel component should notsimply be a tour, but should be anintegral and substantive part of theprogram, reinforcing andcomplementing the academic segment.

3. Institutional Capacity: Proposedpersonnel, including faculty andadministrative staff as well as outsidepresenters, should be fully qualified toachieve the project’s goals. Library and

media resources should be accessible toparticipants; housing, transportationand other logistical arrangementsshould be fully adequate to the needs ofparticipants and should be conducive toa collegial atmosphere.

4. Diversity: Proposals shoulddemonstrate the recipient’s commitmentto promoting the awareness andunderstanding of diversity throughoutthe program. This can be accomplishedthrough documentation, such as awritten statement, summarizing pastand/or on-going activities and effortsthat further the principle of diversitywithin the organization and itsactivities. Program activities thataddress this issue should behighlighted.

5. Experience: The proposal shoulddemonstrate an institutional record ofsuccessful exchange program activity,indicating the experience that theorganization and its professional staffhave had in working with foreigneducators.

6. Evaluation and Follow-up: Theproposal should include a plan forevaluating activities during the Instituteand at its conclusion. Proposals shoulddetail the provisions made for follow-upwith returned grantees as a means ofestablishing longer-term individual andinstitutional linkages.

7. Administration and Management:The proposals should indicate evidenceof continuous on-site administrative andmanagerial capacity as well as themeans by which program activities willbe implemented.

8. Cost Effectiveness: The proposalsshould maximize cost-sharing throughdirect institutional contributions, in-kind support, and other private sectorsupport. Overhead and administrativecomponents of the proposal, includingsalaries and honoraria, should be keptas low as possible.

Notice

The terms and conditions publishedin this RFP are binding and may not bemodified by an USIA representative.Explanatory information provided bythe Agency that contradicts publishedlanguage will not be binding. Issuanceof the RFP does not constitute an awardcommitment on the part of theGovernment. The Agency reserves theright to reduce, revise, or increaseproposal budgets in accordance with theneeds of the program and theavailability of funding. Final awardscannot be made until funds have beenappropriated by Congress, allocated andcommitted through internal USIAprocedures.


Notification

Final awards cannot be made untilfunds have been appropriated byCongress, and allocated and committedthrough internal USIA procedures.

Dated: October 31, 1997.Robert L. Earle,Deputy Associate Director for Educationaland Cultural Affairs.[FR Doc. 97–29373 Filed 11–5–97; 8:45 am]BILLING CODE 8230–01–M

DEPARTMENT OF VETERANSAFFAIRS

[OMB Control No. 2900–0396]

Proposed Information CollectionActivity: Proposed Collection;Comment Request; Extension

AGENCY: Veterans BenefitsAdministration, Department of VeteransAffairs.ACTION: Notice.

SUMMARY: The Veterans BenefitsAdministration (VBA) is announcing anopportunity for public comment on theproposed collection of certaininformation by the agency. Under thePaperwork Reduction Act (PRA) of1995, Federal agencies are required topublish notice in the Federal Registerconcerning each proposed collection ofinformation, including each proposedextension of a currently approvedcollection, and allow 60 days for publiccomment in response to the notice. Thisnotice solicits comments on certificationof training under the Service MembersOccupational Conversion and TrainingAct.DATES: Written comments andrecommendations on the proposed

collection of information should bereceived on or before January 5, 1998.ADDRESSES: Submit written commentson the collection of information toNancy J. Kessinger, Veterans BenefitsAdministration (20S52), Department ofVeterans Affairs, 810 Vermont Avenue,NW, Washington, DC 20420. Please referto ‘‘OMB Control No. 2900–0396’’ inany correspondence.FOR FURTHER INFORMATION CONTACT:Nancy J. Kessinger at (202) 273–8310 orFAX (202) 273–5981.SUPPLEMENTARY INFORMATION: Under thePRA of 1995 (Public Law 104–13; 44U.S.C., 3501–3520), Federal agenciesmust obtain approval from the Office ofManagement and Budget (OMB) for eachcollection of information they conductor sponsor. This request for comment isbeing made pursuant to Section3506(c)(2)(A) of the PRA.

With respect to the followingcollection of information, VBA invitescomments on: (1) whether the proposedcollection of information is necessaryfor the proper performance of VBA’sfunctions, including whether theinformation will have practical utility;(2) the accuracy of VBA’s estimate of theburden of the proposed collection ofinformation; (3) ways to enhance thequality, utility, and clarity of theinformation to be collected; and (4)ways to minimize the burden of thecollection of information onrespondents, including through the useof automated collection techniques orthe use of other forms of informationtechnology.

Title and Form Number: Certificationof Training (Under the Service MembersOccupational Conversion and TrainingAct), VA Form 22–8929.

OMB Control Number: 2900–0396.Type of Review: Reinstatement,

without change, of a previously

approved collection for which approvalhas expired.

Abstract: Public Law 102–484established the Service MembersOccupational Conversion and TrainingAct (SMOCTA). Section 4467 requiresmonthly or quarterly certification oftraining under SMOCTA. An employeruses VA Form 22–8929 to advise VA of:(1) the number of hours a veteran hasworked in an approved program duringeach month; (2) the amount and date ofpayment the employer has made to theveteran for the purchase of any toolsand work-related equipment; and (3) thetraining status of the veteran (e.g.,currently training, satisfactorilycompleted training, quit, laid off, etc.).Continued use of VA Form 22–8829 isnecessary to authorize reimbursement toan employer.

Affected Public: Business or other for-profit, Individuals or households, State,Local or Tribal Government, and Not-for-profit institutions.

Estimated Annual Burden: 500 hours.Estimated Average Burden Per

Respondent: 30 minutes per application.Estimated Annual Recordkeeping

Burden: 85 hours.Estimated Average Burden Per

Recordkeeper: 1 hour.Frequency of Response: Monthly or

Quarterly.Estimated Number of Respondents:

1,000.Estimated Number of Recordkeepers:

85.Dated: October 27, 1997.By direction of the Secretary.

Donald L. Neilson,Director, Information Management Service.[FR Doc. 97–29310 Filed 11–5–97; 8:45 am]BILLING CODE 8320–01–M

This section of the FEDERAL REGISTERcontains editorial corrections of previouslypublished Presidential, Rule, Proposed Rule,and Notice documents. These corrections areprepared by the Office of the FederalRegister. Agency prepared corrections areissued as signed documents and appear inthe appropriate document categorieselsewhere in the issue.

Corrections Federal Register

60122

Vol. 62, No. 215



Immigration and Naturalization Service

8 CFR Parts 213a and 299

[INS No. 1807–96]

RIN 1115–AE58

Affidavits of Support on Behalf ofImmigrants

CorrectionIn rule document 97–27605,

beginning on page 54346, in the issue ofMonday, October 20, 1997, make thefollowing corrections:

1. On page 54348, in the thirdcolumn, in the third line, ‘‘obliagion’’should read ‘‘obligation’’.

§ 213a.2 [Corrected]2. On page 54353, in § 213a.2, in the

third column, the paragraph designation‘‘(C)(1)’’ should read ‘‘(C)(1)’’.

3. On page 54354, in § 213a.2, in thefirst column, the paragraph designation‘‘(2)’’ should read ‘‘(2)’’.

4. On the same page, in the secondcolumn, in § 213a.2, in the third fullparagraph, ‘‘B.’’ should read ‘‘(B)’’.

5. On page 54356, in the first column,in the signature line, ‘‘Immigrant’’,should read ‘‘Immigration’’.BILLING CODE 1505-01-D


Immigration and Naturalization Service

8 CFR Part 214

[INS 1427-93]

RIN 1115-AC51

Nonimmigrant Classes; Treaty Aliens;E Classification

Correction

In rule document 97–22314,beginning on page 48138, in the issue ofFriday, September 12, 1997, make thefollowing correction:

§ 214.2 [Corrected]

On page 48146, in the second column,in § 214.2(e)(4), in the last line,‘‘101(a)(15)(e)’’ should read‘‘101(a)(15)(E)’’.BILLING CODE 1505-01-D


Coast Guard

46 CFR Parts 10 and 15

[CGD 94-055]

RIN 2115-AF23

Licensing and Manning for Officers ofTowing Vessels

Correction

In proposed rule document 97–28409beginning on page 55548 in the issue ofMonday, October 27, 1997 make thefollowing corrections:

(1) On page 55548, in the thirdcolumn:

(a) Under the heading SUMMARY, in thenext to the last line ‘‘the’’ should read‘‘and’’.

(b) Under the same heading, in thelast line ‘‘requirement’’ should read‘‘requirements’’.

(c) Under the heading ADDRESSES, inthe second paragraph, in the fourth line‘‘the’’ should read ‘‘this’’.

(2) On page 55549, in the firstcolumn:

(a) Under the heading Request forComments, in the third paragraph, inthe ninth line ‘‘late’’ should read‘‘later’’.

(b) In the next to the last line‘‘improvement’’ should read‘‘improvements’’.

(3) On the same page, in the secondcolumn, in the fourth full paragraph, inthe third line ‘‘matters’’ should read‘‘mariners’’.

(4) On page 55552, in the firstcolumn, under the heading 12.TitleTerminology, eight lines from thebottom ‘‘mater’’ should read ‘‘mate’’.

(5) On the same page, in the thirdcolumn, in the fourth line ‘‘two’’ shouldread ‘‘tow’’.

(6) On page 55556, in the firstcolumn, in the fourth line ‘‘2.B2.e (34)’’should read ‘‘2.B.2.e.(34)(c)’’.BILLING CODE 1505-01-D

fede

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egiste

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60123

ThursdayNovember 6, 1997

Part II

Department ofHousing and UrbanDevelopment24 CFR Parts 203 and 206Single Family Mortgage Insurance—LossMitigation Procedures; Final Rule


DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT

24 CFR Parts 203 and 206

[Docket No. FR–4032–F–04]

RIN 2502–AG72

Single Family Mortgage Insurance—Loss Mitigation Procedures

AGENCY: Office of the AssistantSecretary for Housing—Federal HousingCommissioner, HUD.ACTION: Final rule.

SUMMARY: This rule implements as finalan interim rule that amends 24 CFR part203 to eliminate the MortgageAssignment Program and to provide thatHUD may: Recompense mortgagees forusing mortgage foreclosure alternatives,such as special forbearance, loanmodifications, and deeds in lieu offoreclosure; pay the mortgagee a partialclaim which would be applied to thearrearage of a defaulted mortgage; andaccept assignment of a mortgage whichthe mortgagee has modified to cure thedefault.EFFECTIVE DATE: February 1, 1998.FOR FURTHER INFORMATION CONTACT:Joseph McCloskey, Director, SingleFamily Servicing Division, Room 9178,Department of Housing and UrbanDevelopment, 451 7th Street, SW.,Washington, DC 20410, (202) 708–1672,or, TTY for hearing and speechimpaired, (202) 708–4594. (These arenot toll-free numbers.)


I. Paperwork Reduction Act Statement

This rule’s information collectionrequirements have been submitted forapproval to the Office of Managementand Budget under the PaperworkReduction Act of 1995 (44 U.S.C. 3501–3520). An OMB control number, whenassigned, will be published in theFederal Register. An agency may notconduct or sponsor, and a person is notrequired to respond to, a collection ofinformation unless the collectiondisplays a valid control number.

II. Background

On July 3, 1996 (61 FR 35014) theDepartment published an interim rule toimplement loss mitigation proceduresunder section 407 of The BalancedBudget Downpayment Act, I (Pub. L.104–99, approved January 26, 1996)(Downpayment Act). Public commentson the interim rule were invited for aperiod of 60 days, until September 3,1996. Delayed implementation dates ofMarch 1, 1997, were included for

provisions in two sections of the interimrule (24 CFR 203.355(a) and 203.402(f))so that the Department would be able toconsider any public comments on theseprovisions before making them effectivein a final rule. The March 1, 1997implementation date for these sectionswas suspended until the issuance of afinal rule by an amendment publishedon March 5, 1997 (62 FR 9930). OnNovember 12, 1996, HUD issuedMortgagee Letter 96–61. This letterprovides information regarding changesto special forbearance, mortgagemodification, pre-foreclosure salesprocedures and deeds-in-lieu offoreclosure, and introduces the use ofpartial claims, measurement of lenderperformance and provisions forincentive payments andreimbursements. Included asattachments to the mortgagee letter area checklist of eligibility criteria for eachof the loss mitigation procedures andinstructions required to file a claim.HUD also issued Mortgagee Letter 97–17, May 1, 1997, regarding lossmitigation clarification of procedures,and Mortgagee Letter 97–21, May 16,1997, regarding Performance Scores.

III. Changes in the Final RuleA number of changes from the interim

rule are made in this final rule. They aredescribed briefly below in this section,and more fully in section IV. of thispreamble, in the discussion of thepublic comments received on theinterim rule.—The final rule has added a new

§ 203.341 to explicitly state thatmortgage insurance remains in forceafter payment of a partial claim.

—The titles of §§ 203.342 and 203.616are changed from ‘‘Recasting ofmortgage’’ to ‘‘Mortgagemodifications.’’

—HUD has amended the final rule at§ 203.355(a) to clarify that the lossmitigation provisions may be used incombination.

—HUD has rewritten § 203.355(g), (h)and (i) to provide 90 days for thelender to try another loss mitigationtool or to proceed to foreclosure afterthe failure of any loss mitigation tool.

—The effective dates of the foreclosuretiming and cost reimbursementprovisions in §§ 203.355 and 203.402,respectively, are changed to February1, 1998.

—To be consistent with the otherparagraphs under § 203.371(b), thereference to ‘‘The mortgage’’ inparagraph (b)(1) is changed to read‘‘the mortgagor’’. The reference inparagraph (b)(5) to ‘‘financially able’’is clarified to ‘‘financially qualified’’to reflect more accurately instances in

which a mortgagor may have thefunds but not the equity to support amodification.

—The words ‘‘accumulated during theforbearance period’’ are deleted from§ 203.414(a) to more accurately reflectthe authorizing statute and avoid apotential technical limit on theamount recoverable under a partialclaim.

—Section 203.552 is also clarified toprovide that mortgagees may collectfees from mortgagors to the extent notreimbursed by HUD.

IV. Response to Public CommentsThirteen comments were received in

response to the July 3, 1996 interimrule. Four of the comments were frommortgagees; four were from publicinterest groups; two were from Statehousing finance agencies; two werefrom individuals; and one was from anindustry association. HUD has reviewedthe comments received in response tothe interim rule and decided that somechanges should be made in the finalrule. The following discussionaddresses the changes or additions tothe rule and the administrativeissuances, in response to the publiccomments received on the LossMitigation (‘‘LM’’) interim rule. Thediscussion is organized by the section ofthe interim rule that is beingcommented on, with specific subjectheadings under each rule section, aswarranted.

Section 203.342 Recasting of Mortgage

One comment observed the rule doesnot define, here and in § 203.471,‘‘circumstances beyond the control.’’

Response: Please note the response tothis comment in the discussion under§ 203.471, below.

Section 203.350 Assignment ofMortgage

Assignment Program Grace Period.Two comments stated a grace periodneeds to be implemented between thetermination of the Assignment Programon April 26, 1996, and theimplementation of alternativeprocedures.

Response: The statute establishedApril 26, 1996 as the ending date for theAssignment Program and provided forprocessing of applications submittedbefore that date. HUD continues toprocess all assignment applicationsreceived prior to April 26, 1996.

Assignment of modified mortgage.One comment stated HUD shouldpositively commit to acceptingassignment of a mortgage uponfulfillment of the requirements of§ 203.350.


Response: The statement that HUD‘‘may’’ accept an assignment inparagraph (a) of this section repeats thestatutory language, which establishesthe circumstances under which HUD ispermitted to accept the assignment of amortgage. Since HUD has worked withGNMA to change the repoolingrequirements (see Mortgagee Letter 96–32, June 28, 1996) HUD foresees nooccasion when a mortgage will not beable to be repooled or when assignmentto HUD will be necessary. Nevertheless,the authority to accept assignments inrare and unforeseen circumstancesremains available.

