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ThursdayJuly 31, 1997Vol. 62 No. 147

Pages 40911–41248

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Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997

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Contents Federal Register

III

Vol. 62, No. 147

Thursday, July 31, 1997

Agricultural Marketing ServiceNOTICESAgency information collection activities:

Submission for OMB review; comment request, 41021

Agriculture DepartmentSee Agricultural Marketing ServiceSee Cooperative State Research, Education, and Extension

ServiceSee Food and Consumer ServiceRULESCivil monetary penalties; inflation adjustment, 40924–

40928NOTICESAgency information collection activities:

Submission for OMB review; comment request, 41020–41021

Centers for Disease Control and PreventionNOTICESGrants and cooperative agreements; availability, etc.:

Breast and cervical cancer health education interventions;replication and dissemination, 41051

Healthcare-associated infections and antimicrobialresistant infections; surveillance, prevention, andcontrol; research and demonstration programs,41051–41052

Coast GuardNOTICESMeetings:

Chemical Transportation Advisory Committee, 41125–41126

Commerce DepartmentSee Economic Development AdministrationSee National Oceanic and Atmospheric AdministrationSee Technology Administration

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

Indonesia, 41024Mauritius, 41024–41025Turkey, 41025–41026

Textile and apparel categories:Correlation with U.S. Harmonized Tariff Schedule,

41026–41027

Cooperative State Research, Education, and ExtensionService

NOTICESGrants and cooperative agreements; availability, etc.:

Fund for Rural America program, 41240–41247

Customs ServicePROPOSED RULESMerchandise remaining at place of arrival or unlading

beyond lay order period; general order; penalties forfailure to notify Customs, 40992–40995

NOTICESCommercial laboratory accreditations:

SGS Control Services, Inc., 41132–41133

Customhouse broker license cancellation, suspension, etc.:Jacovina, Joseph F., et al., 41133Winsch, Stephen M., et al., 41133

Defense DepartmentSee Defense Logistics AgencySee Navy Department

Defense Logistics AgencyNOTICESPrivacy Act:

Computer matching programs, 41027–41028

Economic Development AdministrationNOTICESTrade adjustment assistance eligibility determination

petitions:Sensor Scientific, Inc., et al., 41022–41023

Education DepartmentNOTICESPostsecondary education:

Accrediting agencies and State approval agencies forvocational and nurse education institutions; nationalrecognition, 41029

Employment and Training AdministrationNOTICESFederal-State unemployment compensation program:

Unemployment insurance benefit accuracy measurementannual report; availability, 41083–41084

Employment Standards AdministrationNOTICESAgency information collection activities:

Proposed collection; comment request, 41084–41085

Energy DepartmentSee Energy Efficiency and Renewable Energy OfficeSee Federal Energy Regulatory CommissionNOTICESFloodplain and wetlands protection; environmental review

determinations; availability, etc.:Weldon Spring Site, MO, 41029–41031

Grants and cooperative agreements; availability, etc.:Chemical Industry Initiative; energy efficiency

improvement and wastes generation minimization;innovative research and development, 41032

Energy efficiency; regional market transformation guidedevelopment, 41032

Energy Efficiency and Renewable Energy OfficeNOTICESConsumer product test procedures; waiver petitions:

HEAT-N-GLO Fireplace Products, Inc., 41032–41034

Environmental Protection AgencyRULESAir quality implementation plans; approval and

promulgation; various States:California, 40934–40937District of Columbia, 40937–40938

IV Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Contents

Maryland, 40938–40945Water pollution control:

Water quality standards—Idaho, 41162–41188

PROPOSED RULESAir programs:

Ambient air quality standards, national—Regional haze standards for class I Federal areas (large

national parks and wilderness areas); visibilityprotection program, 41138–41160

Air quality implementation plans; approval andpromulgation; various States:

California, 41004–41005Louisiana, 41002–41004

Hazardous waste:Identification and listing—

Exclusions, 41005–41012NOTICESAgency information collection activities:


Clean Air Act:Fuels and fuel additives—

Reformulated gasoline; minimum oxygen contentstandards, 41047–41049

Drinking water:Safe Drinking Water Act—

New York; state primary enforcement program revisionapproval, 41049

Federal Aviation AdministrationPROPOSED RULESAirworthiness directives:

AlliedSignal Inc., 40985–40987NOTICESEnvironmental statements; availability, etc.:

John F. Kennedy International Airport, NY, 41126Meetings:

Aviation Rulemaking Advisory Committee, 41126–41127

Federal Communications CommissionRULESRadio services, special:

Private land mobile services—800 MHz frequency band SMR systems; future

development, 41190–41238Radio stations; table of assignments:

Colorado et al., 40947–40948Michigan, 40948Pennsylvania, 40949Tennessee, 40949Wyoming, 40948–40949

PROPOSED RULESFrequency allocations and radio treaty matters:

Television channels 60—69; 746—806 MHz band, 41012–41015

Radio stations; table of assignments:Kansas, 41016Pennsylvania et al., 41015

Federal Election CommissionPROPOSED RULESContribution and expenditure limitations and prohibitions:

Corporate and labor organizations—Association member; definition, 40982–40985

Federal Emergency Management AgencyRULESFlood insurance; communities eligible for sale:

Michigan et al., 40945–40947NOTICESDisaster and emergency areas:

Michigan, 41049–41050Texas, 41050Wisconsin, 41050

Federal Energy Regulatory CommissionPROPOSED RULESProperty and oil pipeline units accounting regulations,

40987–40992NOTICESElectric rate and corporate regulation filings:

CEA Bhilai Energy Co., Ltd., et al., 41038–41042Southwestern Electric Power Co. et al., 41042–41045

Environmental statements; availability, etc.:Grand River Dam Authority, 41045

Hydroelectric applications, 41045–41046Applications, hearings, determinations, etc.:

Algonquin LNG, Inc., 41034–41035Lowell Cogeneration Co., L.P., 41035Mississippi River Transmission Corp., 41035Nautilus Pipeline Co. LLC, 41035–41036Paiute Pipeline Co., 41036Penobscot Bay Energy Co., L.L.C., 41036Texas Gas Transmission Corp., 41036–41037Union Electric Co., 41037Union Electric Development Corp., 41037UTIL Power Marketing, Inc., 41037Williams Natural Gas Co., 41037–41038Zond Development Corp. et al., 41038

Federal Labor Relations AuthorityRULESUnfair labor practice proceedings; miscellaneous and

general requirements, 40911–40924

Federal Maritime CommissionNOTICESAgreements filed, etc., 41050Freight forwarder licenses:

Asian Pacific Logistics et al., 41050Investigations, hearings, petitions, etc.:

Intercargo Insurance Co., Inc., 41050–41051

Federal Reserve SystemNOTICESBanks and bank holding companies:

Change in bank control, 41051

Federal Retirement Thrift Investment BoardNOTICESMeetings; Sunshine Act, 41051

Federal Transit AdministrationRULESBuy America requirements:

Rolling stock; technical amendment, 40953–40954

Fish and Wildlife ServiceRULESEndangered and threatened species:

Hoffmann’s rock-cress, etc. (13 plant taxa from NorthernChannel Islands, CA), 40954–40974

VFederal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Contents

PROPOSED RULESEndangered and threatened species:

Santa Rosa Island dudleya, etc. (3 plant taxa fromNorthern Channel Islands, CA), 41016–41019

NOTICESEndangered and threatened species permit applications,

41072Marine mammals permit applications, 41072–41073

Food and Consumer ServiceNOTICESAgency information collection activities:


Food and Drug AdministrationRULESAnimal drugs, feeds, and related products:

Apramycin, 40932–40933Sponsor name and address changes—

Boehringer Ingelheim Animal Health, Inc.; correction,40932

Fort Dodge Animal Health, 40930–40931Medicis Dermatologics, Inc., 40931–40932

PROPOSED RULESProtection of human subjects:

Informed consent for use of investigational drugs andbiologics; waiver procedures for personnel in certainbattlefield or combat-related situations, 40996–41001

NOTICESCommittees; establishment, renewal, termination, etc.:

Blood Products Advisory Committee, 41052–41053Science Board, 41053

Food additive petitions:Goldschmidt Chemical Corp., 41053–41054

Harmonisation International Conference; guidelinesavailability:

Pharmaceuticals—Foreign clinical data; ethnic factors in acceptability,

41054–41061Human drugs:

Pregnancy subsection labeling for prescription drugs;content and format requirements; public hearing andcomment request, 41061–41063

Geological SurveyNOTICESAgency information collection activities:

Submission for OMB review; comment request, 41073

Health and Human Services DepartmentSee Centers for Disease Control and PreventionSee Food and Drug AdministrationSee Health Care Financing AdministrationSee Inspector General Office, Health and Human Services

DepartmentSee National Institutes of Health

Health Care Financing AdministrationSee Inspector General Office, Health and Human Services

DepartmentNOTICESAgency information collection activities:


Housing and Urban Development DepartmentNOTICESGrants and cooperative agreements; availability, etc.:

HOPE VI public housing demolition; correction, 41070–41071

Immigration and Naturalization ServiceNOTICESAgency information collection activities:


Inspector General Office, Health and Human ServicesDepartment

NOTICESProgram exclusions; list, 41064–41067

Interior DepartmentSee Fish and Wildlife ServiceSee Geological SurveySee Land Management Bureau

Internal Revenue ServiceNOTICESAgency information collection activities:


Justice DepartmentSee Immigration and Naturalization ServiceNOTICESPollution control; consent judgments:

Akzo Nobel Coatings, Inc., et al., 41077–41078Bill Currie Ford, Inc., et al., 41078Cosmo Iacavazzi, et al., 41078–41079New Hampshire Ball Bearings, Inc., 41079Plametto, FL. et al., 41079

Privacy Act:Computer matching programs, 41079–41080

Labor DepartmentSee Employment and Training AdministrationSee Employment Standards AdministrationSee Mine Safety and Health AdministrationSee Occupational Safety and Health AdministrationSee Pension and Welfare Benefits AdministrationNOTICESAgency information collection activities:


Committees; establishment, renewal, termination, etc.:Employee Welfare and Pension Benefit Plans Advisory

Council, 41082

Land Management BureauNOTICESClosure of public lands:

Idaho, 41073–41074Environmental statements; availability, etc.:

Grand Staircase-Escalante National Monument, UT,41074

Soledad Mountain Project, Kern County, CA, 41074–41075

Meetings:Resource advisory councils—

Bakersfield, CA, 41075–41076Survey plat filings:

Colorado, 41076Withdrawal and reservations of lands:

Wyoming, 41076–41077

VI Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Contents

Maritime AdministrationNOTICESAgency information collection activities:

Proposed collection; comment request, 41127

Mine Safety and Health AdministrationNOTICESAgency information collection activities:


National Credit Union AdministrationRULESCredit unions:

Loan interest rates, 40928–40930

National Highway Traffic Safety AdministrationRULESMotor vehicle safety standards:

Lamps, reflective devices, and associated equipment—Technical amendment, 40953

Motor vehicle theft prevention standard:High theft lines for 1998 model year; listing, 40949–

40953NOTICESMotor vehicle safety standards; exemption petitions, etc.:

American Honda Motor Co., Inc., 41127–41128

National Institutes of HealthNOTICESMeetings:

National Cancer Institute, 41067–41068National Institute of Child Health and Human

Development, 41068–41069National Institute of Diabetes and Digestive and Kidney

Diseases, 41069–41070National Institute of General Medical Sciences, 41068National Institute of Mental Health, 41070National Institute on Deafness and Other Communication

Disorders, 41068

National Oceanic and Atmospheric AdministrationRULESFishery conservation and management:

Alaska; fisheries of Exclusive Economic Zone—Rock sole/flathead sole, etc., 40974

National Science FoundationNOTICESAgency information collection activities:

Proposed collection; comment request, 41093–41094Grants and cooperative agreements; availability, etc.:

Environmental molecular science institutes establishmentprogram, 41094–41097

Navy DepartmentNOTICESBase realignment and closure:

Surplus Federal property—Naval Air Station, Key West, FL, 41029

Nuclear Regulatory CommissionPROPOSED RULESMedical use of byproduct material:

License terms, 40975–40978

Production and utiliztation facilities, domestic licensing:Nuclear power reactors—

Emergency preparedness programs, safeguardscontingency plans, and security programs;frequency of licensees’ independent reviews andaudits, 40978–40982

NOTICESAgency information collection activities:


Certificates of compliance:United States Enrichment Corp.—

Paducah Gaseous Diffusion Plant, KY, 41101Portsmouth Gaseous Diffusion Plant, OH, 41100–41101

Environmental statements; availability, etc.:Duke Power Co., 41101–41102Duke Power Co. et al., 41102–41103

Reports and guidance documents; availability, etc.:Nuclear power plants; safety analysis reports; standard

review plan, 41103–41104Applications, hearings, determinations, etc.:

Private Fuel Storage, Limited Liability Co., 41099–41100

Occupational Safety and Health AdministrationPROPOSED RULESSafety and health standards:

Control of hazardous energy sources (lockout/tagout)Comment period extension, 41002

Ethylene oxide standard reviewComment period extension, 41002

Occupational Safety and Health Review CommissionRULESPractice and procedure:

E-Z Trial pilot program implementation and simplifiedproceedings for adjudicative process; rules revision,40933–40934

Pension and Welfare Benefits AdministrationNOTICESAgency information collection activities:

Proposed collection; comment request, 41086–41088Employee benefit plans; prohibited transaction exemptions:

ILGWU National Retirement Fund et al., 41088–41093

Public Health ServiceSee Centers for Disease Control and PreventionSee Food and Drug AdministrationSee National Institutes of Health

Railroad Retirement BoardPROPOSED RULESRailroad Retirement Act:

Court decree or court-approved property settlement,40995–40996


Proposed collection; comment request, 41104

Research and Special Programs AdministrationNOTICESHazardous materials:

Exemption applications delayed; list, 41128–41130

Securities and Exchange CommissionNOTICESSelf-regulatory organizations; proposed rule changes:

New York Stock Exchange, Inc., 41118–41119

VIIFederal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Contents

Applications, hearings, determinations, etc.:Aetna Life Insurance and Annuity Co., et al., 41104–

41108CUNA Mutual Life Insurance Co., et al., 41108–41116Public utility holding company filings, 41116Seilon, Inc., 41116–41118

Small Business AdministrationNOTICESDisaster loan areas:

Michigan, 41119

State DepartmentNOTICESMeetings:

Shipping Coordinating Committee, 41119

Technology AdministrationNOTICESMeetings:

Federal Key Management Infrastructure FederalInformation Processing Standard DevelopmentTechnical Advisory Committee, 41023–41024

Textile Agreements Implementation CommitteeSee Committee for the Implementation of Textile

Agreements

Transportation DepartmentSee Coast GuardSee Federal Aviation AdministrationSee Federal Transit AdministrationSee Maritime AdministrationSee National Highway Traffic Safety AdministrationSee Research and Special Programs AdministrationNOTICESAgency information collection activities:


Privacy Act:Systems of records, 41120–41124

Senior Executive Service:Performance Review Boards; membership, 41124–41125

Treasury DepartmentSee Customs ServiceSee Internal Revenue Service



Senior Executive Service:Performance Review Board; membership, 41132

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

International educational and cultural activities—Canada, Germany, Greece, Italy, Turkey, and United

Kingdom; training programs, 41134–41136

Separate Parts In This Issue

Part IIEnvironmental Protection Agency, 41138–41160

Part IIIEnvironmental Protection Agency, 41162–41188

Part IVFederal Communications Commission, 41190–41238

Part VDepartment of Agriculture, Cooperative State Research,

Education, and Extension Service, 41240–41247

Reader AidsAdditional information, including a list of public laws,telephone numbers, reminders, and finding aids, appears inthe 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.

VIII Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Contents

5 CFR2423.................................409112429.................................40911

7 CFR3.......................................40924278...................................40924400...................................40924

10 CFRProposed Rules:35.....................................4097550.....................................4097873.....................................40978

11 CFRProposed Rules:100...................................40982114...................................40982

12 CFR701...................................40928

14 CFRProposed Rules:39.....................................40985

18 CFRProposed Rules:101...................................40987116...................................40987201...................................40987216...................................40987352...................................40987

19 CFRProposed Rules:4.......................................40992122...................................40992123...................................40992148...................................40992192...................................40992

20 CFRProposed Rules:295...................................40995

21 CFR510 (2 documents) .........40930,

40931520...................................40932524...................................40931556...................................40932Proposed Rules:50.....................................40996

29 CFR2200.................................40933Proposed Rules:1910 (2 documents) ........41002

40 CFR52 (3 documents) ...........40934,

40937, 40938131...................................41162Proposed Rules:51.....................................4113852 (2 documents) ...........41002,

41004261...................................41005

44 CFR64.....................................40945

47 CFR73 (5 documents) ...........40947,

40948, 4094990 (2 documents) ...........41190,

41225Proposed Rules:2.......................................41012

73 (2 documents) ...........41015,41016

49 CFR541...................................40949571...................................40953661...................................40953

50 CFR17.....................................40954679...................................40974Proposed Rules:17.....................................41016

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

40911

Vol. 62, No. 147


FEDERAL LABOR RELATIONSAUTHORITY

5 CFR Parts 2423 and 2429

Unfair Labor Practice Proceedings:Miscellaneous and GeneralRequirements

AGENCY: Federal Labor RelationsAuthority.ACTION: Final rule.

SUMMARY: The Federal Labor RelationsAuthority amends portions of itsregulations regarding unfair laborpractice (ULP) proceedings (Part 2423)and miscellaneous and generalrequirements (Part 2429). Theamendments are designed to streamlinethe existing regulations, facilitatedispute resolution, clarify the matters tobe adjudicated, provide more flexibilityto the participants in the ULP process,simplify the filing and servicerequirements, and promote confidencein ULP proceedings. Implementation ofthese changes enhances the ULPprocess, by raising the level of advocacyand assisting in the adjudication andresolution of ULP claims.EFFECTIVE DATE: October 1, 1997.ADDRESSES: Written comments receivedare available for public inspectionduring normal business hours at theOffice of Case Control, Federal LaborRelations Authority, 607 14th Street,NW., Washington, DC 20424–0001.FOR FURTHER INFORMATION CONTACT:Peter Constantine, Office of CaseControl, at the address listed above orby telephone # (202) 482–6540.

SUPPLEMENTARY INFORMATION:

BackgroundThe Federal Labor Relations

Authority proposed revisions to Part2423 of its regulations addressing unfairlabor practice (‘‘ULP’’) proceedings, aswell as to related miscellaneous andgeneral requirements located at Part

2429 of its regulations. The proposedrule was published in the FederalRegister and public comment wassolicited on the proposed changes (62FR 28378) (May 23, 1997). Prior toproposing the rule, the Federal LaborRelations Authority established a taskforce to evaluate the policies andprocedures concerning the processing ofan unfair labor practice complaint. Thetask force conducted focus groups andinvited the public to submit writtenrecommendations on ways to improvethe post complaint ULP process (60 FR11057) (Mar. 1, 1995).

Concurrent with issuing the proposedrule, the Authority invited comment onthe proposed rule in two ways: byconvening focus group meetings, in June1997 in Chicago, IL and in Washington,DC, and by offering the public anopportunity to submit writtencomments. All comments, whetherexpressed orally in a focus group orsubmitted in writing, have beenconsidered prior to publishing the finalrule, although all comments are notspecifically addressed in the section-by-section analysis, below. Revisions to theproposed rule are driven for the mostpart by suggestions and commentsreceived from the public.

One commenter stated that in order toensure that serious consideration wasafforded to suggested revisions, theregulations should not be finalized untila lengthy time period after the close ofthe comment period. The process ofrevising the Authority’s ULP regulationshas been anything but precipitous. Onthe contrary, publication of the finalrule marks the culmination of years ofcareful consideration of how to betterthe ULP process. The Authority hasafforded full consideration to the adviceoffered by commenters. Theimprovements these essential andneeded changes bring to the ULPprocess should be implemented withoutfurther delay.

Those commenters who suggestedchanges to subpart A of part 2423 arereminded that it will be revised during1998. As a result, comments concerningsubpart A (Filing, Investigating,Resolving, and Acting on Charges) willnot be addressed at this time.

Sectional Analyses

Sectional analyses of the amendmentsand revisions to Part 2423—UnfairLabor Practice Proceedings and Part

2429—Miscellaneous and GeneralRequirements are as follows:

Part 2423—Unfair Labor PracticeProceedings

Section 2423.1—Final rule isamended to reflect the October 1, 1997effective date of subparts B, C, and D ofthis part.

Subpart A—Filing, Investigating,Resolving, and Acting on Charges

Sections 2423.2–2423.11—Final ruleas promulgated is the same as proposedrule.

Sections 2423.12–2423.19—Thesesections are reserved.

Subpart B—Post Complaint, PrehearingProcedures

Section 2423.20—Numerouscommenters responded favorably to thetransfer of various functions from theRegional Director to the Office of theAdministrative Law Judge reflected inthis and subsequent sections.Commenters acknowledged that thistransfer promoted confidence in thesystem by properly recognizing thedistinctions between prosecutorial andadjudicatory responsibilities.

One proposed change, having bothsupport and opposition, was theproposal in paragraph (a) that thecomplaint specifically set out the ‘‘reliefsought.’’ Those in favor of this changebelieved that this requirement wouldclarify issues and notify the chargedparties of what was being requested ofthem. Those opposed contended thatsuch a pleading requirement couldhinder settlement and might beinterpreted as placing a ceiling upon theremedy that ultimately could beawarded in the case. It was suggestedthat this pleading requirement wouldlead to complaints listing everyconceivable remedy or, alternatively,multiple amendments of the complaint.Suggesters recommended a less onerouspleading requirement, such as requiringthe pleading of only non-traditionalremedies, in order to avoid ‘‘locking’’the parties into positions that wouldjeopardize settlement discussions.

In addressing these concerns, the finalregulation eliminates the requirement toplead the remedy sought in thecomplaint, but instead requiresdisclosing the relief sought prior to thehearing pursuant to § 2423.23. Thismodification was made in order toeffectuate the underlying goal of

40912 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

providing notice and clarification to therespondent, while, at the same time,allowing the parties the freedom topursue resolution of the complaintwithout having established positionsconcerning the remedy desired.

It was suggested that ‘‘affirmativedefenses’’ be made a part of therespondent’s answer. Along these lines,one commenter suggested anamendment that any affirmativedefenses not raised in the answer wouldbe waived. On the other hand, onecommenter indicated that even a ‘‘nocomment’’ answer from a respondentshould be an acceptable reply, at leastuntil the General Counsel had provenhis or her case. The final regulationremains unchanged, in this regard, fromthe proposed rule, requiring only thatthe respondent either admit, deny orexplain allegations contained in thecomplaint. In seeking to balance therespective interests, the final rule treatsthe respondent’s obligation to set outaffirmative defenses in the same waythat it addresses the General Counsel’sobligation to describe the relief sought.As a result, at the prehearing disclosurestage, governed by § 2423.23, therespondent will be required to set forthany and all defenses. The regulationthus should serve the underlying goal ofputting the parties on notice as to whatthe defenses are, without requiring morethan is necessary in the answer itself. Asthe previous paragraph indicates, theinterests of all parties are served byhaving the remedies and defenses setforth at the prehearing stage.

One commenter suggested that theAuthority include a sentence inparagraphs (a) and (b) regarding theservice and filing requirements. Asstated in the proposed rule andunchanged in the final rule, allpleadings are subject to the filing andservice requirements of part 2429 of thesubchapter.

One commenter noted that in unusualcircumstances, a hearing might beginless than 20 days after service of thecomplaint. In such cases, under theregulation as proposed, the answerwould not have been filed and servedprior to the beginning of the hearing.Paragraphs (b) and (c) have been revisedto respond to this contingency andprovide that the answer, and anyamendments to the answer, must befiled and served, in any event, prior tothe beginning of the hearing.

Paragraph (d) has been changed tonote that the terms ‘‘Administrative LawJudge’’ and ‘‘Judge’’ are synonymous forthe purposes of subparts B, C, and D.

Section 2423.21—Commentersfavored the filing of motions with theJudge rather than with the Regional

Director, as was required under theprior regulations. In response tocommenters’ concerns regarding theprehearing time deadlines set forth inthe proposed rules (for prehearingdisclosure, motions, and subpoenas),time deadlines are changed throughoutthe final rule. The final rule changes thetime for filing of motions from 15 daysbefore or after the specified event to 10days. For prehearing motions, this 10-day prior to hearing deadline retains thesame number of days as the current rule(5 CFR 2423.22(a)). The time forresponses is unchanged. It is alsonoteworthy that the Judge has theauthority to vary the timelinessprovisions governing the filing ofmotions as necessary to meet the needsof a given case.

One commenter wanted to verify thatall motions, including motions forsummary judgment, are subject to filingand service requirements of part 2429.To ensure that this is understood, thelast sentence of paragraph (a) has beenclarified.

Paragraph (b) of this section has beensubdivided into four parts in order toaccommodate suggestions ofcommenters. As a result, the finalregulation clarifies that responses tomotions made during the hearing shallbe made prior to the close of hearing,unless otherwise directed by the Judge,and that motions to correct thetranscript shall be filed within 10 daysof receiving the transcript, rather thanwithin 15 days of hearing. Subsection(c) also now states that responses tomotions filed with the Authority shallbe filed within 5 days after service ofthe motion.

The reference to § 2429.11 inparagraph (d) has been changed to§ 2423.31(c) as a result of the relocationof the unfair labor practice interlocutoryappeals procedures to part 2423.

Section 2423.22—Final rule aspromulgated is the same as proposedrule.

Section 2423.23—Most commentersfavored early disclosure of informationprior to hearing, believing that such anexchange would facilitate an earlyresolution of cases and avert ‘‘trial byambush.’’ One commenter disagreed,stating that early exchange ofinformation would not lead to earlierresolution via settlements; wasunnecessary because the parties alreadygenerally know what evidence andarguments others in the case will offer;and would require extensive prehearingpreparation far in advance of the date ofhearing. Having carefully consideredthese opinions, the Authority continuesto view prehearing disclosure as animportant device that will facilitate

dispute resolution and clarify thematters to be adjudicated. The partiesare more likely to resolve disputesearlier in the ULP process if they areobliged to focus on their own and theiropponents’ evidence and theory of thecase in advance of the hearing. Bysettling earlier, the Authority, theparties, and the witnesses avoidexpending resources by preparing forand traveling to trials that are averted bysettlement on the courthouse steps. Onthe other hand, if the dispute is notsettled, early prehearing disclosure willenable the parties to knowledgeably andmore efficiently prepare their caseswithout having to guess what evidenceor theories others in the litigation willoffer.

As noted in the comment to § 2423.21,several commenters suggested that thetime deadlines in the proposedregulations should be modified. Withregard to the number of days prior to thehearing that information is disclosed,although some favored the proposed 21days, others asserted that 21 days wasinsufficient, and still others stated that21 days was too far in advance of thehearing. One commenter suggested thatdisclosure should be 7 days prior to theprehearing conference. Suggestions tolengthen the time have been rejectedbecause such a change would undulyincrease the time prior to the hearingduring which the parties would have todevote resources to case preparation.However, recommendations to truncatethe period between disclosure and thehearing have been adopted.

The final rule changes the prescribeddisclosure period from 21 to 14 days.Changing the time to 14 days will stillallow for timely illumination of strategyconcerning other prehearing activities,e.g., subpoenas or motions, as thosetime deadlines also have been adjustedbased upon the change in the time forinformation disclosure. The 14-daydeadline should also allay somecommenters’ concerns regardingprehearing administrative burdens andthe potential that information will beunnecessarily prepared and exchangedin cases that may well be resolvedbefore hearing.

As noted earlier in commentaryconcerning § 2423.21, if 14 days is notdeemed an appropriate time to exchangeinformation in a given case, a party maymove the Judge, pursuant to§ 2423.24(c)(1)(ii), to change thedisclosure date or any other prehearingdates where appropriate. The finalregulation has only established 14 daysas the time period that will becontrolling absent the changing of thetime line by the Judge.

40913Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

In response to queries about themeaning of the term ‘‘shall exchange,’’the final regulations indicate that partiesshall serve the documents on any otherparty in accordance with § 2429.27(b).This should clarify both acceptablemethods of exchange and the fact thatall parties—the General Counsel, theRespondent, and the Charging Party—are required to disclose and be served.With respect to such information,several commenters suggested that theJudge be served along with the parties,and that copies served on the Judge bemade exhibits at hearing. The finalregulation declines to provide forservice to the Judge for the reason thatdisclosure is intended to put the partieson notice and not to create a record ofthe information exchanged indisclosure. The Judge will thus not needto review the information exchangedunless there is a dispute over disclosure,which would normally be handled atthe prehearing conference, pursuant to§ 2423.24(d).

As prompted by suggestions, thelanguage relating to disclosure ofdocuments has been modified to reflectthat it only includes documentsproposed to be offered into evidence.Thus, the requirement for documentdisclosure in paragraph (b) mirrors therequirement for witness disclosure inparagraph (a) in that both now refer todisclosing proposed lists of bothwitnesses and documents.

One commenter questioned themeaning of the requirement to disclose‘‘synopsis of testimony,’’ suggesting thatthis phrase could be subjected todifferent interpretations, e.g., the factsabout which the witness would testify,a summary of the testimony the witnesswould offer, or the allegation(s) in thecomplaint the witness would address.The first two examples would satisfy the‘‘synopsis of testimony’’ requirement,but the third would be insufficientbecause it would not disclose thesubstance of the expected testimony.

One commenter suggested that inaddition to the synopsis of testimony, awitness’s prehearing statements shouldalso be exchanged prior to the hearing.The final regulation declines to adopt, atthis time, this suggested addition to thedisclosure requirement; instead, untilthis matter is fully litigated, theAuthority will maintain the rulepresently in effect governing release ofprehearing statements. Under long-settled current law, and pursuant to theJencks Rule (Jencks v. United States, 353U.S. 657 (1957)), a written statementpreviously obtained prior to the hearingis disclosable for the purpose of cross-examination after the witness hastestified. Department of Treasury,

Internal Revenue Service, MemphisService Center, 16 FLRA 687 (1984). Ofcourse, under the final rule, if partieshave taken a statement from a witnessand intend to introduce the writtenstatement itself into evidence, such astatement will have to be disclosed inadvance of the hearing pursuant toparagraph (b).

Some commenters recommended thatthe regulations specify theconsequences for failing to comply withdisclosure requirements. The final ruledoes not adopt this suggestion, butinstead reserves to the Judge’s discretionthe power to impose sanctions inappropriate cases. Offering the Judgesuch discretion answers the concern ofone commenter that sanctions wouldtoo often be levied againstunsophisticated parties. The expectationis that the Judge will exercise prudence,consider all relevant factors, and imposeappropriate sanctions when parties failto act in good faith in meeting theirrespective prehearing disclosureobligations.

Finally, in response to suggestions,three changes have been made toparagraph (c). First, and as noted earlier,the final rule adds the relief sought tothe information that must be disclosed14 days prior to the hearing. Second, theword ‘‘charges’’ has been replaced withthe more appropriate phrase‘‘allegations in the complaint.’’ Third,several commenters noted that therequirement to disclose citations reliedupon in support of a theory of the caseor a defense is overly broad and couldbe interpreted to prevent a party fromrelying on a case precedent at a laterstage in the litigation if the case was notexchanged in disclosure. The finalregulation has been modified to deletethe requirement that parties listcitations to precedent.

Section 2423.24—Language has beenadded into paragraphs (b), (c), and (e) toreflect that the changing of hearing dateor place, the issuing of a prehearingorder, and imposition of sanctions maybe ordered either by the Judge in his orher discretion, or on the motion of aparty.

The final rule does not accept therecommendation of a commenter thatparagraph (b) of the regulation recognizethe authority of the Regional Director toorder a change in the date, time, orplace of the hearing when directed bythe Judge. Any orders making suchchanges must be issued by the Judge.

Commenters generally, with oneexception, favored prehearingconferences; one commenter suggestedrequiring prehearing conferences inevery case. The Authority hasconcluded that at this time it is not

necessary to mandate a prehearingconference in every case. As a result, thefinal rule in paragraph (d) retains theprocedure that was proposed, with theJudge scheduling and conducting aconference at least 7 days before thehearing unless the Judge determines thata conference is not necessary and noparty has moved for a prehearingconference. This process for the holdingof prehearing conferences will bemonitored; if it proves unwieldy, it willbe altered. Many commenters objectedto the Judge having the authority toassign one of the parties to draft asummary of the prehearing conference.This objection has been accommodatedin the final regulations; thus, when asummary of a conference is necessary, itwill be prepared and filed in the recordby the Judge. In response to acommenter’s suggestion, paragraph(d)(4) has been broadened to clarify thatpetitions to revoke subpoenas are amatter that may be considered at aprehearing conference.

Several commenters suggested thatthe Judge’s sanction authority should bemore expressly regulated. As noted inthe commentary concerning § 2423.23,the final rule on sanctions does notestablish specific penalties andprocedures, opting instead to leavethese matters to the discretion of theJudge. However, paragraph (e) has beenclarified to reflect that an importantpurpose of sanctions is to ensure that aparty’s failing to comply with subpart Bor C is not condoned. Also, in paragraph(e)(1), theories of violation, specificrelief, and specific defenses have beenincluded among the examples of itemsthat a party may be precluded frompursuing if that party has failed tosatisfy prehearing obligations.

Section 2423.25—One commentersuggested that implementation of aninformal settlement be stayed pendingthe appeal by a charging party whoobjected to the settlement between theRegional Director and the respondent.Since this is already the practice underthe current regulation, which has notbeen substantively altered by theproposed rule change, it does not appearnecessary that stays be regulated by thefinal rule.

The settlement judge program, set outin paragraph (d), was favored, withcommenters believing it will increasechances of settlement and reduceunnecessary litigation expense. Threesuggestions have been incorporated inthe final rule. First, the word ‘‘informal’’has been stricken from the last sentencein the introductory paragraph, thuspermitting a settlement official toconduct negotiations for any type ofsettlement. Second, the final rule has


been modified to clarify thatinformation derived from settlementdiscussions will be inadmissible ratherthan confidential; thus, the final ruledoes not preclude the parties fromdiscussing settlement. Third, theproposed paragraph (3), as modified,has been subdivided into two separateparagraphs.

Section 2423.26—Responding to aconcern that motions for stipulationswill add an additional step and time tothe process, the final rule provides thatsuch motions will be ruled uponexpeditiously. The final rule also notesthat individual briefs are required andmust be filed within 30 days of thefiling of the joint motion.

In response to suggestions, the finalrule clarifies when stipulations to theAuthority will be permitted. Onecommenter suggested that stipulationsto the Authority be permitted when aUnited States Court of Appeals hasalready ruled on the legal issue in thecase. It might well be that a motion tostipulate would be granted in such acase; however, it is not clear that arecommended decision of the Judgewould be of no assistance in theresolution of every case falling into thiscategory—especially if the Authorityhad not had an opportunity to considerthe court’s decision. Instead, the finalrule permits stipulations when anadequate basis for application ofestablished precedent exists. The finalrule also provides the Authoritydiscretion to grant the motion tostipulate in unusual circumstances.

Lastly, and also in response tocomment, paragraph (d) has been addedto the section noting that once a motionto stipulate has been granted, theAuthority will adjudicate the case basedupon the information in the stipulationand the briefs. It is anticipated that thisprovision will enable the Authority toavoid remanding cases to the parties foradditions to the stipulation.

Section 2423.27—Most commentsnoted that codification of the summaryjudgment procedures should promotejudicial economy.

As noted earlier, motions forsummary judgment, like all writtenmotions, are subject to the requirementsof § 2423.21. In keeping with the timedeadline changes in that section, thetime for filing motions for summaryjudgment has changed from 15 days to10 days prior to the hearing. In order toensure that summary judgment motionsdo not interfere with the overall postcomplaint process, responses to motionsfor summary judgment must be filedwithin 5 days after the date of serviceof the motion instead of 10 days afterservice.

In response to a concern that suchmotions must, in every case, be filed atleast 10 days prior to hearing, the finalrule permits, with the approval of theJudge, motions for summary judgmentto be filed less than 10 days in advanceof the hearing. One commentersuggested that a party moving forsummary judgment shortly in advanceof a hearing be required to move for apostponement of the hearing so thatthose opposing the summary judgmentmotion would not be overloaded withthe dual obligations of responding to themotion and preparing for trial. Althoughthis suggestion has not been adopted, itis noted that any party, whether amovant for or an opponent of asummary judgment, may move theJudge to postpone the hearing pendinga ruling on the motion for summaryjudgment.

The reference to § 2429.11 inparagraph (c) has been changed to§ 2423.31(c) as a result of the relocationof the unfair labor practice interlocutoryappeals procedures to part 2423.

Section 2423.28—Based upon onecommenter’s suggestion and infurtherance of unifying the rulesgoverning the ULP process and ease ofreference, the procedures governingsubpoenas in an unfair labor practiceproceeding have been moved from§ 2429.7 to this section of the final rule.This section has been modeled after therevised § 2429.7 governing subpoenaprocedures in other FLRA proceedings.

Also, the time for requestingsubpoenas has been adjusted tocorrespond with other prehearingdisclosure deadlines, as discussed in thecommentary concerning §§ 2423.21 and2423.23. Thus, subpoena requests mustbe made not less than 10 days prior tothe hearing, instead of the 15 days in theproposed regulations.

With regard to the subpoena process,many commenters suggested thatsubpoenas be issued ministerially witha minimum of involvement by the Judgein the issuance. The final rule addressesthis concern in paragraph (c) byproviding that subpoena requests filedwith the Office of Administrative LawJudges will be automatically issued onan ex parte basis. The requesting partywill be responsible for completion of thesubpoena form and service of thesubpoena. This change should avoiddelays in issuing subpoenas andeliminate the potential problems of aJudge having to revisit a previousdecision to issue a subpoena when apetition to revoke is filed.

In response to concerns about service,language has been added definingproper ‘‘service’’ for the subpoena. Inthe final rule, the process for service of

a subpoena is different from the generalservice provisions of part 2429, in thatregistered or certified mail or personaldelivery is required.

Section 2423.29—This section isreserved.

Subpart C—Hearing ProceduresSection 2423.30—Paragraph (b) has

been edited for clarity in the final rule.Section 2423.31—The final sentence

in paragraph (a) has been edited forclarity in the final rule.

One commenter suggested that thelast sentence in paragraph (b) could beinterpreted as precluding a Judge fromfollowing the rules of evidence. This isneither the meaning nor intent of thesentence. The last sentence in paragraph(b) should be read in context of theentire paragraph. As such, the rules ofevidence are a guide, but do not strictlygovern the proceeding.

The final rule moves proceduresgoverning interlocutory appeals from§ 2429.11 to paragraph (c) of thissection. This reorganization has beenaccomplished for the same reasonsreferenced in the commentary to thenewly established § 2423.28, i.e.,unifying unfair labor practice rules andease of reference. Although provisionsgoverning interlocutory appeals havebeen located in subpart C, whichgoverns hearing procedures, theseprocedures would be equally applicableif a party were to challenge a prehearingdetermination of the Judge.

Substantively, one commentersuggested that the regulation requirethat the hearing be stayed while thecertified interlocutory appeal is beforethe Authority. The final rule does notmandate such a stay, leaving this matterto the discretion of the Judge or theAuthority. This flexibility would, inappropriate circumstances, allowsegregable portions of a hearing tocontinue while an interlocutory appealproceeded.

Voluminous commentary wasreceived on the issue of benchdecisions. While commentersappreciated the availability of such anoption, most objected to the requirementthat parties waive their rights to fileexceptions and to obtain other forms ofreview. These concerns should bealleviated by the modificationscontained in the final rule which is nowdenominated as paragraph (d) of thissection. Under the final rule, all of theparties may jointly move the Judge toissue an oral bench decision at the closeof the hearing. In filing such a motion,the parties waive their rights to file aposthearing brief to the Judge. If theJudge, relying on judicial discretion,grants the joint motion, the Judge will


render an oral decision which shallsatisfy the requirements of§ 2423.34(a)(1)–(5). Subsequent to thehearing, the Judge’s oral decision will betranscribed. This transcription, togetherwith any supplementary matter theJudge deems necessary, will be thewritten recommended decision whichthe Judge shall transmit to the Authorityand serve on the parties. Exceptions tothis recommended decision will bepermitted. In response to queries aboutthe relevance of ‘‘the public interest’’ tothis process, the final rule has deletedthis phrase.

The last paragraph in the section,formerly denominated as (d), has beenredesignated as (e) in the final rule.

Section 2423.32—Comment wasreceived noting that the proposed rule’srequirement that the respondent havethe burden of establishing defenseswould cause confusion and controversy.One commenter noted that therespondent’s burden varies dependingupon the type of case and is not subjectto a generic requirement. It was alsopointed out that a respondent’s burdenis often a ‘‘burden of going forward’’rather than a ‘‘burden of proof.’’ Notingthese comments, and recognizing thatthe General Counsel has and retains theburden of proof in all cases, the finalrule clarifies that the respondent shallhave the burden of proving any‘‘affirmative’’ defenses that it raises. Useof this more specific term serves toremind the respondent of its burdenconcerning certain defenses that itchooses to raise. This language is notintended to impose any additionalburden on respondents; rather, itnotifies respondents of their burdenwhich is established in the case law.

Section 2423.33—The final rule ismodified to account for waiver of theright to file posthearing briefs whenbench decisions are issued, pursuant to§ 2423.31(d).

Section 2423.34—In response tosuggestions, summaries of prehearingconferences, as well as the basis for anyruling on sanctions, are specificallymade part of the record, in order todocument these matters and to allow theparties to except to any matter involvingthe prehearing conference or sanctions.


Subpart D—Post-transmission andExceptions to Authority Procedures

Section 2423.40—The final ruleclarifies in paragraph (a), that a singledocument containing both exceptions tothe Judge’s decision and a brief insupport of those exceptions, iscontemplated. The final rule alsoexpressly explains how separate

arguments for each issue raised are to beset forth in the exceptions. The pagelimitation triggering the table ofcontents and legal authoritiesrequirement has been raised from 20 to25 pages. Parties should note thatpursuant to § 2429.24(e) and § 2429.25,standard font sizes (12 point) andmargins (1 inch) will be required.

The section heading and paragraph (b)have been altered to clarify the timewithin which to file oppositions tocross-exceptions. Commenters approvedof the increased time—20 days—to fileoppositions to exceptions as a valuablechange.

Paragraph (c) has been addedclarifying that reply briefs are notallowed, absent permission of theAuthority.

Sections 2423.41–2423.42—Final ruleas promulgated is the same as proposedrule.


Part 2429—Miscellaneous and GeneralRequirements

Section 2429.1—This section isremoved and reserved.

Section 2429.7—As noted earlier, aseparate section addressing subpoenaprocess in ULP cases has beenestablished in part 2423, § 2423.28. Thissection establishes subpoena processesfor other Authority proceedings,pursuant to parts 2422, 2424, and 2425and generally follows the proceduresestablished for the issuance andrevocation of subpoenas in ULP cases.The only significant difference betweenthis section and the rules established in§ 2423.28 involves the official who isauthorized to issue and is revokesubpoenas.

Section 2429.11—As noted earlier, theprocedures governing interlocutoryappeals in unfair labor practice caseshave been moved to § 2423.31(c). Thefinal rule notes that such appeals willordinarily not be considered, except asset forth in part 2423.

Section 2429.12—Almost allcommenters endorsed the liberalizationof service requirements allowing for firstclass mail and facsimile transmissions.The final rule adopts the proposedrule’s service requirements.

In response to a suggestion, the finalrule expands the list of documents thatmust be served to include amendedcomplaints and withdrawals ofcomplaints and amends the list of thosewho are required to serve to include theRegional Director when not acting as aparty under part 2423. The reference inthe proposed regulation to § 2429.7 hasbeen changed in the final rule tosubpoenas, as a result of subpoena

sections appearing in both parts 2429and 2423.

Also, the final rule has been revisedto provide for the Authority’s service byfacsimile of time sensitive matters.




Section 2429.22—Commenters notedthat when service is by facsimile, thereis no reason to add 5 additional days toperiods within which a party must act,as is done in the case of service by mail.The final regulation adopts thissuggestion and has been modified todelete facsimile filing from this section.

Section 2429.24—As previouslynoted, parties uniformly andoverwhelmingly supported the changeallowing for filing by facsimile. Inresponse to several requests, the 5-pagelimitation on facsimile filings with theAuthority has been increased in thefinal rule to 10 pages. However,piecemeal filing is not permitted, as the10-page limit applies to the entireindividual document. This limit,however, will be strictly enforced andstandard font sizes (12 point) andmargins (1 inch) will be required.

Clarification was sought as to the term‘‘other similar matters’’ with respect todocuments appropriate for facsimilesubmissions. The final rule lists anumber of items that may be filed byfacsimile; with these examples offeredin the regulation, further definition ofthis phrase is not considered feasible orprudent at this time. As in § 2429.12,the reference in the proposed regulationto § 2429.7 has been changed in the finalrule to subpoenas, as a result ofsubpoena sections appearing in bothparts 2429 and 2423.

Section 2429.25—The final ruleincludes one minor change to clarifythat standard font sizes and marginswill be required in all filings with theAuthority.

Section 2429.27—Three minorchanges have been incorporated into thefinal rule: First, in paragraph (b), themodifier of the word party has beenchanged from ‘‘another’’ to ‘‘any other,’’thus clarifying that all parties, includingthe charging party, must be served;second, in paragraph (d), commercialdelivery has been included as a methodof service; and third, also in paragraph(d), the phrase ‘‘date of transmission’’has been changed to ‘‘date transmitted.’’


List of Subjects

5 CFR Part 2423

Administrative practice andprocedure, Government employees,Labor-management relations.

5 CFR Part 2429

Administrative practice andprocedure, Government employees,Labor-management relations.

For the reasons set forth in thepreamble, the Federal Labor RelationsAuthority amends parts 2423 and 2429of its regulations as follows:

1. Part 2423 is revised to read asfollows:

PART 2423—UNFAIR LABORPRACTICE PROCEEDINGS

Sec.2423.1 Applicability of this part.

Subpart A—Filing, Investigating, Resolving,and Acting on Charges

2423.2 Informal proceedings.2423.3 Who may file charges.2423.4 Contents of the charge; supporting

evidence and documents.2423.5 Selection of the unfair labor practice

procedure or the negotiability procedure.2423.6 Filing and service of copies.2423.7 Investigation of charges.2423.8 Amendment of charges.2423.9 Action by the Regional Director.2423.10 Determination not to issue

complaint; review of action by theRegional Director.

2423.11 Settlement prior to issuance of acomplaint.

2423.12–2423.19 [Reserved]

Subpart B—Post Complaint, PrehearingProcedures

2423.20 Issuance and contents of thecomplaint; answer to the complaint;amendments; role of Office of theAdministrative Law Judges.

2423.21 Motions procedure.2423.22 Intervenors.2423.23 Prehearing disclosure.2423.24 Powers and duties of the

Administrative Law Judge duringprehearing proceedings.

2423.25 Post complaint, prehearingsettlements.

2423.26 Stipulations of fact submissions.2423.27 Summary judgment motions.2423.28 Subpoenas.2423.29 [Reserved]

Subpart C—Hearing Procedures.

2423.30 General rules.2423.31 Powers and duties of the

Administrative Law Judge at the hearing.2423.32 Burden of proof before the

Administrative Law Judge.2423.33 Posthearing briefs.2423.34 Decision and record.2423.35–2423.39 [Reserved]

Subpart D—Post-Transmission andExceptions to Authority Procedures

2423.40 Exceptions; oppositions and cross-exceptions; oppositions to cross-exceptions; waiver.

2423.41 Action by the Authority;compliance with Authority decisionsand orders.

2423.42 Backpay proceedings.2423.43–2423.49 [Reserved]

Authority: 5 U.S.C. 7134.

§ 2423.1 Applicability of this part.

This part is applicable to any chargeof alleged unfair labor practices filedwith the Authority on or after January11, 1979, and any complaint filed on orafter October 1, 1997.

Subpart A—Filing, Investigating,Resolving, and Acting on Charges

§ 2423.2 Informal proceedings.

(a) The purposes and policies of theFederal Service Labor-ManagementRelations Statute can best be achievedby the cooperative efforts of all personscovered by the program. To this end, itshall be the policy of the Authority andthe General Counsel to encourage allpersons alleging unfair labor practicesand persons against whom suchallegations are made to meet and, ingood faith, attempt to resolve suchmatters prior to the filing of unfair laborpractice charges with the Authority.

(b) In furtherance of the policyreferred to in paragraph (a) of thissection, and noting the six (6) monthperiod of limitation set forth in 5 U.S.C.7118(a)(4), it shall be the policy of theAuthority and the General Counsel toencourage the informal resolution ofunfair labor practice allegationssubsequent to the filing of a charge andprior to the issuance of a complaint bythe Regional Director.

(c) In order to afford the parties anopportunity to implement the policyreferred to in paragraphs (a) and (b) ofthis section, the investigation of anunfair labor practice charge by theRegional Director will normally notcommence until the parties have beenafforded a reasonable amount of time,not to exceed 15 days from the filing ofthe charge, during which period theparties are urged to attempt toinformally resolve the unfair laborpractice allegation.

§ 2423.3 Who may file charges.

An activity, agency or labororganization may be charged by anyperson with having engaged in orengaging in any unfair labor practiceprohibited under 5 U.S.C. 7116.

§ 2423.4 Contents of the charge;supporting evidence and documents.

(a) A charge alleging a violation of 5U.S.C. 7116 shall be submitted on formsprescribed by the Authority and shallcontain the following:

(1) The name, address and telephonenumber of the person(s) making thecharge;

(2) The name, address and telephonenumber of the activity, agency, or labororganization against whom the charge ismade;

(3) A clear and concise statement ofthe facts constituting the alleged unfairlabor practice, a statement of thesection(s) and paragraph(s) of chapter 71of title 5 of the United States Codealleged to have been violated, and thedate and place of occurrence of theparticular acts; and

(4) A statement of any otherprocedure invoked involving the subjectmatter of the charge and the results, ifany, including whether the subjectmatter raised in the charge:

(i) has been raised previously in agrievance procedure;

(ii) has been referred to the FederalService Impasses Panel, the FederalMediation and Conciliation Service, theEqual Employment OpportunityCommission, the Merit SystemsProtection Board or the Special Counselof the Merit Systems Protection Boardfor consideration or action; or

(iii) involves a negotiability issueraised by the charging party in a petitionpending before the Authority pursuantto part 2424 of this subchapter.

(b) Such charge shall be in writingand signed and shall contain adeclaration by the person signing thecharge, under the penalties of theCriminal Code (18 U.S.C. 1001), that itscontents are true and correct to the bestof that person’s knowledge and belief.

(c) When filing a charge, the chargingparty shall submit to the RegionalDirector any supporting evidence anddocuments.

§ 2423.5 Selection of the unfair laborpractice procedure or the negotiabilityprocedure.

Where a labor organization files anunfair labor practice charge pursuant tothis part which involves a negotiabilityissue, and the labor organization alsofiles pursuant to part 2424 of thissubchapter a petition for review of thesame negotiability issue, the Authorityand the General Counsel ordinarily willnot process the unfair labor practicecharge and the petition for reviewsimultaneously. Under suchcircumstances, the labor organizationmust select under which procedure toproceed. Upon selection of one


procedure, further action under theother procedure will ordinarily besuspended. Such selection must bemade regardless of whether the unfairlabor practice charge or the petition forreview of a negotiability issue is filedfirst. Notification of this selection mustbe made in writing at the time that bothprocedures have been invoked, andmust be served on the Authority, theappropriate Regional Director and allparties to both the unfair labor practicecase and the negotiability case. Caseswhich solely involve an agency’sallegation that the duty to bargain ingood faith does not extend to the matterproposed to be bargained and which donot involve actual or contemplatedchanges in conditions of employmentmay only be filed under part 2424 ofthis subchapter.

§ 2423.6 Filing and service of copies.(a) An original and four (4) copies of

the charge together with one copy foreach additional charged party namedshall be filed with the Regional Directorfor the region in which the allegedunfair labor practice has occurred or isoccurring. A charge alleging that anunfair labor practice has occurred or isoccurring in two or more regions may befiled with the Regional Director for anysuch region.

(b) Upon the filing of a charge, thecharging party shall be responsible forthe service of a copy of the charge(without the supporting evidence anddocuments) upon the person(s) againstwhom the charge is made, and for filinga written statement of such service withthe Regional Director. The RegionalDirector will, as a matter of course,cause a copy of such charge to be servedon the person(s) against whom thecharge is made, but shall not be deemedto assume responsibility for suchservice.

(c) A charge will be deemed to befiled when it is received by theappropriate Regional Director inaccordance with the requirements inparagraph (a) of this section.

§ 2423.7 Investigation of charges.(a) The Regional Director, on behalf of

the General Counsel, shall conduct suchinvestigation of the charge as theRegional Director deems necessary.Consistent with the policy set forth in§ 2423.2, the investigation will normallynot commence until the parties havebeen afforded a reasonable amount oftime, not to exceed 15 days from thefiling of the charge, to informallyresolve the unfair labor practiceallegation.

(b) During the course of theinvestigation all parties involved will

have an opportunity to present theirevidence and views to the RegionalDirector.

(c) In connection with theinvestigation of charges, all persons areexpected to cooperate fully with theRegional Director.

(d) The purposes and policies of theFederal Service Labor-ManagementRelations Statute can best be achievedby the full cooperation of all partiesinvolved and the voluntary submissionof all potentially relevant informationfrom all potential sources during thecourse of the investigation. To this end,it shall be the policy of the Authorityand the General Counsel to protect theidentity of individuals and thesubstance of the statements andinformation they submit or which isobtained during the investigation as ameans of assuring the Authority’s andthe General Counsel’s continuing abilityto obtain all relevant information.

§ 2423.8 Amendment of charges.Prior to the issuance of a complaint,

the charging party may amend thecharge in accordance with therequirements set forth in § 2423.6.

§ 2423.9 Action by the Regional Director.(a) The Regional Director shall take

action which may consist of thefollowing, as appropriate:

(1) Approve a request to withdraw acharge;

(2) Refuse to issue a complaint;(3) Approve a written settlement

agreement in accordance with theprovisions of part 2423;

(4) Issue a complaint; or(5) Withdraw a complaint.(b) Parties may request the General

Counsel to seek appropriate temporaryrelief (including a restraining order)under 5 U.S.C. 7123(d). The GeneralCounsel will initiate and prosecuteinjunctive proceedings under 5 U.S.C.7123(d) only upon approval of theAuthority. A determination by theGeneral Counsel not to seek approval ofthe Authority for such temporary reliefis final and may not be appealed to theAuthority.

(c) Upon a determination to issue acomplaint, whenever it is deemedadvisable by the Authority to seekappropriate temporary relief (includinga restraining order) under 5 U.S.C.7123(d), the Regional Attorney or otherdesignated agent of the Authority towhom the matter has been referred willmake application for appropriatetemporary relief (including a restrainingorder) in the district court of the UnitedStates within which the unfair laborpractice is alleged to have occurred orin which the party sought to be enjoined

resides or transacts business. Suchtemporary relief will not be soughtunless the record establishes probablecause that an unfair labor practice isbeing committed, or if such temporaryrelief will interfere with the ability ofthe agency to carry out its essentialfunctions.

(d) Whenever temporary relief hasbeen obtained pursuant to 5 U.S.C.7123(d) and thereafter theAdministrative Law Judge hearing thecomplaint, upon which thedetermination to seek such temporaryrelief was predicated, recommendsdismissal of such complaint, in wholeor in part, the Regional Attorney orother designated agent of the Authorityhandling the case for the Authority shallinform the district court which grantedthe temporary relief of the possiblechange in circumstances arising out ofthe decision of the Administrative LawJudge.

§ 2423.10 Determination not to issuecomplaint; review of action by the RegionalDirector.

(a) If the Regional Director determinesthat the charge has not been timelyfiled, that the charge fails to state anunfair labor practice, or for otherappropriate reasons, the RegionalDirector may request the charging partyto withdraw the charge, and in theabsence of such withdrawal within areasonable time, decline to issue acomplaint.

(b) If the Regional Director determinesnot to issue a complaint on a chargewhich is not withdrawn, the RegionalDirector shall provide the parties with awritten statement of the reasons for notissuing a complaint.

(c) The charging party may obtain areview of the Regional Director’sdecision not to issue a complaint byfiling an appeal with the GeneralCounsel within 25 days after service ofthe Regional Director’s decision. Theappeal shall contain a completestatement setting forth the facts andreasons upon which it is based. A copyof the appeal shall also be filed with theRegional Director. In addition, thecharging party should notify all otherparties of the fact that an appeal hasbeen taken, but any failure to give suchnotice shall not affect the validity of theappeal.

(d) A request for extension of time tofile an appeal shall be in writing andreceived by the General Counsel notlater than 5 days before the date theappeal is due. The charging partyshould notify the Regional Director andall other parties that it has requested anextension of time in which to file anappeal, but any failure to give such


notice shall not affect the validity of itsrequest for an extension of time to filean appeal.

(e) The General Counsel may sustainthe Regional Director’s refusal to issueor re-issue a complaint, stating thegrounds of affirmance, or may direct theRegional Director to take further action.The General Counsel’s decision shall beserved on all the parties. The decisionof the General Counsel shall be final.

§ 2423.11 Settlement prior to issuance of acomplaint.

(a) Prior to the issuance of anycomplaint or the taking of other formalaction, the Regional Director will affordthe Charging Party and the Respondenta reasonable period of time in which toenter into an informal settlementagreement to be approved by theRegional Director. Upon approval by theRegional Director and compliance withthe terms of the informal settlementagreement, no further action shall betaken in the case. If the Respondent failsto perform its obligations under theinformal settlement agreement, theRegional Director may determine toinstitute further proceedings.

(b) In the event that the ChargingParty fails or refuses to become a partyto an informal settlement agreementoffered by the Respondent, if theRegional Director concludes that theoffered settlement will effectuate thepolicies of the Federal Service Labor-Management Relations Statute, theRegional Director shall enter into theagreement with the Respondent andshall decline to issue a complaint. TheCharging Party may obtain a review ofthe Regional Director’s action by filingan appeal with the General Counsel inaccordance with § 2423.10(c). TheGeneral Counsel shall take action onsuch appeal as set forth in § 2423.10(e).

§§ 2423.12–2423.19 [Reserved]

Subpart B—Post Complaint,Prehearing Procedures

§ 2423.20 Issuance and contents of thecomplaint; answer to the complaint;amendments; role of Office ofAdministrative Law Judges.

(a) Complaint. Whenever formalproceedings are deemed necessary, theRegional Director shall file and serve, inaccordance with § 2429.12 of thissubchapter, a complaint with the Officeof Administrative Law Judges. Thedecision to issue a complaint shall notbe subject to review. Any complaintmay be withdrawn by the RegionalDirector prior to the hearing. Thecomplaint shall set forth:

(1) Notice of the charge;(2) The basis for jurisdiction;

(3) The facts alleged to constitute anunfair labor practice;

(4) The particular sections of 5 U.S.C.,chapter 71 and the rules and regulationsinvolved;

(5) Notice of the date, time, and placethat a hearing will take place before anAdministrative Law Judge; and

(6) A brief statement explaining thenature of the hearing.

(b) Answer. Within 20 days after thedate of service of the complaint, but inany event, prior to the beginning of thehearing, the Respondent shall file andserve, in accordance with part 2429 ofthis subchapter, an answer with theOffice of Administrative Law Judges.The answer shall admit, deny, orexplain each allegation of thecomplaint. If the Respondent has noknowledge of an allegation orinsufficient information as to itstruthfulness, the answer shall so state.Absent a showing of good cause to thecontrary, failure to file an answer orrespond to any allegation shallconstitute an admission. Motions toextend the filing deadline shall be filedin accordance with § 2423.21.

(c) Amendments. The RegionalDirector may amend the complaint atany time before the answer is filed. TheRespondent then has 20 days from thedate of service of the amendedcomplaint to file an answer with theOffice of Administrative Law Judges.Prior to the beginning of the hearing, theanswer may be amended by theRespondent within 20 days after theanswer is filed. Thereafter, any requeststo amend the complaint or answer mustbe made by motion to the Office ofAdministrative Law Judges.

(d) Office of Administrative LawJudges. Pleadings, motions, conferences,hearings, and other matters throughoutas specified in subparts B, C, and D ofthis part shall be administered by theOffice of Administrative Law Judges, asappropriate. The Chief AdministrativeLaw Judge, or any Administrative LawJudge designated by the ChiefAdministrative Law Judge, shalladminister any matters properlysubmitted to the Office ofAdministrative Law Judges. Throughoutsubparts B, C, and D of this part,‘‘Administrative Law Judge’’ or ‘‘Judge’’refers to the Chief Administrative LawJudge or his or her designee.

§ 2423.21 Motions procedure.(a) General requirements. All motions,

except those made during a prehearingconference or hearing, shall be inwriting. Motions for an extension oftime, postponement of a hearing, or anyother procedural ruling shall include astatement of the position of the other

parties on the motion. All writtenmotions and responses in subparts B, C,or D of this part shall satisfy the filingand service requirements of part 2429 ofthis subchapter.

(b) Motions made to theAdministrative Law Judge. Prehearingmotions and motions made at thehearing shall be filed with theAdministrative Law Judge. Unlessotherwise specified in subparts B or Cof this part, or otherwise directed orapproved by the Administrative LawJudge:

(1) Prehearing motions shall be filedat least 10 days prior to the hearing, andresponses shall be filed within 5 daysafter the date of service of the motion;

(2) Responses to motions made duringthe hearing shall be filed prior to theclose of hearing;

(3) Posthearing motions shall be filedwithin 10 days after the date the hearingcloses, and responses shall be filedwithin 5 days after the date of serviceof the motion; and

(4) Motions to correct the transcriptshall be filed with the AdministrativeLaw Judge within 10 days after receiptof the transcript, and responses shall befiled within 5 days after the date ofservice of the motion.

(c) Post-transmission motions. Afterthe case has been transmitted to theAuthority, motions shall be filed withthe Authority. Responses shall be filedwithin 5 days after the date of serviceof the motion.

(d) Interlocutory appeals. Motions foran interlocutory appeal of any rulingand responses shall be filed inaccordance with this section and§ 2423.31(c).

§ 2423.22 Intervenors.Motions for permission to intervene

and responses shall be filed inaccordance with § 2423.21. Suchmotions shall be granted upon ashowing that the outcome of theproceeding is likely to directly affect themovant’s rights or duties. Intervenorsmay participate only: on the issuesdetermined by the Administrative LawJudge to affect them; and to the extentpermitted by the Judge. Denial of suchmotions may be appealed pursuant to§ 2423.21(d).

§ 2423.23 Prehearing disclosure.Unless otherwise directed or

approved by the Judge, the parties shallexchange, in accordance with theservice requirements of § 2429.27(b) ofthis subchapter, the following items atleast 14 days prior to the hearing:

(a) Witnesses. Proposed witness lists,including a brief synopsis of theexpected testimony of each witness;


(b) Documents. Copies of documents,with an index, proposed to be offeredinto evidence; and

(c) Theories. A brief statement of thetheory of the case, including reliefsought, and any and all defenses to theallegations in the complaint.

§ 2423.24 Powers and duties of theAdministrative Law Judge duringprehearing proceedings.

(a) Prehearing procedures. TheAdministrative Law Judge shall regulatethe course and scheduling of prehearingmatters, including prehearing orders,conferences, disclosure, motions, andsubpoena requests.

(b) Changing date, time, or place ofhearing. After issuance of the complaintor any prehearing order, theAdministrative Law Judge may, in theJudge’s discretion or upon motion byany party through the motionsprocedure in § 2423.21, change the date,time, or place of the hearing.

(c) Prehearing order. (1) TheAdministrative Law Judge may, in theJudge’s discretion or upon motion byany party through the motionsprocedure in § 2423.21, issue aprehearing order confirming orchanging:

(i) The date, time, or place of thehearing;

(ii) The schedule for prehearingdisclosure of witness lists anddocuments intended to be offered intoevidence at the hearing;

(iii) The date for submission ofprocedural and substantive motions;

(iv) The date, time, and place of theprehearing conference; and

(v) Any other matter pertaining toprehearing or hearing procedures.

(2) The prehearing order shall beserved in accordance with § 2429.12 ofthis subchapter.

(d) Prehearing conferences. TheAdministrative Law Judge shall conductone or more prehearing conferences,either by telephone or in person, at least7 days prior to the hearing date, unlessthe Administrative Law Judgedetermines that a prehearing conferencewould serve no purpose and no partyhas moved for a prehearing conferencein accordance with § 2423.21. If aprehearing conference is held, allparties must participate in theprehearing conference and be preparedto discuss, narrow, and resolve theissues set forth in the complaint andanswer, as well as any prehearingdisclosure matters or disputes. Whennecessary, the Administrative LawJudge shall prepare and file for therecord a written summary of actionstaken at the conference. Summaries ofthe conference shall be served on all

parties in accordance with § 2429.12 ofthis subchapter. The following may alsobe considered at the prehearingconference:

(1) Settlement of the case, either bythe Judge conducting the prehearingconference or pursuant to § 2423.25;

(2) Admissions of fact, disclosure ofcontents and authenticity of documents,and stipulations of fact;

(3) Objections to the introduction ofevidence at the hearing, including oralor written testimony, documents,papers, exhibits, or other submissionsproposed by a party;

(4) Subpoena requests or petitions torevoke subpoenas;

(5) Any matters subject to officialnotice;

(6) Outstanding motions; or(7) Any other matter that may

expedite the hearing or aid in thedisposition of the case.

(e) Sanctions. The AdministrativeLaw Judge may, in the Judge’s discretionor upon motion by any party throughthe motions procedure in § 2423.21,impose sanctions upon the parties asnecessary and appropriate to ensure thata party’s failure to fully comply withsubpart B or C of this part is notcondoned. Such authority includes, butis not limited to, the power to:

(1) Prohibit a party who fails tocomply with any requirement of subpartB or C of this part from, as appropriate,introducing evidence, calling witnesses,raising objections to the introduction ofevidence or testimony of witnesses atthe hearing, presenting a specific theoryof violation, seeking certain relief, orrelying upon a particular defense.

(2) Refuse to consider any submissionthat is not filed in compliance withsubparts B or C of this part.

§ 2423.25 Post complaint, prehearingsettlements.

(a) Informal and formal settlements.Post complaint settlements may beeither informal or formal.

(1) Informal settlement agreementsprovide for withdrawal of the complaintby the Regional Director and are notsubject to approval by or an order of theAuthority. If the Respondent fails toperform its obligations under theinformal settlement agreement, theRegional Director may reinstitute formalproceedings consistent with thissubpart.

(2) Formal settlement agreements aresubject to approval by the Authority,and include the parties’ agreement towaive their right to a hearing andacknowledgment that the Authority mayissue an order requiring the Respondentto take action appropriate to the termsof the settlement. The formal settlement

agreement shall also contain theRespondent’s consent to the Authority’sapplication for the entry of a decree byan appropriate federal court enforcingthe Authority’s order.

(b) Informal settlement procedure. Ifthe Charging Party and the Respondententer into an informal settlementagreement that is accepted by theRegional Director, the Regional Directorshall withdraw the complaint andapprove the informal settlementagreement. If the Charging Party fails orrefuses to become a party to an informalsettlement agreement offered by theRespondent, and the Regional Directorconcludes that the offered settlementwill effectuate the policies of theFederal Service Labor-ManagementRelations Statute, the Regional Directorshall enter into the agreement with theRespondent and shall withdraw thecomplaint. The Charging Party then mayobtain a review of the RegionalDirector’s action by filing an appealwith the General Counsel as provided insubpart A of this part.

(c) Formal settlement procedure. If theCharging Party and the Respondententer into a formal settlement agreementthat is accepted by the RegionalDirector, the Regional Director shallwithdraw the complaint upon approvalof the formal settlement agreement bythe Authority. If the Charging Party failsor refuses to become a party to a formalsettlement agreement offered by theRespondent, and the Regional Directorconcludes that the offered settlementwill effectuate the policies of theFederal Service Labor-ManagementRelations Statute, the agreement shall bebetween the Respondent and theRegional Director. The formal settlementagreement together with the ChargingParty’s objections, if any, shall besubmitted to the Authority for approval.The Authority may approve a formalsettlement agreement upon a sufficientshowing that it will effectuate thepolicies of the Federal Service Labor-Management Relations Statute.

(d) Settlement judge program. TheAdministrative Law Judge, in theJudge’s discretion or upon the request ofany party, may assign a judge or otherappropriate official, who shall be otherthan the hearing judge unless otherwisemutually agreed to by the parties, toconduct negotiations for settlement.

(1) The settlement official shallconvene and preside over settlementconferences by telephone or in person.

(2) The settlement official may requirethat the representative for each party bepresent at settlement conferences andthat the parties or agents with fullsettlement authority be present oravailable by telephone.


(3) The settlement official shall notdiscuss any aspect of the case with thehearing judge.