Section 203.355 Acquisition of PropertyLender’s Final Determination and

Needs of Mortgagors. One commentstated that the over-arching flaw of thesealternatives is that their use is leftentirely to the discretion of lenders.Another comment argued that lenderswho hold HUD-insured mortgages haveno significant incentives to work withhomeowners to avoid foreclosure, andthey do not do so. This comment wenton to say the regulations fall short indesigning a reasonable response to theneeds of low-income homeowners forforeclosure prevention and relief.

Response: Under the Loss Mitigationprogram the lender will have the finaldetermination on the use of LMmeasures and will have incentives to tryto use them where appropriate. Unlikethe Assignment Program, none of theseLM measures is an entitlement, and thusthe lender has more discretion withregard to administering these measures.Lenders must use their judgement indeciding which LM measure isappropriate for a particular mortgagor.The language that the interim rule addsto § 203.501 and Mortgagee Letter 96–61provides a process through which aborrower’s eligibility for loss mitigationis determined. The statute provides thatthe lender will be given the discretionto decide which LM measures will beused in a particular case.

FHA programs are meant to be self-sustaining, and an essential element ofthese loss mitigation measures is thatthey must decrease the insurance funds’prospective losses (or at least notincrease the funds’ prospective losses).Thus, HUD must balance the needs ofmortgagors with the need to mitigatelosses to the mortgage insurance funds.These measures are designed formortgagors who prospectively canrecover from their financial difficulties.If the mortgagor has not recoveredfinancially within 18 months, HUDanalysis and experience indicate thatthe prospects for recovery are poor. Tworeasons for a cap on the term of

forbearance are to limit the level oflosses to the insurance fund and toprevent borrowers from getting toodeeply into arrears.

Training Lenders and HousingCounseling Agencies in LM Program.One comment noted that without bettertraining programs, manuals, andinstructions, coupled with meaningfulFHA oversight, the benefits of thesealternatives will not be realized byeither HUD or homeowners. Anothercomment strongly recommended that,with HUD implementing these changes,more training be provided to HousingCounselors across the country.

Response: HUD will promotemortgagee participation in LM, andprovide training to lenders and monitortheir performance. HUD has alreadyprovided Loss Mitigation training tosome lenders and housing counselingagencies and will provide additionaltraining in the near future.

Shorter Foreclosure Initiation Period.Three comments supported thereduction of the foreclosure initiationperiod from nine to six months asrealistic and consistent withconventional loan servicing procedures.One of these comments was pleased thatthe implementation of the reducedperiod was delayed in the interim rule.Three other comments opposedreducing the time frame of foreclosureto six months as too short to allowmortgagors to work out plans withmortgagees and resolve circumstances.

One comment argued the requirementin § 203.355(h) to initiate foreclosurewithin 90 days of a borrower’s failure tomeet the terms of a special forbearanceagreement is not a sufficient timeperiod, given that mortgagees may notproceed with foreclosure until aborrower’s failure has continued for 60days. Sixty days from the 60-day failure,a total of 120 days, would be moreworkable. Another comment on thissection recommended § 203.355(h)should clarify that foreclosure must beinitiated within the time period ofparagraph (a)—nine or six months fromthe date of default—or within 90 (or120) after the borrower’s failure to meetthe special forbearance requirements,whichever is later.

Response: HUD considers the six-month period for initiating foreclosureto be adequate. The industry standard isfour months. If HUD continues to use anine-month period, the Department willincur additional expense. Also, thelonger foreclosure is delayed, the lesslikely it is that a mortgage will be cured.The final rule is being amended byadding a new paragraph (i) at § 203.355to clarify that if a lender enters into aloss mitigation relief measure and it

fails, the six-month requirement isextended by an additional ninety daysto allow the lender to try another lossmitigation tool or go to foreclosure. It isalso to be expected that if after sixmonths no loss mitigation measure isworkable, then foreclosure is inevitable.

HUD believes that the ‘‘window’’ forinitiating foreclosure provides thelender with adequate time in specialforbearance cases. The lenderdetermines when LM fails or no otherLM tool is applicable. In each instance,the lender must initiate foreclosurewithin 90 days. There is no need toexpand this 90-day deadline in the rule,since the lender is able, in any casewhere additional time would facilitatemitigating loss, to request an extensionfrom HUD.

Simultaneously Considering LM andPursuing Foreclosure. The preamble tothe interim rule states that HUD will‘‘generally’’ permit mortgageessimultaneously to consider lossmitigation actions and to proceed withforeclosure to meet the new six-monthtime period. One comment requestedHUD to clarify its use of the term‘‘generally,’’ because mortgagees need tounderstand the specific circumstancesunder which HUD would find itappropriate and acceptable to stop ordelay foreclosure for mortgagors whoare actively negotiating or paying undera loss mitigation plan.

Response: The final rule at § 203.355has clarified that lenders may use lossmitigation tools and take foreclosureaction in combination. The prospect offoreclosure is an effective incentive toborrowers in negotiating workouts andthe rule is intended to allow flexibilityin this interrelationship. As stated in thepreamble to the interim rule (at 61 FR35015, column 2 and 3), HUD believesthat early intervention—before sixmonths of delinquent payments—isnecessary for effective LM, and thelender may make timely preparationsfor initiation of foreclosure whilepursuing LM actions. In addition, on acase-by-case basis, the lender mayrequest an extension to the 6-monthdeadline from the field office.

HUD has rewritten § 203.355(g) and(h) to provide 90 days to try another lossmitigation tool or to proceed toforeclosure after the failure of any lossmitigation tool.

Using LM tools in combination. Onecomment requested that the regulationbe explicit in informing lenders andhomeowners that the loss mitigationtools may be used singly or incombination. Although the preambleexplains that the servicing actions orstrategies may be used in combination,§ 203.355(a) implies just the opposite by


saying that ‘‘the mortgagee shall takeone of the following actions within[nine or] six months of the date ofdefault . . .’’

Response: The LM provisions may beused in combination and HUD hasamended the final rule at § 203.355(a)accordingly. This is discussed on page2 of Mortgagee Letter 96–61, where HUDsays that the LM strategies ‘‘may be usedsingly or in combination, as required ona case-by-case basis.’’ In accordancewith the explicit legislative intent, HUDwill defer to the discretion of the lenderin applying loss mitigation measures.

Section 203.371 Partial claimPartial Claim and Special

Forbearance. One comment asked if theforbearance agreement at § 203.371(a)must meet the requirements of a‘‘special’’ forbearance agreement.

Response: The forbearance discussedin § 203.371(a) need not be ‘‘specialforbearance’’ under § 203.471 to qualifyfor a partial claim.

Special Forbearance Period of 18Months. One comment argued theplanned 18 month limit on specialforbearance is an arbitrary period oftime and is too short. HUD has put allauthority to provide assistance in thehands of the mortgagee. Only if themortgagee decides to provide specialforbearance (which HUD intends tolimit to 18 months), and the homeowneris then able to make full mortgagepayments, will HUD provide a partialclaim to the mortgagee at the end of thespecial forbearance period.

Response: HUD has determined thatan 18-month period for specialforbearance is sufficient to allow themortgagor to recover financially. Inaddition, this limit is reasonable in viewof the statutory limit (amended § 230(a)of the National Housing Act, 12 U.S.C.1715u(a)) that partial claims may notexceed 12 monthly mortgage payments(PITI) and any costs related to defaultthat are approved by HUD.

Partial Claim Filing. A commentasked if the mortgagee may choosewhen to file a partial claim under§ 203.371(b)(1) after the mandateddefault period has passed.

Response: Mortgagee Letter 96–61, inthe claims instructions for partialclaims, specifies the window of time forfiling the claim, namely, between thetime the subordinate lien to HUD hasbeen executed and 60 days after it hasbeen recorded.

Repooling Modified Loans. Onecomment stated the rule does notindicate whether GNMA or non-GNMAinvestors have approved or consideredthe requirement that to file a partialclaim, the mortgagor must not be able to

support monthly mortgage payments fora modified loan in which the totalarrearage is included. If investorsprohibit loan modification undercircumstances in which the rulerequires such activity, servicers couldbe caught in the middle. HUD shouldestablish underwriting criteria foreligibility of mortgagors for theproposed loan modification program.Another comment asked if HUD willprovide definitive guidelines for makingdeterminations of a borrower’s financialcapacity under § 203.371(b) (4) and (5)to refinance or support a modifiedmortgage.

Response: HUD has worked out anunderstanding with GNMA for revisedpooling requirements to assurerepooling and minimize this problem.HUD expects that in almost all cases,mortgage modifications can be effectedin such a way as to be repoolable, thatis, at an interest rate and with a newterm (e.g., 360 months) that will meetGNMA pooling requirements.Nevertheless, in the limitedcircumstances where a modifiedmortgage cannot be repooled, HUD willestablish criteria for accepting amodified mortgage for assignment, andprovide guidance in a future MortgageeLetter.

Servicing the HUD-held SecondMortgage. Three commentsrecommended the rule should state thata mortgagee is entitled to a fee forservicing when HUD accepts assignmentand requires a mortgagee to continueservicing the loan under § 203.371(d).One of these comments argued thatgiven the low balances, a percentagebased servicing fee would not besufficient. Another comment stated thevast majority of mortgagees are notexperienced in servicing ‘‘soft seconds,’’the subordinate lien arising frompayment of a partial claim, and mostcomputer systems are not programmedto handle such unique debt instruments.This comment recommended that HUDsolicit a limited number of servicers toservice the subordinate liens on behalfof HUD. On a related issue, onecomment recommended that theguidelines should make clear that thesubordinate mortgage may call forrepayment of the partial claim amountat a future date or at the time of transferof property or payoff of the insuredmortgage. HUD should also specify thatsubordinate mortgages will be at zeropercent interest.

Response: HUD intends to continue toreserve the right to require lenders toservice second mortgages executed inconnection with partial claims.However, as noted in Mortgagee Letter96–61, since the subordinate mortgage

carries no interest or monthly paymentsand is due only when the first mortgageis paid in full, foreclosed, or when theborrower no longer occupies theproperty, HUD has decided to hold andservice these mortgages at this time.

Mortgagee Advances—Reimbursement in the settlement of thePartial Claim. One comment asked if apartial claim payment will includemortgagee advances on behalf of theborrower.

Response: Mortgagees will bereimbursed, in accordance withMortgagee Letter 96–61 instructions forItem 107 in the claims instructions fora Partial Claim. Item 107 provides forreimbursement of the total arrearage thataccumulated during the forbearanceperiod, including PITI and necessaryadvances for assessments, but excludinglate fees and foreclosure costs.

Loan Insurance After a Partial Claim.One comment stated the rule shouldclarify that if a default occurs afterpayment of a partial claim, the fullamount of remaining principal,advances and accrued debentureinterest with applicable costs is payablein a subsequent foreclosure andconveyance claim.

Response: After a partial claim, theremaining loan remains insured. Thefinal rule has added a new § 203.341 toexplicitly state that mortgage insuranceremains in force after payment of apartial claim, as is already done inexisting LM actions such as specialforbearance and loan modification.

Using the Partial Claim Procedure toErase Excess of Debt Over CurrentMarket Value. One comment suggestedHUD might consider using the partialclaim process to pay out insurancecoverage on any gap between the loanbalance and the market value. Thiswould pay down the debt to a marketvalue, make the lender whole, and allowthe mortgage payments to be reduced toa lower amount on the net balance ofthe remaining rate and term.

Response: FHA mortgages, even whenLM is to be considered, are not meantto be ‘‘shared-depreciation mortgages.’’While the Pre-Foreclosure Saleprocedure accomplishes somethingsimilar to this (although the mortgagornecessarily loses the property), thenegative equity position is not anappropriate reason for using the PartialClaims procedure. The mortgagorremains liable for the full amount of thedebt even if there is negative equity, justas the mortgagor would benefit if theproperty were to appreciate in value.


Section 203.402 Items Included inPayment

Tying Reimbursement to LM SuccessRates. A number of comments statedthey were opposed to the change thatwould permit HUD to vary thepercentage of foreclosure andacquisition expenses through anadministrative issuance rather thanthrough the rulemaking process. Settingthe reimbursement levels for these costsis important enough to be addressedthrough a notice and commentrulemaking process rather thanadministrative issuance. One commentsuggested that the rule should specify alevel of reimbursement (e.g., up to 100percent and not less than 50 percent) forforeclosure costs or costs of acquiringthe property, rather than state that thepercentage reimbursed will bedetermined by HUD. Another commentargued HUD should not tie thereimbursement of foreclosure fees andcosts to loss mitigation performance,because loss mitigation success isinfluenced by a number of factors, suchas the age of the portfolio, geography,and whether the loan was acquired, thatare independent of mortgagee efforts.The level of reimbursement should takeinto consideration the percentage of lossmitigation cures versus the percentageof foreclosures, reinstatements,servicing acquisitions and peerperformance. HUD should work withthe mortgage industry to develop a fairand equitable performance model.Another comment also questioned theability to develop a fair and equitablecalculation methodology that wouldaccurately measure mortgageeperformance without incorporatingfactors over which mortgagees havelittle or no control. The commentconcluded that even the best of lossmitigators cannot overcome originationand underwriting deficiencies.

Response: In the interim rule, HUDspecifically requested public commentand provided for a delayedimplementation date to allow forconsideration of comments received forboth the foreclosure timing and costreimbursement provisions in §§ 203.355and 203.402, respectively. With theMarch 5, 1997 publication of thesuspension of these provisions, theywill not take effect until a minimum ofsixty days after publication of this finalrule in the Federal Register. The rulesatisfies the concerns expressed inrelation to reimbursement reductions,since the lowered rate of reimbursementfor foreclosure costs at § 203.402(f), willapply only to mortgages endorsed on orafter February 1, 1998. Lenders havehad an opportunity to comment on this

point, and these provisions are notgoing into effect without theopportunity for prior notice andcomment. The other changes to§ 203.402 do not constitute reductions.

HUD has undertaken an effort tostreamline its rules, and that policy isbeing followed in this rule. Minimizingthe detail put into the rule will giveHUD the flexibility to make appropriateamendments in a timely manner inresponse to the experience of lendersand HUD with LM procedures, and tovary the reimbursement for LMmeasures according to lenderperformance. HUD will address thereimbursement of foreclosure costs infuture mortgagee letters.

HUD’s ranking model was announcedin Mortgagee Letter 97–21, May 16,1997. In developing this model, HUDconsidered these comments, met withindustry representatives, and adoptedsome of the comments. As a result, HUDbelieves the model provides a fair basisfor ranking lenders.

HUD contends that LM has asignificant impact upon losses to FHAinsurance funds based on foreclosureavoidance. HUD has and will continueto work with industry to provideequitable performance measurements.HUD is creating an incentive for lendersto intervene early in the default cycle toaddress delinquencies.

Tying the foreclosure costreimbursement to lender performance ispart of the LM incentive structure. Notonly do lenders receive cash incentivesfor performing LM, but lenders mustaccept some risk, in the form ofabsorbing foreclosure costs, for their LMdecisions or failure to use LM tools.Mortgagee Letter 97–21, on page 2,provides that lenders in the top 25% ofeach of the performance groups (high,medium and low volume) will receive75% reimbursement of foreclosurecosts.

HUD believes that LM is a win-win-win proposition for borrowers, lendersand HUD. Borrowers get an opportunityto retain home ownership; lenders canbetter manage their inventory lossesthrough early default intervention; andHUD can better protect the insurancefunds to continue providing affordablehousing opportunities.

How Reimbursement for LM Will beMade. One comment stated the ruleneeds to clarify if HUD will reimbursefor loss mitigation efforts in the event amortgage insurance claim is filed orwhether a separate transaction drivenclaim process is envisioned.