(4) No evidence regarding statements,conduct, offers of settlement, andconcessions of the parties made inproceedings before the settlementofficial shall be admissible in anyproceeding before the AdministrativeLaw Judge or Authority, except bystipulation of the parties.

§ 2423.26 Stipulations of fact submissions.

(a) General. When all parties agreethat no material issue of fact exists, theparties may jointly submit a motion tothe Administrative Law Judge orAuthority requesting consideration ofthe matter based upon stipulations offact. Briefs of the parties are requiredand must be submitted within 30 daysof the joint motion. Upon receipt of thebriefs, such motions shall be ruled uponexpeditiously.

(b) Stipulations to the AdministrativeLaw Judge. Where the stipulationadequately addresses the appropriatematerial facts, the Administrative LawJudge may grant the motion and decidethe case through stipulation.

(c) Stipulations to the Authority.Where the stipulation provides anadequate basis for application ofestablished precedent and a decision bythe Administrative Law Judge wouldnot assist in the resolution of the case,or in unusual circumstances, theAuthority may grant the motion anddecide the case through stipulation.

(d) Decision based on stipulation.Where the motion is granted, theAuthority will adjudicate the case anddetermine whether the parties have mettheir respective burdens based on thestipulation and the briefs.

§ 2423.27 Summary judgment motions.

(a) Motions. Any party may move fora summary judgment in its favor on anyof the issues pleaded. Unless otherwiseapproved by the Administrative LawJudge, such motion shall be made nolater than 10 days prior to the hearing.The motion shall demonstrate that thereis no genuine issue of material fact andthat the moving party is entitled to ajudgment as a matter of law. Suchmotions shall be supported bydocuments, affidavits, applicableprecedent, or other appropriatematerials.

(b) Responses. Responses must befiled within 5 days after the date ofservice of the motion. Responses maynot rest upon mere allegations ordenials but must show, by documents,affidavits, applicable precedent, or otherappropriate materials, that there is a

genuine issue to be determined at thehearing.

(c) Decision. If all issues are decidedby summary judgment, no hearing willbe held and the Administrative LawJudge shall prepare a decision inaccordance with § 2423.34. If summaryjudgment is denied, or if partialsummary judgment is granted, theAdministrative Law Judge shall issue anopinion and order, subject tointerlocutory appeal as provided in§ 2423.31(c) of this subchapter, and thehearing shall proceed as necessary.

§ 2423.28 Subpoenas.(a) When necessary. Where the parties

are in agreement that the appearance ofwitnesses or the production ofdocuments is necessary, and suchwitnesses agree to appear, no subpoenaneed be sought.

(b) Requests for subpoenas. A requestfor a subpoena by any person, asdefined in 5 U.S.C. 7103(a)(1), shall bein writing and filed with the Office ofAdministrative Law Judges not less than10 days prior to the hearing, or with theAdministrative Law Judge during thehearing. Requests for subpoenas madeless than 10 days prior to the hearingshall be granted on sufficientexplanation of why the request was nottimely filed.

(c) Subpoena procedures. The Officeof Administrative Law Judges, or anyother employee of the Authoritydesignated by the Authority, asappropriate, shall furnish the requesterthe subpoenas sought, provided therequest is timely made. Requests forsubpoenas may be made ex parte.Completion of the specific informationin the subpoena and the service of thesubpoena are the responsibility of theparty on whose behalf the subpoena wasissued.

(d) Service of subpoena. A subpoenamay be served by any person who is atleast 18 years old and who is not a partyto the proceeding. The person whoserved the subpoena must certify that heor she did so:

(1) By delivering it to the witness inperson,

(2) By registered or certified mail, or(3) By delivering the subpoena to a

responsible person (named in thedocument certifying the delivery) at theresidence or place of business (asappropriate) of the person for whom thesubpoena was intended. The subpoenashall show on its face the name andaddress of the party on whose behalf thesubpoena was issued.

(e)(1) Petition to revoke subpoena.Any person served with a subpoenawho does not intend to comply shall,within 5 days after the date of service

of the subpoena upon such person,petition in writing to revoke thesubpoena. A copy of any petition torevoke a subpoena shall be served onthe party on whose behalf the subpoenawas issued. Such petition to revoke, ifmade prior to the hearing, and a writtenstatement of service, shall be filed withthe Office of Administrative Law Judgesfor ruling. A petition to revoke asubpoena filed during the hearing, anda written statement of service, shall befiled with the Administrative LawJudge.

(2) The Administrative Law Judge, orany other employee of the Authoritydesignated by the Authority, asappropriate, shall revoke the subpoenaif the person or evidence, theproduction of which is required, is notmaterial and relevant to the mattersunder investigation or in question in theproceedings, or the subpoena does notdescribe with sufficient particularity theevidence the production of which isrequired, or if for any other reasonsufficient in law the subpoena isinvalid. The Administrative Law Judge,or any other employee of the Authoritydesignated by the Authority, asappropriate, shall state the proceduralor other ground for the ruling on thepetition to revoke. The petition torevoke, any answer thereto, and anyruling thereon shall not become part ofthe official record except upon therequest of the party aggrieved by theruling.

(f) Failure to comply. Upon the failureof any person to comply with asubpoena issued and upon the requestof the party on whose behalf thesubpoena was issued, the Solicitor ofthe Authority shall institute proceedingson behalf of such party in theappropriate district court for theenforcement thereof, unless to do sowould be inconsistent with law and theFederal Service Labor-ManagementRelations Statute.

§ 2423.29 [Reserved]

Subpart C—Hearing Procedures

§ 2423.30 General rules.

(a) Open hearing. The hearing shall beopen to the public unless otherwiseordered by the Administrative LawJudge.

(b) Administrative Procedure Act. Thehearing shall, to the extent practicable,be conducted in accordance with 5U.S.C. 554–557, and other applicableprovisions of the AdministrativeProcedure Act.

(c) Rights of parties. A party shallhave the right to appear at any hearingin person, by counsel, or by other


representative; to examine and cross-examine witnesses; to introduce into therecord documentary or other relevantevidence; and to submit rebuttalevidence, except that the participationof any party shall be limited to theextent prescribed by the AdministrativeLaw Judge.

(d) Objections. Objections are oral orwritten complaints concerning theconduct of a hearing. Any objection notraised to the Administrative Law Judgeshall be deemed waived.

(e) Oral argument. Any party shall beentitled, upon request, to a reasonableperiod prior to the close of the hearingfor oral argument, which shall beincluded in the official transcript of thehearing.

(f) Official transcript. An officialreporter shall make the only officialtranscript of such proceedings. Copiesof the transcript may be examined in theappropriate Regional Office duringnormal working hours. Parties desiringa copy of the transcript shall makearrangements for a copy with the officialhearing reporter.

§ 2423.31 Powers and duties of theAdministrative Law Judge at the hearing.

(a) Conduct of hearing. TheAdministrative Law Judge shall conductthe hearing in a fair, impartial, andjudicial manner, taking action as neededto avoid unnecessary delay andmaintain order during the proceedings.The Administrative Law Judge may takeany action necessary to schedule,conduct, continue, control, and regulatethe hearing, including ruling on motionsand taking official notice of materialfacts when appropriate. No provision ofthese regulations shall be construed tolimit the powers of the AdministrativeLaw Judge provided by 5 U.S.C. 556,557, and other applicable provisions ofthe Administrative Procedure Act.

(b) Evidence. The Administrative LawJudge shall receive evidence and inquirefully into the relevant and material factsconcerning the matters that are thesubject of the hearing. TheAdministrative Law Judge may excludeany evidence that is immaterial,irrelevant, unduly repetitious, orcustomarily privileged. Rules ofevidence shall not be strictly followed.

(c) Interlocutory appeals. Motions foran interlocutory appeal shall be filed inwriting with the Administrative LawJudge within 5 days after the date of thecontested ruling. The motion shall statewhy interlocutory review is appropriate,and why the Authority should modifyor reverse the contested ruling.

(1) The Judge shall grant the motionand certify the contested ruling to theAuthority if:

(i) The ruling involves an importantquestion of law or policy about whichthere is substantial ground for differenceof opinion; and

(ii) Immediate review will materiallyadvance completion of the proceeding,or the denial of immediate review willcause undue harm to a party or thepublic.

(2) If the motion is granted, the Judgeor Authority may stay the hearingduring the pendency of the appeal. Ifthe motion is denied, exceptions to thecontested ruling may be filed inaccordance with § 2423.40 of thissubchapter after the Judge issues adecision and recommended order in thecase.

(d) Bench decisions. Upon jointmotion of the parties, theAdministrative Law Judge may issue anoral decision at the close of the hearingwhen, in the Judge’s discretion, thenature of the case so warrants. By somoving, the parties waive their right tofile posthearing briefs with theAdministrative Law Judge, pursuant to§ 2423.33. If the decision is announcedorally, it shall satisfy the requirementsof § 2423.34(a)(1)–(5) and a copythereof, excerpted from the transcript,together with any supplementary matterthe judge may deem necessary tocomplete the decision, shall betransmitted to the Authority, inaccordance with § 2423.34(b), andfurnished to the parties in accordancewith § 2429.12 of this subchapter.

(e) Settlements after the opening ofthe hearing. As set forth in § 2423.25(a),settlements may be either informal orformal.

(1) Informal settlement procedure:Judge’s approval of withdrawal. If theCharging Party and the Respondententer into an informal settlementagreement that is accepted by theRegional Director, the Regional Directormay request the Administrative LawJudge for permission to withdraw thecomplaint and, having been grantedsuch permission, shall withdraw thecomplaint and approve the informalsettlement between the Charging Partyand Respondent. If the Charging Partyfails or refuses to become a party to aninformal settlement agreement offeredby the Respondent, and the RegionalDirector concludes that the offeredsettlement will effectuate the policies ofthe Federal Service Labor-ManagementRelations Statute, the Regional Directorshall enter into the agreement with theRespondent and shall, if grantedpermission by the Administrative LawJudge, withdraw the complaint. TheCharging Party then may obtain a reviewof the Regional Director’s decision asprovided in subpart A of this part.

(2) Formal settlement procedure:Judge’s approval of settlement. If theCharging Party and the Respondententer into a formal settlement agreementthat is accepted by the RegionalDirector, the Regional Director mayrequest the Administrative Law Judge toapprove such formal settlementagreement, and upon such approval, totransmit the agreement to the Authorityfor approval. If the Charging Party failsor refuses to become a party to a formalsettlement agreement offered by theRespondent, and the Regional Directorconcludes that the offered settlementwill effectuate the policies of theFederal Service Labor-ManagementRelations Statute, the agreement shall bebetween the Respondent and theRegional Director. After the ChargingParty is given an opportunity to state onthe record or in writing the reasons foropposing the formal settlement, theRegional Director may request theAdministrative Law Judge to approvesuch formal settlement agreement, andupon such approval, to transmit theagreement to the Authority for approval.

§ 2423.32 Burden of proof before theAdministrative Law Judge.

The General Counsel shall present theevidence in support of the complaintand have the burden of proving theallegations of the complaint by apreponderance of the evidence. TheRespondent shall have the burden ofproving any affirmative defenses that itraises to the allegations in thecomplaint.

§ 2423.33 Posthearing briefs.Except when bench decisions are

issued pursuant to § 2423.31(d),posthearing briefs may be filed with theAdministrative Law Judge within a timeperiod set by the Judge, not to exceed30 days from the close of the hearing,unless otherwise directed by the judge,and shall satisfy the filing and servicerequirements of part 2429 of thissubchapter. Reply briefs shall not befiled absent permission of the Judge.Motions to extend the filing deadline orfor permission to file a reply brief shallbe filed in accordance with § 2423.21.

§ 2423.34 Decision and record.(a) Recommended decision. Except

when bench decisions are issuedpursuant to § 2423.31(d), theAdministrative Law Judge shall preparea written decision expeditiously inevery case. All written decisions shallbe served in accordance with § 2429.12of this subchapter. The decision shallset forth:

(1) A statement of the issues;(2) Relevant findings of fact;


(3) Conclusions of law and reasonstherefor;

(4) Credibility determinations asnecessary; and

(5) A recommended disposition ororder.

(b) Transmittal to Authority. TheJudge shall transmit the decision andrecord to the Authority. The record shallinclude the charge, complaint, servicesheet, answer, motions, rulings, orders,prehearing conference summaries,stipulations, objections, depositions,interrogatories, exhibits, documentaryevidence, basis for any sanctions ruling,official transcript of the hearing, briefs,and any other filings or submissionsmade by the parties.

§§ 2423.35–2423.39 [Reserved]

Subpart D—Post-Transmission andExceptions to Authority Procedures

§ 2423.40 Exceptions; oppositions andcross-exceptions; oppositions to cross-exceptions; waiver.

(a) Exceptions. Any exceptions to theAdministrative Law Judge’s decisionmust be filed with the Authority within25 days after the date of service of theJudge’s decision. Exceptions shallsatisfy the filing and servicerequirements of part 2429 of thissubchapter. Exceptions shall consist ofthe following:

(1) The specific findings, conclusions,determinations, rulings, orrecommendations being challenged; thegrounds relied upon; and the reliefsought.

(2) Supporting arguments, which shallset forth, in order: all relevant facts withspecific citations to the record; theissues to be addressed; and a separateargument for each issue, which shallinclude a discussion of applicable law.Attachments to briefs shall be separatelypaginated and indexed as necessary.

(3) Exceptions containing 25 or morepages shall include a table of contentsand a table of legal authorities cited.

(b) Oppositions and cross-exceptions.Unless otherwise directed or approvedby the Authority, oppositions toexceptions, cross-exceptions, andoppositions to cross-exceptions may befiled with the Authority within 20 daysafter the date of service of theexceptions or cross-exceptions,respectively. Oppositions shall state thespecific exceptions being opposed.Oppositions and cross-exceptions shallbe subject to the same requirements asexceptions set out in paragraph (a) ofthis section.

(c) Reply briefs. Reply briefs shall notbe filed absent prior permission of theAuthority.

(d) Waiver. Any exception notspecifically argued shall be deemed tohave been waived.

§ 2423.41 Action by the Authority;compliance with Authority decisions andorders.

(a) Authority decision; no exceptionsfiled. In the absence of the filing ofexceptions within the time limitsestablished in § 2423.40, the findings,conclusions, and recommendations inthe decision of the Administrative LawJudge shall, without precedentialsignificance, become the findings,conclusions, decision and order of theAuthority, and all objections andexceptions to the rulings and decision ofthe Administrative Law Judge shall bedeemed waived for all purposes. Failureto comply with any filing requirementestablished in § 2423.40 may result inthe information furnished beingdisregarded.

(b) Authority decision; exceptionsfiled. Whenever exceptions are filed inaccordance with § 2423.40, theAuthority shall issue a decisionaffirming or reversing, in whole or inpart, the decision of the AdministrativeLaw Judge or disposing of the matter asis otherwise deemed appropriate.

(c) Authority’s order. Upon finding aviolation, the Authority shall, inaccordance with 5 U.S.C. 7118(a)(7),issue an order directing the violator, asappropriate, to cease and desist fromany unfair labor practice, or to take anyother action to effectuate the purposesof the Federal Service Labor-Management Relations Statute.

(d) Dismissal. Upon finding noviolation, the Authority shall dismissthe complaint.

(e) Report of compliance. After theAuthority issues an order, theRespondent shall, within the timespecified in the order, provide to theappropriate Regional Director a reportregarding what compliance actions havebeen taken. Upon determining that theRespondent has not complied with theAuthority’s order, the Regional Directorshall refer the case to the Authority forenforcement or take other appropriateaction.

§ 2423.42 Backpay proceedings.After the entry of an Authority order

directing payment of backpay, or theentry of a court decree enforcing suchorder, if it appears to the RegionalDirector that a controversy existsbetween the Authority and aRespondent regarding backpay thatcannot be resolved without a formalproceeding, the Regional Director mayissue and serve on all parties a notice ofhearing before an Administrative Law

Judge to determine the backpay amount.The notice of hearing shall set forth thespecific backpay issues to be resolved.The Respondent shall, within 20 daysafter the service of a notice of hearing,file an answer in accordance with§ 2423.20. After the issuance of a noticeof hearing, the procedures provided insubparts B, C, and D of this part shallbe followed as applicable.

§§ 2423.43–2423.49 [Reserved]

PART 2429—MISCELLANEOUS ANDGENERAL REQUIREMENTS

2. The authority citation for part 2429continues to read as follows:

Authority: 5 U.S.C. 7134.

§ 2429.1 [Removed and Reserved]3. Section 2429.1 is removed and

reserved4. Section 2429.7 is amended by

revising the heading and by removingthe word ‘‘subpena’’ and substituting‘‘subpoena’’ throughout the section andby revising paragraphs (c) through (f) toread as follows:

§ 2429.7 Subpoenas.* * * * *

(c) A request for a subpoena by anyperson, as defined in 5 U.S.C.7103(a)(1), shall be in writing and filedwith the Regional Director, inproceedings arising under part 2422 ofthis subchapter, or with the Authority,in proceedings arising under parts 2424and 2425 of this subchapter, not lessthan 10 days prior to the hearing, orwith the appropriate presiding official(s)during the hearing. Requests forsubpoenas made less than 10 days priorto the opening of the hearing shall begranted on sufficient explanation of whythe request was not timely filed.

(d) The Authority, General Counsel,Regional Director, Hearing Officer, orany other employee of the Authoritydesignated by the Authority, asappropriate, shall furnish the requesterthe subpoenas sought, provided therequest is timely made. Requests forsubpoenas may be made ex parte.Completion of the specific informationin the subpoena and the service of thesubpoena are the responsibility of theparty on whose behalf the subpoena wasissued. A subpoena may be served byany person who is at least 18 years oldand who is not a party to theproceeding. The person who served thesubpoena must certify that he or she didso:

(1) By delivering it to the witness inperson,

(2) By registered or certified mail, or(3) By delivering the subpoena to a

responsible person (named in the


document certifying the delivery) at theresidence or place of business (asappropriate) of the person for whom thesubpoena was intended. The subpoenashall show on its face the name andaddress of the party on whose behalf thesubpoena was issued. (e)(1) Any personserved with a subpoena who does notintend to comply, shall, within 5 daysafter the date of service of the subpoenaupon such person, petition in writing torevoke the subpoena. A copy of anypetition to revoke a subpoena shall beserved on the party on whose behalf thesubpoena was issued. Such petition torevoke, if made prior to the hearing, anda written statement of service, shall befiled with the Regional Director inproceedings arising under part 2422 ofthis subchapter, and with the Authority,in proceedings arising under parts 2424and 2425 of this subchapter for ruling.A petition to revoke a subpoena filedduring the hearing, and a writtenstatement of service, shall be filed withthe appropriate presiding official(s).

(2) The Authority, General Counsel,Regional Director, Hearing Officer, orany other employee of the Authoritydesignated by the Authority, asappropriate, shall revoke the subpoenaif the person or evidence, theproduction of which is required, is notmaterial and relevant to the mattersunder investigation or in question in theproceedings, or the subpoena does notdescribe with sufficient particularity theevidence the production of which isrequired, or if for any other reasonsufficient in law the subpoena isinvalid. The Authority, GeneralCounsel, Regional Director, HearingOfficer, or any other employee of theAuthority designated by the Authority,as appropriate, shall state theprocedural or other ground for theruling on the petition to revoke. Thepetition to revoke, any answer thereto,and any ruling thereon shall not becomepart of the official record except uponthe request of the party aggrieved by theruling.

(f) Upon the failure of any person tocomply with a subpoena issued andupon the request of the party on whosebehalf the subpoena was issued, theSolicitor of the Authority shall instituteproceedings on behalf of such party inthe appropriate district court for theenforcement thereof, unless to do sowould be inconsistent with law and theFederal Service Labor-ManagementRelations Statute.

5. Section 2429.11 is revised to readas follows:

§ 2429.11 Interlocutory appeals.Except as set forth in part 2423, the

Authority and the General Counsel

ordinarily will not considerinterlocutory appeals.

6. Section 2429.12 is amended byrevising paragraphs (a) and (c) to read asfollows:

§ 2429.12 Service of process and papersby the Authority.

(a) Methods of service. Notices ofhearings, decisions and orders ofRegional Directors, decisions andrecommended orders of AdministrativeLaw Judges, decisions of the Authority,complaints, amended complaints,withdrawals of complaints, writtenrulings on motions, and all other papersrequired by this subchapter to be issuedby the Authority, the General Counsel,Regional Directors, Hearing Officers,Administrative Law Judges, andRegional Directors when not acting as aparty under part 2423 of thissubchapter, shall be served personally,by first-class mail, by facsimiletransmission, or by certified mail.Where facsimile equipment is available,rulings on motions; informationpertaining to prehearing disclosure,conferences, orders, or hearing dates,and locations; information pertaining tosubpoenas; and other similar or timesensitive matters may be served byfacsimile transmission.* * * * *

(c) Proof of service. Proof of serviceshall be verified by certificate of theindividual serving the papers describingthe manner of such service. Whenservice is by mail, the date of serviceshall be the day when the matter servedis deposited in the United States mail.When service is by facsimile, the date ofservice shall be the date the facsimiletransmission is transmitted and, whennecessary, verified by a dated facsimilerecord of transmission.


§ 2429.13 Official time for witnesses.

If the participation of any employee inany phase of any proceeding before theAuthority, including the investigation ofunfair labor practice charges andrepresentation petitions and theparticipation in hearings andrepresentation elections, is deemednecessary by the Authority, the GeneralCounsel, any Administrative Law Judge,Regional Director, Hearing Officer, orother agent of the Authority designatedby the Authority, the employee shall begranted official time for suchparticipation, including necessary traveltime, as occurs during the employee’sregular work hours and when theemployee would otherwise be in a workor paid leave status.


§ 2429.14 Witness fees.(a) Witnesses, whether appearing

voluntarily or pursuant to a subpoena,shall be paid the fee and mileageallowances which are paid subpoenaedwitnesses in the courts of the UnitedStates. However, any witness who isemployed by the Federal Governmentshall not be entitled to receive witnessfees.

(b) Witness fees, as appropriate, aswell as transportation and per diemexpenses for a witness shall be paid bythe party that calls the witness to testify.

9. Section 2429.21 is amended byrevising paragraph (b) to read as follows:

§ 2429.21 Computation of time for filingpapers.

* * * * *(b) Except when filing an unfair labor

practice charge pursuant to part 2423 ofthis subchapter, a representationpetition pursuant to part 2422 of thissubchapter, and a request for anextension of time pursuant to§ 2429.23(a) of this part, when thissubchapter requires the filing of anypaper with the Authority, the GeneralCounsel, a Regional Director, or anAdministrative Law Judge, the date offiling shall be determined by the date ofmailing indicated by the postmark dateor the date a facsimile is transmitted. Ifno postmark date is evident on themailing, it shall be presumed to havebeen mailed 5 days prior to receipt. Ifthe date of facsimile transmission isunclear, the date of transmission shallbe the date the facsimile transmission isreceived. If the filing is by personal orcommercial delivery, it shall beconsidered filed on the date it isreceived by the Authority or the officeror agent designated to receive suchmaterials.* * * * *


§ 2429.22 Additional time after service bymail.

Except as to the filing of anapplication for review of a RegionalDirector’s Decision and Order under§ 2422.31 of this subchapter, whenevera party has the right or is required to dosome act pursuant to this subchapterwithin a prescribed period after serviceof a notice or other paper upon suchparty, and the notice or paper is servedon such party by mail, 5 days shall beadded to the prescribed period:Provided, however, that 5 days shall notbe added in any instance where anextension of time has been granted.


11. Section 2429.24 is amended byrevising paragraph (e) to read as follows:

§ 2429.24 Place and method of filing;acknowledgment.

* * * * *(e) All documents filed pursuant to

this section shall be filed in person, bycommercial delivery, by first-class mail,or by certified mail. Provided, however,that where facsimile equipment isavailable, motions; informationpertaining to prehearing disclosure,conferences, orders, or hearing dates,times, and locations; informationpertaining to subpoenas; and othersimilar matters may be filed by facsimiletransmission, provided that the entireindividual filing by the party does notexceed 10 pages in total length, withnormal margins and font sizes.* * * * *


§ 2429.25 Number of copies and papersize.

Unless otherwise provided by theAuthority or the General Counsel, ortheir designated representatives, asappropriate, or under this subchapter,and with the exception of anyprescribed forms, any document orpaper filed with the Authority, GeneralCounsel, Administrative Law Judge,Regional Director, or Hearing Officer, asappropriate, under this subchapter,together with any enclosure filedtherewith, shall be submitted on 81⁄2 x11 inch size paper, using normalmargins and font sizes, in an originaland four (4) legible copies. Wherefacsimile filing is permitted pursuant to§ 2429.24(e), one (1) legible copy,capable of reproduction, shall besufficient. A clean copy capable of beingused as an original for purposes such asfurther reproduction may be substitutedfor the original.

13. Section 2429.27 is amended byrevising paragraphs (b) and (d) to readas follows:

§ 2429.27 Service; statement of service.

* * * * *(b) Service of any document or paper

under this subchapter, by any party,including documents and papers servedby one party on any other party, shallbe accomplished by certified mail, first-class mail, commercial delivery, or inperson. Where facsimile equipment isavailable, service by facsimile ofdocuments described in § 2429.24(e) ispermissible.* * * * *

(d) The date of service or date servedshall be the day when the matter servedis deposited in the U.S. mail, delivered

in person, received from commercialdelivery, or, in the case of facsimiletransmissions, the date transmitted.

Dated: July 28, 1997.Solly Thomas,Executive Director, Federal Labor RelationsAuthority.[FR Doc. 97–20244 Filed 7–30–97; 8:45 am]BILLING CODE 6727–01–P

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Parts 3, 278, and 400

Department of Agriculture CivilMonetary Penalties Adjustment

AGENCY: Office of the Secretary, USDA.ACTION: Final rule.

SUMMARY: In accordance with FederalCivil Penalties Inflation Adjustment Actof 1990, as amended by the DebtCollection Improvement Act of 1996,this final rule adjusts civil monetarypenalties imposed by agencies withinUSDA to incorporate an inflationadjustment.EFFECTIVE DATE: This rule will becomeeffective on September 2, 1997.FOR FURTHER INFORMATION CONTACT: ReyGonzalez, OCFO, FPD, USDA, Room3022–S, 1400 Independence Avenue,SW, Washington DC 20250 (202) 720–1168.


I. The Debt Collection Improvement Actof 1996

The Federal Civil Penalties InflationAdjustment Act of 1990 (Pub. L. No.101–410) (Act) was amended by theDebt Collection Improvement Act of1996 (Pub. L. No. 104–134) to requireFederal agencies to regularly adjustcertain civil monetary penalties (CMP)for inflation. The Act applies to anyCMP provided by law, except for anypenalty under the Internal RevenueCode of 1986, the Tariff Act of 1930, theOccupational Safety and Health Act of1970, and the Social Security Act. TheAct defines CMP to be any penalty, fine,or other sanction in which a Federalstatute specifies a monetary amount, amaximum amount, or a range ofamounts for such penalty, fine, orsanction.

As amended, the Act requires eachagency to make an initial inflationadjustment for all applicable CMP, andto make further inflation adjustments atleast once every 4 years thereafter. TheDebt Collection Improvement Act of1996 stipulates that any increases in

CMP due to the calculated inflationadjustments (i) applies only toviolations which occur after the date theincrease takes effect, which will bethirty (30) days after publication of thisfinal rule; and (ii) the first adjustmentmay not exceed 10 percent of thepenalty indicated.

Method of CalculationUnder the Act, the inflation

adjustment for each applicable CMP isdetermined by increasing the minimumor maximum CMP amount or range ofCMP’s per violation or the range ofminimum and maximum civil monetarypenalties, as applicable, by the ‘‘cost-of-living adjustment.’’ The ‘‘cost-of-livingadjustment’’ is defined as the percentageof each CMP by which the ConsumerPrice Index (CPI) for the month of Juneof the calendar year preceding theadjustment, exceeds the CPI for themonth of June of the calendar year inwhich the amount of the CMP was lastset or adjusted in accordance with thelaw. The adjustment of these penaltiescontained in this notice were limited intwo ways by the Act. First, the initialadjustment of any penalty may notexceed 10 percent of the unadjustedpenalty. Second, any calculated increaseunder this adjustment is subject to aspecific rounding formula contained inthe Act. As a result of the application ofthese rounding rules, some penaltiesmay not be adjusted. Among thepenalties adjusted in this notice, thelength of time covered by theadjustment varied, which means the rateand the amount of the adjustment, ifany, applied to these penalties alsovaried.

The rule contained in this noticereflects the initial adjustment to thelisted civil monetary penalties requiredby the Act. This rule will be amendedto reflect any subsequent adjustments tothe listed civil monetary penalties madein accordance with the Act.

II. Civil Monetary Penalties Affected byThis Rule

A number of USDA agenciesincluding the Agricultural MarketingService; the Federal Crop InsuranceCorporation; the Animal and PlantHealth Inspection Service; the GrainInspection, Packers and StockyardsAdministration; the Food SafetyInspection Service; the Food andConsumer Service; and the ForestService administer laws which providefor the imposition of civil monetarypenalties.

This final rule lists the specificpenalty or penalty range for each civilmonetary penalty covered by this ruleand reflects the required inflation


adjustment. This final rule also amendsregulations which currently specify civilmonetary amounts, by deleting theseamounts and where appropriateinserting a cross reference to this rule.

III. Waiver of Proposed RulemakingIn developing this final rule, we are

waiving the usual notice of proposedrulemaking and public commentprocedures contained in 5 U.S.C. 553.We have determined that, under 5U.S.C. 553(b)(3)(B), good cause exists fordispensing with the notice of proposedrulemaking and public commentprocedures for this rule. Specifically,this rulemaking comports and isconsistent with the statutory authorityrequired by the Debt CollectionImprovement Act of 1996, with no issueof policy discretion. Accordingly, webelieve that opportunity for priorcomment is unnecessary and contrary tothe public interest, and are issuing theserevised regulations as a final rule thatwill apply to all future cases.

IV. Procedural Requirements

Executive Order 12866The Office of Management and Budget

(OMB) has reviewed this final rule inaccordance with the provisions ofExecutive Order 12866, and hasdetermined that it does not meet thecriteria for a significant regulatoryaction. As indicated above, theprovisions contained in this finalrulemaking contained inflationadjustments in compliance with theDebt Collection Improvement Act of1996 for specific applicable civilmonetary penalties. The great majorityof individuals, organizations andentities affected by these regulations donot engage in prohibited activities andpractices, and as a result, we believethat any aggregate economic impact ofthese revised regulations will beminimal, affecting only those limitedfew who may engage in prohibitedbehavior in violation of the statutes.

Executive Order 12988This final rule has been reviewed

under Executive Order 12988, CivilJustice Reform. This rule: (1) Preemptsall State and local laws and regulationsthat are inconsistent with this rule; (2)has no retroactive effect; and (3) doesnot require administrative proceedingsbefore parties may file suit in courtchallenging this rule.

Regulatory Flexibility Act of 1995The provisions of the Regulatory

Flexibility Act relating to an initial andfinal regulatory flexibility analysis (5U.S.C. 603, 604) are not applicable tothis final rule because the agency was

not required to publish a notice ofproposed rulemaking under 5 U.S.C.553 or any other law. Accordingly, aregulatory flexibility analysis is notrequired.

Paperwork Reduction ActThis final rule imposes no new

reporting or recordkeeping requirementsnecessitating clearance by OMB.

List of Subjects in 7 CFR Parts 3, 278and 400

Administrative practice andprocedure, Claims, Debt Management,Penalties.

Accordingly, 7 CFR parts 3, 278, and400 are amended as set forth below:

PART 3—DEBT MANAGEMENT

7 CFR part 3 is amended by adding atthe end the following new subpart:

Subpart E—Adjusted Civil MonetaryPenalties

Authority: 28 U.S.C. 2461 note.

§ 3.91 Adjusted civil monetary penalties.(a) In General. The Secretary will

adjust the civil monetary penalties,listed in paragraph (b), to take accountof inflation at least once every 4 yearsas required by the Federal CivilPenalties Inflation Adjustment Act of1990 (Pub. L. No. 101–410), as amendedby the Debt Collection Improvement Actof 1996 (Pub. L. No. 104–134).

(b) Penalties. (1) AgriculturalMarketing Service— (i) Civil penalty forimproper pesticide recordkeeping,codified at 7 U.S.C. 136i-1(d), has:

(A) A maximum of $550 in the caseof the first offense, and

(B) A minimum of $1,100 in the caseof subsequent offenses unless theSecretary determines that the personmade a good faith effort to comply.

(ii) Civil penalty for a violation ofunfair conduct rule under the PerishableAgricultural Commodities Act, in lieu oflicense revocation or suspension,codified at 7 U.S.C. 499b(5), has amaximum of $2,200.

(iii) Civil penalty for a violation of thelicensing requirements under thePerishable Agricultural CommoditiesAct, codified at 7 U.S.C. 499c(a), has—

(A) A maximum of $1,000 for eachsuch offense and not more than $250 foreach day it continues; or

(B) A maximum of $250 for each suchoffense if the Secretary determines theviolation was not willful.

(iv) Civil penalty in lieu of licensesuspension under the PerishableAgricultural Commodities Act, codifiedat 7 U.S.C. 499h(e), has a maximum of$2,000 for each violative transaction oreach day the violation continues.

(v) Civil penalty for a violation ofExport Apple and Pear Act, codified at7 U.S.C. 586, has a minimum of $110and a maximum of $11,000.

(vi) Civil penalty for a violation of theExport Grape and Plum Act, codified at7 U.S.C. 596, has a minimum of $110and a maximum of $11,000.

(vii) Civil penalty for a violation of anorder issued by the Secretary, under theAgricultural Marketing Agreement Actof 1937, codified at 7 U.S.C. 608c(14)(B),has a maximum of $1,100.

(viii) Civil penalty for failing to filecertain reports under the AgriculturalMarketing Agreement Act of 1937,codified at 7 U.S.C. 610(c), has amaximum civil penalty of $110.

(ix) Civil penalty for a violation ofseed program under the Federal SeedAct, codified at 7 U.S.C. 1596(b), has aminimum civil penalty of $27.50 and amaximum of $550.

(x) Civil penalty for a failure to collectan assessment or fee or for a violationof the Cotton Research and PromotionAct, codified at 7 U.S.C. 2112(b), has amaximum of $1,100.

(xi) Civil penalty for a violation of acease and desist order or for deceptivemarketing under the Plant VarietyProtection Act, codified at 7 U.S.C.2568(b), has a minimum of $550 and amaximum of $11,000.