Response: Mortgagee Letter 96–61 andthe claims instructions attachmentsexplain how the reimbursement isaccomplished. Generally, lenders may

submit a claim for each LM tool whenit is put in place. Should the loan go toforeclosure despite the lender’s LMefforts, the lender may file a claim forthe insurance benefits.

Mortgagee Monitoring by HUD. Onecomment recommended that inreimbursing mortgagees for foreclosureand acquisition costs, and in thepayment of partial claims, HUD shouldclosely monitor mortgagees to make surethey are making good faith efforts tobring accounts current before initiatingforeclosure on mortgagors.

Response: HUD realizes thatmortgagees will need to be monitoredon their implementation of LM, andHUD has allocated staff and modifiedautomated procedures to accomplishthis. HUD is monitoring lenders’performance and will take necessaryenforcement actions to assurecompliance with servicingrequirements.

Section 203.412 Payment forForeclosure Alternative Actions

Lender Incentives. One commentstated payment of insurance benefits forloss mitigation activities, if adequate,will provide a near-term benefit thatcould balance the cost of employing lossmitigation techniques. If HUD wishes toavoid the costs associated with defaultand foreclosures, it must be willing topay a reasonable amount to the lenderand the borrower.

Response: HUD believes that lenderswill have sufficient incentive to employLM measures. While thereimbursements and incentivesprovided by HUD may not bythemselves be decisive, lenders andservicers are in business to make moneyholding and servicing loans thatperform. To the extent that LM actionsresult in mortgagors’ retention of theirhomes, mortgagees retain their business.In addition, when a lender conveys aproperty to HUD, the lender, under thefinal rule, has to absorb one third ormore of the foreclosure costs and foregosubstantial interest revenue. Thus, if thelender refuses to consider lossmitigation, the lender will certainlylose. Mortgage insurance continues afterthe LM is undertaken, whethersuccessfully or not. The authorizingstatute is explicit in directing HUD togive the mortgagees latitude to exercisetheir discretion in deciding upon usingLoss Mitigation measures. The rulerequires mortgagees to review each casemonthly and determine which LM toolto utilize.

Fees (including attorney fees)Incurred in LM Actions. One commentsuggested that in addition toreimbursement for any title examination


and/or title insurance policyendorsement, mortgagees should bereimbursed for their legal costs incurredin connection with a mortgagemodification or recasting.

Response: The claims instructionsissued in Mortgagee Letter 96–61provide for payments to partially offset‘‘administrative fees’’ (Item 129 on theclaim) for special forbearance, loanmodification, deed in lieu and partialclaim to offset the lender’s costs andthereby provide an incentive toundertake LM measures. TheDepartment considers these feesadequate. In addition, HUD provides apayment for consideration to mortgagorsin pre-foreclosure sale and deed-in-lieucases.

Section 203.414 Amount of Payment—Partial Claims

Arrearage. Two commentsrecommended the rule should clarifythat arrearage includes principal,interest, late charges, taxes, and otherfees (inspection fees, attorney’s fees,bankruptcy and foreclosure fees,insufficient check fees, late charges)necessary to bring the loan current.

Response: Mortgagee Letter 96–61clarified ‘‘mortgage payment’’ to consistof PITI. The arrearage includes onlyPITI; no other costs are eligible forreimbursement under a partial claim,although the lender will also receive aflat administrative fee and will bereimbursed recordation costs.

Section 203.471 Special ForbearanceCircumstances Beyond the

Mortgagor’s Control. One commentobserved HUD has not defined, here andin § 203.342, ‘‘circumstances beyond thecontrol.’’ This leaves servicers open tobeing second-guessed.

Response: HUD does not intend tosecond-guess lenders who reasonablyprovide for the use of LM tools. HUDdefined ‘‘circumstances’’ in an objectivemanner in Mortgagee Letter 96–61 toaddress a broad audience ofhomeowners. The Letter indicates that‘‘Homeowners may be considered forspecial forbearance provided they haverecently experienced (1) an involuntaryreduction in income or an increase inliving expenses and (2) the lenderdetermines the borrower has areasonable ability to pay under theterms of the forbearance plan toeliminate the arrearage.’’

Non-hardship Forbearance. Onecomment claimed the concept ofpenalizing the lender by notreimbursing those forbearancedelinquencies which are not caused byhardship will stifle the incentive of thelenders to forbear.

Response: HUD’s loss mitigationprogram does not have a ‘‘hardship’’test. As noted immediately above, FHAhas broadened the basis for whenspecial forbearance and mortgagemodification may be considered asavailable loss mitigation tools. Thelender must now confirm that thehomeowner has experienced a loss ofincome or an increase of expenses toqualify for special forbearance.

Section 203.552 Fees and Chargesafter Endorsement

Elimination of Regulatory Control ofPost-endorsement Fees and Charges.One comment stated HUD needs to bemoving towards eliminating regulatorycontrol over post endorsement fees andcharges.

Response: The setting of postendorsement fees and charges by theDepartment provides consistency whereneeded and allows regional differenceswhere HUD deems appropriate.Releasing or withdrawing any oversightin setting those fees would lead to farmore disparate treatment of mortgagorsthan is done currently.

Section 203.605 Loss MitigationEvaluation

When the Mortgagor Does Not Qualifyor is Uncooperative. One commentrecommended no further evaluationsshould be necessary once adetermination is made that themortgagor does not qualify or isuncooperative. Another commentrequested that to help assure thatlenders are not at risk for allegations offair lending violations, HUD shouldestablish specific standards for actionsthat mortgagees should take todetermine a defaulted borrower’seligibility for loss mitigation measures.Such standards would address the issueof borrowers whose circumstanceswould qualify them for loss mitigation,but who do not seek out the mortgageefor such assistance.

Response: Mortgagee Letter 96–61 andthe checklists in Attachment A to theLetter describe the qualifications for LMand also state that LM should be usedwhere ‘‘appropriate.’’ After review andconsideration of all LM tools and all thefacts of the case, the lender can decideto decline to grant LM to anuncooperative mortgagor in accordancewith this general principle ofappropriateness.

Under the pre-foreclosure sale (PFS)procedure, the mortgagor’s good-faithefforts are required and monitored.Besides PFS, the cooperativeness of themortgagor would be relevant to specialforbearance, partial claim and loanmodification. Mortgagee Letter 96–61

requires that, in these cases, themortgagor should have ‘‘a commitmentto remain in’’ the home (see checklistsin Attachment A). The cooperativeparticipation of the borrower is implicitin this criterion.

Loss mitigation does not add newrequirements related to Fair Housing.HUD expects lenders will comply fullywith existing fair lending laws and willcontinue to ensure compliance withthose laws. The object of LM is to avoidforeclosure, and lenders must justify useor non-use of all LM tools andreevaluate monthly. In this respect,lenders are directed to HUD’s MortgageeLetter 96–61, page 3, and § 203.605 ofthis final rule.

Section 203.606 Pre-ForeclosureReview

Notice to the Mortgagor of theConsequences of Default. One commentstated that although the rule states therequired notification to the mortgagor ofdefault and the mortgagee’s intent toforeclose will be in ‘‘a format prescribedby the Secretary,’’ the industry wouldwelcome the opportunity to commenton the content of the notice. The noticeshould be firm in explaining theconsequences of inaction, while alsobeing informative and consumer-friendly to encourage communicationwith the mortgagee.

Response: HUD will seek commentsrelative to possible modifications ofmortgagor notification required by§ 203.606.

Use of HUD-approved HousingCounseling Agencies. One commentsuggested that the use of HousingCounseling Agencies should be a part ofall mortgagee letters to mortgagors whenrequesting payments and/orinformation. Another comment statedthat HUD should strongly recommendthat mortgagees provide donations tocounseling agencies in theircommunities.

Response: Regarding the use ofhousing counseling agencies, HUD’scurrent practice, in accordance with therequirements of § 203.602, is that thelender must send the mortgagor adelinquency notice (currently in theform of the ‘‘Avoiding foreclosure’’pamphlet) during the second month ofdelinquency (see Handbook 4330.1REV–5, Par. 7–7G and Appendix 19).This notice includes a recommendationto contact a HUD-approved housingcounseling agency.

Some lenders already sponsor or formpartnerships with counseling agencies.However, it would be inappropriate forHUD to recommend that mortgageesmake donations to counseling agencies.


Section 203.616 Recasting of Mortgage

Time for lenders to implement therecasting requirement. One commentnoted that mortgagees generally do nothave established procedures anddocuments for modifications andrecasting of insured loans. Mortgageeswill have to establish such proceduresafter reviewing detailed underwritingstandards yet to be set by HUD. March1, 1997, is too soon to implement therecasting requirement.

Response: HUD believes that with theissuance of Mortgagee Letter 96–61,November 12, 1996, and MortgageeLetter 97–17, May 1, 1997, the lendershave sufficient time to gear up for thisprocedure.

Scope of recasting. One commentnoted the regulation is currently writtenas if recasting the unpaid amount dueover the remaining term of the mortgageis the only option available. Languageshould be added to allow specificallyfor modification such as an interest ratereduction, or conversion from an ARMto a fixed rate mortgage. In addition, thecomment recommended the heading forthis section should read: Modifying/Recasting of mortgage.

Response: HUD acknowledges thepotential ambiguity of the rule languagepointed out by this comment and hasclarified the rule to indicate thatadjustments to both term and interestrate are permitted. There is noprohibition of reduction of interest rateor conversion from ARM to fixed. Inaddition, HUD is changing the titles of§§ 203.342 and 203.616 to ‘‘MortgageModifications.’’

Recasting Current Loans and Fair-lending Complaints. HUD shouldreconsider whether to provide forrecasting of a current loan, because ofthe small population of loans thatwould be served by this provision,which may, nonetheless, give rise tocomplaints based on fair housing orother grounds.

Response: The LM tools represent aspectrum of foreclosure-avoidancetechniques, not all of which can beapplied to particular buyers, but whichas a whole represent substantialopportunities for FHA borrowers tomaintain home ownership. As stated inthe response under § 203.605, above,loss mitigation does not add newrequirements related to Fair Housing;HUD expects lenders will comply fullywith existing fair lending laws and willcontinue to ensure compliance withthose laws.

V. Findings and Certifications

Environmental ImpactAt the time of publication of the

interim rule, a Finding of No SignificantImpact with respect to the environmentwas made in accordance with HUDregulations in 24 CFR part 50 thatimplement section 102(2)(C) of theNational Environmental Policy Act of1969 (42 U.S.C. 4332). The interim ruleis adopted by this final rule withoutsignificant change. Accordingly, theinitial Finding of No Significant Impactremains applicable, and is available forpublic inspection between 7:30 a.m. and5:30 p.m. weekdays in the office of theRules Docket Clerk at the above address.

Congressional Review of Major FinalRules

This rule is a ‘‘major rule’’ as definedin the Administrative Procedure Act (5U.S.C. 804(2)), and will be submitted tothe Congress for review in accordancewith the statutory procedure.

Regulatory Flexibility ActThe Secretary, in accordance with

provisions of the Regulatory FlexibilityAct (5 U.S.C. 605(b)), has reviewed thisrule before publication and byapproving it certifies that it will nothave a significant economic impact ona substantial number of small entities.Most of the economic impact of the rulewill affect the Department, which standsto benefit from the successfulimplementation of the loss mitigationtechniques addressed by the rule.

Executive Order 12612, FederalismHUD has determined, in accordance

with Executive Order 12612,Federalism, that this rule will not havea substantial, direct effect on the Statesor on the relationship between theFederal government and the States, oron the distribution of power orresponsibilities among the variouslevels of government, since the ruleinvolves primarily relationshipsbetween the Department and privateentities.

Executive Order 13045, Protection ofChildren from Environmental HealthRisks and Safety Risks

This rule will not pose anenvironmental health risk or safety riskon children.

The Catalog of Federal DomesticAssistance Number for Single FamilyHOME Insurance is 14.117.

List of Subjects

24 CFR Part 203Hawaiian Natives, Home

improvement, Indians—lands, Loan

programs—housing and communitydevelopment, Mortgage insurance,Reporting and recordkeepingrequirements, Solar energy.

24 CFR Part 206

Aged, Condominiums, Loanprograms—housing and communitydevelopment, Mortgage insurance,Reporting and recordkeepingrequirements.

Accordingly, for the reasons stated inthe preamble, parts 203 and 206 of title24 of the Code of Federal Regulationsare amended by adopting the interimrule published in the Federal Registeron July 3, 1996 (61 FR 35014) as finalwith the following changes:

PART 203—SINGLE FAMILYMORTGAGE INSURANCE


Authority: 12 U.S.C. 1709, 1710, 1715b,and 1715u; 42 U.S.C. 3535(d).

2. A new § 203.341 is added to readas follows:

§ 203.341 Partial claim.If the conditions of § 203.371 are met

and a partial claim is paid pursuant tothat section, the contract of insuranceshall continue in force, except asotherwise provided in this subpart.

3. Section 203.342 is revised to readas follows:

§ 203.342 Mortgage modification.If a mortgage is recast pursuant to

§ 203.616, the principal amount of themortgage, as modified, shall beconsidered to be the ‘‘original principalbalance of the mortgage’’ as that term isused in § 203.401.

4. In § 203.355, paragraphs (a), (c), (g)introductory text, and (h) are revisedand a new paragraph (i) is added to readas follows:

§ 203.355 Acquisition of property.(a) In general. Upon default of a

mortgage, except as provided inparagraphs (b) through (i) of thissection, the mortgagee shall take one ofthe following actions within ninemonths from the date of default, orwithin any additional time approved bythe Secretary or authorized by§§ 203.345 or 203.346. For mortgageswhere the date of default is on or afterFebruary 1, 1998, the mortgagee shalltake one or a combination of thefollowing actions within six months ofthe date of default or within suchadditional time approved by HUD orauthorized by §§ 203.345 or 203.346:

(1) Obtain a deed-in-lieu offoreclosure (see §§ 203.357, 203.389 and


203.402(f) of this part) with title beingtaken in the name of the mortgagee orthe Secretary;

(2) Commence foreclosure;(3) Enter into a special forbearance

agreement under § 203.614;(4) Complete a modification of the

mortgage under § 203.616;(5) Complete a refinance of the

mortgage under § 203.43(c);(6) Complete an assumption under

§ 203.512;(7) File a partial claim under

§ 203.371; or(8) Initiate a pre-foreclosure sale

under § 203.370.* * * * *

(c) Prohibition of foreclosure withintime limits. If the laws of the State inwhich the mortgaged property islocated, or Federal bankruptcy law:

(1) Do not permit the commencementof foreclosure within the time limitsdescribed in paragraphs (a), (b), (g), (h)and (i) of this section, the mortgageemust commence foreclosure within 90days after the expiration of the timeduring which foreclosure is prohibited;or

(2) Require the prosecution of aforeclosure to be discontinued, themortgagee must recommence theforeclosure within 90 days after theexpiration of the time during whichforeclosure is prohibited.* * * * *

(g) Pre-foreclosure sale procedure.Within 90 days of the end of amortgagor’s participation in the pre-foreclosure sale procedure, or within thetime limit described in paragraph (a) ofthis section, whichever is later, if noclosing of an approved pre-foreclosuresale has occurred, the mortgagee mustobtain a deed in lieu of foreclosure, withtitle being taken in the name of themortgagee or the Secretary, or undertakeone of the actions listed at § 203.355(a).The end-of-participation date is definedas:* * * * *

(h) Special forbearance. If themortgagor fails to meet the requirementsof a special forbearance under § 203.614and the failure continues for 60 days,the mortgagee must undertake one of theactions listed at § 203.355(a) within thetime limit described in paragraph (a) ofthis section or 90 days after themortgagor’s failure to meet the specialforbearance requirements, whichever islater.

(i) Modification under § 203.616,refinance under § 203.43(c), orassumption under § 203.512. Providedthat the mortgagee has established themortgagor’s eligibility within the timeframe provided in § 203.355(a), if amortgagee enters into a loss mitigationrelief measure (i.e., modification under§ 203.616, refinance under § 203.43(c),or assumption under § 203.512) and itfails, the six-month period provided in§ 203.355(a) is extended by anadditional 90 days to allow themortgagee to try another loss mitigationtool or go to foreclosure.

5. In § 203.371, paragraphs (b)(1) and(b)(5) are revised to read as follows:

§ 203.371 Partial claim.* * * * *

(b) * * *(1) The mortgagor has been

delinquent for at least 4 months or suchother time prescribed by HUD;* * * * *

(5) The mortgagor is not financiallyqualified to support monthly mortgagepayments on a modified mortgage or ona refinanced mortgage in which the totalarrearage is included.* * * * *

6. In § 203.402, paragraph (f) isrevised to read as follows:

§ 203.402 Items included in payment—conveyed and non-conveyed properties.* * * * *

(f) Foreclosure costs or costs ofacquiring the property otherwise(including costs of acquiring theproperty by the mortgagee and ofconveying and evidencing title to theproperty to HUD, but not including anycosts borne by the mortgagee to correcttitle defects) actually paid by themortgagee and approved by HUD, in anamount not in excess of two-thirds ofsuch costs or $75, whichever is thegreater. For mortgages insured on orafter February 1, 1998, the Secretarywill reimburse a percentage offoreclosure costs or costs of acquiringthe property, which percentage shall bedetermined in accordance with suchconditions as the Secretary shallprescribe. Where the foreclosureinvolves a mortgage sold by theSecretary on or after August 1, 1969, ora mortgage executed in connection withthe sale of property by the Secretary onor after such date, the mortgagee shallbe reimbursed (in addition to theamount determined under the foregoing)

for any extra costs incurred in theforeclosure as a result of a defect in themortgage instrument, or a defect in themortgage transaction or a defect in titlewhich existed at or prior to the time themortgage (or its assignment by theSecretary) was filed for record, if themortgagee establishes to the satisfactionof the Commissioner that such extracosts are over and above thosecustomarily incurred in the area.* * * * *

7. In § 203.414, paragraph (a) isrevised to read as follows:

§ 203.414 Amount of payment—partialclaims.

(a) Claim Amount. Where a claim forpartial insurance benefits is filed inaccordance with § 203.371, the amountof the insurance benefits shall consist ofthe arrearage not to exceed an amountequivalent to 12 monthly mortgagepayments, and any costs prescribed byHUD related to the default.* * * * *

8. In § 203.552, paragraph (a)introductory text is revised to read asfollows:

§ 203.552 Fees and charges afterendorsement.

(a) The mortgagee may collectreasonable and customary fees andcharges from the mortgagor afterinsurance endorsement only asprovided below. The mortgagee maycollect these fees or charges from themortgagor only to the extent that themortgagee is not reimbursed for suchfees by HUD.* * * * *

9. Section 203.616 is revised to readas follows:

§ 203.616 Mortgage modification.

The mortgagee may modify amortgage for the purpose of changingthe amortization provisions by recastingthe total unpaid amount due for a termnot exceeding 360 months. Themortgagee must notify HUD of suchmodification in a format prescribed byHUD within 30 days of the execution ofthe modification agreement.

Dated: September 16, 1997.Stephanie A. Smith,General Deputy Assistant Secretary forHousing, Federal Housing Commissioner.[FR Doc. 97–29374 Filed 11–5–97; 8:45 am]BILLING CODE 4210–27–P

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Part III

EnvironmentalProtection Agency40 CFR Part 80Fuels and Fuel Additives; Elimination ofOxygenated Fuels Program ReformulatedGasoline (OPRG) Category From theReformulated Gasoline Regulations; FinalRule


1 62 FR 12586 (March 17, 1997).2 In oxygenated fuels program areas implemented

by states as required by section 211(m) of the Act,the minimum oxygen content during the wintercontrol period is 2.7 weight % oxygen. Thisminimum for oxygenated fuels control periods isunaffected by today’s rule and remains in force.Nothing in today’s rule changes the applicableoxygen standards under the Federal RFG or stateoxygenated fuels programs.

3 It should be noted that, since these estimateswere made in 1994, some areas have opted out ofthe RFG program and Sacramento, California joinedthe program as a required covered area, andcomparative volume totals will have changed

somewhat as a result. These estimates are not basedupon the comparative volume of OPRG to RFG.Rather, they are ‘‘straight’’ estimates of a programarea’s share of the total RFG ‘‘pool’’ and are notbroken down into compliance categories. Thereader should be aware that OPRG gasoline likelyrepresents a smaller, subset of the total volumerepresented for each area. The untitled documentfrom which the volume estimates were taken hasbeen placed in the public docket, docket # A–97–01, Category II(B). The docket is located at the AirDocket Section, 401 M Street, SW, Room M–1500Washington, DC and is open Monday throughFriday from 8:00 a.m. to 5:30 p.m.

4 62 FR 12596, 12588.5 ‘‘Regulation of Fuels and Fuel Additives:

Extension of the Reformulated Gasoline Program tothe Phoenix, Arizona Moderate OzoneNonattainment Area,’’ 62 FR 30260 (June 3, 1997).The Arizona opt-in became effective on July 3, 1997for all persons other than retailers and wholesalepurchaser-consumers and August 4, 1997 forretailers and wholesale purchaser-consumers.


40 CFR Part 80

[FRL–5917–7]

RIN 2060–AH43

Fuels and Fuel Additives; Eliminationof Oxygenated Fuels ProgramReformulated Gasoline (OPRG)Category From the ReformulatedGasoline Regulations

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: In this action, thereformulated gasoline (RFG) regulationsare amended to eliminate the separatetreatment for a category of gasoline usedin oxygen averaging. This category,oxygenated fuels program reformulatedgasoline (OPRG), includes reformulatedgasoline intended for use in a stateoxygenated fuels program during thewinter time. Under the current RFGregulations, a refiner must meet theoxygen content standards on average forthe entire pool of gasoline they produce,and for the pool of gasoline theyproduce that is non-OPRG. EPA istaking this action because it no longerbelieves a distinction between OPRGand RFG that is not intended foroxygenated fuels program areas (i.e.,non-OPRG) is necessary and becauseremoval of the OPRG category wouldadd flexibility and reduce compliancecosts for regulated parties, withoutproducing a negative environmentalimpact. Today’s rule also removes aprohibition on adding oxygen tofinished RFG, which will provideparties in RFG/oxygenated fuelsprogram overlap areas with addedflexibility in meeting both programs’standards.EFFECTIVE DATE: November 3, 1997.FOR FURTHER INFORMATION CONTACT:Anne-Marie C. Pastorkovich at (202)233–9013.


I. Regulatory EntitiesRegulatory categories and entities

potentially affected by this actioninclude:

Category Examples of regu-lated entities

Industry ...................... Refiners, importers,oxygenate blendersof reformulatedgasoline.

This table is not intended to beexhaustive, but rather provides a guide

for readers regarding entities likely to beregulated by this action. This table liststhe types of entities that EPA is nowaware could be potentially regulated bythis action. Other types of entities notlisted in the table could also beregulated. To determine whether yourentity is regulated by this action, youshould carefully examine the existingprovisions at 40 CFR 80.2, 80.65, 80.67,80.69, 80.75, 80.77, 80.78, and 80.128,dealing specifically with OPRG. If youhave questions regarding theapplicability of this action to aparticular entity, consult the personlisted in the preceding FOR FURTHERINFORMATION CONTACT section.

II. Background

On March 17, 1997, EPA proposedamendments to the reformulatedgasoline (RFG) regulations that wouldeliminate the oxygenate programreformulated gasoline (OPRG) category.1As explained in that notice, EPA issuedthe proposed rule for several reasons.First, between 1993, when the final RFGrule was issued, and 1995, when theRFG program was implemented, thenumber of overlapping oxygenated fuelsprogram and RFG areas significantlydecreased. Although EPA is concernedthat the statutory mandate for 2.0 weightpercent oxygen for RFG is met,2 theAgency feels that the specific risk ofuneven RFG quality due to overlappingoxygenated fuels/RFG program areas issignificantly less than was expectedwhen the RFG regulations werepromulgated. There is still some riskthat an area might receive relatively lowoxygen RFG because of averaging, butthe risk is no longer as likely to bespecifically caused by program overlapas in 1993 and 1994.

Second, based upon EPA estimatesmade prior to the beginning of the firstyear of the RFG program, approximatelyone-third (33%) of all gasolinenationwide was predicted to be RFG.Oxygenated fuels program overlap areasoutside of California accounted forapproximately one-third (33%) of thetotal RFG pool, with approximately 19%going to the New York CMSA.3 EPA

believes that any risk that an area mightreceive low oxygen RFG is significantlyless than it appeared in 1993 and 1994.As discussed in great detail in theproposed rule,4 in 1994, roughly one-third of RFG was expected to bedestined for several oxygenated fuelsoverlap cities outside of California.Today, the New York City CMSA is theonly remaining overlap area outsideCalifornia, although the Phoenix,Arizona moderate ozone nonattainmentarea opted into the RFG program 5 andis also an oxygenated fuels area. EPAcontinues to believe that the risk that anarea might receive low oxygen RFG canbe adequately addressed throughanother existing compliancemechanism—the RFG surveys requiredby 40 CFR 80.68.

III. Response to CommentsEffective Date: Three commenters

wanted the rule to go into effect by theNovember 1, 1997, the start date for the1997–1998 winter oxygenated fuelsprogram. A fourth commenter wantedthe rule to go into effect ‘‘asexpeditiously as due processconsiderations allow.’’ The rationale forthe earliest effective date is to allowregulated parties to take advantage ofmaximum flexibility.

However, another commenter urgedEPA to implement the change effectiveJanuary 1, 1998, in order to alleviatefinancial burdens on certain regulatedparties. Specifically, companies mayhave entered into contracts under whichthey have already paid for creditsneeded this year. An implementationdate earlier than January 1, 1998 would,according to the commenter, devaluethose purchased credits without thepossibility of a refund to the purchaser.

EPA believes that the rule should gointo effect by November 1, 1997,concurrent with the start of theoxygenated fuels program, in order to


6 The commenter also urged EPA to ratchet theminimum oxygen standard from 1.5 weight % to 1.6weight % for areas that failed the oxygen surveyseries in 1996. On July 31, 1997, EPA published anotice in the Federal Register announcing a ratchetfor several covered areas. Please refer to ‘‘Changein Minimum Oxygen Content for ReformulatedGasoline—Notice,’’ 62 FR 41047 (July 31, 1997) forfurther information.

allow regulated parties maximumflexibility. A January 1, 1998 start datefalling in the middle of the stateoxygenated fuels programs, would likelyadd unnecessary confusion. Delayingthe start date until after the 1997–1998oxygenated fuels season, e.g. untilMarch 1, 1998 or later, would impose anunnecessary burden on the majority ofparties. Today’s rule removes burdensassociated with the maintenance ofseparate recordkeeping, reporting, andproduct transfer documentation forOPRG and non-OPRG categories,resulting in a general reduction incompliance costs. A greater cost benefitwould be realized by the vast majorityof parties if the rule is effective onNovember 1, 1997, the start date of theoxygenated fuels program. Today’s ruleeliminates the prohibition on addingoxygen to finished RFG, which providesregulated parties in overlap areas withadded flexibility in meeting both RFGand oxygenated fuels programstandards.

Although there may be an adverseeffect on a few parties, the vast majoritywill benefit from the earliestimplementation of today’s rule.

EPA has provided guidance onsubmitting 1997 RFG reports elsewherein this notice.

Effects on Compliance Burdens andRecordkeeping

Five commenters agreed that the ruleto do away with the distinction betweenOPRG/non-OPRG will help addflexibility and reduce complianceburdens. Three of these five also agreedthat this will also reduce compliancecosts. EPA concurs with thesestatements. A sixth commenter wasconcerned that this rule will increaserefiner’s compliance burdens, but didnot elaborate on how these burdens willincrease. EPA believes that thereduction of the recordkeeping andreporting burdens associated with theOPRG category results in a positiveimpact in terms of cost, burden, andtime for the vast majority of regulatedparties.

ReportingSome commenters who were

supportive of the proposal also notedthat they might not have sufficient leadtime to redesign their accountingmethods and reporting software. Thesecommenters asked for flexibility inreporting. One commenter asked thatreporting parties should be given theoption of reporting the OPRG/non-OPRG categories for reports coveringcalendar year 1997.

EPA understands that this changemay require alterations to some parties’

accounting methods and software. Forannual reports covering calendar year1997 and for batch reports afterNovember 1, 1997, a reporting partymay choose to report using the OPRG/non-OPRG categories (i.e., to report ‘‘asusual’’) or to report all OPRG in theappropriate non-OPRG categories.

For 1997 and subsequent years, EPAwill look to the refiner’s entire RFGproduction in order to determinecompliance with the annual average foroxygen and will no longer recognize anydistinction between OPRG and non-OPRG. The same approach will applyfor compliance with the oxygen averagefor VOC-controlled RFG under thesimple model.

EPA plans to amend its reportingforms as soon as practicable in order toreflect the elimination of the OPRG/non-OPRG distinction.

The RFG reports affected by this ruleare: ‘‘Reformulated Gasoline ProgramOxygen Content Averaging Report’’(Simple Model & Complex Model),‘‘Reformulated Gasoline Program CreditTransfer Summary Report,’’ and the‘‘Reformulated Gasoline and Anti-Dumping Batch Reports.’’

Product Transfer DocumentationSome commenters have asked

whether they must eliminate the OPRG/non-OPRG distinction on their producttransfer documentation. Redesigneddocumentation and forms may not beready by the effective date.

Today’s action removes all OPRG/non-OPRG distinctions in theregulations as of the November 1, 1997effective date. Although parties maycontinue to use product transferdocumentation differentiating OPRGfrom non-OPRG, such distinction is notrequired by EPA because it no longerholds any importance. However,regulated parties may wish to phase-outtheir use of OPRG category reporting, inorder to reduce confusion.

Effects on Oxygenate Use/ToxicIncrease

One commenter stated that removal ofthe OPRG category will cause refiners touse less oxygenate and more aromaticsin their gasoline. The addition ofaromatics would substitute for lostoctane. This effect was not quantified bythe commenter, who stated that today’srule will cause the gasoline to emit moretoxics.

It is important to remember that EPAhas not altered the standards applicableto refiners for oxygen content and toxicsunder either the reformulated gasolineor oxygenated fuels programs.Furthermore, the gasoline quality surveyprogram for oxygenates and toxics, and

other enforcement mechanisms stillexist to ensure that the fullenvironmental benefits of the oxygenatecontent and toxics standards arerealized.

It is possible that elimination of theOPRG/non-OPRG distinction may resultin some decrease in the use ofoxygenates, since credits generated inRFG areas that are also oxygenated fuelsprogram areas (i.e. areas requiring arelatively high oxygen content of least2.7 weight % oxygen during the wintermonths) may be used in RFG areas thatare not oxygenated fuels program areas(i.e. areas requiring at least 2.0 weight% oxygen all year round). If oxygenateuse decreases in some RFG/non-oxygenated fuels program areas, it ispossible that toxics may increase inthose areas. Nevertheless, EPA believesthat the survey mechanism (discussedin greater detail for the followingcomment) is adequately designed toensure the gasoline quality in eachcovered area will meet the standards onaverage for toxics.

Effects on Oxygenate Use/SurveyFailures

EPA received comments pertaining tothe oxygenate use and survey failures.The commenters all agreed that EPA’senforcement mechanisms, includinggasoline quality surveys, provide ameans to ensure compliance with RFGprogram requirements. Two commentersthought that there may be a marginalincrease in risk, but this would bediscovered through the surveys andcorrected.