(xii) Civil penalty for failing to pay,collect, remit any assessment or fee orfor violating a program regarding PotatoResearch and Promotion Act, codified at7 U.S.C. 2621(b)(1), has a minimum of$550 and a maximum of $5,500.

(xiii) Civil penalty for failing to obeya cease and desist order under thePotato Research and Promotion Act,codified at 7 U.S.C. 2621(b)(3), has amaximum of $550.

(xiv) Civil penalty for failing to pay,collect, remit any assessment or fee orfor violating a program under the EggResearch and Consumer InformationAct, codified at 7 U.S.C. 2714(b)(1), hasa minimum of $550 and a maximum of$5,500.

(xv) Civil penalty for failing to obeya cease and desist order for a programunder the Egg Research and ConsumerInformation Act, codified at 7 U.S.C.2714(b)(3), has a maximum of $550.

(xvi) Civil penalty for failing to remitany assessment or fee or for violating aprogram under the Beef Research andInformation Act, codified at 7 U.S.C.2908(a)(2), has a maximum of $5,500.

(xvii) Civil penalty for failing to remitany assessment or for violating aprogram regarding wheat and wheatfoods research, codified at 7 U.S.C.3410(b), has a maximum of $1,100.

(xviii) Civil penalty for failing to pay,collect, or remit any assessment or fee


or violating a program under the FloralResearch and Consumer InformationAct, codified at 7 U.S.C. 4314(b)(1), hasa minimum $550 and a maximum of$5,500.

(xix) Civil penalty for failing to obeya cease and desist order under the FloralResearch and Consumer InformationAct, codified at 7 U.S.C. 4314(b)(3), hasa maximum of $550.

(xx) Civil penalty for a violation of anorder under the Dairy PromotionProgram, codified at 7 U.S.C. 4510(b),has a maximum of $1,100.

(xxi) Civil penalty for failing to pay,collect, or remit any assessment or feeor for violating the Honey Research,Promotion, and Consumer InformationAct, codified at 7 U.S.C. 4610(b)(1), hasa minimum civil penalty of $550 and amaximum of $5,500.

(xxii) Civil penalty for failing to obeya cease and desist order of the HoneyResearch, Promotion, and ConsumerInformation Act, codified at 7 U.S.C.4610(b)(3), has a maximum civil penaltyof $550.

(xxiii) Civil penalty for a violation ofa program of the Pork Promotion,Research, and Consumer InformationAct, codified at 7 U.S.C.4815(b)(1)(A)(i), has a maximum of$1,100.

(xxiv) Civil penalty for failing to obeya cease and desist order under the PorkPromotion, Research, and ConsumerInformation Act, codified at 7 U.S.C.4815(b)(3)(A), has a maximum of $550.

(xxv) Civil penalty for failing to pay,collect, or remit any assessments or feeor for violating a program under theWatermelon Research and PromotionAct, codified at 7 U.S.C. 4910(b)(1), hasa minimum of $550 and a maximum of$5,500.

(xxvi) Civil penalty for failing to obeya cease and desist order for a programunder the Watermelon Research andPromotion Act, codified at 7 U.S.C.4910(b)(3), has a maximum of $550.

(xxvii) Civil penalty for failing to pay,collect, or remit any assessments or feeor for a violation of program under thePecan Promotion and Research Act,codified at 7 U.S.C. 6009(c)(1), has aminimum of $1,100 and a maximum of$11,000.

(xviii) Civil penalty for failing to obeya cease and desist order of the PecanPromotion and Research Act, codified at7 U.S.C. 6009(e), has a maximum of$1,100.

(xxix) Civil penalty for failing to pay,collect, or remit any assessments or feeor for violating a program of theMushroom Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 6107(c)(1), has a minimum of$550 and a maximum of $5,500.

(xxx) Civil penalty for failing to obeya cease and desist order under theMushroom Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 6107(e), has a maximum of $550.

(xxxi) Civil penalty for failing to pay,collect, or remit any assessments or feeor for violation of the Lime Research,Promotion, and Consumer InformationAct, codified at 7 U.S.C. 6207(c)(1), hasa minimum of $550 and a maximum of$5,500.

(xxxii) Civil penalty for failing to obeya cease and desist order under the LimeResearch, Promotion, and ConsumerInformation Act, codified at 7 U.S.C.6207(e), has a maximum of $550.

(xxxiii) Civil penalty for failing topay, collect, or remit any assessments orfee or for violating a program under theSoybean Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 6307(c)(1), has a maximum civilpenalty of $1,100.

(xxxiv) Civil penalty for failing toobey a cease and desist order under theSoybean Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 6307(e), has a maximum of$5,500.

(xxxv) Civil penalty for failing to pay,collect, or remit any assessments or feeor for violating a program of the FluidMilk Promotion Act, codified at 7 U.S.C.6411(c)(1)(A), has a minimum of $550and a maximum civil penalty of $5,500;or in the case of a violation which iswillful, codified at 7 U.S.C.6411(c)(1)(B), has a minimum of$11,000 and a maximum of $110,000.

(xxxvi) Civil penalty for failing toobey a cease and desist order for aprogram under the Fluid MilkPromotion Act of 1990, codified at 7U.S.C. 6411(e), has a maximum of$5,500.

(xxxvii) Civil penalty for knowinglylabeling or selling a product as organicexcept in accordance with the OrganicFoods Production Act, codified at 7U.S.C. 6519(a), has a maximum of$11,000.

(xxxviii) Civil penalty for failing topay, collect, or remit any assessments orfee or for violation of a program of theFresh Cut Flowers and Fresh Cut GreensPromotion and Information Act,codified at 7 U.S.C. 6808(c)(1), has aminimum of $530 and a maximum of$5,300.

(xxxix) Civil penalty for failing toobey a cease and desist order for aprogram of the Fresh Cut Flowers andFresh Cut Greens Promotion andInformation Act, codified at 7 U.S.C.6808(e), has a maximum of $5,300.

(xl) Civil penalty for a violation ofprogram of the Sheep Promotion,Research, and Consumer Information

Act, codified at 7 U.S.C. 7107(c)(1), hasa maximum of $1,030.

(xli) Civil penalty for failing to obeya cease and desist order for a programof the Sheep Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 7107(e), has a maximum of $520.

(xlii) Civil penalty for a violation ofan order or regulation issued under theCommodity Promotion, Research, andInformation Act of 1996, codified at 7U.S.C. 7419(c)(1), has a minimum of$1,000 and a maximum of $10,000 foreach violation.

(xliii) Civil penalty for a violation ofa cease and desist order issued underthe Commodity Promotion, Research,and Information Act of 1996, codified at7 U.S.C. 7419(e), has a minimum of$1,000 and a maximum of $10,000 foreach day the violation occurs.

(xliv) Civil penalty for a violation ofan order or regulation issued under theCanola and Rapeseed Research,Promotion, and Consumer InformationAct, codified at 7 U.S.C. 7448(c)(1), hasa maximum of $1,000 for each violation.

(xlv) Civil penalty for a violation of acease and desist order issued under theCanola and Rapeseed Research,Promotion, and Consumer InformationAct, codified at 7 U.S.C. 7448(e), has amaximum of $5,000 for each day theviolation occurs.

(xlvi) Civil penalty for a violation ofan order or regulation issued under theNational Kiwifruit Research, Promotion,and Consumer Information Act, codifiedat 7 U.S.C. 7468(c)(1), has a minimumof $500 and a maximum of $5,000 foreach violation.

(xlvii) Civil penalty for a violation ofa cease and desist order issued underthe National Kiwifruit Research,Promotion, and Consumer InformationAct, codified at 7 U.S.C. 7468(e), has amaximum of $500 for each day theviolation occurs.

(xlviii) Civil penalty for a violation ofan order or regulation issued under thePopcorn Promotion, Research, andConsumer Information Act, codified at 7U.S.C. 7487, has a maximum of $1,000for each violation.

(xlix) Civil penalty for a violation ofan order or regulation issued under theegg surveillance provisions of the EggsProduct Inspection Act, codified at 21U.S.C. 1041(c)(1)(A), has a maximum of$5,500 for each violation.

(2) Animal and Plant HealthInspection Service—(i) Civil penalty fora violation of the Act of January 31,1942, plant and pest regulations,codified at 7 U.S.C. 149(b)(2), has amaximum of $1,100.

(ii) Civil penalty for a violation of theFederal Plant Pest Act, codified at 7


U.S.C. 150gg(b), has a maximum of$1,100.

(iii) Civil penalty for a violation of theAct of August 20, 1912 (commonlyknown as the Plant Quarantine Act),codified at 7 U.S.C. 163, has a maximumof $1,100.

(iv) Civil penalty for a violation of theFederal Seed Act, codified at 7 U.S.C.1596(b), has a minimum of $27.50 anda maximum of $550.

(v) Civil penalty for a violation ofAnimal Welfare Act, codified at 7 U.S.C.2149(b), has a maximum of $2,750; andknowing failure to obey a cease anddesist order has a civil penalty of$1,650.

(vi) Civil penalty for a violation ofSwine Health Protection Act, codified at7 U.S.C. 3805(a), has a maximum of$11,000.

(vii) Civil penalty for a violation ofHorse Protection Act, codified at 15U.S.C. 1825(b)(1), has a maximum of$2,200.

(viii) Civil penalty for failure to obeyHorse Protection Act disqualification,codified at 15 U.S.C. 1825(c), has amaximum of $3,300 and exhibition ofdisqualified horse, codified at 15 U.S.C.1825(c), has a maximum of $3,300.

(xix) Civil penalty for a violation ofthe Act of August 30, 1890, codified at21 U.S.C. 104, has a maximum of$1,100.

(xx) Civil penalty for a violation of theAct of May 29, 1884 (commonly knownas the Animal Industry Act), codified at21 U.S.C. 117(b), has a maximum of$1,100.

(xxi) Civil penalty for a violation ofthe Act of February 2, 1903 (commonlyknown as the Cattle Contagious DiseaseAct), codified at 21 U.S.C. 122, has amaximum of $1,100.

(xxii) Civil penalty for a violation ofthe Act of March 3, 1905, codified at 21U.S.C. 127, has a maximum of $1,100.

(xxiii) Civil penalty for a violation ofthe Act of July 2, 1962, codified at 21U.S.C. 134e(a)(2), has a maximum of$1,100.

(xxiv) Civil penalty for a violation ofthe Act of May 6, 1970, codified at 21U.S.C. 135a(b), has a maximum of$1,100.

(xxv) Civil penalty for knowinglyviolating, or, if in the business,violating, with respect to terrestrialplants, any provision of the EndangeredSpecies Act of 1973 (16 U.S.C. 1531 etseq.) any permit or certificate issuedthereunder, or any regulation issuedpursuant to section 9(a)(1)(A) through(F), (a)(2)(A) through (D), (c), (d), as setforth at 16 U.S.C. 1540(a) (other thanregulations relating to recordkeeping orfiling reports), (f), or (g) of theEndangered Species Act of 1973 (16

U.S.C. 1538(a)(1)(A) through (F),(a)(2)(A) through (D), (c), (d), (f), and(g)), has a maximum of $25,000.

(xxvi) Civil penalty for knowinglyviolating, or, if in the business,violating, with respect to terrestrialplants, any regulation issued under theEndangered Species Act (16 U.S.C. 1531et seq.), as set forth at 16 U.S.C. 1540(a)[except as provided in subparagraph(O)], has a maximum of $12,000.

(xxvii) Civil penalty for any violation,with respect to terrestrial plants, of theEndangered Species Act (16 U.S.C. 1531et seq.), as set forth at 16 U.S.C. 1540(a)[except as provided in subparagraphs(O) and (P)], has a maximum of $500.

(3) Food and Consumer Service—(i)Civil penalty for hardship fine in lieu ofdisqualification, codified at 7 U.S.C.2021(a), has a maximum of $11,000 perviolation.

(ii) Civil penalty for trafficking in foodcoupons, codified at 7 U.S.C.2021(b)(3)(B), has a maximum of$20,000 for each violation, except thatthe maximum penalty for violationsoccurring during a single investigationis $40,000.

(iii) Civil penalty for the sale offirearms, ammunition, explosives, orcontrolled substances for coupons,codified at 7 U.S.C. 2021(b)(3)(C), has amaximum of $20,000 for each violationexcept that the maximum penalty forviolations occurring during a singleinvestigation is $40,000.

(iv) Civil penalty for any entity thatsubmits a bid to supply infant formulato carry out the Special SupplementalNutrition Program for Women, Infantsand Children and discloses the amountof the bid, rebate or discount practicesin advance of the bid opening or for anyentity that makes a statement prior tothe opening of the bids for the purposeof influencing a bid, codified at 42U.S.C. 1786(h)(8)(H)(i), has a maximumof $100,000,000.

(4) Food Safety and InspectionService—(i) Civil penalty for a violationof the Eggs Products Inspection Act,codified at 21 U.S.C. 1041(c)(1)(A), hasa maximum penalty of $5,500 for eachviolation.

(ii) Civil penalty for a failure to filetimely certain reports, codified at 21U.S.C. 467d, has a maximum civilpenalty of $11 per day for each day thereport is not filed.

(iii) Civil penalty for a failure to filetimely certain reports codified at 21U.S.C. 677, has a maximum civilpenalty of $11 per day for each day thereport is not filed.

(iv) Civil penalty for a failure to filetimely certain reports codified at 21U.S.C. 1051, has a maximum civil

penalty of $11 per day for each day thereport is not filed.

(5) Forest Service—(i) Civil penaltyfor a willful disregard of the prohibitionagainst the export of unprocessed timberoriginating from Federal lands has amaximum of $550,000 per violation orthree times the gross value of theunprocessed timber whichever isgreater, codified at 16 U.S.C.620d(c)(1)(A).

(ii) Civil penalty for a violation indisregard of the Forest ResourcesConservation and Shortage Relief Act of1990 (16 U.S.C. 620 et seq.) or theregulations that implement such Actregardless of whether such violationcaused the export of unprocessed timberoriginating from Federal lands, has amaximum penalty of $82,500 perviolation, codified at 16 U.S.C.620d(c)(2)(A)(i).

(iii) Civil penalty for a person thatshould have known that an action wasa violation of the Forest ResourcesConservation and Shortage Relief Act of1990 (16 U.S.C. 620 et seq.) or theregulations that implement such Actregardless of whether such violationcaused the export of unprocessed timberoriginating from Federal lands, has amaximum penalty of $55,000 perviolation, codified at 16 U.S.C.620d(c)(2)(A)(ii).

(iv) Civil penalty for a willfulviolation of the Forest ResourcesConservation and Shortage Relief Act of1990 (16 U.S.C. 620 et seq.) or theregulations that implement such Actregardless of whether such violationcaused the export of unprocessed timberoriginating from Federal lands, has amaximum penalty of $550,000 perviolation, codified at 16 U.S.C.620d(c)(2)(A)(iii).

(v) Civil penalty for a violationinvolving protections of caves, codifiedat 16 U.S.C. 4307(a)(2), has a maximumof $11,000.

(6) Grain Inspection, Packers andStockyards Administration—(i) Civilpenalty for a packer violation, codifiedat 7 U.S.C. 193(b), has a maximum of$11,000.

(ii) Civil penalty for livestock marketagency, dealer, failure to register,codified at 7 U.S.C. 203, has a maximumof $550 and not more than $27.50 foreach day the violation continues.

(iii) Civil penalty for a violation ofstockyard rate, regulation or practice,codified at 7 U.S.C. 207(g), has amaximum civil penalty of $550 and notmore than $27.50 for each day theviolation continues.

(iv) Civil penalty for a stockyardowner, livestock market agency anddealer violations, codified at 7 U.S.C.213(b), has a maximum of $11,000.


(v) Civil penalty for a stockyardowner, livestock market agency anddealer compliance order violations,codified at 7 U.S.C. 215(a), has amaximum of $550.

(vi) Civil penalty for a failure to filerequired reports, codified at 15 U.S.C.50, has a maximum of $110.

(vii) Civil penalty for live poultrydealer violations, codified at 7 U.S.C.228b-2(b), has a maximum of $22,000.

(viii) Civil penalty for a violation,codified at 7 U.S.C. 86(c), has amaximum civil penalty of $82,500.

(7) Federal Crop InsuranceCorporation—Civil penalty for anyperson who willfully and intentionallyprovides materially false or inaccurateinformation to the Federal CropInsurance Corporation or an approvedinsurance provider reinsured by theFederal Crop Insurance Corporation,codified at 7 U.S.C. 1506(n)(1)(A), has amaximum civil penalty of $10,000.

(8) All USDA Agencies—Civil penaltyfor work hours and safety violations,codified at 40 U.S.C. 328, has amaximum of $11 per day of violation.

PART 278—PARTICIPATION OFRETAIL FOOD STORES, WHOLESALEFOOD CONCERNS, AND INSUREDFINANCIAL INSTITUTIONS


Authority: 7 U.S.C. 2011–2032.

§ 278.6 [Amended]

2. 7 CFR 278.6(a) is amended by—(a)striking ‘‘$10,000’’ and inserting ‘‘anamount specified in § 3.91(b)(3)(A) ofthis title’’; and (b) striking ‘‘$20,000’’and inserting ‘‘amount specified in Sec.3.91(b)(3)(B) of this title’’.

PART 400—FEDERAL CROPINSURANCE CORPORATION,GENERAL ADMINISTRATIVEREGULATIONS


Authority: 7 U.S.C. 1506(l).

§ 400.454 [Amended]

2. 7 CFR 400.454(a) introductory textis amended by striking ‘‘$10,000’’ andinserting ‘‘an amount specified in§ 3.91(b)(7) of this title’’.Dan Glickman,Secretary of Agriculture.[FR Doc. 97–19967 Filed 7–30–97; 8:45 am]

BILLING CODE 3410–01–P

NATIONAL CREDIT UNIONADMINISTRATION

12 CFR Part 701

Loan Interest Rates

AGENCY: National Credit UnionAdministration (NCUA).ACTION: Final rule.

SUMMARY: The current 18 percent peryear federal credit union loan rateceiling is scheduled to revert to 15percent on September 9, 1997, unlessotherwise provided by the NCUA Board(Board). A 15 percent ceiling wouldrestrict certain categories of credit andadversely affect the financial conditionof a number of federal credit unions. Atthe same time, prevailing market ratesand economic conditions do not justifya rate higher than the current 18 percentceiling. Accordingly, the Board herebycontinues an 18 percent federal creditunion loan rate ceiling for the periodfrom September 9, 1997 through March8, 1999. Loans and lines of creditbalances existing prior to May 18, 1987,may continue to bear their contractualrate of interest, not to exceed 21 percent.The Board is prepared to reconsider the18 percent ceiling at any time shouldchanges in economic conditionswarrant.EFFECTIVE DATE: September 9, 1997.ADDRESSES: National Credit UnionAdministration, 1775 Duke Street,Alexandria, Virginia, 22314–3428.FOR FURTHER INFORMATION CONTACT:Evan Gillette, Investment Officer, Officeof Investment Services, at the aboveaddress, telephone number: (703) 518–6620.


BackgroundPublic Law 96–221, enacted in 1979,

raised the loan interest rate ceiling forfederal credit unions from 1 percent permonth (12 percent per year) to 15percent per year. It also authorized theBoard to set a higher limit, afterconsulting with Congress, theDepartment of Treasury and otherfederal financial agencies, for a periodnot to exceed 18 months, if the Boarddetermined that: (1) Money marketinterest rates have risen over thepreceding 6 months; and (2) prevailinginterest rate levels threaten the safetyand soundness of individual creditunions as evidenced by adverse trendsin growth, liquidity, capital andearnings.

On December 3, 1980, the Boarddetermined that the foregoingconditions had been met. Accordingly,the Board raised the loan ceiling for 9

months to 21 percent. In the unstableenvironment of the first-half of the1980s, the Board extended the 21percent ceiling four times. On March 11,1987, the Board lowered the loan rateceiling from 21 percent to 18 percenteffective May 18, 1987. This action wastaken in an environment of fallingmarket interest rates from 1980 to early1987. The ceiling has remained at 18percent to the present.

The Board believes that the 18 percentceiling will permit credit unions tocontinue to meet their current lendingprograms, permit flexibility so thatcredit unions can react to any adverseeconomic developments, and ensurethat any increase in the cost of fundswould not affect the safety andsoundness of federal credit unions.

The Board would prefer not to setloan interest rate ceilings for federalcredit unions. Credit unions arecooperatives and balance loan and sharerates consistent with the needs of theirmembers and prevailing market rates.The Board supports free lendingmarkets and the ability of federal creditunion boards of directors to establishloan rates that reflect current marketconditions and the interests of theirmembers. Congress has, however,imposed loan rate ceilings since 1934.In 1979, Congress set the ceiling at 15percent but authorized the Board to seta ceiling in excess of 15 percent, ifconditions warrant. The followinganalysis justifies a ceiling above 15percent, but at the same time does notsupport a ceiling above the current 18percent. The Board is prepared toreconsider this action at any timeshould changes in economic conditionswarrant.

Money Market Interest RatesDuring the 16-month period following

the Board’s March 1996 decision tocontinue the 18 percent ceiling, short-term Treasury rates (3, 6 and 12 months)increased from 11 to 19 basis points(Table 1).

TABLE 1.—TREASURY RATES

Maturity

Yieldsas ofMar.11,

1996(per-cent)

Yieldsas ofJuly17,

1997(per-cent)

Changein basispoints

3-month ............. 5.09 5.20 116-month ............. 5.17 5.31 141-year ................ 5.37 5.56 19

Treasury rates rose slightly during therecent six-month period from January 1to July 17, 1997. Treasury rates on the3, 6 and 12 month maturities increased


1 Of the 7,152 FCUs, 4,083 had zero balances inthe 15 percent and above category or did not reporta balance for the year-end 1996 reporting period.

between 1 and 7 basis points (Table 2).During this period, the Federal Reserve(Fed) increased the overnight Fed Fundsrate by 25 basis points to a target rateof 5.50 percent.

TABLE 2.—TREASURY RATES

Maturity

Yieldsas of

Jan. 1,1997(per-cent)

Yieldsas ofJuly17,

1997(per-cent)

Changein basispoints

3-month ............. 5.19 5.20 16-month ............. 5.30 5.31 11-year ................ 5.49 5.56 7

There are also expectations that ratesmay rise in the months ahead. The USeconomy has continued to expand.Since early 1996, employment growthand labor force participation has beenquite strong, with unemployment ratesdeclining from 5.6 percent (Dec. 1995)to 5.0 percent (June 1997).

Further declines in theunemployment rate, rising consumerconfidence, continued income growthand a strong equity market have leadmany to be concerned that consumerdemand may rise at a faster pace in themonths ahead. This could result ininflationary pressures and higherinterest rates. Therefore, it is importantto maintain the 18 percent ceiling.Lowering the interest rate ceiling at thistime could cause an unnecessary burdenon credit unions.

Financial Implications for CreditUnions

For at least 871, 28% 1 of the reportingcredit unions, the most common rate onunsecured loans was above 15 percent.While the bulk of credit union lendingis below 15 percent, small credit unionsand credit unions that have institutedrisk based lending programs requireinterest rates above 15 percent tomaintain liquidity, capital, earnings andgrowth.

Loans to members who have not yetestablished a credit history or haveweak credit histories have more creditrisk. Credit unions must charge rates tocover the potential of higher than usuallosses for such loans. There areundoubtedly more than 871 creditunions charging over 15 percent forunsecured loans to such members.Many credit unions have ‘‘CreditBuilder’’ or ‘‘Credit Rebuilder’’ loansbut only report the ‘‘most common’’ rateon the Call Report for unsecured loans.

Lowering the interest rate ceiling forcredit unions will discourage creditunions from making these loans. Creditseekers’ options will be reduced andmost of the affected members will haveno alternative but to turn to otherlenders who will charge much higherrates.

Small credit unions will beparticularly affected by a lower loanceiling since they tend to have a higherlevel of unsecured loans, typically withlower loan balances. Thus, small creditunions making small loans to memberswith poor or no credit histories arestruggling with far higher costs than thetypical credit union. Both young peopleand lower income households havelimited access to credit and, absent acredit union, often pay rates of 24 to 30percent to other lenders. Rates between15 and 18 percent are attractive to suchmembers.

Table 3 shows the number of creditunions in each asset group where themost common rate is more than 15percent for unsecured loans.

TABLE 3.—FEDERAL CREDIT UNIONSWITH MOST COMMON UNSECUREDLOAN RATES GREATER THAN 15PERCENT (DECEMBER 1996)

Peer group by assetsize

Totalall

FCUs

Number ofFCUs w/

loanrates>15%

$0–2 mil ...................... 2,132 231$2–10 mil .................... 2,490 317$10–50 mil .................. 1,733 208$50 mil + ..................... 797 115

Total 1 .................. 7,152 871

1 Of this total, 4,083 had either a zero bal-ance or did not report rate balances 15 per-cent and above.

Among the 871 credit unions wherethe most common rate is more than 15percent for unsecured loans, 242 have20 percent or more of their assets (Table4) in this category. For these creditunions, lowering the rates woulddamage their liquidity, capital, earningsand growth.

TABLE 4.—FEDERAL CREDIT UNIONSWITH MOST COMMON UNSECUREDLOAN RATES GREATER THAN 15PERCENT AND MORE THAN 20 PER-CENT OF ASSETS IN UNSECUREDLOANS (DECEMBER 1996)

Peer group by assetsize

Avg. per-centageof loanrates

>15% toassets

Numberof FCUsmeetingboth cri-

teria

$0–2 mil .................... 43.8 108$2–10 mil .................. 29.6 75$10–50 mil ................ 26.8 45$50 mil + ................... 24.9 14

Total ................... 35.1 242

In conclusion, the Board hascontinued the federal credit union loaninterest rate ceiling of 18 percent peryear for the period from September 9,1997, through March 8, 1999. Loans andline of credit balances existing on May16, 1987, may continue to bear interestat their contractual rate, not to exceed21 percent. Finally, the Board isprepared to reconsider the 18 percentceiling at any time during the extensionperiod, should changes in economicconditions warrant.

Regulatory Procedures

Administrative Procedure ActThe Board has determined that notice

and public comment on this rule areimpractical and not in the publicinterest, 5 U.S.C. 553(b)(B). Due to theneed for a planning period prior to theSeptember 9, 1997, expiration date ofthe current rule, and the threat to thesafety and soundness of individualcredit unions with insufficientflexibility to determine loan rates, finalaction of the loan rate ceiling isnecessary.

Regulatory Flexibility ActFor the same reasons, a regulatory

flexibility analysis is not required, 5U.S.C. 604(a). However, the Board hasconsidered the need for this rule, andthe alternatives, as set forth above.

Paperwork Reduction ActThere are no paperwork requirements.

Executive Order 12612

This final rule does not affect stateregulation of credit unions. Itimplements provisions of the FederalCredit Union Act applying only tofederal credit unions.

List of Subjects in 12 CFR Part 701Credit, Credit unions, Loan interest

rates.


By the National Credit UnionAdministration Board on July 23, 1997.Becky Baker,Secretary of the Board.

Accordingly, NCUA amends 12 CFRchapter VII as follows:

PART 701—[AMENDED]

1. The authority citation for Part 701is revised to read as follows:

Authority: 12 U.S.C. 1752(5), 1755, 1756,1757, 1759, 1761a, 1761b, 1766, 1767, 1782,1784, 1787, 1789. Section 701.6 is alsoauthorized by 15 U.S.C. 3717. Section 701.31is also authorized by 15 U.S.C. 1601 et seq.;42 U.S.C. 1981 and 3601–3610. Section701.35 is also authorized by 42 U.S.C. 4311–4312.

2. Section 701.21(c)(7)(ii)(C) is revisedto read as follows:

§ 701.21 Loans to members and lines ofcredit to members.

* * * * *(c) * * *(7) * * *

(ii) * * *(C) Expiration. After March 8, 1999, or

as otherwise ordered by the NCUABoard, the maximum rate on federalcredit union extensions of credit tomembers shall revert to 15 percent peryear. Higher rates may; however, becharged, in accordance with paragraphs(c)(7)(ii) (A) and (B) of this section, onloans and line of credit balancesexisting on or before March 8, 1999.* * * * *[FR Doc. 97–19935 Filed 7–30–97; 8:45 am]BILLING CODE 7535–01–U

DEPARTMENT OF HEALTH ANDHUMAN SERVICES

Food and Drug Administration

21 CFR Part 510

New Animal Drugs; Change of Sponsor

AGENCY: Food and Drug Administration,HHS.

ACTION: Final rule.

SUMMARY: The Food and DrugAdministration (FDA) is amending theanimal drug regulations to reflect achange of sponsor for 46 new animaldrug applications (NADA’s) from SolvayAnimal Health, Inc., to Fort DodgeAnimal Health, A Division of AmericanCyanamid Co.

EFFECTIVE DATE: July 31, 1997.

FOR FURTHER INFORMATION CONTACT:Thomas J. McKay, Center for VeterinaryMedicine (HFV–102), Food and DrugAdministration, 7500 Standish Pl.,Rockville, MD 20855, 301–827–0213.

SUPPLEMENTARY INFORMATION: SolvayAnimal Health, Inc., 1201 NorthlandDr., Mendota Heights, MN 55120, hasinformed FDA that it has transferred theownership of, and all rights andinterests in, the following approvedNADA’s to Fort Dodge Animal Health,A Division of American Cyanamid Co.,P.O. Box 1339, Fort Dodge, IA 50501:

NADA No. Drug Name

006–417 .................................................................................................... Recovr006–103 .................................................................................................... Follutein006–707 .................................................................................................... Sulquin 6–50008–274 .................................................................................................... Pig Scour Tablets009–035 .................................................................................................... Ophtaine011–141 .................................................................................................... Unistat-2011–482 .................................................................................................... Vetame Tabs and Injection011–879 .................................................................................................... Rubfrafer Injection012–198 .................................................................................................... Vetalog Parenteral012–258 .................................................................................................... Panalog Ointment (Solvaderm)013–624 .................................................................................................... Vetalog Tabs014–250 .................................................................................................... Novastat031–448 .................................................................................................... Rheaform Bolus031–553 .................................................................................................... Esb3 Powder & Solution032–319 .................................................................................................... Furox Aerosol Spray032–738 .................................................................................................... Pacitran Soluble033–127 .................................................................................................... Vetisulid Bolus033–318 .................................................................................................... Vetisulid Injectable033–319 .................................................................................................... Vetisulid Tabs033–373 .................................................................................................... Vetisulid Powder034–536 .................................................................................................... Aklomix034–537 .................................................................................................... Novastat-3034–705 .................................................................................................... Equipoise035–388 .................................................................................................... Novastat-W039–666 .................................................................................................... Unistat-3040–181 .................................................................................................... Vetisulid Oral Suspension046–146 .................................................................................................... Vetalog Cream046–147 .................................................................................................... Dirocide Syrup049–892 .................................................................................................... Spanbolet II055–060 .................................................................................................... Potassium G penicillin055–064 .................................................................................................... Redicillin (Princillin)055–066 .................................................................................................... Redicillin (Princillin)055–071 .................................................................................................... Redicillin (Princillin)065–130 .................................................................................................... Crystaline Pro Penicillin065–174 .................................................................................................... Crysticillin 300 A.S. Vet065–410 .................................................................................................... Tetra–Sal Soluble091–192 .................................................................................................... Renografin 76091–240 .................................................................................................... Renovist091–327 .................................................................................................... Gastrogratin093–512 .................................................................................................... Dirocide Tabs096–676 .................................................................................................... Panalog Cream099–388 .................................................................................................... Vetalog Oral Powder126–232 .................................................................................................... Calfspan131–808 .................................................................................................... Dirocide Syrup


NADA No. Drug Name

139–913 .................................................................................................... Equron140–909 .................................................................................................... Sulka-S-Bolus

Accordingly, the agency is amendingthe regulations in 21 CFR 510.600(c)(1)and (c)(2) to reflect the change ofsponsor. The drug labeler code assignedto Solvay Animal Health is beingretained as the drug labeler code for thenew sponsor.

List of Subjects in 21 CFR Part 510

Administrative practice andprocedure, Animal drugs, Labeling,Reporting and recordkeepingrequirements.

Therefore, under the Federal Food,Drug, and Cosmetic Act and underauthority delegated to the Commissionerof Food and Drugs and redelegated tothe Center for Veterinary Medicine, 21CFR part 510 is amended as follows:

PART 510—NEW ANIMAL DRUGS

1. The authority citation for 21 CFRpart 510 continues to read as follows:

Authority: Secs. 201, 301, 501, 502, 503,512, 701, 721 of the Federal Food, Drug, andCosmetic Act (21 U.S.C. 321, 331, 351, 352,353, 360b, 371, 379e).

§ 510.600 [Amended]

2. Section 510.600 Names, addresses,and drug labeler codes of sponsors ofapproved applications is amended inthe table in paragraph (c)(1) byremoving the entry for ‘‘Solvay AnimalHealth, Inc.’’ and by alphabeticallyadding a new entry for ‘‘Fort DodgeAnimal Health, A Division of AmericanCyanamid Co., P.O. Box 1339, FortDodge, IA 50501’’ and in the table inparagraph (c)(2) in the entry for‘‘053501’’ by removing the sponsorname and address ‘‘Solvay AnimalHealth, Inc., 1201 Northland Dr.,Mendota Heights, MN 55120’’ andadding in its place ‘‘Fort Dodge AnimalHealth, A Division of AmericanCyanamid Co., P.O. Box 1339, FortDodge, IA 50501’’.

Dated: July 22, 1997.Robert C. Livingston,Director, Office of New Animal DrugEvaluation, Center for Veterinary Medicine.[FR Doc. 97–20249 Filed 7-30-97; 8:45 am]BILLING CODE 4160–01–F




New Animal Drugs; Change of Sponsor

AGENCY: Food and Drug Administration,HHS.ACTION: Final rule.

SUMMARY: The Food and DrugAdministration (FDA) is amending theanimal drug regulations to reflect achange of sponsor for three approvednew animal drug applications (NADA’s)from Syntex Animal Health, Inc.,Division of Syntex Agribusiness, Inc., toMedicis Dermatologics, Inc.EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Thomas J. McKay, Center for VeterinaryMedicine (HFV–102), Food and DrugAdministration, 7500 Standish Pl.,Rockville, MD 20855, 301–827–0213.SUPPLEMENTARY INFORMATION: SyntexAnimal Health, Inc., Division of SyntexAgribusiness, Inc., 3401 Hillview Ave.,P.O. Box 10850, Palo Alto, CA 94303,has informed FDA that it has transferredownership of, and all rights andinterests in NADA’s 15–151(fluocinolone acetonide, neomycinsulfate cream), 15–152 (fluocinoloneacetonide cream), and 15–298(fluocinolone acetonide solution) toMedicis Dermatologics, Inc., 4343 EastCamelback Rd., suite 250, Phoenix, AZ85018–2700. Accordingly, the agency is

amending the regulations in 21 CFR524.981a, 524.981b, and 524.981c toreflect the transfer of ownership. Theagency is also amending the regulationsin 21 CFR 510.600(c)(1) and (c)(2) byalphabetically adding a new listing forMedicis Dermatologics, Inc.