One commenter was concerned thatblenders will take advantage of theelimination of the OPRG/non-OPRGdistinction to minimize oxygenate useand this will cause areas to fail thesurveys. A commenter felt that surveyfailures result from ‘‘refiners [who] arelearning to use the [credit trading]program.’’ 6

EPA agrees that the risk of surveyfailures may increase in the absence ofthe OPRG/non-OPRG distinction,because more credits from RFG areaswith wintertime oxygenated fuelsprogram may be used by refiners toshow compliance with the annualoxygen average applicable to the refiner,with less reliance on use of oxygen inRFG destined for RFG areas that are not


wintertime oxygenated fuels programareas. (See the preceding comment.)

The existence of the credit tradingprogram was required by section211(k)(7) of the Clean Air Act asamended in 1990, 42 U.S.C. § 7545.Compliance with the RFG oxygenstandards is shown over the course of acalendar year averaging period. Creditsmay be traded within and between allcovered areas. A general risk alwaysexists, even in the absence of the OPRG/non-OPRG distinction, that one areamay receive RFG with a slightly higheroxygen content than another area. Thecompliance survey provisions, withratchets upon survey failures, wereadopted by the Agency to address thisrisk. In 1993 and 1994, the specific riskof uneven RFG quality due tooverlapping RFG and oxygenated fuelsprogram areas was significantly greaterthan it is today. Since 1993 and 1994,many areas have redesignated toattainment for carbon monoxide (CO)and were able to drop the oxygenatedfuels program. The specific risk that anarea might receive relatively low oxygenRFG because of program overlap haslessened, and EPA believes that theexisting survey and enforcementmechanisms are adequate to address anyadditional risks there might be from

eliminating the OPRG/non-OPRGcategory.

Phoenix, AZ

Phoenix, AZ recently opted in to theFederal RFG program. One commenterstated that this should not affect thedecision to remove the OPRG reportingcategory. EPA agrees with thiscomment. Overall, the number of non-California RFG/oxygenated fuelsprogram overlap areas has decreasedsignificantly since the RFG programregulations were finalized in 1993. EPAdoes not believe that the addition ofPhoenix to the program warrants theburden and expense associated withretention of the OPRG category.

Economic Impact

EPA received one comment from aparty who claimed that today’s rulemight have an unspecified negativeeconomic impact on one sector of theoxygenate industry (i.e., the sector thatdeals with oxygen credit contracts).Another commenter stated that theeffort of eliminating the OPRG/non-OPRG distinction may be a great onecompared to the benefit received. Allother commenters endorsed theproposed changes as economicallybeneficial.

EPA believes that the vast majority ofregulated entities, including smallbusinesses, are reasonably expected toexperience significant cost savings as aresult of today’s regulation. EPA doesnot believe that today’s action will, inand of itself, have any significant impacton oxygenate markets.

EPA disagrees with thecharacterization that the elimination ofremoving the OPRG/non-OPRGdistinction would require great effort.The Agency has designed the regulatorychanges to permit great flexibility for allaffected parties. For example, EPA haspermitted flexibility in reporting for allRFG and anti-dumping reports coveringcalendar year 1997 and due to besubmitted on or after November 1, 1997.

III. Today’s Rule

EPA is amending the Federal RFGregulations to remove the use of aseparate OPRG category and toeliminate the distinction between OPRGand non-OPRG. The following sectionswould be affected by today’s proposal.In most cases, the changes are minorand would remove references to, anddistinctions between, the eliminatedOPRG category and RFG which is non-OPRG.

40 CFR Part 80, Section Description of change

Section 80.2—Definitions. 80.2(nn) .......................................................... Definition of ‘‘Oxygenated fuels program reformulated gasoline,’’ or‘‘OPRG’’ is deleted.

Section 80.65—General requirements for refiners, importers, and oxy-genate blenders. 80.65(d)(2)(iii) (A) and (B).

Requirements for designation of gasoline as OPRG or non-OPRG aredeleted.

Section 80.67—Compliance on average. 80.67(f)(2)(ii), 80.67(h)(1)(v)(A) and (B).

Deletes requirements to meet oxygen average separately and to seg-regate credits for non-OPRG, since the OPRG versus non-OPRGdistinction is eliminated.

Section 80.69—Requirements for downstream oxygen blending.80.69(f) (1) and (2).

These sections are deleted, to reflect that there would no longer be acategory known as ‘‘OPRG.’’ 7

Section 80.75—Reporting requirements. 80.75(f)(2)(ii)(A) (1) through(4) and (B) (1) and (2); 80.75(f)(2)(iii)(B); 80.75(h)(2) (i) and (ii)80.75(p).

For 80.75(f)(2)(ii)(A) (1) through (4), the OPRG and non-OPRG distinc-tion is eliminated. Thus, the only categories remaining are VOC-con-trolled (divided into subcategories 1 and 2) and non-VOC-controlledRFG. Section 80.75(f)(2)(ii)(B) (1) and (2) is deleted in order to elimi-nate to OPRG and non-OPRG distinction. Section 80.75(f)(2)(iii)(B),which refers to gasoline designated as non-OPRG, is deleted.

Section 80.77—Product transfer documentation. 80.77(g)(1)(ii) .............. Requirement to identify gasoline as OPRG or non-OPRG is deleted.Section 80.78—Controls and prohibitions on reformulated gasoline.

80.78(a)(6).Before today’s rule, this section prohibits addition of oxygen to finished

RFG, unless such RFG is designated as OPRG used in anoxygenated fuels control area during the oxygenated fuels controlperiod. This OPRG ‘‘exception’’ is amended to allow for eliminationof the OPRG/non-OPRG categories. Specifically, the amended sec-tion allows for addition of oxygenate to RFG intended for and usedin an oxygenate gasoline program area.

Sections 80.128 and 80.129—Agreed upon procedures for refiners andimporters and Agreed upon procedures for oxygenate blenders.80.128(d)(2) and 80.129(d)(3)(iv).

Requirement to compare PTD designation consistency for OPRG ver-sus non-OPRG is removed. Similar requirement for downstream oxy-genate blenders is removed.

7 Note the change to section 80.78(a)(6).

IV. Statutory Authority

Sections 114, 211, and 301(a) of theClean Air Act as amended (42 U.S.C.7414, 7545, and 7601(a)).

V. Environmental Impact

This rule is expected to have noenvironmental impact. The originalreason for the OPRG category wasconcern that RFG quality might suffer in

areas that were not both oxygenatedfuels program and RFG areas. Therewere several such areas when the RFGrules were promulgated. However, thereare now only two areas, the New York/New Jersey/Connecticut CMSA and


8 58 FR 51735 (October 4, 1993). 9 Id. at section 3(f)(1)–(4).

Phoenix, Arizona, which currently haveoverlapping programs during the wintermonths. EPA is aware of no dataindicating that today’s regulation willencourage the use of lower oxygencontent RFG. The oxygenated fuelsprogram and RFG program oxygenstandards remain in place. The RFGstandards are Federally enforcedthrough a variety of enforcementmechanisms, including the oxygensurvey program, which is specificallydesigned to ensure that oxygenstandards are met on average in all RFGcities.

VI. Economic Impact and Impact onSmall Entities

EPA has determined that this finalrule will not have a significant impacton a substantial number of smallentities. Small entities include smallbusinesses, small not-for-profitenterprises, and small governmentaljurisdictions. Today’s regulation wouldhave a positive economic impact on thegreat majority of entities regulated bythe RFG regulation, including smallbusinesses. The elimination of theOPRG/non-OPRG distinction wouldresult in increased flexibility forregulated parties, including refiners,importers, and blenders. Specifically,elimination of this distinction from theRFG regulations alleviates the burdenand cost associated with maintenance ofseparate recordkeeping, reporting, andproduct transfer documentationcategory for OPRG and non-OPRGgasoline. Elimination of the OPRG/non-OPRG distinction should also result ina general reduction of compliance costsassociated with the need to meet theoxygen average separately for twoclasses of RFG. A regulatory flexibilityanalysis has therefore not beenprepared.

VII. Paperwork Reduction ActPer the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and implementingregulations, 5 CFR Part 1320, this actiondoes not involve the addition of anycollection of information as definedtherein.

VIII. Executive Order 12866Under Executive Order 12866,8 the

Agency must determine whether aregulation is ‘‘significant’’ and thereforesubject to interagency review under theExecutive Order. The Order defines‘‘significant regulatory action’’ as onethat is likely to result in a rule that may:

(1) Have an annual effect on theeconomy of $100 million or more, oradversely affect in a material way the

economy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local or tribal governments ofcommunities;


(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof, or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in this Executive Order.9

It has been determined that this ruleis not a ‘‘significant regulatory action’’under the terms of Executive Order12866 and is therefore not subject tointeragency review under the Order.

IX. Unfunded MandatesUnder Section 202 of the Unfunded

Mandates Reform Act of 1995(‘‘UMRA’’), Pub. L. 104–4, EPA mustprepare a budgetary impact statement toaccompany any general notice ofproposed rulemaking or final rule thatincludes a Federal mandate which mayresult in estimated costs to State, local,or tribal governments in the aggregate,or to the private sector, of $100 millionor more. Under Section 205, for any rulesubject to Section 202 EPA generallymust select the least costly, most cost-effective, or least burdensomealternative that achieves the objectivesof the rule and is consistent withstatutory requirements. Under Section203, before establishing any regulatoryrequirements that may significantly oruniquely affect small governments, EPAmust take steps to inform and advisesmall governments of the requirementsand enable them to provide input.

EPA has determined that this ruledoes not include a federal mandate asdefined in UMRA. The rule does notinclude a Federal mandate that mayresult in estimated annual costs to State,local or tribal governments in theaggregate, or to the private sector, of$100 million or more, and it does notestablish regulatory requirements thatmay significantly or uniquely affectsmall governments.

X. Submission to Congress and theGeneral Accounting Office

Under 5 U.S.C. 801(a)(1)(A) of theRegulatory Flexibility Act as added bythe Small Business RegulatoryEnforcement Fairness Act of 1996, EPAsubmitted a report containing this ruleto the U.S. Senate, the U.S. House ofRepresentatives and the Comptroller

General of the General AccountingOffice prior to publication of the rule intoday’s Federal Register. This rule isnot a ‘‘major rule’’ as defined by 5U.S.C. 804(2).


Environmental protection, Airpollution control, Gasoline,Reformulated gasoline, Motor vehiclepollution.


40 CFR part 80 is amended as follows:

PART 80—REGULATION OF FUELSAND FUEL ADDITIVES


Authority: Secs. 114, 211, and 301(a) of theClean Air Act as amended (42 U.S.C. 7414,7545, and 7601(a)).


removing and reserving paragraph (nn).


removing and reserving paragraph(d)(2)(iii).

4. Section 80.67 is amended byremoving and reserving paragraph(f)(2)(ii) and by revising paragraphs(h)(1)(v)(A)(1) and (h)(1)(v)(A)(2) and byremoving and reserving paragraph(h)(1)(v)(B) and by removing paragraphs(h)(1)(v)(A)(3) and (h)(1)(v)(A)(4) to readas follows:

§ 80.67 Compliance on average.

* * * * *(h) * * *(1) * * *(v) * * *(A) * * *(1) VOC controlled; and(2) Non-VOC controlled.(B) [Reserved]

* * * * *


removing paragraph (f).6. Section 80.75 is amended by

revising paragraphs (f)(2)(ii)(A)(1),(f)(2)(ii)(A)(2), (h)(2)(i)(A) and(h)(2)(i)(B) and by removing paragraphs(f)(2)(ii)(A)(3), (f)(2)(ii)(A)(4), (h)(2)(i)(C),(h)(2)(i)(D) and by removing andreserving (h)(2)(ii) to read as follows:

§ 80.75 Reporting requirements.

* * * * *(f) * * *(2) * * *(ii) * * *


(A) * * *(1) Gasoline designated as VOC-

controlled; and(2) Gasoline designated as non-VOC-

controlled.* * * * *

(h) * * *(2) * * *(i) * * *(A) VOC-controlled; and(B) Non-VOC-controlled.

* * * * *7. Section 80.77 is amended by

removing and reserving paragraph(g)(1)(ii).

8. Section 80.78 is amended byrevising paragraph (a)(6) to read asfollows:

§ 80.78 Controls and prohibitions onreformulated gasoline.

(a) * * *(6) No person may add any oxygenate

to reformulated gasoline, except that

such oxygenate may be added toreformulated gasoline provided thatsuch gasoline is used in an oxygenatedfuels program control area during anoxygenated fuels control period.* * * * *

9. Section 80.128 is amended byrevising paragraph (d)(2) to read asfollows:

§ 80.128 Agreed upon procedures forrefiners and importers.* * * * *

(d) * * *(2) Compare the product transfer

documents designation for consistencywith the time and place, andcompliance model designations for thetender (VOC-controlled or non-VOC-controlled, VOC region for VOC-controlled, summer or winter gasoline,and simple or complex model certified);and* * * * *

10. Section 80.129 is amended byrevising paragraph (d)(3)(v) to read asfollows:

§ 80.129 Agreed upon procedures fordownstream oxygenate blenders.

* * * * *(d) * * *(3) * * *(v) Review the time and place

designations in the product transferdocuments prepared for the batch by theblender, for consistency with the timeand place designations in the producttransfer documents for the RBOB (e.g.VOC-controlled or non-VOC-controlled,VOC region for VOC-controlled, andsimple or complex model).* * * * *[FR Doc. 97–29385 Filed 11–5–97; 8:45 am]


fede

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Part IV

Department of theInteriorOffice of Surface Mining Reclamation andEnforcement

30 CFR Part 870Coal Moisture; Republication; Final Rule



Office of Surface Mining Reclamationand Enforcement

30 CFR Part 870

RIN 1029–AB78

Coal Moisture; Republication

Editorial Note: FR Doc. 97–22903 wasoriginally published as Part II in the issue ofTuesday, August 29, 1997. The correcteddocument is republished below in its entiretyat the request of the agency, due to theomission of the Table numbers.

AGENCY: Office of Surface MiningReclamation and Enforcement, Interior.

ACTION: Final rule.

SUMMARY: The Office of Surface MiningReclamation and Enforcement (OSM) isamending its regulations governing howthe excess moisture allowance isdetermined for reclamation feepurposes. This action defines terms andphrases related to the collection andtesting of coal samples used todetermine the inherent and totalmoisture of coal; identifies acceptableAmerican Society for Testing andMaterials (ASTM) standard samplingand testing methods for high and low-rank coals; prescribes frequencies forcollecting and testing coal samples; andprovides the coal industry withformulas for use in calculating an excessmoisture tonnage allowance for thepurpose of reducing the weight of coalsubject to the abandoned mine landreclamation fee.

The regulatory revision clarifies andsimplifies technical guidance for allusers, and provides the coal industrywith standard criteria for calculating anexcess moisture allowance on all coalssubject to reclamation fee payment. Theintended effect of this revision is toenhance compliance with the provisionsof section 402 of the Surface MiningControl and Reclamation Act of 1977(SMCRA or the Act). The prescribedcriteria will ensure that all tonnagereductions for excess moisture are takenon comparable bases.

EFFECTIVE DATE: This regulation iseffective October 1, 1997. Theincorporation by reference of certainpublications listed in the regulations isapproved by the Director of the FederalRegister as of October 1, 1997.

FOR FURTHER INFORMATION CONTACT: Dr.Kewal Kohli, Office of Surface MiningReclamation and Enforcement, 3Parkway Center, Pittsburgh, PA 15220;telephone (412) 937–2175.


I. BackgroundII. Discussion of Final Rule and Responses to

CommentsA. Section 870.5—Definitions.B. Section 870.18—General rules for

calculating excess moisture.C. Section 870.19—How to calculate excess

moisture in HIGH-rank coals.D. Section 870.20—How to calculate excess

moisture in LOW-rank coals.III. Procedural Matters

I. Background

Section 402(a) of the SMCRA requiresall operators of coal mining operationssubject to its provisions to pay areclamation fee on each ton of coalproduced. In December 1977, OSM firstpromulgated regulations to implementthis provision (42 FR 62714, December13, 1977). Briefly, the regulationsrequire that the Abandoned Mine Land(AML) fees must be paid on the actualgross weight of the coal, at the time ofthe first transaction (sale, transfer ofownership, or use) involving the coal.This regulation has been in effectbasically unchanged since 1977. In1982, OSM revised the regulatorylanguage to clarify the point in time offee determination and to stress that theactual gross weight of the coal must beused for fee calculation. At that timeOSM also specifically noted that no feeswere owed on impurities physicallyremoved before the sale, transfer ofownership, or use. In 1988, OSM againrevised this regulation to allow anoperator who mined coal after July 1,1988, to elect to take an allowance formoisture contained in the coal at thetime of sale that is determined to be inexcess of the inherent, or natural bed,moisture in the coal.

Initially, OSM adopted the excessmoisture allowance to address aninconsistency in the methods ofdetermining coal weight under variousFederal taxation requirements. At thetime OSM proposed to amend itsregulation to allow a deduction forexcess moisture, the ASTM Committeeon Coal and Coke, whose membershipincluded representatives of the InternalRevenue Service (IRS) and OSM, wasconducting a study to develop and/orconfirm precision statements for theASTM standard test method used toestimate the bed moisture in high-rankcoals, ASTM D1412–85, as it applied toall coals. In a letter of November 18,1987, the IRS submitted the followingcomment in response to the OSMproposal, ‘‘the results of the ASTM or asimilar study should be received beforeone test is prescribed for use by alltaxpayers.’’

As an interim measure, until adequateand fully reliable testing proceduresbecame available for coals of all ranks,OSM’s 1988 adopted regulationincorporated a suggestion made by theIRS. OSM decided to rely on a facts andcircumstances test to allow an operatorto elect to take an allowance for excessmoisture provided the operator coulddemonstrate, through competentevidence, that there was a reasonablebasis for determining the existence andamount of excess moisture. OSM’sstandard of reasonableness required anoperator to provide sufficientdocumentation to sustain the weightreduction. Although no specific timeperiods were given for testing, anoperator was also required to prove thattime frames chosen to measure theexistence and amount of excessmoisture were reasonable.

The preamble to the 1988 rulediscussed OSM’s willingness to acceptthe ASTM standard test methods todetermine inherent moisture, ASTMD1412–85, and total moisture, ASTMD3302–82, pending the availability ofmore suitable alternatives. OSMrecognized that these tests were notalways reliable for this purpose andacknowledged its willingness to acceptother testing methods for somesubbituminous and lignite coals. OSMalso stated its intent to developtechnical guidance to assist operatorsand to assure uniform application of theexcess moisture allowance throughoutthe industry.

The final rule which OSM adopted in1988, at 30 CFR 870.18, allowed anoperator to elect to reduce the weight ofcoal tonnage subject to reclamation feepayment by a percentage of excessmoisture estimated to be contained inthe coal at the time of fee assessment.OSM subsequently issued five AMLPayer Letters to provide technicalguidance to the coal industry and assistwith the application of this regulation.OSM also published the guidance in theOSM Payer Handbooks.

OSM’s audits of excess moisturereduced tonnages find that operatorsfrequently fail to conform to inherentmoisture test procedures described inAML Payer Letters, and do not provideadequate support for procedures they douse. Some operators mining largevolumes of low-rank coal base tonnagereductions on test data that is known tobe unreliable.

On December 3, 1996 (61 FR 64220),OSM published its proposal for revisingthe rule in the Federal Register. Thepublic comment period closed onFebruary 3, 1997.


II. Discussion of the Final Rule andResponses to Comments

Five commenters commented on theproposed rule revision: two coalcompanies, a trade association, a lawfirm representing a coal company, andan industry consulting firm. Themajority of the commenters supportedthe intent of consolidating previousguidance into a single rulemaking, butexpressed various concerns on specificissues.

Based on the comments received,OSM is revising its regulationsgoverning the excess moistureallowance to codify regulatory technicalrequirements as proposed, with somechanges. The proposal incorporates byreference ASTM standards used forcollecting and testing a coal sample asspecified in 30 CFR 870.19(a), Table 1and Table 2, and 30 CFR 870.20(a),Tables 1, 2, and 3. The ASTM standardswere published in the 1994 AnnualBook of ASTM Standards, Volume05.05. A copy of the ASTM standards isavailable for inspection at the OSMHeadquarters Office, Office of SurfaceMining Reclamation and Enforcement,Administrative Record, Room 101, 1951Constitution Avenue, NW., Washington,DC, and at the Office of the FederalRegister, 800 North Capitol St.,Washington, DC. The rule establishes afrequency for using ASTM standard testmethods on coals of all ranks, andadopts the method approved by theASTM to establish inherent moisture inlow-rank coal, the ASTM D1412–93,Appendix X1. Use of this procedure forlow-rank coal will ensure excessmoisture allowances taken on low-rankcoals are on a comparable basis to thosetaken on high-rank coal, and all excessmoisture allowances are fair andequitable. Definitions for high and lowrank coal are provided. The rule alsoincludes an option that providesoperators with a method to calculate anallowance for the excess moisturepresent in as-shipped coal. This is ofparticular benefit when an operator sellslarge volumes of coal, and/or sells coalwith a substantial variance between thetotal and inherent moisture.

A. Section 870.5—Definitions

None of the commenters addressedthis section, and the revised definitionsfor excess, inherent, and total moistureare being adopted as proposed. Thedefinition for excess moisture is revisedby including, by reference, a formula foruse in calculating excess moisture inhigh and low-rank coals. The formula tobe used for high-rank coals is found ina new section 870.19 and the formulafor low-rank coals is found in a new

section 870.20. The existing definitionof inherent moisture is expanded toincorporate by reference the specificASTM methods of sample collectionand test procedures shown in section870.19, Table 2, Calculating INHERENTmoisture percentage in HIGH-rank coals,and section 870.20, Table 2, and Table3, Calculating INHERENT moisturepercentage in LOW-rank coals. Theexisting definition of total moisture isexpanded to incorporate by referenceASTM criteria in section 870.19, Table1, for Calculating the TOTAL moisturepercentage in HIGH-rank coals, andsection 870.20, Table 1, for Calculatingthe TOTAL moisture percentage inLOW-rank coals. The expansion of theexisting definitions to incorporate byreference specific ASTM samplecollection methods and test proceduresprovides precise technical standards tofacilitate operator compliance withOSM’s requirements, and provides aconsistent basis to calculate all excessmoisture allowances.

B. Section 870.18—General Rules forCalculating Excess Moisture

The modifications to 30 CFR 870.18,excess moisture content allowance atsection 870.18(a), (b), and (c) areadopted as proposed. The previoussection 870.18(a) required an operator todemonstrate through competentevidence that the basis for determiningthe existence and amount of excessmoisture is reasonable. Section870.18(b) required standard laboratoryanalyses for testing inherent and totalmoisture. Section 870.18(c) required anoperator who blended coal mined frommultiple seams prior to the initial sale,transfer, or use of the coal to test forvariations in the inherent moistureamounts from different seams.

This revision replaces thereasonableness standard found atsection 870.18(a), the generic laboratorytest requirement at section 870.18(b),and the requirement for a separate testof coal from each seam mined prior toblending the coal for sale, transfer ofownership or use at section 870.18(c).The revision also recognizes the distinctdifferences in high and low-rank coalsin sections 870.19 and 870.20. Section870.19 provides acceptable standardsfor collecting and testing a sample ofhigh-rank coals to establish thepercentage of inherent and totalmoisture contained in the coal, andcalculate the excess moisture allowance.Section 870.20 provides like standardsfor calculating the excess moistureallowance for low-rank coals.

Revised section 870.18(c) addsdefinitions to further explain themeaning of terms as they are used in

new sections 870.19 and 870.20. ‘‘As-shipped coal’’ and ‘‘tipple coal’’ isdefined as the coal found at the mine orloading facility. A precise meaning fora ‘‘channel sample’’ and ‘‘core sample’’is given and the definitions incorporateby reference the specific ASTMprocedure used to take the particularkind of sample. The ‘‘correction factor’’is added as the method used to establishthe difference between the equilibriummoisture and inherent moisture in low-rank coals under section 870.20.‘‘Equilibrium moisture’’ is defined asthe method used to estimate theinherent moisture in all coals, andASTM D1412 and ASTM D1412,Appendix X1, are incorporated byreference. Types of ‘‘high-rank coals’’and ‘‘low-rank coals’’ are defined toexplain how these terms are usedthroughout sections 870.5 and 870.18–20.

C. Section 870.19—How To CalculateExcess Moisture in HIGH-Rank Coals

The new section 870.19, whichprovides standard criteria for anoperator to use to establish excessmoisture in high-rank coals, is beingadopted as proposed. Table 1 includesthe ASTM standard sample collectionmethod, ASTM D2234–89, StandardTest Methods for Collection of a GrossSample of Coal, that OSM will acceptfor use as the basis for calculating thepercentage of total moisture in as-shipped high-rank coals each day thecoal is either shipped or used. Table 1also provides the test procedure, ASTMD3302–91, Standard Test Method forTotal Moisture in Coal, that would beacceptable for that purpose.

Two commenters suggested that morethan one test method be accepted fordetermining total moisture in high-rankcoals. The prescribed test methodologyis designed to provide operators withthe most reliable means of determiningthe total moisture in the coals. Whileother methods are available, the resultsproduced may be less accurate, and theyare not incorporated as being acceptablein all cases. Operators wishing to useother methodologies should obtain priorOSM approval to avoid possibledisallowance of their excess moistureamounts. The operator mustdemonstrate that the test used yieldsaccurate results.

One commenter opposed therequirement to test for total moistureeach day coal is shipped or usedbecause:—It would represent an excessive

burden for small to medium-sizedoperators who do not now test fortotal moisture every day they shipcoal;


—The cost involved with testing fortotal moisture every day in manycases will either exceed orsubstantially diminish the value ofthe coal moisture deduction; and

—The previous regulation did notrequire it.The commenter recommended that

one analysis of each stockpile of coal beallowed as an alternative to dailytesting. OSM has considered thesecomments, but is retaining the dailytesting requirement. The basis for thecoal moisture deduction is to recognizethat coal operators generally are notcompensated for the weight of excessmoisture in the coal they ship, andtherefore, should not be required to payfees on that weight. The total moistureof the coal can vary significantly fromday to day based on weather and otherconditions. The commenter stated that asingle test of each stockpile, if depletedin 10 days or less, would provide anaverage value of the total moisturepercentage for the stockpile for each daythat the coal was used or shipped. InOSM’s view, such an approach will notadequately recognize the variations inday-to-day moisture amounts andtonnages shipped. The more thisrelationship is obscured, the lessrelevant it becomes in recognizing theweight of excess moisture for which theoperator may not be compensated.

OSM also recognizes that the cost ofdaily moisture tests could exceed thevalue of the excess moisture feededuction that would be derived. Forthat reason, OSM emphasizes in section870.18(a) that the operator may use thecustomer’s test results on the shippedcoal in support of an excess moisturededuction. It has been OSM’sexperience that the majority of buyersconduct such tests as part of their effortsto ensure quality. By obtaining copies ofthe test results and related records, theseller could avoid the expense oftesting.

The daily total moisture test resultsmust be converted to quarterly figures tobe reported to OSM on the OSM–1Form, Coal Reclamation Fee Report. Tocalculate the quarterly total moisturepercentage an operator should: (1)Multiply the daily total moisturepercentage by the tonnage shipped orused that day, to find the daily totalmoisture tonnage; and, (2) add the dailytotal moisture tonnage for each day inthe quarter; and, (3) add the dailytonnage shipped or used in the quarter,to find the total tonnage shipped or usedduring the quarter. Then, divide thesum of the daily total moisture tonnage,step (2), by the sum of the daily tonnageshipped or used in the quarter, step (3).

This will result in the total moisturepercentage in high-rank coals for thequarter which is reported on the CoalReclamation Fee Report.

Table 2 provides three methods forsampling high-rank coals, and testingthe sample to determine the inherentmoisture percentage that will beacceptable to OSM. To collect a coalsample directly from a coal seam anoperator could use either a core or achannel sample method. If a coresample is collected the operator isrequired to collect the sample usingprocedures in ASTM D5192–91,Standard Practice for Collection of CoalSamples from Core and to test by ASTMD1412–93, Standard Test Method forEquilibrium Moisture of Coal at 96 to 97Percent Relative Humidity and 30°C. Ifa channel sample is used, the operatoris required to collect the sample usingprocedures in ASTM D4596–93,Standard Practice for Collection ofChannel Samples of Coal in a Mine andto test by either ASTM D1412–93,Standard Test Method for EquilibriumMoisture of Coal at 96 to 97 PercentRelative Humidity and 30°C, or ASTMD3302–91, Standard Test Method forTotal Moisture in Coal. To collect asample of blended coal, as-shipped coal,tipple coal, commingled coal, or coalfrom slurry ponds an operator will useprocedures in ASTM D2234–89,Standard Test Methods for Collection ofa Gross Sample of Coal and test byASTM D1412–93, Standard TestMethod for Equilibrium Moisture of Coalat 96 to 97 Percent Relative Humidityand 30°C to estimate the inherentmoisture.

An operator may select one of twooptions for timing inherent moisturetests, either quarterly or monthly. If aquarterly inherent moisture test ischosen, the operator must report theresults of one inherent moisture testtaken at any time during the quarter onthe OSM–1 form for the quarter inwhich the test was taken. If monthlyinherent moisture testing is preferred,the operator must create a 24-monthinherent moisture baseline during thefirst 24-months a coal seam is incontinuous operation. To create the 24-month inherent moisture baseline, anoperator must collect and test onesample in each month of the calendarquarter. The quarterly inherent moisturepercentage reported to OSM for each ofthe first 8 quarters a seam is incontinuous operation is then based on aweighted average of the 3-monthlyinherent moisture tests results fromeach quarter. To determine the quarterlyweighted average inherent moisturepercentage an operator would then: (1)Multiply the inherent moisture

percentage for one month by the numberof tons produced or shipped in thatmonth to find the monthly inherentmoisture tonnage; (2) add the inherentmoisture tonnage determined in (1) foreach of the 3 months to find thequarterly inherent moisture tonnage; (3)divide the inherent moisture tonnagefound in (2) by the total number of tonsproduced or shipped during the threemonths of the quarter; and, (4) reportthe weighted average percentagedetermined in (3) for the quarter to OSMon the OSM–1 form. After the first 24-months, an operator would use anupdated rolling average percentage toreport inherent moisture percentages forall subsequent quarters in which a coalseam is continuously mined. The rollingaverage percentage would be calculatedby: Adding the results of one inherentmoisture test of one coal samplecollected during every 12-month periodto the inherent moisture percentages forthe preceding 23 tests, and dividing thesum of these tests by 24.

Section 870.19(a) provides instructionon how an operator would calculate theexcess moisture in high-rank coals byusing one of two methods. One methodinvolves the simple subtraction of theinherent moisture percentage from thetotal moisture percentage as it is foundin the existing rule. OSM expects thatmost operators of small to medium sizemines would likely prefer to continue touse this method. A new alternativeformula is added as a second method insection 870.19(a) that allows anadjustment in the excess moisturecalculation for a percentage of inherentmoisture contained in the as-shippedcoal. Some operators who either mine alarge volume of coal, or mine coal witha significant variance in total andinherent moisture, have requestedOSM’s approval to use this formula forcalculating a tonnage reduction forexcess moisture. OSM is now providingthis option as an alternative to theexisting formula used to determine theexcess moisture percentage. The excessmoisture percentage found in section870.19(a) is multiplied by the tonnagesold, transferred, or used during thequarter to determine the excess moisturereduced tonnage for the quarter undersection 870.19(b).