List of Subjects

21 CFR Part 510

Administrative practice andprocedure, Animal drugs, Labeling,Reporting and recordkeepingrequirements.

21 CFR Part 524

Animal drugs.Therefore, under the Federal Food,

Drug, and Cosmetic Act and underauthority delegated to the Commissionerof Food and Drugs and redelegated tothe Center for Veterinary Medicine, 21CFR parts 510 and 524 are amended asfollows:

PART 510—NEW ANIMAL DRUGS


Authority: Secs. 201, 301, 501, 502, 503,512, 701, 721 of the Federal Food, Drug, andCosmetic Act (21 U.S.C. 321, 331, 351, 352,353, 360b, 371, 379e).

2. Section 510.600 is amended in thetable in paragraph (c)(1) byalphabetically adding a new entry for‘‘Medicis Dermatologics, Inc.’’ and inthe table in paragraph (c)(2) bynumerically adding a new entry for‘‘099207’’ to read as follows:

§ 510.600 Names, addresses, and druglabeler codes of sponsors of approvedapplications.

* * * * *(c) * * *(1) * * *

Firm name and address Drug labeler code

* * * * * * *Medicis Dermatologics, Inc., 4343 East Camelback Rd., suite 250,

Phoenix, AZ 85018–2700.099207

* * * * * * *

(2) * * *


Drug labeler code Firm Name and address

* * * * * * *099207 ...................................................................................................... Medicis Dermatologics, Inc., 4343 East Camelback Rd., suite 250,

Phoenix, AZ 85018–2700.* * * * * * *

PART 524—OPHTHALMIC ANDTOPICAL DOSAGE FORM NEWANIMAL DRUGS


Authority: Sec. 512 of the Federal Food,Drug, and Cosmetic Act (21 U.S.C. 360b).

§ 524.981a [Amended]4. Section 524.981a Fluocinolone

acetonide cream is amended inparagraph (b) by removing ‘‘000033’’and adding in its place ‘‘099207’’.

§ 524.981b [Amended]5. Section 524.981b Fluocinolone

acetonide solution is amended inparagraph (b) by removing ‘‘000033’’and adding in its place ‘‘099207’’.

§ 524.981c [Amended]6. Section 524.981c Fluocinolone

acetonide, neomycin sulfate cream isamended in paragraph (b) by removing‘‘000033’’ and adding in its place‘‘099207’’.




21 CFR Part 520

Animal Drugs, Feeds, and RelatedProducts; Change of Sponsor;Corrections

AGENCY: Food and Drug Administration,HHS.ACTION: Final rule; correction.

SUMMARY: The Food and DrugAdministration (FDA) is correcting adocument that appeared in the FederalRegister of June 30, 1997 (62 FR 35075at 35076). The document amended theanimal drug regulations to reflect thechange of sponsor for 52 approved newanimal drug applications (NADA’s) fromFermenta Animal Health Co. toBoehringer Ingelheim Animal Health,Inc. The document was published with

two inadvertent errors. This documentcorrects those errors.EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Thomas J. McKay, Center for VeterinaryMedicine (HFV–102), Food and DrugAdministration, 7500 Standish Pl.,Rockville, MD 20855, 301–827–0213.

In FR Doc. 97–16967, appearing onpage 35075, in the Federal Register ofMonday, June 30, 1997, the followingcorrections are made: On page 35076, inthe first column, in amendment 11, inthe third line, ‘‘(a)(6)’’ is corrected toread ‘‘(b)(6)’’; and on the same page, inthe second column, in amendment 19,beginning in the fourth line, ‘‘000069,054273, and 057561’’ is corrected toread ‘‘000069, 054273, 057561, and059130’’.




21 CFR Part 556

Tolerances for Residues of NewAnimal Drugs in Food; Apramycin

AGENCY: Food and Drug Administration,HHS.ACTION: Final rule.

SUMMARY: The Food and DrugAdministration (FDA) is amending theanimal drug regulations to reflectapproval of two supplemental newanimal drug applications (NADA’s) filedby Elanco Animal Health, A Division ofEli Lilly & Co. The supplementalNADA’s provide for revised tolerancesfor total residues of apramycin (i.e., thesafe concentration) in edible swinetissues.EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:George K. Haibel, Center for VeterinaryMedicine (HFV–133), Food and DrugAdministration, 7500 Standish Pl.,Rockville, MD 20855, 301–594–1644.

SUPPLEMENTARY INFORMATION: ElancoAnimal Health, A Division of Eli Lilly& Co., Lilly Corporate Center,Indianapolis, IN 46285, is sponsor ofsupplemental NADA 106–964 thatprovides for the use of Apralan(apramycin sulfate) soluble powder inswine drinking water and supplementalNADA 126–050 that provides for the useof Apralan (apramycin sulfate) Type Amedicated article in swine feed, both forcontrol of porcine colibacillosis(weanling pig scours) caused by strainsof Escherichia coli sensitive toapramycin. These supplementalNADA’s provide for a change in thetolerance for total residues of apramycin(i.e., the safe concentration) in edibleswine tissues as provided in § 556.52(21 CFR 556.52). Review of thesesupplements involved a review of newtoxicology studies and information inthe original approvals.

In evaluating these supplements,FDA’s Center for Veterinary Medicinealso considered that the proof of humanfood safety for antimicrobial animaldrug residues includes a determinationof their antimicrobial activity for allantimicrobial new animal drugproducts. In the absence of studies todetermine the microbiological safety ofantimicrobial drug residues, theacceptable daily intake (ADI) forapramycin is limited to 25 microgramsper kilogram (µg/kg) of body weight perday (for appropriate studies see‘‘Guidance: Microbial Testing ofAntimicrobial Drug Residues in Food,’’January, 1996). As indicated in thefreedom of information summaries, thesafe concentration for total apramycinresidues is established at 5 parts permillion (ppm) for muscle, 15 ppm forliver, and 30 ppm for fat and kidney.These revised safe concentrationswarrant removal of the existingtolerances for total residues in § 556.52,because those tolerances are nowincorrect. Because this approval doesnot result in a different tolerance thanthat currently codified for markerresidue in swine kidney, and becausethe sponsor did not petition FDA tochange the tolerance, the tolerance of0.1 ppm in swine kidney remainscodified. FDA is also codifying the ADIfor apramycin of 25 µg/kg of bodyweight per day. The supplement is


approved as of June 24, 1997, and theregulations in § 556.52 are revised toreflect the approval. The basis ofapproval is discussed in the freedom ofinformation summary.

In accordance with the freedom ofinformation provisions of 21 CFR part20 and 514.11(e)(2)(ii), a summary ofsafety and effectiveness data andinformation submitted to supportapproval of these applications may beseen in the Dockets Management Branch(HFA–305), Food and DrugAdministration, 12420 Parklawn Dr.,rm. 1–23, Rockville, MD 20857, between9 a.m. and 4 p.m., Monday throughFriday.

The agency has determined under 21CFR 25.24(d)(1)(i) that this action is ofa type that does not individually orcumulatively have a significant effect onthe human environment. Therefore,neither an environmental assessmentnor an environmental impact statementis required.


Animal drugs, Foods.Therefore, under the Federal Food,

Drug, and Cosmetic Act and underauthority delegated to the Commissionerof Food and Drugs and redelegated tothe Center for Veterinary Medicine, 21CFR part 556 is amended as follows:

PART 556—TOLERANCES FORRESIDUES OF NEW ANIMAL DRUGSIN FOOD


Authority: Secs. 402, 512, 701 of theFederal Food, Drug, and Cosmetic Act (21U.S.C. 342, 360b, 371).

2. Section 556.52 is revised to read asfollows:

§ 556.52 Apramycin.

A tolerance of 0.1 part per million isestablished for parent apramycin(marker residue) in kidney (target tissue)of swine. The acceptable daily intake(ADI) for total residues of apramycin is25 micrograms per kilogram of bodyweight per day.

Dated: July 21, 1997.

Robert C. Livingston,Director, Office of New Animal DrugEvaluation, Center for Veterinary Medicine.[FR Doc. 97–20081 Filed 7-30-97; 8:45 am]

BILLING CODE 4160–01–F

OCCUPATIONAL SAFETY ANDHEALTH REVIEW COMMISSION

29 CFR Part 2200

Rules of Procedure for E–Z Trials

AGENCY: Occupational Safety and HealthReview Commission.ACTION: Final Rule.

SUMMARY: This document eliminates thesunset provision from the proceduresgoverning the E–Z Trial program andcontinues the E–Z Trial program as partof the Commission Rules of Procedure,as codified in Title 29 of the Code ofFederal Regulations as Part 2200. Inaddition, this document implementsrevisions to the procedural rulesgoverning the E–Z Trial program whichare intended to assist the E–Z Trialprocess in meeting its objective ofallowing parties in less complex cases toargue their cases before the Commissionwith as few legal formalities as possible.DATES: Effective July 31, 1997.FOR FURTHER INFORMATION CONTACT: EarlR. Ohman, Jr., General Counsel, (202)606–5410, Occupational Safety andHealth Review Commission, 1120 20thStreet NW, 9th Floor, Washington DC20036–3419.SUPPLEMENTARY INFORMATION: On June24, 1997, the Occupational Safety andHealth Review Commission publishedin the Federal Register (62 FR 34031)proposed changes to the proceduralrules governing the E–Z Trial program.The Commission would like to thankthose who took the time and interest tosubmit comments.

The Secretary of Labor responded bystating that it appears that many of theconcerns she initially had with the E–Z Trial program can be avoided if theCommission continues to exercisesound judgment in the designation ofcases for E–Z Trial, to be receptive tomotions by either party to modify ordiscontinue the procedure, and toconduct pre-hearing conferences in sucha manner as to prevent surprises at trial.The Secretary also expressed her wishthat the Commission remain open tofuture modifications of the rule as itgains experience with the E–Z Trialprogram.

The Commission has evaluated the E–Z Trial program during its pilot stageand has decided to eliminate the sunsetprovision of the E–Z Trial proceduresand to maintain E–Z Trial as part of theCommission’s Rules of Procedure. TheCommission notes that E–Z Trial hasreduced the time necessary to try andreach a decision in cases of the typeeligible for E–Z Trial from 423 days to141 days—a two-thirds reduction. In

addition, feedback received from thefocus groups held concerning E–Z Trialreflects that the program has realizedmany of its other goals. The commentsreceived in response to the proposedamendments raise issues which theCommission hopes its modifiedprocedures adequately address and theCommission remains open to futuremodifications as the need may arise.

1. Eligibility for E–Z Trial

The Commission proposed amendingRule 202 to make cases involving afatality or an allegation of willfulnessineligible for E–Z Trial. TheCommission also proposed that caseshaving an aggregate proposed penalty ofmore than $10,000, but not more than$20,000, may be considered for E–ZTrial designation at the discretion of theChief Administrative Law Judge. TheCommission received no commentsspecifically opposing these changes.Accordingly, the Commission adoptsthe proposed amendments.

2. Disclosure of Information

Currently, Rule 206 requires theSecretary of Labor to disclose to theemployer copies of the narrative (FormOSHA 1–A) and the worksheet (FormOSHA 1–B), or their equivalents, within12 working days after a case has beendesignated for E–Z Trial. TheCommission proposed amending therule to require the Secretary to providethe employer with reproductions of anyphotographs or videotapes that theSecretary intends to use at the hearingwithin 30 calendar days of designationfor E–Z Trial.

One commentator suggested that theSecretary should be required to discloseall photographs or videotapes, not justthe ones the Secretary anticipates usingat the hearing. The commentator statedthat there may be photographs orvideotapes which would be helpful toan employer’s defense, but which theSecretary does not intend to use, andnoted that under the proposed rule, theSecretary is not required to disclosesuch evidence. While the Commissionexpects that the Secretary would turnover such material without beingrequired to do so, in order to make itclear that no loophole exists in the E–Z Trial procedures and because the E–Z Trial process favors disclosure overthe traditional avenues of discovery, theCommission has decided that theSecretary should provide to theemployer as part of the disclosurerequirement any exculpatory evidence,including photographs and videotapes.Accordingly, the Commission hasrevised Rule 206 to include the


disclosure of any exculpatory materialthe Secretary has in her possession.

3. Pre-hearing ConferenceThe proposed rule provides that the

pre-hearing conference be conducted assoon as practicable after the employerhas received the narrative andworksheet under the provisions of Rule206. One commentator suggested thatthe pre-hearing conference be held onlyafter the employer has also received anyphotographs or videotapes so that theemployer has the benefit of allmandatory disclosure before the pre-hearing conference. The commentatorexpressed concern that allowing the pre-hearing conference to go forwardwithout the employer’s prior access toany photographs or videotapes placesthe employer in an unfair position.Because Rule 207 requires the parties toset forth an agreed statement of issuesand facts, witnesses and exhibits,defenses, motions, and any otherpertinent matter including affirmativedefenses at the pre-hearing conference,the commentator noted that anemployer may not be properly preparedto do so without the photographs andvideotapes.

We acknowledge the interest inhaving an employer fully prepared forthe pre-hearing conference, and we notethat under the proposed rule, there is norequirement that the Judge hold the pre-hearing conference before the employerreceives any photographs or videotapes.We expect that generally the pre-hearingconference will be scheduled after theemployer is in receipt of anyphotographs and videotapes. However,the Commission has decided to adoptthe proposed rule which allows theJudge to exercise his or her discretion toconduct the pre-hearing conference atany time after the employer is in receiptof the narrative and the worksheet.

4. HearingOne of the objectives of the E–Z Trial

process is to expeditiously adjudicateless complex cases. As a result, theCommission believes that casesproceeding under the E–Z Trial processshould be exempt from Rule 60, whichrequires that the parties be given noticeof the time, place, and nature of thehearing at least thirty days in advanceof the hearing. Because the casesdesignated for E–Z Trial containrelatively few citation items and do notinvolve complex matters of fact or law,the Commission believes that the partieswill not be harmed by allowing theJudge to schedule the hearing with lessthan 30 days notice. Accordingly, theCommission has revised Rule 209 toreflect the exemption from Rule 60.


Administrative practice andprocedure, Hearing and appealprocedures.

For the reasons set forth in thepreamble, the Occupational Safety andHealth Review Commission amendsTitle 29, Chapter XX, Part 2200, SubpartM of the Code of Federal Regulations asfollows:

PART 2200—RULES OF PROCEDURE


Authority: 29 U.S.C. 661(g).

2. Section 2200.201 is amended byremoving paragraph (b) and thedesignation for paragraph (a).


§ 2200.202 Eligibility for E–Z Trial.(a) Those cases selected for E–Z Trial

will be those that do not involvecomplex issues of law or fact. Casesappropriate for E–Z Trial wouldgenerally include those with one ormore of the following characteristics:

(1) Relatively few citation items,(2) An aggregate proposed penalty of

not more than $10,000,(3) No allegation of willfulness or a

repeat violation,(4) Not involving a fatality,(5) A hearing that is expected to take

less than two days, or(6) A small employer whether

appearing pro se or represented bycounsel.

(b) Those cases with an aggregateproposed penalty of more than $10,000,but not more than $20,000, if otherwiseappropriate, may be selected for E–ZTrial at the discretion of the ChiefAdministrative Law Judge.

4. Section 2200.206(a) is revised toread as follows:

§ 2200.206 Disclosure of information.

(a) Disclosure to employer. (1) Within12 working days after a case isdesignated for E–Z Trial, the Secretaryshall provide the employer, free ofcharge, copies of the narrative (FormOSHA 1–A) and the worksheet (FormOSHA 1–B), or their equivalents.

(2) Within 30 calendar days after acase is designated for E–Z Trial, theSecretary shall provide the employerwith reproductions of any photographsor videotapes that the Secretaryanticipates using at the hearing.

(3) Within 30 calendar days after acase is designated for E–Z Trial, theSecretary shall provide to the employerany exculpatory evidence in theSecretary’s possession.

(4) The Judge shall act expeditiouslyon any claim by the employer that theSecretary improperly withheld orredacted any portion of the documents,photographs, or videotapes on thegrounds of confidentiality or privilege.* * * * *

5. Section 2200.207(a) is amended byrevising the first sentence to read asfollows:

§ 2200.207 Pre-hearing conferences.

(a) When held. As early as practicableafter the employer has received thedocuments set forth in § 2200.206(a)(1),the presiding Judge will order andconduct a pre-hearing conference.* * ** * * * *


§ 2200.209 Hearing.

(a) Procedures. As soon as practicableafter the conclusion of the pre-hearingconference, the Judge will hold ahearing on any issue that remains indispute. The hearing will be inaccordance with subpart E of theserules, except for § 2200.60, 2200.73, and2200.74 which will not apply.* * * * *

Dated: July 25, 1997.Earl R. Ohman, Jr.,General Counsel.[FR Doc. 97–20130 Filed 7–30–97; 8:45 am]BILLING CODE 7600–01–M

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 52

[CA 173–0044a; FRL–5867–3]

Approval and Promulgation ofImplementation Plans; California StateImplementation Plan Revision,Sacramento Metropolitan Air QualityManagement District and SantaBarbara County Air Pollution ControlDistrict

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

SUMMARY: EPA is taking direct finalaction on revisions to the CaliforniaState Implementation Plan. Therevisions concern negative declarationsfrom the Sacramento Metropolitan AirQuality Management District(SMAQMD) and the Santa BarbaraCounty Air Pollution Control District(SBCAPCD). The SMAQMD submittednegative declarations for two sourcecategories that emit volatile organiccompounds (VOC): Plastic Parts


1 Sacramento Metropolitan Area retained itsdesignation of nonattainment and was classified byoperation of law pursuant to sections 107(d) and181(a) upon the date of enactment of the CAA. See55 FR 56694 (November 6, 1991). The SacramentoMetropolitan Area was reclassified from serious tosevere on June 1, 1995. See 60 FR 20237 (April 25,1995).

2 The Santa Barbara-Santa Maria-Lompoc Arearetained its designation of nonattainment and wasclassified by operation of law pursuant to sections107 (d) and 181 (a) upon the date of enactment ofthe CAA. See 55 FR (November 6, 1991).

3 EPA adopted the completeness criteria onFebruary 16, 1990 (55 FR 5830) and, pursuant tosection 110(k)(1)(A) of the CAA, revised the criteriaon August 26, 1991 (56 FR 42216).

4 SMAQMD has submitted rules for four sourcecategories: Aerospace, Clean Up Solvents, OffsetLithography, and Volatile Organic Liquid StorageTanks. SMAQMD has developed rules for AutobodyRefinishing and Wood Furniture and is in the

Continued

Coating: Business Machines and PlasticParts Coating: Other. The SBCAPCDsubmitted negative declarations for sixsource categories that emit VOC:Industrial Wastewater, Plastic PartsCoating: Business Machines, PlasticParts Coating: Other, Industrial CleaningSolvents, Offset Lithography, andShipbuilding Coatings. The SMAQMDand the SBCAPCD have certified thatthese source categories are not presentin their respective Districts and thisinformation is being added to thefederally approved StateImplementation Plan. The intendedeffect of approving these negativedeclarations is to meet the requirementsof the Clean Air Act, as amended in1990 (CAA or the Act). Thus, EPA isfinalizing the approval of theserevisions into the California SIP underprovisions of the CAA regarding EPAaction on SIP submittals, SIPs fornational primary and secondary ambientair quality standards and planrequirements for nonattainment areas.DATES: This action is effective onSeptember 29, 1997 unless adverse orcritical comments are received bySeptember 2, 1997. If the effective dateis delayed, a timely notice will bepublished in the Federal Register.ADDRESSES: Comments must besubmitted to Julie Rose at the Region IXoffice listed below. Copies of thesubmitted negative declarations areavailable for public inspection at EPA’sRegion IX office and also at thefollowing locations during normalbusiness hours.Rulemaking Office (AIR–4), Air

Division, U.S. EnvironmentalProtection Agency, Region IX, 75Hawthorne Street, San Francisco, CA94105

Air Docket (6102), U.S. EnvironmentalProtection Agency, 401 ‘‘M’’ Street,SW., Washington, DC 20460

California Air Resources Board,Stationary Source Division, RuleEvaluation Section, 2020 ‘‘L’’ Street,Sacramento, CA 92123–1095

Sacramento Metropolitan Air QualityManagement District, 8411 JacksonRoad, Sacramento, CA 95826

Santa Barbara County Air PollutionControl District, 26 Castilian Drive, B–23, Goleta, CA 93117

FOR FURTHER INFORMATION CONTACT: JulieA. Rose, Rulemaking Office (AIR–4), AirDivision, U.S. Environmental ProtectionAgency, San Francisco, CA 94105,Telephone: (415) 744–1184.


I. ApplicabilityThe revisions being approved as

additional information for the California

SIP include negative declarations fromthe SMAQMD regarding two sourcecategories: Plastic Parts Coating:Business Machines and Plastic PartsCoating: Other and negative declarationsfrom SBCAPCD regarding six sourcecategories: Industrial Wastewater,Plastic Parts Coating: BusinessMachines, Plastic Parts Coating: Other,Industrial Cleaning Solvents, OffsetLithography, and ShipbuildingCoatings. The negative declarationswere submitted by the California AirResources Board (CARB) to EPA on June6, 1996 for SMAQMD and July 12, 1996for SBCAPCD.

II. BackgroundOn March 3, 1978, EPA promulgated

a list of ozone nonattainment areasunder the provisions of the Clean AirAct, as amended in 1977 (1977 Act orpre-amended Act), that included theSMAQMD within the SacramentoMetropolitan Area (SMA) and theSBCAPCD within the Santa Barbara-Santa Maria-Lompoc Area (SBSMLA).43 FR 8964, 40 CFR 81.305. Becausethese areas were unable to meet thestatutory attainment date of December31, 1982, California requested undersection 172 (a)(2), and EPA approved,an extension of the attainment date toDecember 31, 1987. (40 CFR 52.222). OnMay 26, 1988, EPA notified theGovernor of California, pursuant tosection 110(a)(2)(H) of the 1977 Act, thatthe above districts’ portions of theCalifornia SIP were inadequate to attainand maintain the ozone standard andrequested that deficiencies in theexisting SIP be corrected (EPA’s SIP-Call). On November 15, 1990, the CleanAir Act Amendments of 1990 wereenacted. Pub. L. 101–549, 104 Stat.2399, codified at 42 U.S.C. 7401–7671q.In amended section 182(b)(2) of theCAA, Congress statutorily adopted therequirement that States must developreasonably available control technology(RACT) rules for sources ‘‘covered by aControl Techniques Guideline (CTG)document issued by the Administratorbetween November 15, 1990 and thedate of attainment.’’ On April 28, 1992,in the Federal Register, EPA publisheda CTG document which indicated EPA’sintention to issue CTGs for elevensource categories and EPA’srequirement to prepare CTGs for twoadditional source categories within thesame timeframe. This CTG documentestablished time tables for the submittalof a list of applicable sources and thesubmittal of RACT rules for those majorsources for which EPA had not issueda CTG document by November 15, 1993.The CTG specified that states wererequired to submit RACT rules by

November 15, 1994 for those categoriesfor which EPA had not issued a CTGdocument by November 15, 1993.

Section 182(b)(2) applies to areasdesignated as nonattainment prior toenactment of the amendments andclassified as moderate or above as of thedate of enactment. The SMA isclassified as severe; 1 therefore, SMAwas subject to the post-enactment CTGrequirement and the November 15, 1994deadline. The SBSMLA is classified asmoderate; 2 therefore, SBSMLA was alsosubject to the post-enactment CTGrequirements and the November 15,1994 deadline. For source categories notrepresented within the portions of theSMA and the SBSMLA designatednonattainment for ozone, EPA requiresthe submission of a negative declarationcertifying that those sources are notpresent.

The SMAQMD negative declarationswere adopted on May 2, 1996 andsubmitted by the State of California onJune 6, 1996. The SBCAPCD negativedeclarations were adopted on May 16,1996 and submitted by the State ofCalifornia on July 12, 1996. TheSMAQMD negative declarations werefound to be complete on June 27, 1996pursuant to EPA’s completeness criteriathat are set forth in 40 CFR part 51,appendix V 3 and are being finalized forapproval into the SIP as additionalinformation. The SMAQMD negativedeclarations were found to be completeon January 18, 1997 pursuant to EPA’scompleteness criteria and are beingfinalized for approval into the SIP asadditional information.

This document addresses EPA’sdirect-final action for the SMAQMDnegative declarations for Plastic PartsCoating: Business Machines and PlasticParts Coating: Other. The submittednegative declarations represent two ofthe thirteen source categories listed inEPA’s CTG document.4 The submitted


process of developing rules for SOCMI Distillation,Reactors, and Batch Processing. Negativedeclarations will be developed for the tworemaining categories.

5 SBCAPCD has submitted rules for four sourcecategories: Aerospace, Autobody Refinishing,Volatile Organic Liquid Storage Tanks, and WoodFurniture. SBCAPCD is developing negativedeclarations for the remaining three sourcecategories.

negative declarations certify that thereare no VOC sources in these sourcecategories located inside SMAQMD’sportion of the SMA. VOCs contribute tothe production of ground level ozoneand smog. These negative declarationswere adopted as part of SMAQMD’seffort to meet the requirements ofsection 182(b)(2) of the CAA.

This document also addresses EPA’sdirect-final action for the SBCAPCDnegative declarations for: (1) IndustrialWastewater, (2) Plastic Parts Coating:Business Machines, (3) Plastic PartsCoating: Other, (4) Industrial CleaningSolvents, (5) Offset Lithography, and (6)Shipbuilding Coatings. The submittednegative declarations represent six ofthe thirteen source categories listed inEPA’s CTG document.5 The submittednegative declarations certify that thereare no VOC sources in these sourcecategories located inside the SBCAPCD.VOCs contribute to the production ofground level ozone and smog. Thesenegative declarations were adopted aspart of SBCAPCD’s effort to meet therequirements of section 182(b)(2) of theCAA.

III. EPA Evaluation and ActionIn determining the approvability of a

negative declaration, EPA must evaluatethe declarations for consistency with therequirements of the CAA and EPAregulations, as found in section 110 ofthe CAA and 40 CFR part 51(Requirements for Preparation,Adoption, and Submittal ofImplementation Plans).

An analysis of SMAQMD’s emissioninventory revealed that there are nosources of VOC emissions from PlasticParts Coating: Business Machines andPlastic Parts Coating: Other. SMAQMD’sreview of their permit files alsoindicated that these source categories donot exist in the SMAQMD. In adocument adopted on May 2, 1996,SMAQMD certified that SMAQMD doesnot have any major stationary sources inthese source categories located withinthe federal ozone nonattainmentplanning area.

An analysis of SBCAPCD’s emissioninventory revealed that there are nosources of VOC emissions fromIndustrial Wastewater, Plastic PartsCoating: Business Machines, PlasticParts Coating: Other, Industrial Cleaning

Solvents, Offset Lithography, andShipbuilding Coatings. SBCAPCD’sreview of their permit files alsoindicated that these source categories donot exist in the SBCAPCD. In adocument adopted on May 16, 1996,SBCAPCD certified that SBCAPCD doesnot have any major stationary sources inthese source categories located withinthe federal ozone nonattainmentplanning area.

EPA has evaluated these negativedeclarations and has determined thatthey are consistent with the CAA, EPAregulations, and EPA policy.SMAQMD’s negative declarations forPlastic Parts Coating: BusinessMachines and Plastic Parts Coating:Other and SBCAPCD’s negativedeclarations for Industrial Wastewater,Plastic Parts Coating: BusinessMachines, Plastic Parts Coating: Other,Industrial Cleaning Solvents, OffsetLithography, and Shipbuilding Coatingsare being approved under section110(k)(3) of the CAA as meeting therequirements of section 110(a) and PartD.

EPA is publishing this documentwithout prior proposal because theAgency views this as a noncontroversialamendment and anticipates no adversecomments. However, in a separatedocument in this Federal Registerpublication, the EPA is proposing toapprove the SIP revision should adverseor critical comments be filed. Thisaction will be effective September 29,1997 unless, within 30 days of itspublication, adverse or criticalcomments are received.

If the EPA receives such comments,this action will be withdrawn before theeffective date by publishing asubsequent document that willwithdraw the final action. All publiccomments received will then beaddressed in a subsequent final rulebased on this action serving as aproposed rule. The EPA will notinstitute a second comment period onthis action. Any parties interested incommenting on this action should do soat this time. If no such comments arereceived, the public is advised that thisaction will be effective September 29,1997.

Nothing in this action should beconstrued as permitting or allowing orestablishing a precedent for any futureimplementation plan. Each request forrevision to the state implementationplan shall be considered separately inlight of specific technical, economic,and environmental factors and inrelation to relevant statutory andregulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866The Office of Management and Budget

(OMB) has exempted this regulatoryaction from E.O. 12866 review.

B. Regulatory Flexibility ActUnder 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.

SIP approvals under section 110 andsubchapter I, part D of the Clean Air Actdo not create any new requirements butsimply approve requirements that theState is already imposing. Therefore,because the Federal SIP approval doesnot impose any new requirements, theAdministrator certifies that it does nothave a significant impact on any smallentities affected. Moreover, due to thenature of the Federal-State relationshipunder the CAA, preparation of aflexibility 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).

C. Unfunded MandatesUnder section 202 of the Unfunded

Mandates 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.

EPA has determined that the approvalaction promulgated does not include aFederal mandate that may result inestimated costs of $100 million or moreto either State, local, or tribalgovernments in the aggregate, or to the


private sector. This Federal actionapproves pre-existing requirementsunder State or local law, and imposesno new Federal 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 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 September 29,1997. 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, Hydrocarbons,Intergovernmental relations, Ozone,Reporting and recordkeepingrequirements, Volatile organiccompounds.

Dated July 16, 1997.Felicia Marcus,Regional Administrator.

Subpart F of Part 52, Chapter I, Title40 of the Code of Federal Regulations isamended as follows:

PART 52—[AMENDED]

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

Authority: 42 U.S.C. 7401–7671q.

Subpart F—California

2. Section 52.222 is being amended byadding paragraph (a) (2) and (a)(3) toread as follows:

§ 52.222 Negative declarations.(a) * * *(2) Sacramento Metropolitan Air

Quality Management District.(i) Plastic Parts Coating: Business

Machines and Plastic Parts Coating:Other were submitted on June 6, 1996and adopted on May 2, 1996.

(3) Santa Barbara County AirPollution Control District.

(i) Industrial Wastewater, Plastic PartsCoating: Business Machines, PlasticParts Coating: Other, Industrial CleaningSolvents, Offset Lithography, andShipbuilding Coatings were submittedon July 12, 1996 and adopted on May16, 1996.* * * * *[FR Doc. 97–20217 Filed 7–30–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 52

[DC032–2006; FRL–5864–4]

Approval and Promulgation of AirQuality Implementation Plans; Districtof Columbia, New Source ReviewProgram

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

SUMMARY: EPA is approving a StateImplementation Plan (SIP) revisionsubmitted by the District of Columbia.This revision amends the District’s newsource review program including theregulations for the preconstructionpermitting new major sources and majormodifications in nonattainment areas.This action is being taken under theprovisions of the Clean Air Act for theapproval of SIP revisions.EFFECTIVE DATE: This final rule iseffective on September 2, 1997.ADDRESSES: Copies of the documentsrelevant to this action are available forpublic inspection during normalbusiness hours at the Air, Radiation,and Toxics Division, U.S.Environmental Protection Agency,Region III, 841 Chestnut Building,Philadelphia, Pennsylvania 19107; theAir and Radiation Docket andInformation Center, U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, DC 20460; District ofColumbia Department of Consumer andRegulatory Affairs, 2100 Martin LutherKing Ave, S.E., Washington, DC 20020.FOR FURTHER INFORMATION CONTACT:Linda Miller, (215) 566–2068.SUPPLEMENTARY INFORMATION: OnOctober 22, 1993, the District of

Columbia submitted new source review(NSR) regulations that weresubsequently disapproved by EPA in adirect final rulemaking on March 24,1995. (60 FR 15483). Pursuant to section179 of the Clean Air Act (CAA), EPA’sdisapproval required the imposition ofsanctions in two phases starting 18months after disapproval unless anduntil the deficiencies were corrected.The first sanction, which started onOctober 24, 1996, required 2:1 emissionoffsets for the construction of new andmodified sources. The second sanction,which was to be imposed 6 monthslater, would have required thewithholding of federal highway fundsfor all new highway projects in theDistrict.

The District submitted revised NSRregulations on May 2, 1997, whichcorrected the deficiencies. On June 2,1997, EPA published a notice ofproposed rulemaking (NPR) approvingthe District’s NSR program (62 FR29682). On the same day, EPApublished and solicited comment on aninterim final rule that stayed applicationof the offset sanction and deferredimposition of the highway sanction,based on EPA’s proposed full approvalof the District’s NSR program (62 FR29668). No public comments werereceived on the NPR or the interim finalrule.

The intended effect of this action is toapprove the District’s NSR program forthe permitting of major new andmodified sources pursuant to therequirements of the CAA. Other specificrequirements of the NSR program andthe rationale for EPA’s proposed actionwere explained in the NPR and will notbe restated here. As a consequence oftoday’s final approval of the District’sNSR regulations as a SIP revision, thesanctions resulting from EPA’s March24, 1995 disapproval action are herebylifted and no longer applicable.

Final Action

EPA is approving the new sourcereview (NSR) program as a revision tothe District of Columbia SIP. Nothing inthis action should be construed aspermitting or allowing or establishing aprecedent for any future request forrevision to any state implementationplan. Each request for revision to thestate implementation plan shall beconsidered separately in light of specifictechnical, economic, and environmentalfactors and in relation to relevantstatutory and regulatory requirements.


Administrative Requirements

A. Executive Order 12866The Office of Management and Budget

(OMB) has exempted this regulatoryaction from E.O. 12866 review.

B. Regulatory Flexibility ActSIP approvals under section 110 and

subchapter I, part D of the Clean Air Actdo not create any new requirements butsimply approve requirements that theDistrict is already imposing. Therefore,because the federal SIP approval doesnot impose any new requirements, theAdministrator certifies that it does nothave a significant impact on any smallentities affected. Moreover, due to thenature of the Federal-State relationshipunder the CAA, preparation of aflexibility 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).

C. Unfunded MandatesUnder Section 202 of the Unfunded

Mandates 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.