D. Section 870.20—How To CalculateExcess Moisture in LOW-Rank Coals

A new section 870.20, which providesstandard criteria for an operator to useto establish excess moisture in low-rankcoals, is being adopted with changes.Table 1 includes the ASTM standardsample collection procedure, ASTMD2234–89, Standard Test Methods forCollection of a Gross Sample, and test


procedure, ASTM D3302–91, StandardTest Method for Total Moisture in Coal,OSM will accept for use as the basis forcalculating the percentage of totalmoisture in as shipped low-rank coalseach day the coal is either shipped orused.

The daily total moisture test resultsmust be converted to quarterly figures tobe reported to OSM on the OSM–1, CoalReclamation Fee Report. To calculatethe quarterly total moisture percentagean operator must: (1) Multiply the dailytotal moisture percentage by the tonnageshipped or used that day, to find thedaily total moisture tonnage; (2) add thedaily total moisture tonnage for eachday in the quarter; and, (3) add the dailytonnage shipped or used in the quarter,to find the total tonnage shipped or usedduring the quarter. Then, divide thesum of the daily total moisture tonnage,step (2), by the sum of the daily tonnageshipped or used in the quarter, step (3).This will result in the total moisturepercentage in low-rank coal for thequarter which would be reported by theOSM–1, Coal Reclamation Fee Report.

Table 2 provides instructions on howan operator will determine the inherentmoisture percentage of coal mined fromone or more benches of low-rank coalsby: collecting one sample of as-shippedcoal each month of the calendar quarterusing procedure ASTM D2234–89,Standard Test Methods for Collection ofa Gross Sample of Coal; and testing eachsample for equilibrium moisture byASTM D1412–93, Standard TestMethod for Equilibrium Moisture of Coalat 96 to 97 Percent Relative Humidityand 30°C.

The operator would calculate theinherent moisture percentage to reportto OSM for the quarter by averaging theresults from the 3 monthly equilibriummoisture tests, and adding thecorrection factor.

Table 3 provides the method anoperator is required to use to establishthe correction factor during the firstquarter an excess moisture allowance istaken on low-rank coals mined from abench or multiple benches. Thecorrection factor is found by usingprocedures in ASTM D1412–93Appendix X1, Standard Test Method forEquilibrium Moisture of Coal at 96 to 97Percent Relative Humidity and 30°C tocollect 15 samples of coal from a freshlyexposed, unweathered coal seam faceduring the quarter. All 15 sampleswould be tested for inherent moistureand equilibrium moisture as required byASTM D1412–93 Appendix X1,Standard Test Method for EquilibriumMoisture of Coal at 96 to 97 PercentRelative Humidity and 30°C.

In the proposed rule, we stated that 5samples had to be taken in each monthof the first quarter for a total of 15samples. Three commenters suggested avariety of alternatives, includingallowing companies to:—Perform a single annual collection of

20 samples;—Collect all 15 samples in a single

month; or—Take 20 to 30 samples annually.

The OSM–1 forms reporting tonnageand moisture amounts are to be filed foreach calendar quarter. The purpose ofthe samples is to help determine theappropriate moisture amount for thecoal shipped or used in the calendarquarter being reported. As a result, it isnot feasible to delay the sampling andtesting beyond that quarter. In responseto the commenters, however, we haverevised the final rule to state that thesampling and testing need not be doneuntil the first quarter a deduction istaken, and that all 15 samples may betaken anytime during the quarter ratherthan 5 each month. This is alsodesigned to address some commenters’concerns that sampling on some daysduring the quarter may be difficult dueto harsh weather.

The operator is required to establishthe correction factor for the first quarterand all later quarters by: averaging the15 inherent moisture test results;averaging the 15 equilibrium moisturetest results; and, subtracting the averageinherent moisture from the averageequilibrium moisture.

Three commenters also suggested thata regression formula be allowed todetermine the correction factor ratherthan simple subtraction of the averageequilibrium moisture from the averageinherent moisture. Generally, regressionanalysis is a statistical approach whichcan be used to determine inherentmoisture based on its relationship topossibly several other variables of coalcontent, such as ash, Btu, andequilibrium moisture. We examined thisapproach and found that it wouldrequire sampling for every variable usedin the analysis and a substantiallygreater number of tests to producereliable results. We also found itdifficult to specify all the differentvariables that should be considered inevery situation. As a result, we are notincorporating a regression approach intothe final rule. If an operator elects to usea method other than that provided inthe rule, the operator should obtainprior OSM approval to avoid having torevert to the simple subtraction method.

One commenter objected tocalculating a correction factor for eachbench as we originally proposed,

pointing out that multiple benches maybe mined simultaneously. We haverevised the requirement in the final ruleto allow an average correction factor tobe calculated and applied when suchsituations exist. The correction factorcould be changed at any time providednew samples are taken and allprocedures shown in Table 3 arerepeated.

III. Procedural Matters

Federal Paperwork Reduction Act

In accordance with the PaperworkReduction Act of 1995, Public Law 104–13, OSM requested comments from thepublic and the Office of Managementand Budget (OMB) on the informationcollections contained in the proposedrulemaking. Commenters were asked toaddress: (a) Whether the proposedcollection of information is necessaryfor the proper performance of OSM,including whether the information willhave practical utility; (b) the accuracy ofOSM’s estimate of the burdens of theproposed collection of information; (c)ways to enhance the quality, utility, andclarity of the information to becollected; and (d) ways to minimize theburden of collection on the respondents,including the use of automatedcollection techniques or other forms ofinformation technology. Commentsreceived on the information collectionrequirements in the proposed rule havebeen addressed in the preamble above:

Title: Abandoned mine reclamationfund—fee collection and coalproduction reporting: 30 CFR part 870.

OMB Control Number: 1029–0090.Abstract: Section 402 of the Surface

Mining Control and Reclamation Act of1977 requires operators of coal miningoperations to pay a reclamation fee tothe Secretary for deposit in theAbandoned Mine Reclamation Fund forthe purpose of reclaiming lands minedand left abandoned, or inadequatelyreclaimed, prior to the Act’s effectivedate. Reclamation fees are to be paid oneach ton of coal produced.

Sections 870.18, 870.19, and 870.20 ofthe regulations allow an operator to takean excess moisture content allowancewhen calculating the amount ofreclamation fees that are owed. Tosubstantiate the calculated moisturededuction claimed, an operator (or otherentity responsible for the payment of thereclamation fee) is required to documentby standard laboratory analysis theexcess moisture content for each coalseam mined. This documentation mustbe updated as necessary to establish thecontinuing validity of the excessmoisture content allowance taken by theoperator.


Need For and Use: The informationsubmitted will be used by OSM auditorsto verify an operator’s compliance withSection 402 of the Act and therequirements of the regulation at 30 CFR870.18, 870.19, and 870.20. During anaudit, operators must substantiate howthe calculation for excess moisture wasdetermined. Response to this collectionof information is required to obtain abenefit and is held confidential underthe Freedom of Information Act.

Operators must retain their records fora 6-year period to allow for the audit oftax records. Courts have ruled that theAML fee is an excise tax. The applicableprovision of the Energy Policy Act of1992 (Section 2515) extended the feethrough 2004.

Respondents: Approximately 1,050coal mining operators who take the coalmoisture deduction allowance.

Total Annual Burden: OSM estimatesthat 2 hours will be required to prepareand maintain the documentation foraudit purposes per respondent. Thetotal annual burden is estimated to be2,100 hours.

Executive Order 12988 on Civil JusticeReform

The Department of the Interior hasdetermined that this rule meets therequirements of sections 3(a) and 3(b)(2)of Executive Order 12988, Civil JusticeReform.

Executive Order 12866This rule has been determined to be

significant under Executive Order 12866and has been reviewed by the Office ofManagement and Budget.

The rule is not consideredeconomically significant under section3(f)(1) of Executive Order 12866 andwill not have a significant economiceffect on the coal mining industry, or onregional or national economies. OSM isproviding a viable methodology thatwill enable coal mine operators tocalculate the correct allowance forexcess moisture. OSM is not attemptingto specify any given amount, orpercentage, as an excess moistureallowance. For that reason it is notpossible to predict the cost that thisrevision will have in terms of theamount of the additional AML fees thatthe industry will pay and thegovernment collect or the industry saveand the government not collect. Basedon AML tonnages reported, and the totalmoisture allowances taken for 1996, theindustry saved approximately$5,729,000 in terms of the tonnagereported. With regard to benefits, therule revision will ensure that all excessmoisture allowances are fair andequitable. OSM’s revision also includes

an option that will provide operatorswith a method to calculate an allowancefor the inherent moisture present in as-shipped coal. This will be of particularbenefit when an operator sells largevolumes of coal, and/or sells coal witha substantial variance between the totaland inherent moisture.

Regulatory Flexibility Act

In accordance with the RegulatoryFlexibility Act, 5 U.S.C. 601 et seq., theDepartment of the Interior hasdetermined that this rule will not havea significant economic effect on asubstantial number of small entities forthe following reason. The rule willprovide two methods for operators tocalculate the excess moisture in high-rank coal. OSM expects that mostoperators of small to medium size mineswill likely prefer to continue to use thecurrent method of calculation whileoperators who either mine a largevolume of coal, or mine coal with asignificant variance in total andinherent moisture, will use the otheroption as an alternative to the existingformula used to determine the excessmoisture percentage. Thus, for smalloperators any change from currentpractices is optional.

Unfunded Mandates Reform Act

This rule will not impose a cost of$100 million or more in any given yearon any governmental entity or theprivate sector.

National Environmental Policy Act

OSM has prepared an environmentalassessment (EA) of this rule and hasmade a Finding of No Significant Impact(FONSI) on the quality of the humanenvironment under section 102(2)(C) ofthe National Environmental Policy Actof 1969 (NEPA), 42 U.S.C. 4332(2)(C).The EA and FONSI are on file in theOSM Administrative Record.

Author: The principal author of thisrule is Dr. Kewal Kohli, MiningEngineer, Office of Surface Mining, U.S.Department of the Interior, 3 ParkwayCenter, Pittsburgh, PA 15220. Inquirieswith respect to the rule should bedirected to Dr. Kohli at the address andtelephone specified under FOR FURTHERINFORMATION CONTACT.


Incorporation by reference, Reportingand recordkeeping requirements,Surface mining, Underground mining.

Dated: July 2, 1997.Bob Armstrong,Assistant Secretary, Land and MineralsManagement.

Accordingly, 30 CFR part 870 isamended as set forth below:

PART 870—ABANDONED MINERECLAMATION FUND—FEECOLLECTION AND COALPRODUCTION REPORTING

1. The authority citation for part 870is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 870.5 is amended byrevising definitions of ‘‘excessmoisture,’’ ‘‘inherent moisture’’ and‘‘total moisture’’ to read as follows:

§ 870.5 Definitions.* * * * *

Excess moisture means the differencebetween total moisture and inherentmoisture, calculated according to§ 870.19 for high-rank coals or thedifference between total moisture andinherent moisture calculated accordingto § 870.20 for low-rank coals.* * * * *

Inherent moisture means moisturethat exists as an integral part of the coalseam in its natural state, includingwater in pores, but excluding thatpresent in macroscopically visiblefractures, as determined according to§ 870.19(a) or § 870.20(a).* * * * *

Total moisture means the measure ofweight loss in an air atmosphere underrigidly controlled conditions oftemperature, time and air flow, asdetermined according to either§ 870.19(a) or § 870.20(a).


§ 870.18 General rules for calculatingexcess moisture.

If you are an operator who mined coalafter June 1988, you may deduct theweight of excess moisture in the coal todetermine reclamation fees you oweunder 30 CFR 870.12(b)(3)(i). Excessmoisture is the difference between totalmoisture and inherent moisture. Tocalculate excess moisture in HIGH-rankcoal, follow § 870.19. To calculateexcess moisture in LOW-rank coal,follow § 870.20. Report yourcalculations on the OSM–1 form, CoalReclamation Fee Report, for everycalendar quarter in which you claim adeduction. Some cautions:

(a) You or your customer may do anytest required by §§ 870.19 and 870.20.But whoever does a test, you are to keeptest results and all related records for atleast six years after the test date.


(b) If OSM disallows any or all of anallowance for excess moisture, you mustsubmit an additional fee plus interestcomputed according to § 870.15(c) andpenalties computed according to§ 870.15(f).

(c) The following definitions areapplicable to §§ 870.19 and 870.20.ASTM standards D4596–93, StandardPractice for Collection of ChannelSamples of Coal in a Mine; D5192–91,Standard Practice for Collection of CoalSamples from Core; and, D1412–93,Standard Test Method for EquilibriumMoisture of Coal at 96 to 97 PercentRelative Humidity and 30°C areincorporated by reference as publishedin the 1994 Annual Book of ASTMStandards, Volume 05.05. The Directorof the Federal Register approved thisincorporation by reference inaccordance with 5 U.S.C. 552(a) and 1CFR part 51. Each applicable ASTMstandard is incorporated as it exists onthe date of the approval, and a notice ofany change in it will be published in theFederal Register. You may obtain copiesfrom the ASTM, 100 Barr Harbor Drive,West Conshohocken, Pennsylvania19428. A copy of the ASTM standardsis available for inspection at the Officeof Surface Mining Reclamation andEnforcement, Administrative Record,Room 101, 1951 Constitution Avenue,NW., Washington, DC, or at the Officeof the Federal Register, 800 NorthCapitol St., NW., Suite 700, Washington,DC.

(1) As-shipped coal means raw orprepared coal that is loaded forshipment from the mine or loadingfacility.

(2) Blended coal means coals ofvarious qualities and predeterminedquantities mixed to control the finalproduct.

(3) Channel sample means a sample ofcoal collected according to ASTM

standard D4596–93 from a channelextending from the top to the bottom ofa coal seam.

(4) Commingled coal means coal fromdifferent sources and/or types combinedprior to shipment or use.

(5) Core sample means a cylindricalsample of coal that represents thethickness of a coal seam penetrated bydrilling according to ASTM standardD5192–91.

(6) Correction factor means thedifference between the equilibriummoisture and the inherent moisture inlow rank coals for the purpose of§ 870.20(a).

(7) Equilibrium moisture means themoisture in the coal as determinedthrough ASTM standard D1412–93.

(8) High-rank coals means anthracite,bituminous, and subbituminous A andB coals.

(9) Low-rank coals meanssubbituminous C and lignite coals.

(10) Slurry pond means any natural orartificial pond or lagoon used for thesettlement and draining of the solidsfrom the slurry resulting from the coalwashing process.

(11) Tipple coal means coal from amine or loading facility that is ready forshipment.

4. Sections 870.19 and 870.20 areadded to read as follows:

§ 870.19 How to calculate excess moisturein HIGH-rank coals.

Here are the requirements forcalculating the excess moisture in high-rank coals for a calendar quarter. ASTMstandards D2234–89, Standard TestMethods for Collection of a GrossSample of Coal; D3302–91, StandardTest Method for Total Moisture in Coal;D5192–91, Standard Practice forCollection of Coal Samples from Core;D1412–93, Standard Test Method forEquilibrium Moisture of Coal at 96 to 97

Percent Relative Humidity and 30°C;and, D4596–93, Standard Practice forCollection of Channel Samples of Coalin a Mine are incorporated by referenceas published in the 1994 Annual Bookof ASTM Standards, Volume 05.05. TheDirector of the Federal Registerapproved this incorporation byreference in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Eachapplicable ASTM standard isincorporated as it exists on the date ofthe approval, and a notice of any changein it will be published in the FederalRegister. You may obtain copies fromthe ASTM, 100 Barr Harbor Drive, WestConshohocken, Pennsylvania 19428. Acopy of the ASTM standards is availablefor inspection at the Office of SurfaceMining Reclamation and Enforcement,Administrative Record, Room 101, 1951Constitution Avenue, NW., Washington,DC, or at the Office of the FederalRegister, 800 North Capitol St., NW.,Suite 700, Washington, DC.

(a)(1) Calculate the excess moisturepercentage using one of these equations:

EM TM IM

or

EM TM IMTM

IM

= −

= − × −−

100

100

(2) EM equals excess moisturepercentage. TM equals total as-shippedmoisture percentage calculatedaccording to Table 1 of this section. IMequals inherent moisture percentagecalculated according to Table 2 of thissection.