EPA has determined that the approvalaction promulgated does not include aFederal mandate that may result inestimated costs of $100 million or moreto either State, local, or tribalgovernments in the aggregate, or to theprivate sector. This federal actionapproves pre-existing requirementsunder State or local law, and imposesno new requirements. Accordingly, noadditional costs to state, local, or tribalgovernments, or to the private sector,result from this action.


Under 5 U.S.C. 801(a)(1)(A) as addedby the Small Business RegulatoryEnforcement Fairness Act of 1996, EPA

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

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 September 29,1997. Filing a petition forreconsideration by the Administrator ofthis final rule to approve the District ofColumbia New Source Review programdoes not affect the finality of this rulefor the purposes of judicial review nordoes it extend the time within which apetition for judicial review may be filed,and shall not postpone the effectivenessof such rule or action. This action maynot be challenged later in proceedings toenforce its requirements. (See section307(b)(2).)

List of Subjects in 40 CFR part 52Environmental protection, Air

pollution control, Incorporation byreference.

Dated: July 17, 1997.Thomas Voltaggio,Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code ofFederal Regulations is amended asfollows:

PART 52—[AMENDED]



Subpart J—District of Columbia

2. Section 52.470 is amended byadding paragraph (c)(37) to read asfollows:

§ 52.470 Identification of plan.

* * * * *(c) * * *(37) Revisions to the District of

Columbia Municipal Regulationssubmitted on May 2, 1997 and May 9,1997 by the District of ColumbiaDepartment of Consumer andRegulatory Affairs:

(i) Incorporation by reference.(A) Letter of April 29, 1997 from the

Department of Consumer andRegulatory Affairs transmitting newsource review (NSR) program.

(B) Regulations adopted on April 29,1997; Title 20 of the District of

Columbia Municipal Regulations(DCMR) Chapter 2, sections 200 (asamended), 201, 202, 204 (as amended),206, 299 and the amended definition of‘‘modification’’ in Chapter 1, section199.

(ii) Additional material.(A) Remainder of May 2, 1997 State

submittal.(B) District Register for May 9, 1997.

[FR Doc. 97–20214 Filed 7–30–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 52

[MD037–3015; FRL–5864–8]

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

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final conditional approval.

SUMMARY: EPA is granting conditionalapproval of a State Implementation Plan(SIP) revision submitted by the State ofMaryland. This revision establishes andrequires the implementation of anenhanced motor vehicle inspection andmaintenance (I/M) program in thecounties of Anne Arundel, Baltimore,Calvert, Carroll, Cecil, Charles,Frederick, Harford, Howard,Montgomery, Prince George’s, QueenAnne’s, Washington, and the City ofBaltimore. The intended effect of thisaction is to conditionally approve theMaryland enhanced motor vehicle I/Mprogram. EPA is conditionallyapproving Maryland’s SIP revisionbased on the fact that: Maryland’s SIP isdeficient in certain aspects with respectto the requirements of the Act andEPA’s I/M program regulations, andMaryland has made a commitment in aletter, dated December 23, 1996, to workwith EPA to address and correct alldeficiencies as necessary to ensure fullcompliance with I/M requirements by adate certain within one year fromSeptember 2, 1997. This action is takenunder section 110 of the 1990 Clean AirAct (CAA, or the Act).EFFECTIVE DATE: This final rule iseffective on September 2, 1997.ADDRESSES: Copies of the documentsrelevant to this action are available forpublic inspection during normalbusiness hours at the Air, Radiation,and Toxics Division, U.S.Environmental Protection Agency,Region III, 841 Chestnut Building,


Philadelphia, Pennsylvania 19107 andthe Maryland Department of theEnvironment, 2500 Broening Highway,Baltimore, Maryland, 21224.

FOR FURTHER INFORMATION CONTACT:Catherine L. Magliocchetti at 215–566–2174 or Jeffrey M. Boylan at 215–566–2094 at the EPA Region III addressabove, or via e-mail [email protected]. [email protected]


I. Background

On October 31, 1996, (61 FR 56183),EPA published a notice of proposedrulemaking (NPR) for the State ofMaryland. The NPR proposedconditional approval of Maryland’senhanced inspection and maintenanceprogram, submitted on July 11, 1995and amended on March 27, 1996, by theMaryland Department of theEnvironment (MDE). A description ofMaryland’s submittal and EPA’srationale for its proposed action werepresented in the NPR and will not berestated here.

II. Public Comments/Response to PublicComments

EPA received comments from twocitizens, and from the MarylandDepartment of the Environment. Theindividual comments are listed below,followed by EPA’s response.

Comment #1: One citizen disagreedwith the idea of car emission testing ingeneral, stating that he thought thatmoney budgeted to EPA could be betterspent elsewhere.

Response #1: EPA maintains thatenhanced vehicle emission inspectionprograms, such as the one designed byMaryland, are one of the most cost-effective air pollution controltechnologies available today. Mobilesources contribute significantly to theozone nonattainment problem in theState of Maryland, and citizens cancontribute to improving air quality bykeeping their vehicles well maintained.The Vehicle Emissions InspectionProgram, or VEIP, developed byMaryland will help decrease the amountof ozone-forming pollutants in the stateat a modest cost to the consumer.Administration and implementation ofthe VEIP is funded at the state level,from transportation funding and fromthe collection of inspection fees by thestate and its contractor. In addition,vehicle testing is required by the CleanAir Act for serious and severe ozonenonattainment areas, such as those inMaryland.

Comment #2: Another citizencommented that Maryland’s VEIPshould be delayed until inspection &maintenance programs in theneighboring states of Pennsylvania,Virginia, Delaware, and West Virginiaare put into effect.

Response #2: Under the Clean Air Act(the Act), Pennsylvania, Virginia andDelaware were all originally required todevelop and implement inspection &maintenance programs similar to theprogram developed in Maryland as of1995. West Virginia is not currentlyrequired to implement an inspection &maintenance program under therequirements of the Act since the entirestate has met the national ambient airquality standards for ozone and carbonmonoxide.

Pennsylvania, Virginia, and Delawareare all moving forward with inspection& maintenance programs and each ofthese states has submitted I/M programrevisions to their respective StateImplementation Plans, as required bythe Act. EPA has issued finalrulemakings granting conditional,interim approvals to Pennsylvania andVirginia’s I/M plans (PA published onJanuary 28, 1997 at 62 FR 4004; and VApublished on May 15, 1997 at 62 FR26745), and Delaware received a finalconditional approval for its plan on May19, 1997 at 62 FR 27195. Programs inPennsylvania and Virginia are requiredto start by November 1997 under theterms of the relevant conditionalapprovals. EPA anticipates full start-upof both programs in October of 1997.Delaware’s I/M program enhancementshave been implemented since January of1995.

The following comments weresubmitted by MDE. In those placeswhere clarification or background on acomment is necessary in order tounderstand the comment, EPA hassummarized what the state is requiredto do as a condition of the rulemaking:

Comment #3: In the notice ofproposed rulemaking, EPA cited adeficiency under 40 CFR 51.350regarding the interpretation ofMaryland’s enabling legislation to runthe inspection & maintenance program.As a condition for approval, EPA statedthat Maryland must either provide anopinion from the State AttorneyGeneral’s Office that offers the State’sinterpretation on the sunset date asbeing no earlier than November 15,2005; or in the absence of such anopinion, provide EPA with newlegislative authority that allows for suchan extended sunset date for theprogram.

MDE commented that it maintainsthat legal authority exists for the

program to continue for so long as isrequired by federal law, and that thesunset provision allows for the State torevisit the program and enact anyneeded legislative actions at the time ofprogram extension. However, MDE hascommitted to asking the AttorneyGeneral’s Office for a confirmation ofthe matter.

Response #3: Despite MDE’scomment, EPA still needs confirmationfrom the State’s Attorney General onthis subject, as conditioned in the noticeof proposed rulemaking. As specified inthe notice, if the Attorney General, thestate official authorized to interpret statelaw, does not hold a similarinterpretation of the statute, newlegislative authority will be required.

Comment #4: MDE commented thatEPA and MDE need to reach agreementon whether all of the procedures andassumptions used in Maryland’smodeling demonstration, for fulfillmentof the requirements under 40 CFR51.351 of the I/M rule, were appropriateand consistent with EPA regulationsand guidelines. MDE may requireclarification on some issues since EPApolicy has been changing in response toevolving technology (e.g., recentdevelopments in evaporative systemtesting). Maryland expects confirmationthat I/M modeling and programrequirements are being equitablyapplied to all states.

Response #4: EPA will continue towork with MDE with regard to theappropriate assumptions and inputs forthe modeling of the performancestandard demonstration. Forclarification regarding EPA’s policy onevaporative testing, MDE should refer toguidance issued on November 5, 1996,entitled, I/M Evaporative EmissionsTests, and December 23, 1996 guidance,entitled, I/M Evaporative EmissionsTests—An Addendum, which outlineEPA’s current testing and modelingmethodologies.

EPA hereby confirms that I/Mprogram and modeling requirements arebeing equitably applied to all states, andfurther verifies that Maryland is notbeing held to a higher standard forpurposes of modeling the programperformance standard.

Comment #5: MDE will provide anexplanation of how subject vehicles inthe program area are identified. MDEalso requests clarification and guidancefrom EPA on the requirements foridentification of vehicles routinelyoperated in, but not necessarilyregistered in the program area.

Response #5: EPA anticipatesclarification from MDE as to howvehicles operating on Federal Facilitieswill be identified, and the protocol that


will be used by the State in order toassure that vehicles operating on federalinstallations are covered by theprogram. In addition, EPA will provideMDE with additional guidance on theidentification of other vehicles routinelyoperated, but not registered in theprogram area (i.e. rental vehicles, fleetvehicles, etc).

Comment #6: MDE commented thatits regulations specifically prohibit theinspection contractor from performingemissions-related repairs. Since theinspection contractor is the only entityperforming initial tests in Maryland, theState believes this requirement has beensatisfied. Further, Maryland questionsthe applicability of this requirement toa centralized I/M program.

Response #6: Under 40 CFR 51.357 ofthe I/M rule, initial tests must beperformed without repair or adjustmentat the inspection facility, prior to thetest. EPA agrees with MDE’s comment,and believes that since the inspectioncontractor is prohibited from performingemissions-related repairs under theState’s regulation, that this requirementof the federal regulation has beensatisfied.

Comment #7: Also under 40 CFR51.357, EPA has conditioned approvalof the I/M program on MDE’s providingEPA with all applicable Stateregulations addressing the testing ofvehicles with switched engines, andvehicles with no certified engineconfiguration. MDE commented that itsState’s laws and regulations prohibittampering and the applicable sectionswill be provided to EPA confirming thatthis section of the federal I/M rule hasbeen fulfilled.

Response #7: Based on Maryland’sresponse, no changes are necessary tothis part of the condition. EPAanticipates documentation from thestate to be provided. EPA reiterates thatthe State should specifically delineatethe areas of its anti-tampering laws andregulations that address engineswitching and testing of vehicles withno certified engine configuration.

Comment #8: Under 40 CFR 51.360,EPA asked Maryland to fully documentthe criteria that will be used in the Statefor granting hardship exemptions orextensions for the program. MDEcommented that Maryland will continueits current practice of granting shortextensions for persons whose financialsituations do not allow for repairs to beconducted immediately. Maryland willprovide a description of this practice toEPA.

Response #8: EPA accepts MDE’sabove explanation as sufficient forfulfilling this condition, so long as a‘‘short’’ extension period is clearly

defined and reasonable to EPA. EPAawaits MDE’s description of its practice,consistent with this response.

Comment #9: MDE will provide EPAwith a description of Maryland’sprogram to handle out-of-stateexemptions, and MDE’s mechanism toenforce vehicle transfer requirementswhen motorists move into the I/M area.MDE will also provide documentationon the citing of motorists fornoncompliance with the vehicleregistration requirement. MDE alsoreiterated its need for further guidancefrom EPA on how to identify vehiclesoperating in, but not registered in an I/M area.

Response #9: EPA anticipates thedocumentation referred to by MDE forout-of-state exemptions, and fornoncompliance citations. Please seeComment 5 for EPA’s response onMDE’s guidance request.

Comment #10: MDE will provide EPAwith clarification on the State’s practiceof vehicle impoundment when amotorist is cited for driving with asuspended registration.

Response #10: EPA anticipates thisdocumentation.

Comment #11: MDE commented thatMaryland will continue to use itssystem of month/year registrationstickers as a visible means ofcompliance with registration in theState. MDE will alert EPA if any changesto this procedure occur in the future.

Response #11: EPA accepts MDE’sdiscussion on this procedure, and nofurther action is required of MDE withrespect to this aspect of the condition.

Comment #12: MDE requestsadditional information and guidancefrom EPA as to exactly what exemptiontriggering elements need examination.

Response #12: EPA needsconfirmation from MDE that anyexemptions that would allow vehicles toby-pass an inspection test, such as thediesel exemption and the electric carexemption, are either checked byconfirmation of the VIN, or by physicalexamination of the vehicle. If VINrecords cannot confirm exemptionstatus of the vehicle, MDE shouldconfirm the exemption by physicallyexamining the vehicle before theexemption is granted.

Comment #13: MDE questions theapplicability of some or all of therequirements under 40 CFR 51.362 ofthe federal I/M rule to a registration-based enforcement program. EPA hasasked Maryland to demonstrate that anacceptable enforcement program exists,and that this program should includethe procedures used for auditing theprogram and a penalty schedule for

missing documentation from theprogram’s inspection stations.

Response #13: EPA views therequirements under this section asappropriate and reasonable measuresthat states are required to implement inboth centralized and decentralized I/Mprograms. The intent of this section ofthe I/M rule is to control and eliminatefraudulent acts by those most closelyresponsible for implementation of the I/M program. In Maryland’s specificsituation, these requirements are meantto provide another means of verifyingproper conduct by the State’s contractor,and its employees, who are responsiblefor dealing with customers in theinspection lanes. EPA expects thatMaryland will fulfill this condition, asdescribed in the NPR.

Comment #14: MDE commented thatit has instituted an auditing programthat is likely the costliest and strictestin the nation. MDE will provide adescription to EPA.

Response #14: EPA anticipates MDE’sdescription of its auditing program.

Comment #15: MDE will review itsenforcement authority under its contractwith the inspection contractor andprovide EPA with information regardingthe penalty structure set up to makesure the contractor is in compliancewith the State’s regulations.

Response #15: EPA anticipates thisdocumentation from the State.

Comment #16: Maryland will ensurethat the inspector certification programincludes recertification requirements.Maryland proposes to accomplish thisadministratively, rather than byadopting regulations.

Response #16: EPA acceptsMaryland’s proposal for fulfilling thisrequirement; however, MDE mustprovide EPA with the administrativeprocedures manual, or description ofthis practice as part of the SIP supportmaterial, in order to comply with thisrequirement for approval purposes.Recertification need not be donethrough regulation, but must be anexplicit, enforceable SIP requirement.

Comment #17: In response to EPA’scondition under 40 CFR § 51.368,Maryland will review the Stateprovision for protection of whistleblowers and provide the information toEPA. With regard to public complaints,Maryland is very responsive to allcomplaints received and providesprompt investigation and correctiveaction as required. The State willdocument this aspect of the program inthe form of a complaint response plan.

Response #17: EPA anticipates MDE’sresponse to this condition.

Comment #18: MDE commented thata copy of the final regulation revision


and documentation of the publichearing process will be submitted toEPA.

Response #18: EPA anticipates receiptof this documentation.

Comment #19: MDE commented thatconfounding factors in the State couldpotentially affect the current programstart-up schedule, previously slated forJune 1, 1997.

Response #19: EPA recognizes thatpotential problems with the State’sprogram and its contractor may affecttimely implementation of the program.As is stated in the NPR, Maryland muststart mandatory testing of all subjectvehicles as soon as possible or byNovember 15, 1997 at the latest.

Comment #20: Maryland does notunderstand the rationale for requiring acounty-by-county analysis of theperformance standard. MDE states thatthe federal I/M rule requires that ‘‘Areasshall meet the performance standard forthe pollutants which cause them to besubject to enhanced I/M requirements.’’Since its inclusion in the OzoneTransport Region causes Maryland to besubject to enhanced I/M requirements,Maryland believes that the EPA ruleshould be interpreted to treat the I/Mcounties as one area in calculatingemissions factors relative to theperformance standard.

Response #20: EPA agrees with MDE’sinterpretation of this requirement, andwill allow MDE to submit anamalgamated performance standardanalysis.

Comment #21: In the TechnicalSupport Document, EPA explained thatMDE must use the default compliancerate of 96% for modeling purposes, orprovide EPA with documentationsupporting the 100% rate used in itscurrent analysis. MDE responded that itbelieves documentation supporting acompliance rate greater than 96% can beprovided to EPA.

Response #21: EPA welcomes suchsupporting documentation from theState, and advises MDE to use whateverthe appropriate compliance rate is, assupported by State-generated evidence.

Comment #22: Maryland commentedthat it believes that it followed EPAguidance in calculating RSD reductions.Maryland does not know of anyrequirement to ‘‘subtract out’’ theminimum RSD component incalculating RSD credits for an I/Mprogram.

Response #22: MDE should refer toEPA’s guidance on RSD credit issuance,User Guide and Description for InterimRemote Sensing Program Credit Utility.As is stated in this guidance, programscan only receive extra credit for aremote sensing component if the State’s

program goes above and beyond what isalready required in the federal I/M rule.EPA is not requiring MDE to ‘‘subtractout’’ the minimum RSD component.Rather, EPA is stating that additionalcredit for a remote sensing program willonly be granted if the State follows theEPA guidance and institutes testingabove and beyond what is alreadyrequired in the federal I/M rule. A statesuch as Maryland, that is onlycomplying with the minimum on-roadtesting requirements, as explained at 40CFR 51.371, is not eligible for morecredit under the performance standard.Should MDE chose to expand its RSDcomponent, additional credit could beclaimed, as explained in the above-named guidance document.

Comment #23: MDE commented thatit commits to adopting and using EPAnon-invasive pressure testingprocedures when they become available,and MDE will therefore take full creditfor pressure testing in the performancestandard. MDE will revise the SIPrevision language to reflect thiscommitment.

Response #23: In June of 1996, EPAissued draft technical guidance whichincluded draft procedures andspecifications for a fuel-fill pipepressure test. EPA will soon issue final,revised technical guidance on the fuel-fill pipe pressure procedures, andexpects that Maryland will adopt thistest under the above referencedcommitment, and use this ‘‘non-invasive’’ procedure to test the integrityof the vehicle’s fuel system. MDEshould refer to the High-Tech I/M TestProcedures, Emission Standards,Quality Control Requirements, andEquipment Specifications: IM240 andFunctional Evaporative System Tests,(Revised Technical Guidance, DRAFT),dated June 1996, the November 5, 1996memo from Margo Oge, I/M EvaporativeEmissions Tests, and the December 23,1996 memo from Leila Cook, I/MEvaporative Emissions Tests—AnAddendum. EPA also cautions the statethat the full pressure test must be inplace for at least one full test cyclebefore the evaluation year, in order forMDE to take credit for 100% pressurecredit in modeling the performancestandard.

Comment #24: MDE would likeclarification from EPA as to whether therequirements of 40 CFR 51.355—TestFrequency & Convenience—have beenmet. It is noted that EPA did not citeany deficiencies in the NPR for thissection, however, the TSD did includea discussion on Maryland’s enforcementsystem safeguards, and the need forfurther action by the state with respect

to the penalty for noncompliance withthe program.

Further, MDE commented that it isunclear as to whether EPA expects MDEto correct another deficiency cited in theTSD under this section, but not in theNPR. In the TSD, EPA stated that it wasunclear from Maryland’s regulationswhether or not the inspection contractoris required to give out-of-cycleinspections to those other than usedvehicle dealers, or new residents of theState. This was cited as a deficiency inthe TSD, but not the NPR.

Response #24: As is mentioned in theTSD discussion on this section, thisproblem is also addressed under theMotorist Compliance EnforcementSection—40 CFR 51.361. In the NPR,EPA chose not to duplicate conditionsrelating to the same failure, even thoughthe TSD may have discussed the sameproblem under multiple sections. EPAdoes have a condition relating to thecited failure on enforcement safeguardsand penalties (as discussed in the TSDand reiterated by MDE in its commentletter), however, MDE should addressthis deficiency under the MotoristCompliance Enforcement Section.

With respect to out-of-cycle testing,EPA did not place a condition on theState to make a correction for this TSD-cited deficiency. Furthermore, EPA hereclarifies that the TSD erroneously statedthat provisions need to be made to testthese types of vehicles. In fact, EPA’sregulation requires only that stations berequired to adhere to regular testinghours and to test any subject vehiclepresented for a test during its testperiod. EPA believes this requirementhas been met by the State’s SIP revision.

Therefore, for the purposes of thisrulemaking, MDE does not have anyconditions placed on the State under 40CFR 51.355, and no remedy is requiredby the State under this section.

Comment #25: MDE has requestedclarification of the requirements under40 CFR 51.356 for SIP approval.Specifically, clarification is requestedregarding the I/M rule requirement thatthe program provide for allowinginspections of vehicles registered inother program areas, and for issuance ofcertificates of compliance or waiver.

Response #25: As stated in the TSD,EPA could not find any provisions inthe SIP that explicitly allow forinspections of vehicles outside of theprogram area, and for the issuance ofcertificates of compliance or waiver.However, since EPA understands thatMaryland is investigating the idea ofreciprocity with surrounding states forpurposes of compliance with theprogram requirements, EPA assumesthat Maryland intends on extending the


option of out of state inspections tothose requesting it. For the purposes ofrulemaking, EPA has not placed anyconditions on the State therefore, withrespect to this component of the I/Mprogram at this time. If however EPAdiscovers problems with the reciprocityissue in the future, EPA will commencea SIP call to remedy this problem.

Comment #26: Also under 40 CFR51.356, MDE would like clarification asto what is required in order to meet thefederal fleet installations testingrequirement. MDE will provide anupdate on the discussions with US GSAand US DoD, however, MDE would liketo know what further is required for SIPapproval.

Response #26: The TSD states thatMaryland’s SIP revision does not speakto the requirement that specifically theFederal installation managers showproof of inspection for all Federalemployee-owned vehicles operated onthe installation. However, the MarylandSIP revision does state that ‘‘the federalagency has the responsibility ofensuring that its employees comply,with MVA’s guidance.’’ EPA believesthat this statement satisfies this intent ofthis section of the rule, and no furtheraction is required by MDE in order forSIP approval. EPA would however,welcome any further information thatthe Department can provide withrespect to federal fleet testing issues,specifically relating to discussions withUS GSA and US DoD. EPA here notesthat the District of Columbia is alsoengaging US GSA and US DoD indiscussions on fleet testing in theWashington Metropolitan area, and thatit may be instructive for Maryland, theDistrict of Columbia and theCommonwealth of Virginia to engage inthese discussions together at this time.

Comment #27: MDE has also asked forclarification under 40 CFR 51.356, as towhat is required for SIP approval inrelation to special exemptions. MDEnoted that it will quantify the specialexemptions extended to motorists underthe VEIP program, however, MDE wouldlike clarification as to what is requiredfor SIP approval.

Response #27: EPA anticipates MDE’sclarifications of the special exemptionscategories, and believes that thisclarification can be made under theenhanced performance standard section,40 CFR 51.351. There are no further SIPrequirements for special exemptions,provided that the program meets theperformance standard, takingexemptions into account.

Comment #28: MDE commented thatunder 40 CFR 51.358, it has satisfied thedual exhaust sampling requirements. Inthe TSD, EPA cited a deficiency for this

section, stating that the SIP does notcontain provisions for sampling dualexhaust vehicles. MDE cited AppendixG of SIP revision 95–06, page RFP38.

Response #28: EPA has reviewed thecite provided by MDE and concurs thatthe simultaneous testing requirementhas indeed been met under the SIP. EPAnotes that the TSD will be amended tocorrect this oversight, however noconditions are affected since none werecited in the NPR for this element.

Comment #29: MDE has asked forclarification under 40 CFR 51.358 as towhether or not the SIP is deficient withrespect to the requirement to update testequipment to accommodate newtechnology vehicles and changes to theprogram. Under this section of the TSD,EPA commented that the SIP does notappear to address this element. Howeverthe NPR cites this requirement as beingmet through the annual reportingrequirement.

Response #29: EPA believes that theabove reference requirement has beenmet by Maryland through its annualreporting requirement, as found in theSIP revision under Section II.P.2.. EPAwill amend the TSD to reflect this,however, no changes will be made tothe NPR conditions, since none wereimposed under this section.

Comment #30: MDE commented thatthe NPR discussion under 40 CFR51.358 notes that all requirements ofthis section are approvable, however,the TSD notes that Quality Assurancerequirements and procedures for theevaporative system functional testequipment are not included in the SIPrevision. MDE further commented that itwill provide EPA with the appropriaterequirements and procedures when EPAapproved specifications for the pressuretest become available.

Response #30: EPA expects that therequirements under this section will bemet when the state is able to providerevised pressure testing procedures forthe SIP. MDE can fulfill the QualityAssurance requirements for the pressuretest specifications when the pressuretest specification is approved by EPA,adopted by Maryland and submitted toEPA as a revision to the SIP.

Comment #31: MDE would likeclarification as to whether or not adeficiency exists with respect tocounterfeit resistancy of vehicleinspection reports. No deficiency wascited in the NPR, however, the TSDreported that Maryland does not have aspecific requirement aimed at makingdocuments counterfeit resistant, andthat the program certificates do notcarry an official seal. MDE furthercommented that this requirementshould not be applicable to a state with

registration denial as the enforcementmechanism.

Response #31: As is cited in the NPR,EPA believes that Maryland has anadequate measure to ensure counterfeitresistance, i.e., unique identificationnumbers given on each VehicleInspection Report (VIR), coupled withaccountability of the lane inspectors foreach numbered VIR. EPA notes that theofficial seal requirement has not beenmet by the state, however, EPA believesthe unique serial number method isadequate for maintaining counterfeitresistantancy. EPA also concurs withMDE’s assessment regardingapplicability of this requirement (i.e.,offical seal) to programs usingregistration denial. Nothing further isrequired by the state in order to meetthis section of the rule.

Comment #32: MDE commented thatthe TSD cites a deficiency regardingensuring that compliance documentscannot be stolen or removed withoutbeing damaged. The NPR does not citesuch deficiency. MDE would likeclarification as to what is required ofMaryland to comply with this section.Further MDE questioned theapplicability of this section to a programusing registration denial as theenforcement mechanism.

Response #32: EPA concurs withMDE’s assessment regardingapplicability of this requirement toprograms using registration denial.Nothing further needs to be done by thestate to meet the requirements of thissection.

Comment #33: MDE commented thatunder the section relating to Waiversand Compliance via DiagnosticInspections (40 CFR 51.360), all of thevehicles that are the subject ofextensions for the program are actuallyinspected in the biennial test cycle andneither the compliance rate, noremissions reductions are affected by thispractice. Maryland requests clarificationregarding what deficiency, if any existsfor this section.

Response #33: EPA agrees with MDE’srationale regarding compliance ratecalculations, and emissions reductions.EPA further accepts MDE’s clarificationcontained in its comment letter, thathardship extensions do not actuallyconstitute compliance waivers from theprogram, and therefore do not excusethe motorist from meeting therequirements of the program, but merelyextend the amount of time afforded tothe motorist for compliance with theprogram. EPA accepts this explanationas sufficient for purposes of satisfyingthis condition under this section of therule. No further documentation needs tobe provided by MDE for this condition.


Comment #34: MDE commented thatthe TSD cites the quality control sectionof waiver issuance as beingunapprovable. MDE requestsclarification from EPA regarding thisTSD cited deficiency.

Response #34: EPA has reviewed theTSD and believes this citation of adeficiency is a typographical error. EPAwill amend the TSD to reflect anapprovable citation for this requirement.EPA notes that no change is necessaryfor the NPR, since no condition wascited for this section.

Comment #35: MDE commented thatit will address the evaporative systemtotal purge flow check when theevaporative system tests areimplemented. MDE requests that EPAclarify what is required under thissection for approval.

Response #35: EPA noted in the TSDthat the purge system pass/fail resultsdid not include the evaporative test totalpurge flow achieved during the test.However, EPA did not cite this as adeficiency in the NPR since MDE hascommitted to changing its purgespecifications when EPA makes non-invasive purge procedures available.EPA will reassess the requirements ofthis section when the non-invasiveprocedures become available. Thisrequirement may or may not be a partof the revised non-invasive testingspecifications, and so EPA did not citea lack of this data as a deficiency at thistime. EPA will clarify what exactly isrequired when non-invasivespecifications become available, andMDE is instructed to consult EPAguidance on pressure testingspecifications for SIP revision purposes.

Comment #36: MDE notes that theNPR cites all requirements of 40 CFR51.370 as having been met. However,the TSD cites a deficiency with regardto recall campaign number for vehicleswith unresolved recalls. MDE wantsclarification as to whether this is a SIPdeficiency, and what is required ofMaryland under this section. MDEfurther requests guidance from EPA oncomplying with the recall provisions ofthe I/M rule.

Response #36: MDE should ensurethat the data system includes the recallcampaign number for vehicles withunresolved recalls, however, under theNPR, no further documentation needs tobe submitted to EPA to demonstrate thatthis requirement has been met at thistime, and no condition has been placedon the State for this deficiency sinceguidance does not currently exist onhow to accomplish this task at this time.EPA will assist MDE in developingmethods for ensuring that this data be

included in Maryland’s system in thefuture.

III. Conditional Approval

Under the terms of EPA’s October 31,1996 notice of proposed conditionalapproval rulemaking (61 FR 56183),Maryland was required to makecommitments to remedy deficiencieswith the I/M program SIP (as specifiedin the above notice) within twelvemonths of the effective date of today’sfinal conditional approval notice. OnDecember 23, 1996, Jane T. Nishida,Secretary of the MDE, submitted a letterto David L. Arnold, Chief, Ozone/COand Mobile Source Section, EPA RegionIII, committing to address and correct,by a date certain, all of the deficiencieslisted in EPA’s October 31, 1996 NPR.

Because Maryland has submitted thecommitment letter called for in EPA’sOctober 31, 1996 NPR, EPA is todaytaking final conditional approval actionupon the Maryland I/M SIP, undersection 110 of the CAA.

IV. Final Rulemaking Action

EPA is conditionally approvingMaryland’s enhanced I/M program as arevision to the Maryland SIP, basedupon certain conditions. Should theState fail to fulfill the conditions by thedeadline of no more than one year fromSeptember 29, 1997, this conditionalapproval will convert to a disapprovalpursuant to CAA section 110(k). In thatevent, EPA would issue a letter to notifythe State that the conditions had notbeen met, and that the approval hadconverted to a disapproval.

V. Administrative Requirements

Nothing in this action should beconstrued as permitting or allowing orestablishing a precedent for any futurerequest for revision to any stateimplementation plan. Each request forrevision to the state implementationplan shall be considered separately inlight of specific technical, economic,and environmental factors and inrelation to relevant statutory andregulatory requirements.

A. Executive Order 12866

This action has been delegated to theRegional Administrator for decision-making and signature. The Office ofManagement and Budget (OMB) hasexempted this regulatory action fromE.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. 603

and 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.

Conditional approvals of SIPsubmittals under section 110 andsubchapter I, part D of the CAA do notcreate any new requirements but simplyapprove requirements that the State isalready imposing. Therefore, becausethe Federal SIP approval does notimpose any new requirements, EPAcertifies that it does not have asignificant impact on any small entitiesaffected. Moreover, due to the nature ofthe Federal-State relationship under theCAA, preparation of a flexibilityanalysis would constitute Federalinquiry 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.

C. Unfunded MandatesUnder Section 202 of the Unfunded

Mandates 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.


EPA has determined that theconditional approval actionpromulgated does not include a Federalmandate that may result in estimatedcosts of $100 million or more to eitherState, local, or tribal governments in theaggregate, or to the private sector. ThisFederal action approves pre-existingrequirements under State or local law,and imposes no new requirements.Accordingly, no additional costs toState, local, or tribal governments, or tothe private sector, result from thisaction.


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

E. Petitions for Judicial ReviewUnder section 307(b)(1) of the Clean

Air Act, petitions for judicial review ofthis action must be filed in the UnitedStates Court of Appeals for theappropriate circuit by September 29,1997.

Filing a petition for reconsiderationby the Administrator of this final rule toconditionally approve the Marylandenhanced I/M SIP does not affect thefinality of this rule for the purposes ofjudicial review, nor does it extend thetime within 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) of the AdministrativeProcedures Act).

List of Subjects in 40 CFR Part 52Environmental protection, Air

pollution control, Carbon monoxide,Hydrocarbons, Nitrogen dioxide, Ozone,Reporting and record keepingrequirements.

Dated: July 18, 1997.Thomas Voltaggio,Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code ofFederal Regulations is amended asfollows:

PART 52—[AMENDED]



Subpart V—Maryland

2. Section 52.1072 is added to read asfollows:

§ 52.1072 Conditional approval.(a) The State of Maryland’s July 11,

1995 submittal for an enhanced motorvehicle inspection and maintenance (I/M) program, and the March 27, 1996amendment to the original SIP revisionis conditionally approved based oncertain contingencies. The followingconditions listed in paragraphs (a)(1)through (a)(15) of this section must beaddressed in a revised SIP submission.Along with the conditions listed inparagraphs (a)(1) through (a)(15) of thissection is a separate detailed I/Mchecklist explaining what is required tofully remedy the deficiencies found inthe proposed notice of conditionalapproval. This checklist is found in theTechnical Support Document (TSD),located in the docket of this rulemaking,that was prepared in support of theproposed conditional I/M rulemakingaction for Maryland. By no later thanone year from September 29, 1997,Maryland must submit a revised SIPthat meets the following conditions forapprovability:

(1) Fully adopt and submit to EPA asa SIP revision, final regulations anddocumentation of the public hearingprocess addressing Maryland’s March27, 1997 amendment to the SIPpertaining to proposed regulatorychanges to the VEIP, as a result of theflexibility afforded to Maryland fromfederal and state legislative changes.

(2) Provide confirmation from theState Attorney General’s Office clearlystating that Maryland’s interpretation ofthe sunset date of the program is noearlier than November 15, 2005, or inthe absence of such an opinion, submitto EPA new legislative authorityallowing for such an extended sunsetdate of the program.

(3) Submit to EPA a modelingdemonstration of the program using theappropriate assumptions andmethodology (see TSD and the Responseto Public Comments section of this rulefor detailed discussions) demonstratingcompliance with the I/M performancestandard for the years 2002 and 2005(excluding the year 1999, asrecommended by EPA).

(4) Obtain and/or demonstrate to EPAthat adequate funding and tools exist forthe years 1997 and 1998, including adetailed explanation of the number ofpersonnel dedicated to qualityassurance, data analysis, programadministration, and enforcement. In

addition, Maryland needs to providebudget allotments for equipmentresources. EPA notes that an update ofthe budget information is adequate tosatisfy this condition.

(5) Provide an explanation to EPA ofhow all subject vehicles in the programwill be identified, which includes anestimate of the number of unregisteredvehicles operated in the program area.Subsequent to EPA issuing guidance,Maryland needs to document howvehicles that are routinely operated inthe program but not registered in theprogram area are identified.

(6) Provide to EPA applicable sectionsof state laws and regulations specificallyaddressing engine switching and testingof vehicles with no certified engineconfiguration. Maryland needs tocommit to adopting non-invasive purgetest procedures when EPAspecifications become available. Inaddition, EPA expects Maryland tosubmit written procedures for the gas-cap check and to adopt the non-invasivefuel-fill pipe pressure specifications andprocedures when EPA issues the finaltechnical guidance.

(7) Submit to EPA writtenspecifications for the gas cap checkprocedures referenced in Maryland’sregulations.

(8) Provide to EPA a description ofhow Maryland’s current practice ofissuing short term extensions because ofeconomic hardship is granted, whichreasonably and clearly defines the timeframe of the extension period.

(9) Submit to EPA documentation ofhow Maryland will handle out-of-stateexemptions, employ mechanisms toenforce vehicle transfer requirementswhen owners move into the programarea, and cite motorists fornoncompliance with the registrationrequirement. Maryland will need toclarify its practice on vehicleimpoundment when a motorist is citedfor driving with a suspendedregistration. In addition, EPA needsverification on vehicle exemptiontriggering elements which allow thesubject vehicle to by-pass an inspectiontest. Confirmation by VIN check orphysical examination of the subjectvehicle needs to be included in the SIPrevision, as a means of ensuringvalidation of the exemption triggeringelements.

(10) Demonstrate to EPA thatenforcement program oversight isquality controlled and quality assured.Maryland needs to provide a proceduresdocument that details the specifics ofthe implementation of the enforcementprogram oversight includinginformation management activities,activities of enforcement involved in


monitoring the program, and auditingthe enforcement. Quality control andassurance needs to address penaltystructures, periodic auditing andanalysis, program effectiveness, and inuse fleet compliance via parking lotsurveys and road side pullovers.

(11) Provide a description to EPA ofMaryland’s auditing program that willinclude a minimum number of covertvehicles that are used for auditingpurposes, covert and overt performanceaudits of inspectors, audits of stationsand inspectors records, equipmentaudits, and formal training of all state I/M enforcement officials and auditors.

(12) Submit to EPA documentationregarding the set up of Maryland’spenalty structure used to ensure thecontractor is in compliance with Stateregulations. The penalty schedule mustbe applied to the contractor, stations,and inspectors. Information shouldinclude administrative & judicialresponsibilities & procedures, and adescription of the funding allocations.

(13) Submit to EPA an administrativeprocedures manual or description of thepractice of inspector recertificationwhich must occur at least every twoyears.

(14) Submit to EPA State regulationsdocumenting provisions for theprotection of whistle blowers. Inaddition, Maryland needs to providedocumentation of how it investigatesand responds to complaints made by thepublic.

(15) Maryland must start mandatorytesting of all subject vehicles as soon aspossible, or by November 15, 1997 at thelatest.

(b) [Reserved]


FEDERAL EMERGENCYMANAGEMENT AGENCY

44 CFR Part 64

[Docket No. FEMA–7669]

List of Communities Eligible for theSale of Flood Insurance

AGENCY: Federal EmergencyManagement Agency (FEMA).ACTION: Final rule.

SUMMARY: This rule identifiescommunities participating in the

National Flood Insurance Program(NFIP). These communities haveapplied to the program and have agreedto enact certain floodplain managementmeasures. The communities’participation in the program authorizesthe sale of flood insurance to owners ofproperty located in the communitieslisted.EFFECTIVE DATES: The dates listed in thethird column of the table.ADDRESSES: Flood insurance policies forproperty located in the communitieslisted can be obtained from any licensedproperty insurance agent or brokerserving the eligible community, or fromthe NFIP at: Post Office Box 6464,Rockville, MD 20849, (800) 638–6620.FOR FURTHER INFORMATION CONTACT:Robert F. Shea, Jr., Division Director,Program Implementation Division,Mitigation Directorate, 500 C Street SW.,room 417, Washington, DC 20472, (202)646–3619.SUPPLEMENTARY INFORMATION: The NFIPenables property owners to purchaseflood insurance which is generally nototherwise available. In return,communities agree to adopt andadminister local floodplain managementmeasures aimed at protecting lives andnew construction from future flooding.Since the communities on the attachedlist have recently entered the NFIP,subsidized flood insurance is nowavailable for property in the community.

In addition, the Associate Director ofthe Federal Emergency ManagementAgency has identified the special floodhazard areas in some of thesecommunities by publishing a FloodHazard Boundary Map (FHBM) or FloodInsurance Rate Map (FIRM). The date ofthe flood map, if one has beenpublished, is indicated in the fourthcolumn of the table. In the communitieslisted where a flood map has beenpublished, section 102 of the FloodDisaster Protection Act of 1973, asamended, 42 U.S.C. 4012(a), requiresthe purchase of flood insurance as acondition of Federal or federally relatedfinancial assistance for acquisition orconstruction of buildings in the specialflood hazard areas shown on the map.

The Associate Director finds that thedelayed effective dates would becontrary to the public interest. TheAssociate Director also finds that noticeand public procedure under 5 U.S.C.553(b) are impracticable andunnecessary.

National Environmental Policy Act

This rule is categorically excludedfrom the requirements of 44 CFR part10, Environmental Considerations. Noenvironmental impact assessment hasbeen prepared.

Regulatory Flexibility Act

The Associate Director certifies thatthis rule will not have a significanteconomic impact on a substantialnumber of small entities in accordancewith the Regulatory Flexibility Act, 5U.S.C. 601 et seq., because the rulecreates no additional burden, but liststhose communities eligible for the saleof flood insurance.

Regulatory Classification

This final rule is not a significantregulatory action under the criteria ofsection 3(f) of Executive Order 12866 ofSeptember 30, 1993, RegulatoryPlanning and Review, 58 FR 51735.

Paperwork Reduction Act

This rule does not involve anycollection of information for purposes ofthe Paperwork Reduction Act, 44 U.S.C.3501 et seq.

Executive Order 12612, Federalism

This rule involves no policies thathave federalism implications underExecutive Order 12612, Federalism,October 26, 1987, 3 CFR, 1987 Comp.,p. 252.

Executive Order 12778, Civil JusticeReform

This rule meets the applicablestandards of section 2(b)(2) of ExecutiveOrder 12778, October 25, 1991, 56 FR55195, 3 CFR, 1991 Comp., p. 309.


Flood insurance, Floodplains.Accordingly, 44 CFR part 64 is

amended as follows:

PART 64—[AMENDED]


Authority: 42 U.S.C. 4001 et seq.,Reorganization Plan No. 3 of 1978, 3 CFR,1978 Comp., p. 329; E.O. 12127, 44 FR 19367,3 CFR, 1979 Comp., p. 376.

§ 64.6 [Amended]

2. The tables published under theauthority of § 64.6 are amended asfollows:


State/location CommunityNo. Effective date of eligibility Current effective

map date

New Eligibles—Emergency ProgramMichigan: Maple Grove, township of, Saginaw County 260891 June 6, 1997Montana:

Ekalaka, town of, Carter County ............................. 300111 ......do ............................................................................ July 16, 1976.Pondera County, unincorporated areas .................. 300056 ......do

Washington: Springdale, town of, Stevens County ....... 530264 ......do ............................................................................ May 2, 1975.Kentucky:

Shelbyville, city of, Shelby County ......................... 210376 June 9, 1997Braken County, unincorporated areas .................... 210021 ......do ............................................................................ June 10, 1977.

North Dakota: Cass County, unincorporated areas ....... 385362 June 10, 1997Nebraska: Garden County, unincorporated areas ......... 310096 ......doIndiana: Montgomery County, unincorporated areas .... 180445 June 11, 1997 .............................................................. Oct. 13, 1978.Michigan:

West Branch, township of, Marquette County ........ 260993 ......doGroveland, township of, Oakland County ............... 260992 ......doArcadia, township of, Lapeer County ..................... 260991 ......do

Ohio: Montezuma, village of, Mercer County ................ 390396 ......do ............................................................................ May 28, 1976.Texas: Dimmit County, unincorporated areas ............... 480789 ......do ............................................................................ Jan. 31, 1978.Illinois: McDonough County, unincorporated areas ....... 170999 June 17, 1997 .............................................................. Jan. 2, 1981.Michigan:

Kinderhook, township of, Branch County ............... 260361 June 19, 1997Algansee, township of, Branch County .................. 260994 ......do

Maine: Mariaville, town of, Hancock County ................. 230286 June 30, 1997 .............................................................. Mar. 14, 1975.New Hampshire: Chester, town of, Rockingham Coun-

ty.330182 ......do ............................................................................ Feb. 21, 1975.

Georgia:Hartwell, city of, Hart County .................................. 130480 ......doClay County, unincorporated areas ........................ 130554 ......doLanier County, unincorporated areas ..................... 130555 ......do

Kentucky:Fort Thomas, city of, Campbell County .................. 210038 ......do ............................................................................ June 25, 1976.Mason County, unincorporated areas .................... 210259 ......do ............................................................................ Dec. 31, 1976.

North Carolina: 1 Youngsville, town of, Franklin County 370494 ......do ............................................................................ Sept. 15, 1978.Michigan: Ovid, township of, Branch County ................. 260362 ......do ............................................................................ Nov. 5, 1976.Ohio: Mineral City, village of, Tuscarawas County ........ 390842 ......do ............................................................................ Oct. 6, 1978.North Dakota: Traill County, unincorporated areas ....... 380130 ......do ............................................................................ Dec. 16, 1980.South Dakota: Burke, city of, Gregory County .............. 460161 ......do

New Eligibles—Regular ProgramMontana: Big Timber, city of, Sweet Grass County ...... 300106 June 6, 1997 ................................................................ NFSHA.California: 2 Chico, city of, Butte County ........................ 060746 June 11, 1997 .............................................................. Sept. 29, 1989.Missouri: 3 Farley, village of, Platte County ................... 290292 June 20, 1997 .............................................................. June 4, 1987.North Carolina:

4 Chocowinity, town of, Beaufort County ................ 370289 June 30, 1997 .............................................................. Feb. 4, 1987.5 East Arcadia, town of, Bladen County ................. 370496 ......do ............................................................................ Sept. 1, 1989.6 Faison, town of, Duplin and Sampson Counties .. 370495 ......do ............................................................................ July 4, 1989.

Michigan: Greenwood, township of, Wexford County ... 260947 Dec. 20, 1996, Emerg; June 30, 1997, Reg ................ NSFHA.Arizona: 7 Sahuarita, town of, Pima County .................. 040137 June 30, 1997 .............................................................. Aug. 19, 1997.Washington: Mercer Island, city of, King County .......... 530083 ......do ............................................................................ NSFHA.

WithdrawnKansas: Simpson, city of, Mitchell County .................... 200229 June 25, 1975, Emerg; Jan. 1, 1987, Reg.; June 11,

1997, With.Jan. 1, 1987.

ReinstatementsKentucky:

Smithland, city of, Livingston County ..................... 210147 Nov. 3, 1975, Emerg; Sept. 16, 1988, Reg; Sept. 16,1988, Susp; June 6, 1997, Rein.

Sept. 16, 1988.

Worthville, city of, Carroll County ........................... 210049 May 24, 1976, Emerg; July 17, 1986, Reg; July 17.1986, Susp; June 6, 1997, Rein.

July 17, 1986.

Regular Program Conversions

Region IINew Jersey: Bridgewater, township of, Somerset

County.340432 June 5, 1997, Suspension Withdrawn ......................... June 5, 1997.

Region IIIPennsylvania: East Cocalico, township of, Lancaster

County.420547 ......do ............................................................................ do.

Region IVFlorida: Okaloosa County, unincorporated areas .......... 120173 ......do ............................................................................ do.

Region VILouisiana: Shreveport, city of, Caddo and Bossier Par-

ishes.220036 ......do ............................................................................ do.


State/location CommunityNo. Effective date of eligibility Current effective

map date

Texas:Austin, city of, Travis County .................................. 480624 ......do ............................................................................ do.Dallas, city of, Dallas, Denton, Collin, Rockwall,

and Kaufman Counties.480171 ......do ............................................................................ do.

Orange, city of, Orange County .............................. 480512 ......do ............................................................................ do.Orange County, unincorporated areas ................... 480510 ......do ............................................................................ do.Rowlett, city of, Dallas and Rockwell Counties ...... 480185 ......do ............................................................................ do.Travis County, unincorporated areas ..................... 481026 ......do ............................................................................ do.

Region VIINebraska:

Dodge County, unincorporated areas ..................... 310068 ......do ............................................................................ do.Scribner, city of, Dodge County .............................. 310071 ......do ............................................................................ do.

Region IXArizona: Navajo County, unincorporated areas ............. 040066 ......do ............................................................................ do.California:

Glenn County, unincorporated areas ...................... 060057 ......do ............................................................................ do.Lompoc, city of, Santa Barbara County ................. 060334 ......do ............................................................................ do.Mono County, unincorporated areas ...................... 060194 ......do ............................................................................ do.Santa Barbara, unincorporated areas .................... 060331 ......do ............................................................................ do.Sonoma, city of, Sonoma County ........................... 060383 ......do ............................................................................ do.

Nevada: Douglas County, unincorporated areas ........... 320008 ......do ............................................................................ do.

Region XOregon: Aurora, city of, Marion County ......................... 410156 ......do ............................................................................ do.

Region IXCalifornia: Vista, city of, San Diego County .................. 060297 June 19, 1997, Suspension Withdrawn ....................... June 19, 1997.

Region XOregon: Marion County, unincorporated areas ............. 410154 ......do ............................................................................ do.Washington: Okanogan County, unincorporated areas 530117 ......do ............................................................................ do.

1 The Town of Youngsville has adopted the Franklin County (CID# 370377) Flood Hazard Boundary Map dated 9–15–78.2 The City of Chico has adopted the Butte County (CID# 060017) Flood Insurance Rate Map dated 9–29–89.3 The Village of Farley has adopted the Platte County (CID# 290475) Flood Insurance Rate Map dated 6–4–87 panel 0100.4 The Town of Chocowinity has adopted the Beaufort County (CID# 370013) Flood Insurance Rate Map dated 2–4–87 panel 0190B.5 The Town of East Arcadia has adopted the Bladen County (CID# 370293) Flood Insurance Rate Map dated 9–1–89, panels 0012 and 0013.6 The Town of Faison has adopted the Duplin County (CID# 370083) Flood Insurance Rate Map dated 7–4–89 and the Sampson County (CID#

370220) Flood Insurance Rate Map dated 7–16–91.7 The Town of Sahuarita has adopted the Pima County (CID# 040073) Flood Insurance Rate Map dated 8–19–97.Code for reading third column: Emerg.—Emergency; Reg.—Regular; Rein.—Reinstatement; Susp.—Suspension; With.—Withdrawn; NSFHA—

Non Special Flood Hazard Area.

(Catalog of Federal Domestic Assistance No.83.100, ‘‘Flood Insurance.’’)

Issued: July 22, 1997.Michael J. Armstrong,Associate Director for Mitigation.[FR Doc. 97–20233 Filed 7–30–97; 8:45 am]BILLING CODE 6718–05–P

FEDERAL COMMUNICATIONSCOMMISSION

47 CFR Part 73

Radio Broadcasting Services; VariousLocations

AGENCY: Federal CommunicationsCommission.ACTION: Final rule.

SUMMARY: The Commission, on its ownmotion, editorially amends the Table ofFM Allotments to specify the actualclasses of channels allotted to variouscommunities. The changes in channelclassifications have been authorized in

response to applications filed bylicensees and permittees operating onthese channels. This action is takenpursuant to Revision of Section73.3573(a)(1) of the Commission’s RulesConcerning the Lower Classification ofan FM Allotment, 4 FCC Rcd 2413(1989), and the Amendment of theCommission’s Rules to permit FMChannel and Class Modifications[Upgrades] by Applications, 8 FCC Rcd4735 (1993).EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Kathleen Scheuerle, Mass MediaBureau, (202) 418–2180.SUPPLEMENTARY INFORMATION: This is asummary of the Commission’s Reportand Order, adopted July 16, 1997, andreleased July 25, 1997. The full text ofthis Commission decision is availablefor inspection and copying duringnormal business hours in theCommission’s Reference Center (Room239), 1919 M Street, NW., Washington,DC. The complete text of this decision

may also be purchased from theCommission’s copy contractors,International Transcription Services,Inc., 2100 M Street, NW., Suite 140,Washington, DC 20037, (202) 857–3800.


Radio broadcasting.

Part 73 of title 47 of the Code ofFederal Regulations is amended asfollows:

PART 73—[AMENDED]


Authority: Secs. 303, 48 Stat., as amended,1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FMAllotments under Colorado, is amendedby removing Channel 285C1 and addingChannel 285C3 at Telluride.

3. Section 73.202(b), the Table of FMAllotments under Florida, is amended


by removing Channel 243C and addingChannel 243C1 at Fort Walton Beach.

4. Section 73.202(b), the Table of FMAllotments under Georgia, is amendedby removing Channel 288A and addingChannel 288C3 at Jesup.

5. Section 73.202(b), the Table of FMAllotments under Idaho, is amended byremoving Channel 265C and addingChannel 264C at Gooding.

6. Section 73.202(b), the Table of FMAllotments under Louisiana, isamended by removing Channel 297C3and adding Channel 298C2 at LakeArthur.

7. Section 73.202(b), the Table of FMAllotments under Hawaii, is amendedby removing Channel 228C3 and addingChannel 228C at Lahaina.

8. Section 73.202(b), the Table of FMAllotments under Maine, is amended byremoving Channel 256B1 and addingChannel 256B at Bar Harbor.

9. Section 73.202(b), the Table of FMAllotments under Michigan, is amendedby removing Channel 282C and addingChannel 282C1 at Baraga.

10. Section 73.202(b), the Table of FMAllotments under Mississippi, isamended by removing Channel 245C3and adding Channel 245C2 at Indianola.

11. Section 73.202(b), the Table of FMAllotments under Montana, is amendedby removing Channel 229A and addingChannel 229C1 at Conrad.

12. Section 73.202(b), the Table of FMAllotments under Nevada, is amendedby removing Channel 228C and addingChannel 228C1 at Laughlin.

13. Section 73.202(b), the Table of FMAllotments under New Mexico, isamended by removing Channel 279C1and adding Channel 279A atAlamogordo; by removing Central,Channel 237C1; and by adding SantaClara, Channel 237C1.

14. Section 73.202(b), the Table of FMAllotments under Tennessee, isamended by removing Channel 267Aand adding Channel 267C3 at Wartburg.

15. Section 73.202(b), the Table of FMAllotments under Wisconsin, isamended by removing Channel 237Aand adding Channel 237C3 at ShellLake.

Federal Communicatons Commission.

John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20164 Filed 7–30–97; 8:45 am]



47 CFR Part 73

[MM Docket No. 97–25; RM–8981]

Radio Broadcasting Services; FifeLake, MI

AGENCY: Federal CommunicationsCommission.

ACTION: Final rule.

SUMMARY: This document allots Channel240A to Fife Lake, Michigan, as thatcommunity’s first FM broadcast servicein response to a petition filed by FifeLake Broadcasting Company. See 62 FR4224, January 29, 1997. The coordinatesfor Channel 240A at Fife Lake are 44–34–36 and 85–20–54. Canadianconcurrence has been obtained for thisallotment. With this action, thisproceeding is terminated.

DATES: Effective September 8, 1997. Thewindow period for filing applicationsfor Channel 240A at Fife Lake,Michigan, will open on September 8,1997, and close on October 9, 1997.

FOR FURTHER INFORMATION CONTACT:Kathleen Scheuerle, Mass MediaBureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is asummary of the Commission’s Reportand Order, MM Docket No. 97–25,adopted July 16, 1997, and released July25, 1997. The full text of thisCommission decision is available forinspection and copying during normalbusiness hours in the Commission’sReference Center (Room 239), 1919 MStreet, NW, Washington, DC. Thecomplete text of this decision may alsobe purchased from the Commission’scopy contractors, InternationalTranscription Services, Inc., 2100 MStreet, NW., Suite 140, Washington, DC.20037, (202) 857–3800.


Radio broadcasting.


PART 73—[AMENDED]



§ 73.202 [Amended]

2. Section 73.202(b), the Table of FMAllotments under Michigan, is amendedby adding Fife Lake, Channel 240A.

Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20163 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P


47 CFR Part 73

[MM Docket No. 96–227; RM–8910]

Radio Broadcasting Services;Glenrock, Wyoming


ACTION: Final rule.

SUMMARY: The Commission, at therequest of Vixon Valley Broadcasting,allots Channel 252A at Glenrock,Wyoming, as the community’s first localaural transmission service. See 61 FR60067, November 26, 1996. Channel252A can be allotted at Glenrock incompliance with the Commission’sminimum distance separationrequirements at city referencecoordinates. The coordinates forChannel 252A at Glenrock are NorthLatitude 42–51–30 and West Longitude105–52–24. With this action, thisproceeding is terminated.

DATES: Effective September 8, 1997. Thewindow period for filing applicationsfor Channel 252A at Glenrock,Wyoming, will open on September 8,1997, and close on October 9, 1997.

FOR FURTHER INFORMATION CONTACT:Sharon P. McDonald, Mass MediaBureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s Reportand Order, MM Docket No. 96–227,adopted July 16, 1997, and released July25, 1997. The full text of thisCommission decision is available forinspection and copying during normalbusiness hours in the FCC ReferenceCenter (Room 239), 1919 M Street, NW.,Washington, DC. The complete text ofthis decision may also be purchasedfrom the Commission’s copycontractors, International TranscriptionService, Inc., (202) 857–3800, 2100 MStreet NW., Suite 140, Washington, DC20037.


Radio broadcasting.



PART 73—[AMENDED]


Authority: Sections 303, 48 Stat., asamended, 1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FMAllotments under Wyoming, is amendedby adding Glenrock, Channel 252A.Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20162 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P


47 CFR Part 73

[MM Docket No. 97–97, RM–9047]

Radio Broadcasting Services; Mt.Juliet and Belle Meade, TN


SUMMARY: This document reallotsChannel 294A from Mt. Juliet to BelleMeade, Tennessee, and modifies theStation WNPL construction permit tospecify Belle Meade as the communityof license. See 60 FR 14384, March 25,1997. As a result, Channel 294A is nowallotted to Belle Meade, Tennessee, andthe Station WNPL construction permitnow specifies Belle Meade as thecommunity of license. The referencecoordinates for the Channel 294Aallotment at Belle Meade, Tennessee,are 36–11–08 and 86–45–15. With thisaction, the proceeding is terminated.EFFECTIVE DATES: September 8, 1997.FOR FURTHER INFORMATION CONTACT:Robert Hayne, Mass Media Bureau,(202) 418–2177.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s Reportand Order adopted July 16, 1997, andreleased July 25, 1997. The full text ofthis decision is available for inspectionand copying during normal businesshours in the FCC Reference Center(Room 239), 1919 M Street NW.,Washington, DC. The complete text ofthis decision may also be purchasedfrom the Commission’s copy contractor,International Transcription Service,Inc., (202) 857–3805, 1231 M StreetNW., Washington, DC 20036.


Radio broadcasting.


PART 73—[AMENDED]



§ 73.202 [Amended]2. Section 73.202(b), the Table of FM

Allotments under Tennessee, isamended by removing Channel 294A atMt. Juliet, and adding Belle Meade,Channel 294A.Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20161 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P


47 CFR Part 73

[MM Docket No. 96–151; RM–8808, RM–8891]

Radio Broadcasting Services; BearCreek and Pocono Pines, PA


SUMMARY: The Commission, at therequest of Keymarket of NEPA, Inc.,allots Channel 290A at Pocono Pines,Pennsylvania, as the community’s firstlocal aural transmission service (RM–8891). We also deny the proposal filedby Victor A. Michael, Jr., requesting theallotment of Channel 290A at BearCreek, PA (RM–8808). See 61 FR 43033,August 20, 1996. Channel 290A can beallotted to Pocono Pines in compliancewith the Commission’s minimumdistance separation requirements with asite restriction of 13.1 kilometers (8.2miles) northwest to avoid short-spacingsto the licensed and construction permitsites of Station WNWK(FM), Channel290B1, Newark, New Jersey. Thecoordinates for Channel 290A PoconoPines are North Latitude 41–09–17 andWest Longitude 75–35–52. SincePocono Pines is located within 320kilometers (200 miles) of the U.S.-Canadian border, concurrence of theCanadian government has beenobtained. With this action, thisproceeding is terminated.DATES: Effective September 8, 1997. Thewindow period for filing applicationsfor Channel 290A at Pocono Pines,

Pennsylvania, will open on September8, 1997, and close on October 9, 1997.FOR FURTHER INFORMATION CONTACT:Sharon P. McDonald, Mass MediaBureau, (202) 418–2180.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s Reportand Order, MM Docket No. 96–151,adopted July 16, 1997, and released July25, 1997. The full text of thisCommission decision is available forinspection and copying during normalbusiness hours in the FCC ReferenceCenter (Room 239), 1919 M Street, NW.,Washington, DC. The complete text ofthis decision may also be purchasedfrom the Commission’s copycontractors, International TranscriptionService, Inc., (202) 857–3800, 2100 MStreet, NW., Suite 140, Washington, DC20037.


Radio broadcasting.Part 73 of Title 47 of the Code of

Federal Regulations is amended asfollows:

PART 73—[AMENDED]


Authority: Sections 303, 48 Stat., asamended, 1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]2. Section 73.202(b), the Table of FM

Allotments under Pennsylvania, isamended by adding Pocono Pines,Channel 290A.Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20165 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic SafetyAdministration

49 CFR Part 541

[Docket No. 97–038; Notice 01]

RIN 2127–AG71

Federal Motor Vehicle Theft PreventionStandard; Final Listing of Model Year1998 High-Theft Vehicle Lines

AGENCY: National Highway TrafficSafety Administration (NHTSA),Department of Transportation.ACTION: Final rule.

SUMMARY: This final rule announcesNHTSA’s determination for model year


(MY) 1998 high-theft vehicle lines thatare subject to the parts-markingrequirements of the Federal motorvehicle theft prevention standard, andhigh-theft lines that are exempted fromthe parts-marking requirements becausethe vehicles are equipped with antitheftdevices determined to meet certainstatutory criteria, for MY 1998, pursuantto the statute relating to motor vehicletheft prevention.EFFECTIVE DATE: The amendment madeby this final rule is effective July 31,1997.FOR FURTHER INFORMATION CONTACT: Ms.Rosalind Proctor, Motor Vehicle TheftGroup, Office of Planning andConsumer Programs, NHTSA, 400Seventh Street, SW., Washington, DC20590. Ms. Proctor’s telephone numberis (202) 366–0846. Her fax number is(202) 493–2739.SUPPLEMENTARY INFORMATION: The ‘‘AntiCar Theft Act of 1992’’ amended the lawrelating to the parts-marking of majorcomponent parts on designated high-theft vehicle lines and other motorvehicles. One amendment made by theAnti Car Theft Act was to 49 U.S.C.33101(10), where the definition of‘‘passenger motor vehicle’’ nowincludes a ‘‘multipurpose passengervehicle or light duty truck when thatvehicle or truck is rated at not morethan 6,000 pounds gross vehicleweight.’’ Since ‘‘passenger motorvehicle’’ was previously defined toinclude passenger cars only, the effect ofthe Anti Car Theft Act is that certainmultipurpose passenger vehicle (MPV)and light-duty truck (LDT) lines may bedetermined to be high-theft vehicles,subject to the Federal motor vehicletheft prevention standard (49 CFR part541).

The purpose of the theft preventionstandard is to reduce the incidence ofmotor vehicle theft by facilitating thetracing and recovery of parts from stolenvehicles. The standard seeks to facilitatesuch tracing by requiring that vehicleidentification numbers (VINs), VINderivative numbers, or other symbols beplaced on major component vehicleparts. The theft prevention standardrequires motor vehicle manufacturers toinscribe or affix VINs onto coveredoriginal equipment major componentparts, and to inscribe or affix a symbolidentifying the manufacturer and acommon symbol identifying thereplacement component parts for thoseoriginal equipment parts, on all vehiclelines selected as high-theft.

Another amendment made by theAnti Car Theft Act was to 49 U.S.C.33103. This section required NHTSA topromulgate a parts-marking standard

applicable to major parts installed bymanufacturers of ‘‘passenger motorvehicles (other than light duty trucks) innot to exceed one-half of the lines notdesignated under 49 U.S.C. 33104 ashigh-theft lines.’’ NHTSA published thefinal rule amending 49 CFR Part 541,which now includes the definitions ofMPV and LDT, and major componentparts. (See 59 FR 64164, December 13,1995.)

49 U.S.C. 33104(a)(3) specifies thatNHTSA shall select high-theft vehiclelines, with the agreement of themanufacturer, if possible. Section33104(d) provides that once a line hasbeen designated as likely high-theft, itremains subject to the theft preventionstandard unless that line is exemptedunder Section 33106. Section 33106provides that a manufacturer maypetition to have a high-theft lineexempted from the requirements ofsection 33104, if the line is equippedwith an antitheft device as standardequipment. The exemption is granted ifNHTSA determines that the antitheftdevice is likely to be as effective ascompliance with the theft preventionstandard in reducing and deterringmotor vehicle thefts.

The agency annually publishes thenames of the lines which werepreviously listed as high-theft, and thelines which are being listed for the firsttime and will be subject to the theftprevention standard beginning with MY1998. It also identifies those lines thatare exempted from the theft preventionstandard for the 1998 model yearbecause of standard equipment antitheftdevices.

For MY 1998, the agency selectedthree new vehicle lines as likely to behigh-theft lines, in accordance with theprocedures published in 49 CFR part542. The newly selected lines are theKia Motors S–II, the Subaru Forester(MPV), and the Toyota Sienna (MPV). Inaddition to these three vehicle lines, thelist of high-theft vehicle lines includesall lines previously selected as hightheft and listed for prior model years.

On April 8, 1996, the final listing ofhigh-theft lines for the MY 1997 vehiclelines was published in the FederalRegister (61 FR 15390). The final listingidentified vehicle lines that were listedfor the first time and became subject tothe theft prevention standard beginningwith the 1997 model year. However, theagency was subsequently informed thatseveral of those lines are no longer beingmanufactured for sale in the UnitedStates. Therefore, the following vehiclelines have been deleted from AppendixA of this listing: the Chrysler DodgeSpirit and Plymouth Acclaim, the FordTempo and Mercury Topaz, the

Hyundai Excel and Scoupe, and theMitsubishi Pickup.

The list of lines that have beenexempted by the agency from the parts-marking requirements of Part 541includes high-theft lines newlyexempted in full beginning with MY1998. The two vehicle lines newlyexempted in full are the General MotorsCadillac Seville and Pontiac Sunfire.Furthermore, Appendix A has beenamended to reflect a name change forthe General Motors Oldsmobile CutlassSupreme. It has been renamed theOldsmobile Intrigue beginning with MY1998.

The vehicle lines listed as beingsubject to the parts-marking standardhave previously been selected as high-theft lines in accordance with theprocedures set forth in 49 CFR Part 542.Under these procedures, manufacturersevaluate new vehicle lines to concludewhether those new lines are likely to behigh theft. The manufacturer submitsthese evaluations and conclusions to theagency, which makes an independentevaluation; and, on a preliminary basis,determines whether the new line shouldbe subject to the parts-markingrequirements. NHTSA informs themanufacturer in writing of itsevaluations and determinations,together with the factual informationconsidered by the agency in makingthem. The manufacturer may request theagency to reconsider the preliminarydeterminations. Within 60 days of thereceipt of these requests, the agencymakes its final determination. NHTSAinforms the manufacturer by letter ofthese determinations and its response tothe request for reconsideration. If thereis no request for reconsideration, theagency’s determination becomes final 45days after sending the letter with thepreliminary determination. Each of thenew lines on the high-theft list has beenthe subject of a final determinationunder either 49 U.S.C. 33103 or 33104.

Similarly, the lines listed as beingexempt from the standard havepreviously been exempted inaccordance with the procedures of 49CFR part 543 and 49 U.S.C. 33106.

Therefore, NHTSA finds for goodcause that notice and opportunity forcomment on these listings areunnecessary. Further, public commenton the listing of selections andexemptions is not contemplated by 49U.S.C. Chapter 331.

For the same reasons, since thisrevised listing only informs the publicof previous agency actions and does notimpose additional obligations on anyparty, NHTSA finds for good cause thatthe amendment made by this notice


should be effective as soon as it ispublished in the Federal Register.

Regulatory Impacts

1. Costs and Other ImpactsNHTSA has analyzed this rule and

determined that it is not ‘‘significant’’within the meaning of the Departmentof Transportation’s regulatory policiesand procedures. The agency has alsoconsidered this notice under ExecutiveOrder 12866. As already noted, theselections in this final rule havepreviously been made in accordancewith the provisions of 49 U.S.C. 33104,and the manufacturers of the selectedlines have already been informed thatthose lines are subject to therequirements of 49 CFR part 541 for MY1998. Further, this listing does notactually exempt lines from therequirements of 49 CFR part 541; it onlyinforms the general public of all suchpreviously granted exemptions. Sincethe only purpose of this final listing isto inform the public of prior agencyactions for MY 1998, a full regulatoryevaluation has not been prepared.

2. Regulatory Flexibility ActThe agency has also considered the

effects of this listing under theRegulatory Flexibility Act. I herebycertify that this rule will not have asignificant economic impact on asubstantial number of small entities. Asnoted above, the effect of this final ruleis simply to inform the public of thoselines that are subject to the requirementsof 49 CFR part 541 for MY 1998. Theagency believes that the listing of thisinformation will not have any economicimpact on small entities.

3. Environmental ImpactsIn accordance with the National

Environmental Policy Act of 1969, theagency has considered theenvironmental impacts of this rule, anddetermined that it will not have anysignificant impact on the quality of thehuman environment.

4. FederalismThis action has been analyzed in

accordance with the principles andcriteria contained in Executive Order12612, and it has been determined thatthis final rule does not have sufficientFederalism implications to warrant thepreparation of a Federalism Assessment.