(b) Multiply the excess moisturepercentage by the tonnage from thebonafide sales, transfers of ownership,or uses by the operator during thequarter.

BILLING CODE 1505-01-D





§ 870.20 How to calculate excess moisturein LOW-rank coals.

Here are the requirements forcalculating the excess moisture in low-rank coals for a calendar quarter. ASTMstandards D2234–89, Standard TestMethods for Collection of a GrossSample of Coal; D3302–91, StandardTest Method for Total Moisture in Coal;and, D1412–93, Standard Test Methodfor Equilibrium Moisture of Coal at 96to 97 Percent Relative Humidity and30°C are incorporated by reference aspublished in the 1994 Annual Book ofASTM Standards, Volume 05.05. TheDirector of the Federal Registerapproved this incorporation byreference in accordance with 5 U.S.C.

552(a) and 1 CFR part 51. Eachapplicable ASTM standard isincorporated as it exists on the date ofthe approval, and a notice of any changein it will be published in the FederalRegister. You may obtain copies fromthe ASTM, 100 Barr Harbor Drive, WestConshohocken, Pennsylvania 19428. Acopy of the ASTM standards is availablefor inspection at the Office of SurfaceMining Reclamation and Enforcement,Administrative Record, Room 120, 1951Constitution Avenue, NW., Washington,DC, or at the Office of the FederalRegister, 800 North Capitol St., NW.,Suite 700, Washington, DC.

(a)(1) Calculate the excess moisturepercentage using one of these equations:

EM TM IM

or

EM TM IMTM

IM

= −

= − × −−

100

100

(2) EM equals excess moisturepercentage. TM equals total as-shippedmoisture percentage calculatedaccording to Table 1 of this section. IMequals inherent moisture percentagecalculated according to Tables 2 and 3of this section.

(b) Multiply the excess moisturepercentage by the tonnage from the bonafide sales, transfers of ownership, oruses by the operator during the quarter.





Editorial Note: FR Doc. 97–22903 wasoriginally published as Part II in the issue ofTuesday, August 29, 1997. The correcteddocument is republished in its entirety at therequest of the agency, due to the omission ofthe Table numbers.[FR Doc. 97–22903 Filed 8–28–97; 8:45 am]BILLING CODE 1505-01-D

fede

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60151


Part V

The PresidentProclamation 7048—National AdoptionMonth, 1997

Presidential Documents

60153

Federal Register

Vol. 62, No. 215


Title 3—

The President

Proclamation 7048 of November 3, 1997

National Adoption Month, 1997

By the President of the United States

A Proclamation

Most American children are blessed with loving, stable families. But, trag-ically, in our country today there are too many children whose parentsare unwilling or unable to care for them. While foster care offers thesechildren a safe and nurturing temporary haven in their time of greatestneed, as many as 100,000 foster care kids will need permanent homesin the next few years. Many of these children have special needs andrequire the security and stability of an adoptive family to develop theirfull potential. Adoption allows these and other children to have the perma-nent homes they deserve, and it enables many dedicated adults to experiencethe joys and rewards of parenting.

My Administration is working hard to find ways to help encourage adoption.On December 14, 1996, I issued a Memorandum to the Secretaries of Healthand Human Services, the Treasury, Labor, and Commerce and to the Directorof the Office of Personnel Management, directing them to promote effortsto both increase the number of children who are adopted or permanentlyplaced each year and to move children more rapidly from foster care topermanent homes. I also urged them to increase public awareness aboutthe children waiting for permanent families and to encourage all Americansto consider the rewards of adoption.

I challenged the members of my Administration to work with States, commu-nities, and civic leaders to create a plan for doubling the number of adoptionsand permanent placements for children to 54,000 by the year 2002. Andon February 14, 1997, the Adoption 2002 report, outlining changes in policiesand practices necessary to reach this goal, was released. Since then, wehave been actively implementing the recommendations included in the re-port, and States are reviewing data and submitting numerical targets foradoption and guardianships to be completed by the year 2002. The Officeof Personnel Management has published a guide for Federal workers inter-ested in adopting, and the Department of Health and Human Services ispreparing to make the first annual Adoption 2002 Excellence awards laterthis year. Finally, the Congress is considering historic legislation that wouldprovide the resources and statutory authority for financial incentives, tech-nical assistance, and improved judicial decision-making for children in fostercare.

As a Nation, we have before us an opportunity to make a real differencein the lives of our most vulnerable children. We must continue to promotepublic awareness of the need for adoptive families and to help familiesmake the choice to provide loving, permanent homes for the many childrenwho otherwise must continue to wait. We must also strengthen our supportof those families who do choose to adopt. As we observe National AdoptionMonth, we reaffirm our commitment to adoption as a new beginning forthousands of children, and we celebrate the many American families whohave embraced these children by accepting the rewards and responsibilitiesof adoption.

60154 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Presidential Documents

NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United Statesof America, by virtue of the authority vested in me by the Constitutionand laws of the United States, do hereby proclaim November 1997 as NationalAdoption Month. I urge all Americans to observe this month with appropriateprograms and activities to honor adoptive families and to participate inefforts to find permanent homes for waiting children.

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

œ–[FR Doc. 97–29567

Filed 11–5–97; 8:45 am]

Billing code 3195–01–P

i

Reader Aids Federal Register

Vol. 62, No. 215


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FEDERAL REGISTER PAGES AND DATES, NOVEMBER

59275–59558......................... 359599–59772......................... 459773–59990......................... 559991–60154......................... 6

CFR PARTS AFFECTED DURING NOVEMBER

At the end of each month, the Office of the Federal Registerpublishes separately a List of CFR Sections Affected (LSA), whichlists parts and sections affected by documents published sincethe revision date of each title.

3 CFR

Proclamations:7046.................................595597047.................................597737048.................................60153Executive Orders:13067...............................59989

5 CFR

1201.................................599911209.................................59992Proposed Rules:532...................................59300630...................................59301

8 CFR

213a.................................60122214...................................60122299...................................60122

9 CFR

Proposed Rules:304...................................59304308...................................59304310.......................59304, 59305320...................................59304327...................................59304381.......................59304, 59305416...................................59304417...................................59304

10 CFR

13.....................................5927532.....................................5927550.....................................5927551.....................................5927555.....................................5927560.....................................5927572.....................................59275110...................................59275431...................................59978

11 CFR

Proposed Rules:100...................................60047

12 CFR

204...................................59775614...................................59779619...................................59779Proposed Rules:3.......................................59944208...................................59944225...................................59944325...................................59944567...................................59944

14 CFR

25.....................................5956139 ...........59277, 59280, 59565,

59566, 59780, 59781, 59993

71.....................................59783255...................................59784Proposed Rules:39 ...........59310, 59826, 59827,

59829, 59830, 60047, 6004971.....................................60051255...................................59313

15 CFR

Proposed Rules:303...................................59829960...................................59317

17 CFR

Proposed Rules:3.......................................5962432.....................................5962433.....................................59624

18 CFR

4.......................................59802375...................................59802

20 CFR

416...................................59812

21 CFR

173...................................59281Proposed Rules:514...................................59830600...................................59386606...................................59386

24 CFR

203...................................60124206...................................60124

29 CFR

2204.................................59568

30 CFR

870...................................60138914...................................59569Proposed Rules:707...................................59639874...................................59639

32 CFR

311...................................59578

37 CFR

Proposed Rules:2.......................................596403.......................................59640

38 CFR

21.....................................59579

40 CFR

52 ............59284, 59995, 5999658.....................................5981380....................................59998,

ii Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Reader Aids

6013281.....................................60001260...................................59287721...................................59579Proposed Rules:52.........................59331, 6005258.....................................5984080.....................................60052141.......................59388, 59486142.......................59388, 59486260...................................59332300...................................60058

41 CFR

105–60.............................60014

42 CFR

424...................................59818

43 CFR

1860.................................598203710.................................59821

44 CFR

64.....................................59290

46 CFR

Proposed Rules:10.....................................6012215.....................................60122

47 CFR

1...........................59822, 6002521.....................................6002525.....................................5929342.....................................5958361.....................................5958364.....................................6003473.....................................5960574.....................................60025Proposed Rules:36.....................................59842

48 CFR

Proposed Rules:225...................................59641252...................................59641

49 CFR

199...................................59297385...................................60035

50 CFR

17.....................................59605679.......................59298, 59623Proposed Rules:17.....................................59334222...................................59335600...................................59386679.......................59844, 60060

iiiFederal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Reader Aids

REMINDERSThe items in this list wereeditorially compiled as an aidto Federal Register users.Inclusion or exclusion fromthis list has no legalsignificance.

RULES GOING INTOEFFECT NOVEMBER 6,1997

INTERIOR DEPARTMENTAcquisition regulations:

Regulatory streamlining;published 10-7-97

MERIT SYSTEMSPROTECTION BOARDPractices and procedures:

Appeals and petitions forreview of judges’ initialdecisions; time limitchanges; published 11-6-97

Personnel actions allegedlybased on whistleblowing;appeals and stayrequests; published 11-6-97

TRANSPORTATIONDEPARTMENTFederal AviationAdministrationAirworthiness directives:

McDonnell DouglasHelicopter Systems;published 10-2-97

Class C and Class Dairspace; published 8-28-97

Class D airspace; published 9-11-97

Class E airspace; published 7-25-97

Jet routes; published 8-1-97Restricted areas; published

10-7-97VOR Federal airways;

published 8-19-97

COMMENTS DUE NEXTWEEK

AGRICULTUREDEPARTMENTAgricultural MarketingServiceOranges, grapefruit,

tangerines, and tangloesgrown in Florida; commentsdue by 11-10-97; published10-30-97

AGRICULTUREDEPARTMENTAnimal and Plant HealthInspection ServicePlant-related quarantine,

domestic:Mediterranean fruit fly;

comments due by 11-10-97; published 9-10-97

Oriental fruit fly; commentsdue by 11-10-97;published 9-10-97

AGRICULTUREDEPARTMENTFederal Crop InsuranceCorporationAdministrative regulations:

Policies submission andprovisions and premiumrates; comments due by11-10-97; published 9-11-97

AGRICULTUREDEPARTMENTFarm Service AgencyProgram regulations:

Loan security servicing; useof subordinations to movedirect farm credit programborrowers to privatesector; comments due by11-10-97; published 9-9-97

AGRICULTUREDEPARTMENTFood Safety and InspectionServiceMeat and poultry inspection:

Sanitation requirements forofficial establishment;comments due by 11-10-97; published 10-28-97

AGRICULTUREDEPARTMENTRural Business-CooperativeServiceProgram regulations:


AGRICULTUREDEPARTMENTRural Housing ServiceProgram regulations:


AGRICULTUREDEPARTMENTRural Utilities ServiceProgram regulations:


COMMERCE DEPARTMENTEconomic Analysis BureauInternational services surveys:

Foreign direct investmentsin U.S.—BE-22 annual survey of

selected servicestransactions withunaffiliated foreignpersons; comments dueby 11-10-97; published9-26-97

BE-93 annual survey ofroyalties, license fees,and other receipts andpayments for intangiblerights between U.S. andunaffiliated foreignpersons; comments dueby 11-10-97; published9-26-97

COMMERCE DEPARTMENTNational Oceanic andAtmospheric AdministrationOcean and coastal resource

management:Marine sanctuaries—

Thunder Bay NationalMarine Sanctuary, MI;designation; commentsdue by 11-14-97;published 9-10-97

Space-based data collectionsystems; policies andprocedures; comments dueby 11-10-97; published 9-9-97

COMMODITY FUTURESTRADING COMMISSIONCommodity Exchange Act:

Risk disclosure statements;distribution by futurescommission merchantsand introducing brokers;comments due by 11-10-97; published 9-10-97

DEFENSE DEPARTMENTAcquisition regulations:

Central contractorregistration; commentsdue by 11-14-97;published 9-15-97

Federally funded researchand development centers;weighted guidelinesexemption; comments dueby 11-14-97; published 9-15-97

Federal Acquisition Regulation(FAR):Buy American Act exception

for information technologyproducts; comments dueby 11-10-97; published 9-9-97

ENERGY DEPARTMENTEnergy Efficiency andRenewable Energy OfficeConsumer products; energy

conservation program:Furnaces and boilers; test

procedures; commentsdue by 11-13-97;published 10-14-97

ENVIRONMENTALPROTECTION AGENCYAir programs:

Fuel and fuel additives—Methyl tertiary butyl ether,

etc.; baseline gasolineand oxygenatedgasoline categories; tier2 requirementalternatives; commentsdue by 11-10-97;published 9-9-97

Air quality implementationplans; approval andpromulgation; variousStates:California; comments due by

11-10-97; published 10-10-97

Maryland; comments due by11-14-97; published 10-15-97

Superfund program:National oil and hazardous

substances contingencyplan—National priorities list

update; comments dueby 11-10-97; published10-9-97

National priorities listupdate; comments dueby 11-10-97; published10-10-97

FEDERALCOMMUNICATIONSCOMMISSIONPersonal communications

services:Licenses in C block

(broadband PCS)—Installment payment

financing; commentsdue by 11-13-97;published 10-24-97

Radio stations; table ofassignments:California; comments due by

11-10-97; published 9-29-97

Idaho et al.; comments dueby 11-10-97; published 9-26-97

FEDERAL HOUSINGFINANCE BOARDFederal home loan bank

system:Combination business or

farm properties on whichresidence is located;membership andadvances eligibility;comments due by 11-13-97; published 10-14-97

HEALTH AND HUMANSERVICES DEPARTMENTFood and DrugAdministrationHuman drugs and biological

products:Pediatric studies

requirements; safety and

iv Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Reader Aids

effectiveness of drugs andbiological products forchildren; comments dueby 11-13-97; published 8-15-97

INTERIOR DEPARTMENTFish and Wildlife ServiceEndangered and threatened

species:Desert bighorn sheep;

Peninsular Rangespopulation; comments dueby 11-12-97; published10-27-97

INTERIOR DEPARTMENTSurface Mining Reclamationand Enforcement OfficeAbandoned mine land

reclamation:Fund reauthorization;

implementation; commentsdue by 11-10-97;published 9-10-97

Permanent program andabandoned mine landreclamation plansubmissions:

Virginia; comments due by11-13-97; published 10-14-97

JUSTICE DEPARTMENTImmigration andNaturalization ServiceImmigration:

Canadian border boatlanding permit program;application and issuanceprocedures; commentsdue by 11-10-97;published 9-11-97

JUSTICE DEPARTMENTPrisons BureauInmate control, custody, care,

etc.:Visitor notification

requirements; commentsdue by 11-10-97;published 9-11-97

LIBRARY OF CONGRESSCopyright Office, Library ofCongressUruguay Round Agreements

Act (URAA):Copyright restoration of

certain Berne Convention

and World TradeOrganization works—Restored copyright,

notices of intent toenforce; correctionsprocedure; commentsdue by 11-12-97;published 10-28-97

SMALL BUSINESSADMINISTRATIONSmall business investment

companies:Miscellaneous amendments;

comments due by 11-13-97; published 10-14-97

TRANSPORTATIONDEPARTMENTComputer reservation systems,

carrier-owned; commentsdue by 11-10-97; published9-10-97

TRANSPORTATIONDEPARTMENTFederal AviationAdministrationAirworthiness directives:

Airbus; comments due by11-10-97; published 10-14-97

Boeing; comments due by11-12-97; published 9-12-97

British Aerospace;comments due by 11-10-97; published 10-14-97

TRANSPORTATIONDEPARTMENT

Surface TransportationBoard

Rate procedures:

Simplified rail ratereasonablenessproceedings; expeditedprocedures; commentsdue by 11-10-97;published 9-26-97

VETERANS AFFAIRSDEPARTMENT

Acquisition regulations:

Duplicative provisionselimination, etc.;comments due by 11-10-97; published 9-9-97