5. Civil Justice ReformThis final rule does not have a

retroactive effect. In accordance withsection 33118 when the TheftPrevention Standard is in effect, a Stateor political subdivision of a State maynot have a different motor vehicle theft

prevention standard for a motor vehicleor major replacement part. 49 U.S.C.33117 provides that judicial review ofthis rule may be obtained pursuant to 49U.S.C. 32909. Section 32909 does notrequire submission of a petition forreconsideration or other administrativeproceedings before parties may file suitin court.

List of Subjects in 49 CFR Part 541Administrative practice and

procedure, Labeling, Motor vehicles,Reporting and recordkeepingrequirements.

In consideration of the foregoing, 49CFR Part 541 is amended as follows:

PART 541—[AMENDED]


Authority: 49 U.S.C. 33102–33104 and33106; delegation of authority at 49 CFR 1.50.

2. In Part 541, Appendices A, A–I andA–II are revised to read as follows:

APPENDIX A TO PART 541.—LINESSUBJECT TO THE REQUIREMENTS OFTHIS STANDARD

Manufacturer Subject lines

Alfa Romeo .... Milano 161.164.

BMW .............. Z3.3 Car Line.6Car Line.

Chrysler ......... Chrysler Cirrus.Chrysler Executive, Sedan/

Limousine.Chrysler Fifth Avenue/New-

port.Chrysler Laser.Chrysler LeBaron/Town &

Country.Chrysler LeBaron GTS.Chrysler’s TC.Chrysler New Yorker Fifth

Avenue.Chrysler Sebring.Chrysler Town & Country.1Dodge 600.Dodge Aries.Dodge Avenger.Dodge Colt.Dodge Daytona.Dodge Diplomat.Dodge Lancer.Dodge Neon.Dodge Shadow.Dodge Stratus.Dodge Stealth.Eagle Summit.Eagle Talon.Jeep Cherokee (MPV).1Jeep Grand Cherokee

(MPV).1Jeep Wrangler (MPV).1Plymouth Caravelle.Plymouth Colt.Plymouth Laser.Plymouth Gran Fury.

APPENDIX A TO PART 541.—LINESSUBJECT TO THE REQUIREMENTS OFTHIS STANDARD—Continued


Plymouth Neon.Plymouth Reliant.Plymouth Sundance.Plymouth Breeze.

Consulier ........ Consulier GTP.Ferrari ............ Mondial 8.

308.328.

Ford ............... Aspire.1Crown Victoria.1Ford Escort.1Ford Mustang.Ford Probe.Ford Taurus.1Ford Thunderbird.Lincoln Continental.Lincoln Mark.Lincoln Town Car.Mercury Capri.Mercury Cougar.Mercury Grand Marquis.1Mercury Sable.1Mercury Tracer.1Merkur Scorpio.Merkur XR4Ti.

General Mo-tors.

Buick Electra.

Buick Reatta.Buick Skylark.1Chevrolet Astro (MPV).1Chevrolet Beretta.1Chevrolet Caprice.1Chevrolet Corsica.1Chevrolet Lumina APV

(MPV).1Chevrolet Monte Carlo (MYs

1987–88).Chevrolet Nova.Chevrolet Blazer (MPV).1Chevrolet S–10 Pickup.1Geo Prizm.3Geo Storm.3Geo Tracker (MPV).1,3

GMC Jimmy (MPV).1GMC Safari (MPV).1GMC Sonoma Pickup.1Oldsmobile Achieva.1Oldsmobile Bravada.1Oldsmobile Cutlass Ciera.1Oldsmobile Cutlass Supreme

(MYs 1988–1997).2Oldsmobile Intrigue.Pontiac Fiero.Pontiac Grand Am.1Pontiac Grand Prix.Saturn Sports Coupe.

Honda ............ Accord.1Civic.1CRV (MPV).1Passport.1Prelude.1Acura Integra.1

Hyundai .......... Accent.Sonata.1Tiburon.1

ISUZU ............ Impulse.Rodeo.1Stylus.Trooper/Trooper II.1

JAGUAR ........ XJ.




XJ–6.XJ–40.

KIA MOTORS S-II.2LOTUS ........... Elan.MASERATI .... Biturbo.

Quattroporte.228.

MAZDA .......... GLC.626.MX–6.MX–5 Miata.MX–3.

MERCEDES-BENZ.

190 D.

190 E.250D–T.260 E.300 SE.300 TD.300 SDL.300 SEC/500 SEC.300 SEL/500 SEL.420 SEL.560 SEL.560 SEC.560 SL.

MITSUBISHI .. Cordia.Eclipse.Mirage.Montero (MPV).1Montero Sport (MPV).1Tredia.3000GT.

NISSAN ......... 240SX.1Maxima.Pathfinder.1Sentra.1Stanza/Altima.1

PEUGEOT ..... 405.PORSCHE ..... 924S.SUBARU ........ XT.

SVX.Forester (MPV).2Legacy.

SUZUKI .......... X90.1Samurai (MPV).1Sidekick (MPV).1

TOYOTA ........ 4-Runner (MPV).1Avalon.Camry.Celica.Corolla/Corolla Sport.MR2.RAV4 (MPV).1Starlet.Sienna (MPV).2Tercel.1



VOLKS-WAGEN.

Audi Quattro.

Rabbit.Scirocco.

1 Lines added for MY 1997.2 Lines added for MY 1998.3 All Geo models will be replaced by the

Chevrolet make identifier beginning with MY1998.

APPENDIX A–I.—HIGH-THEFT LINESWITH ANTITHEFT DEVICES WHICHARE EXEMPTED FROM THE PARTS-MARKING REQUIREMENTS OF THISSTANDARD PURSUANT TO 49 CFRPART 543


Austin Rover .. Sterling.BMW .............. 5 Car Line.1

7 Car Line8 Car Line.

Chrysler ......... Chrysler Conquest.Imperial.

General Mo-tors.

Buick Park Avenue.1

Buick Regal/Century.1Buick Riviera.Cadillac Allante.Cadillac Seville.2Chevrolet Cavalier.1Chevrolet Corvette.Chevrolet Lumina/Monte

Carlo.Oldsmobile Aurora.Oldsmobile Toronado.Pontiac Sunfire.2

Honda ............ Acura CL.1Acura Legend (MYs 1987–

1996).3Acura NS–X.Acura RL.Acura SLX.1Acura TL.Acura Vigor (MYs 1992–

1995).4Isuzu .............. Impulse (MYs 1987–1991).Jaguar ............ XK8.1Mazda ............ 929.

RX–7.Millenia.Amati 1000.

Mercedes-Benz.

124 Car Line (the modelswithin this line are):

APPENDIX A–I.—HIGH-THEFT LINESWITH ANTITHEFT DEVICES WHICHARE EXEMPTED FROM THE PARTS-MARKING REQUIREMENTS OF THISSTANDARD PURSUANT TO 49 CFRPART 543—Continued


300D.300E.300CE.300TE.400E.500E.

129 Car Line (the modelswithin this line are):

300SL.500SL.600SL.202 Car Line.C-Class.

Mitsubishi ....... Galant.Starion.Diamante.

Nissan ............ 300ZX.Infiniti M30.Infiniti QX4.1Infiniti Q45.Infiniti J30.Infiniti I.

Porsche .......... 911.928.968.Boxster.

Saab .............. 900.9000.

Toyota ............ Supra.Cressida.Lexus ES.Lexus GS.Lexus LS.Lexus SC.

Volkswagen ... Audi 5000S.Audi 100.Audi 200.Audi A6.Audi S4.Audi S6.Audi Cabriolet.Volkswagen Cabrio.Volkswagen Corrado.Volkswagen Golf/GTI.Volkswagen Passat.1Volkswagen Jetta/Jetta III.

1 Exempted in full beginning with MY 1997.2 Exempted in full beginning with MY 1998.3 Renamed the Acura RL beginning with MY

1997.4 Replaced by the Acura TL beginning with

MY 1996.

APPENDIX A—II TO PART 541.—HIGH-THEFT LINES WITH ANTITHEFT DEVICES WHICH ARE EXEMPTED IN-PART FROM THEPARTS-MARKING REQUIREMENTS OF THIS STANDARD PURSUANT TO 49 CFR PART 543

Manufacturers Subject lines Parts to be marked

General Motors ................................................................... Buick LeSabre .................................................................... Engine, Transmission.Cadillac Deville ................................................................... Engine, Transmission.Cadillac Eldorado ............................................................... Engine, Transmission.Cadillac Sixty Special 1 ...................................................... Engine, Transmission.Oldsmobile 98 .................................................................... Engine, Transmission.Pontiac Bonneville .............................................................. Engine, Transmission.


APPENDIX A—II TO PART 541.—HIGH-THEFT LINES WITH ANTITHEFT DEVICES WHICH ARE EXEMPTED IN-PART FROM THEPARTS-MARKING REQUIREMENTS OF THIS STANDARD PURSUANT TO 49 CFR PART 543—Continued

Manufacturers Subject lines Parts to be marked

Pontiac Firebird .................................................................. Engine, Transmission.Chevrolet Camaro .............................................................. Engine, Transmission.Oldsmobile 88 Royale ........................................................ Engine, Transmission.

1 Renamed the Cadillac Concours beginning with MY 1994.

Issued on: July 23, 1997.L. Robert Shelton,Associate Administrator for SafetyPerformance Standards.[FR Doc. 97–20095 Filed 7–30–97; 8:45 am]BILLING CODE 4910–59–P



49 CFR Part 571


RIN 2127–AE36

Federal Motor Vehicle SafetyStandards; Lamps, Reflective Devices,and Associated Equipment

AGENCY: National Highway TrafficSafety Administration (NHTSA), DOTACTION: Final rule; technicalamendment.

SUMMARY: This document amendsS5.8.10 to substitute S5.8.1 for itserroneous internal reference to S5.7.1.DATES: The amendment is effective July31, 1997.FOR FURTHER INFORMATION CONTACT:Taylor Vinson, Office of Chief Counsel,NHTSA (202) 366–5263.SUPPLEMENTARY INFORMATION: StandardNo. 108 was amended on December 10,1992 to add Paragraph S5.7 Conspicuitysystems, and to redesignate as S5.8Replacement Equipment, S5.8.1, andS5.8.2, the existing paragraphs S5.7Replacement Equipment, S5.7.1, andS5.7.2. (57 FR 58406).

At the time of its redesignation,paragraph S5.7.2 specified that, unlessotherwise specified in Standard No.108, ‘‘each lamp, reflective device, oritem of associated equipment to which[the replacement equipment provisionsof] section S5.7.1 applies may be labeledwith the symbol DOT, which shallconstitute a certification that itconforms to applicable Federal motorvehicle safety standards.’’ The internalreference to S5.7.1 should have beenchanged to S5.8.1 with theredesignations, but it was not.

A subsequent amendment to StandardNo. 108 on March 3, 1993, redesignated

S5.8.2 as S5.8.10, also without revisingthe now-erroneous internal reference toS5.7.1 (58 FR 12183).

Accordingly, it is necessary forNHTSA to correct its oversight in thetwo previous redesignations by revisingparagraph S5.8.10 to change its internalreference to S5.7.1 to S5.8.1. Becausethis is a technical amendment, priornotice and comment upon it are notrequired, and the amendment willbecome effective upon publication.


Imports, Motor vehicle safety, Motorvehicles.

In consideration of the foregoing, 49CFR part 571 is amended as follows:

PART 571—FEDERAL MOTORVEHICLE SAFETY STANDARDS


Authority: 49 U.S.C. 322, 30111, 30115,30117, and 30166; delegation of authority at49 CFR 1.50.

§ 571.108 [Amended]

2. In § 571.108, paragraph S5.8.10 isrevised to read as set forth below:

§ 571.108 Standard No. 108; Lamps,reflective devices, and associatedequipment.

* * * * *S5.8.10 Unless otherwise specified

in this standard, each lamp, reflectivedevice, or item of associated equipmentto which paragraph S5.8.1 applies maybe labeled with the symbol DOT, whichshall constitute a certification that itconforms to applicable Federal motorvehicle safety standards.

Issued on July 24, 1997.

L. Robert Shelton,Associate Administrator for SafetyPerformance Standards.[FR Doc. 97–20093 Filed 7–30–97; 8:45 am]



Federal Transit Administration

49 CFR Part 661

Buy America; Rolling Stock, TechnicalAmendment

AGENCY: Federal Transit Administration,DOT.ACTION: Technical amendment.

SUMMARY: This technical amendmentrestores appendices to § 661.11 of theagency’s Buy America regulation, whichgoverns procurements of rolling stock.These appendices were inadvertentlydeleted during a recent revision of therule.EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT: RitaDaguillard, Office of the Chief Counsel,202–366–1936.SUPPLEMENTARY INFORMATION: TheFederal Transit Administration’s (FTA)Buy America regulation, 49 CFR part661, implements the domesticpreference provisions of 49 U.S.C.5323(j). Under these provisions, all iron,steel, and manufactured productsprocured with FTA funds must be ofU.S. origin. Section 661.11 of theregulation governs procurements ofrolling stock.

During a recent revision of theregulation (61 FR 6300, February 16,1996), Appendix A (‘‘General Waivers’’),Appendix B (‘‘Typical Components ofBuses’’), and Appendix C (‘‘TypicalComponents of Rail Rolling Stock’’)were inadvertently deleted. Today’stechnical amendment of the regulationrestores those appendices. For thereasons set forth above, Title 49,Chapter VI of the Code of FederalRegulations is amended as set forthbelow:

PART 661—BUY AMERICAREQUIREMENTS—SURFACETRANSPORTATION ASSISTANCE ACTOF 1982, AS AMENDED


Authority: 49 U.S.C. 5323(j) (formerly sec.165, Pub. L. 97–424; as amended by sec. 337,


Pub. L. 100–17 and sec. 1048, Pub. L. 102–240); 49 CFR 1.51.

2. Section 661.11 is amended byadding Appendices A, B and C to readas follows:

§ 661.11 Rolling stock procurements.

* * * * *

Appendix A to § 661.11—GeneralWaivers

(a) The provisions of § 661.11 of thispart do not apply when foreign sourcedspare parts for buses and other rollingstock (including train control,communication, and traction powerequipment) whose total cost is 10percent or less of the overall projectcontract cost are being procured as partof the same contract for the majorcapital item.

(b) [Reserved]

Appendix B to § 661.11—TypicalComponents of Buses

The following is a list of items thattypically would be consideredcomponents of a bus. This list is not all-inclusive.

Engines, transmissions, front axleassemblies, rear axle assemblies, drive shaftassemblies, front suspension assemblies, rearsuspension assemblies, air compressor andpneumatic systems, generator/alternator andelectrical systems, steering systemassemblies, front and rear air brakeassemblies, air conditioning compressorassemblies, air conditioning evaporator/condenser assemblies, heating systems.passenger seats, driver’s seat assemblies,window assemblies, entrance and exit doorassemblies, door control systems, destinationsign assemblies, interior lighting assemblies,front and rear end cap assemblies, front andrear bumper assemblies, specialty steel(structural steel tubing, etc.) aluminumextrusions, aluminum, steel or fiberglassexterior panels, and interior trim, flooring,and floor coverings.

Appendix C to § 661.11—TypicalComponents of Rail Rolling Stock

The following is a list of items thattypically would be consideredcomponents of rail rolling stock. Thislist is not all inclusive.

Car shells, main transformer, pantographs,traction motors, propulsion gear boxes,interior linings, acceleration and brakingresistors, propulsion controls, low voltageauxiliary power supplies, air conditioningequipment, air brake compressors, brakecontrols, foundation brake equipment,articulation assemblies, train control systems,window assemblies, communicationequipment, lighting, seating, doors, dooractuators, and controls, couplers and draftgear, trucks, journal bearings, axles,diagnostic equipment, and third rail pick-upequipment.

Issued On:July 25, 1997.Gordon J. Linton,Administrator.[FR Doc. 97–20109 Filed 7–30–97; 8:45 am]BILLING CODE 4910–57–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD39

Endangered and Threatened Wildlifeand Plants; Final Rule for 13 PlantTaxa From the Northern ChannelIslands, California

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: The U.S. Fish and WildlifeService (Service) determinesendangered status for Arabis hoffmannii(Hoffmann’s rock-cress), Arctostaphylosconfertiflora (Santa Rosa Islandmanzanita), Berberis pinnata ssp.insularis (island barberry), Castillejamollis (soft-leaved paintbrush), Galiumbuxifolium (island bedstraw), Giliatenuiflora ssp. hoffmannii (Hoffmann’sslender-flowered gilia), Malacothamnusfasciculatus ssp. nesioticus (Santa CruzIsland bushmallow), Malacothrixindecora (Santa Cruz Islandmalacothrix), Malacothrix squalida(island malacothrix), Phacelia insularisssp. insularis (island phacelia), andThysanocarpus conchuliferus (SantaCruz Island fringepod) and threatenedstatus for Dudleya nesiotica (Santa CruzIsland dudleya) and Helianthemumgreenei (island rush-rose) pursuant tothe Endangered Species Act of 1973, asamended (Act). The 13 plant taxa fromthe northern Channel Islands, Californiaand their habitats have been variouslyaffected or are currently threatened byone or more of the following: soil loss;habitat alteration by mammals alien tothe Channel Islands (pigs, goats, sheep,donkeys, cattle, deer, elk, bison); directpredation by these same alien mammals;habitat alteration by native seabirds;habitat alteration due to vehiculartraffic; overcollection for scientific orrecreational purposes; competition withalien plant taxa; reduced geneticviability; depressed reproductive vigor;and the chance of random extinctionresulting from small numbers ofindividuals and populations. A notice ofwithdrawal of the proposal to listDudleya blochmaniae ssp. insularis(Santa Rosa Island dudleya), Dudleyasp. nov. ‘‘East Point’’ (munchkindudleya), and Heuchera maxima (Island

alum-root) which were proposed (July25, 1995, 60 FR 37993) for listing alongwith the 13 taxa considered in this rule,is published concurrently with this finalrule.DATES: This rule becomes effectiveSeptember 2, 1997.ADDRESSES: The complete file for thisrule is available for inspection byappointment during normal businesshours at the Ventura Field Office, U.S.Fish and Wildlife Service, 2493 PortolaRoad, Suite B, Ventura, California93003.FOR FURTHER INFORMATION CONTACT: TimThomas or Connie Rutherford,Botanists, Ventura Field Office (seeADDRESSES section) (telephone number805/644–1766; facsimile 805/644–3958).


BackgroundArabis hoffmannii (Hoffmann’s rock-

cress), Arctostaphylos confertiflora(Santa Rosa Island manzanita), Berberispinnata ssp. insularis (island barberry),Castilleja mollis (soft-leavedpaintbrush), Dudleya nesiotica (SantaCruz Island dudleya), Galiumbuxifolium (island bedstraw), Giliatenuiflora ssp. hoffmannii (Hoffmann’sslender-flowered gilia), Helianthemumgreenei (island rush-rose),Malacothamnus fasciculatus ssp.nesioticus (Santa Cruz Islandbushmallow), Malacothrix indecora(island malacothrix), Malacothrixsqualida (Santa Cruz Islandmalacothrix), Phacelia insularis ssp.insularis (island phacelia), andThysanocarpus conchuliferus (SantaCruz Island fringepod) are CaliforniaChannel Island endemics. The onlyspecies in this group that is notrestricted to the four northern islands(Anacapa, Santa Cruz, Santa Rosa, andSan Miguel) is the island rush-rose, withone population known from SantaCatalina Island.

Located offshore and south of SantaBarbara County, the four northernislands are the highest points on a 130kilometer (km) (80 mile (mi)) longseamount (Dibblee 1982). They areincluded within the boundaries of theChannel Islands National Park (CINP).Anacapa Island is the smallest of thefour northern islands and includes threesmaller islands referred to as East,Middle, and West Anacapa, that total2.9 square (sq) km (1.1 sq mi); it is theclosest island to the mainland at adistance of 20 km (13 mi). East andMiddle Anacapa islands are flat-topped,wave-cut terraces largely surrounded bysteep cliffs. West Anacapa is the highestof the three, reaching 283 meters (m)(930 feet (ft)) above sea level. Santa Cruz


Island is the largest of the CaliforniaChannel Islands at 249 sq km (96 sq mi)with the highest point being 753 m(2,470 ft) above sea level. Santa RosaIsland is 217 sq km (84 sq mi) in areaand 475 m (1,560 ft) at its highest point.San Miguel Island, the westernmost ofthe northern group, is 37 sq km (14 sqmi) in area and 253 m (830 ft) in height.Santa Catalina Island, on which onepopulation of Helianthemum greeneioccurs, lies about 113 km (70 mi) to thesoutheast of the northern island group;it is 194 sq km (75 sq mi) in area andits highest elevation is 648 m (2,125 ft)(Power 1980).

The northern Channel Islands aremanaged primarily by Federal agencies.Anacapa Island is managed by theNational Park Service (NPS) with aninholding for the U.S. Coast Guardlighthouse. The western 90 percent ofSanta Cruz Island is privately ownedand managed by The NatureConservancy (TNC). The remaining 10percent of the island is Federal landmanaged by the NPS. Santa Rosa Islandis managed by the NPS. San MiguelIsland is under the jurisdiction of theU.S. Department of the Navy (Navy), butthe NPS has operational jurisdictionthrough a Memorandum of Agreement.Except for the City of Avalon, SantaCatalina Island is privately owned andmanaged by the Catalina IslandConservancy.

Anacapa was set aside (with SantaBarbara Island to the south) as aNational Monument in 1938. In 1980,the U.S. Congress abolished theNational Monument and incorporatedits lands, waters and interests intoNational Park status, adding Santa CruzIsland and Santa Rosa Island (at thattime privately owned) within theboundaries. The NPS acquisition ofSanta Rosa Island in 1986 wasaccomplished by outright fee purchasefrom the Vail and Vickers RanchingCompany. A cattle ranching operationand a subleased commercial deer andelk hunting operation on Santa RosaIsland are operating under 5-yearrenewable special use permits,renewable until the year 2011.

TNC acquired an easement for 4,800hectares (ha) (12,000 acres (ac)) of SantaCruz Island in 1978 and took ownershipof nine-tenths of the island in 1987.TNC’s general goals for preservemanagement include the preservation,protection, restoration, andunderstanding of the natural resources(Rob Klinger, TNC, Santa Cruz Island,pers. comm. 1994). Although a specificmanagement plan for the Santa CruzIsland Preserve has not been developed,TNC has developed a strategic directionthat will focus on managing feral pigs

(Sus scrofa), fennel (Foeniculumvulgare), and fire. These activitiesinclude long-term monitoring of specificplant communities and rare plantpopulations; trial programs in feral pigremoval, herbicide treatment of alienplant species, controlled burns ingrassland and island pine communities;and research on specific species and theresponse of plant communities toremoval of non-native mammals. A 5-year trial feral pig removal program wassuccessful in removing all but a few pigsfrom a 2,400-ha (6,000-ac) exclosure onthe south side of the island. The numberof pigs fluctuates depending onprecipitation and acorn crop. TNC alsotook immediate steps to remove cattle(Bos taurus) and sheep (Ovisdomesticus) upon acquiring theproperty, but has been unable to managethe rapid spread of the alien plant,fennel, that resulted from the release ofgrazing pressure. TNC is exploringoptions for implementing island-wideferal pig removal and other managementactivities; these options may includedeveloping an agreement with NPS forthat agency to manage the island. Pignumbers are increasing on Santa CruzIsland (E. Painter in litt. 1997).

Subsequent to the relocation bymissionaries of the native ChumashIndian populations from the islands tothe mainland by 1814 (Hobbs 1983),land use practices on the islandsfocused on the introduction of a varietyof livestock including sheep, goats(Capra hircus), cattle, pigs, burros(Equus asinus), and horses (E. caballus).Other alien mammal species were alsointroduced, including deer (Odocoiliushemionus), elk (Cervus canadensisroosevelti), bison (Bison bison), rabbits(Oryctolagus cuniculus), wild turkey(Melegris gallopavo), California quail(Callipepla californica), and chukar(Alectoris chuckar) for ranching andhunting purposes (Hochberg et al.1980a, Minnich 1980, Jones et al. 1989).

The introduction of alien herbivoresto the islands has had catastrophiceffects on island vegetation. Pigs hadbeen released on Santa Cruz Island by1854 (Hobbs 1983). Records for SantaCruz Island indicate that sheep hadbeen introduced in the early 1830’s; by1875, sheep stocking was around 50,000head (Hobbs 1983). In 1890, perhaps asmany as 100,000 sheep grazed on SantaCruz Island (Hochberg et al. 1980a).Droughts, exacerbated by overgrazing,occurred in 1864, 1870–72, 1877, 1893–1904, 1923–24, 1935, 1946–48, 1964,(Dunkle 1950, Johnson 1980) and mostrecently 1986–91 (Halvorson 1993).These episodes resulted in losses oflivestock and other herbivores due tostarvation (Johnson 1980, Sauer 1988).

Manipulation of the vegetation by over150 years of intensive grazing andbrowsing has resulted in thereplacement of native plantcommunities with non-native grasslands(Minnich 1980, Hobbs 1983).

Several alien weedy plants haveinvaded the disturbed habitats of theislands. One of the most obviousproblem species is fennel on Santa CruzIsland. Fennel and other aggressive non-native weed species displace nativespecies and further threaten theecological integrity of the islandecosystems (Smith 1989, Simberloff1990). Research methods and results todate for the control of fennel were thetopics of several presentations at thefourth Channel Islands symposium(Brenton and Klinger 1994, Dash andGliessman 1994, Gliessman 1994).

Some progress has been made towardeliminating alien animals from theislands. TNC has eliminated the cattleand sheep from the western portion ofSanta Cruz Island, and continues toprevent sheep from invading from theeastern portion of the island (Kelley1997). The NPS purchased the east endof the Santa Cruz Island in February1997 and initiated a sheep controlprogram. The NPS has removed all thepigs from Santa Rosa Island. A programto control goats and pigs is beingimplemented on western Santa CatalinaIsland. However, no action has beentaken to eliminate deer and elk fromSanta Rosa Island, or pigs from themajority of Santa Cruz Island, or bisonwhich have been introduced to SantaCatalina Island.

The floristics of the islands arecomposed of elements that have avariety of origins, and include relictpopulations of formerly wider-rangingspecies such as the endemic islandironwoods (Lyonothamnus floribundus)and disjunct species such as the Torreypine (Pinus torreyana). Such speciestypically occur in canyons and onslopes with more moderateenvironments than those that prevail insurrounding areas. Island endemics,including all of the species in this finalrule, have been discussed by Raven(1967), Philbrick (1980), and Wallace(1985). Fifty-four island endemic plantspecies are known from the northernChannel Islands; 15 species are singleisland endemics (Halvorson et al. 1987).Some of the most striking examples ofextinction have occurred from islandsaround the world; from the ChannelIslands, notable extinctions include theSanta Barbara Island song sparrow(Melospiza melodia cooperi) and SantaCruz Island monkeyflower (Mimulusbrandegei). Nine plant species havebeen extirpated from various islands


within the northern island group: threefrom Santa Cruz (Malacothrix incana,Mimulus brandegei, and Sibara filifolia),two from Santa Rosa (Berberis pinnatassp. insularis, and Helianthemumgreenei), and four from San Miguel(Grindelia latifolia, Ceanothusmegacarpus ssp. insularis, Rhamnuspirifolia, and Ericameria ericoides)(Philbrick 1980, Halvorson et al. 1987,Clark et al. 1990).

The main habitat types on the islandsinclude coastal dune, coastal bluff,coastal sage scrub, grasslands, chaparral,oak and ironwood woodlands, riparianwoodlands, and conifer forest; varioussubdivisions of these types have beendescribed by Dunkle (1950), Philbrickand Haller (1977), Minnich (1980), Clarket al. (1990), and Coonan et al. (1996).Coastal beach and associated dunehabitats occur in the windiest sandylocations on the three westernmostislands. These coastal habitats appear tobe relatively undisturbed compared tomainland sites where development andrecreation have largely eliminated them.Coastal bluff habitat has provided arefugium for many plants from grazingby non-native animals (Minnich 1980,Halvorson et al. 1992).

The upland habitats were formerlymostly shrub-dominated and includedcoastal sage scrub and chaparralhabitats. Historic reports indicate thatthese brushlands were impenetrable(Hochberg et al. 1980a). Historicalphotographs reveal a significant loss ofwoody vegetation from the islandsduring the last 100 years (Hobbs 1980,Minnich 1980). Coastal sage habitat iscomposed of soft-leaved, soft-stemmedplants that are easily broken bytrampling and palatable to bothbrowsers and grazers. The originalcoastal sage scrub habitat has beenreduced by overgrazing to the extentthat it persists only in locationsinaccessible to grazing and browsinganimals, such as bluffs and marginalhabitat in patches of cactus (Minnich1980, Hobbs 1983, Painter in litt. 1997).Coastal sage scrub habitat has increasedin importance on Anacapa and SanMiguel Islands where grazing has beenremoved (Johnson 1980).

The structure of the remnantchaparral habitats has also beenmodified by grazing and browsing, such

that shrubs form arborescent (treelike)shapes or extremely low, prostrateforms. Continued browsing by deer andelk on Santa Rosa Island has created anopen ‘skeleton’ community reticulatedby game trails that provide access tonearly 100 percent of the habitat(Hochberg et al. 1980a; Tim Thomas,U.S. Fish and Wildlife Service(USFWS), pers. obs., 1993).

Grasslands are largely composed ofnon-native annual species and havegreatly expanded at the expense of mostother habitat types (Hobbs 1983, Coleand Liu 1994). The pre-grazingimportance of cactus in the islandcommunities will never be known.Overgrazing has resulted in the spreadof cactus to areas denuded by livestock.Overgrazing on Santa Cruz Islandfacilitated the spread of cactus to thepoint that over 40 percent of therangeland was rendered useless(Hochberg et al. 1980a). Cactus habitatson Santa Cruz and Santa Rosa Islandshave been dramatically reduced toimprove cattle operations by theintroduction of biological controls(Hochberg et al. 1980a).

Island woodlands are dominated byunique endemic species and have alsobeen heavily affected by grazing,browsing, and rooting animals seekingsummer shelter and food (Clark et al.1990, Halvorson 1993). Riparianwoodlands are heavily modifiedphysically and structurally, and in someareas they have been completelyeliminated (Hochberg et al. 1980a,Minnich 1980). Normally, a canyonwith year-round water will have well-developed riparian vegetation thatincludes willows (Salix spp.),sycamores (Platanus racemosa),cottonwoods (Populus spp.) and oaks(Quercus spp.). This vegetation wouldtypically support a rich diversity oforganisms, especially neo-tropicalmigratory bird species, but years ofoverutilization by introduced mammalshave considerably reduced this formerlyresource-rich habitat.

The bishop pine forests that areprotected from grazing have well-developed foliar cover and pinereproduction (Hobbs 1978). In contrast,Clark et al. (1990) reported that bishoppine forests that are subjected to grazinglack the protective nutrient layer of

ground litter and exhibit noreproduction.

Pigs, cattle, deer, elk, goats, sheep,and bison continue to threaten andfurther degrade whole ecosystems onthe islands (Sauer 1988, Halvorson1993). Many of the taxa in this rulesurvive only in areas that areinaccessible to the alien ungulates andthen only on sites that are marginallysuitable making their persistencetenuous (Painter in litt. 1997).

Discussion of the Taxa Included in ThisRule

The current and historic distributionof the taxa included in this rule areshown in Table 1. Seven of these taxaare known only from one island,although two of these have beenextirpated from other islands on whichthey occurred historically. Theremaining six taxa currently occur ononly two islands, although two of thesesix have been extirpated from a thirdisland from which they were knownhistorically. All but 3 of the 13 taxa areknown from five or fewer populations.

Arabis hoffmannii (Hoffmann’s rock-cress) was described by PhilipAlexander Munz as Arabis maxima var.hoffmannii in 1932 based on specimenscollected by Ralph Hoffmann at the ‘‘seacliffs east of Dick’s Harbor,’’ now knownas Platts Harbor, on Santa Cruz Island in1932 (Rollins 1936). T.S. Brandegee hadcollected this rock-cress as early as 1888from an unspecified location on SantaCruz Island. In 1936, Reed Clark Rollinselevated the taxon to species status bypublishing the name Arabis hoffmannii.This nomenclature was retained in themost recent treatment of the genus(Rollins 1993).

Arabis hoffmannii is a slender,herbaceous, monocarpic (flowering oncethen dying) perennial in the mustard(Brassicaceae) family. The one to severalstems reach 0.6 m (2.0 ft) high, and haveslightly toothed basal leaves. The whiteto lavender flowers, comprised of fourpetals 1 centimeter (cm) (0.4 inch (in))long, are found at the tips of the stems.The slightly curved fruits are borne onlong stalks (siliques). The only otherrock-cress that occurs on the islands,Arabis glabra var. glabra, is a tallerplant with cream-colored flowers.

TABLE 1

Scientific name Growth form Number ofpopulations

Distribution

mA wA CR RO MI CA

Arabis hoffmannii ................................. Perennial ................. 4 h x xArctostaphylos confertiflora ................. Shrub ...................... <10 xBerberis pinnata ssp. insularis ............ Shrub or vine .......... 3 h x h


TABLE 1—Continued

Scientific name Growth form Number ofpopulations

Distribution

mA wA CR RO MI CA

Castilleja mollis .................................... Perennial ................. 2 x hDudleya nesiotica ................................ Succulent ................ 1 xGalium buxifolium ................................ Sub-shrub ............... 10 x xGilia tenuiflora ssp. hoffmannii ............ Annual ..................... 3 xHelianthemum greenei ......................... Sub-shrub ............... 14 x h xMalacothamnus fasciculatus ssp.

nesioticus.Shrub ...................... 2 x

Malacothrix indecora ............................ Annual ..................... 2 x x hMalacothrix squalida ............................ Annual ..................... (3) x x xPhacelia insularis ssp. insularis ........... Annual ..................... 1(5) x xThysanocarpus conchuliferus .............. Annual ..................... (8) x

NOTE.—Growth form, estimated number of populations within the past five or ten (in parentheses) years, and distribution (x) of the thirteenplant taxa; mA=middle Anacapa, wA=west Anacapa, CR=Santa Cruz, RO=Santa Rosa, MI=San Miguel, CA=Santa Catalina, h=historic distribu-tion.

Since Brandegee’s collection wasmade in 1888, few collections of Arabishoffmannii have been made. On SantaCruz Island, Moran made a collectionfrom the ‘‘Central Valley’’ in 1950, andMcPherson collected the plant nearCentinela Grade, possibly the samelocation, in 1967 (Steve Junak, pers.comm. 1993). It was not until 1985 thatSteve Junak relocated a population atthis location (Schuyler 1986). For manydecades, Hoffmann’s original collectionsite, near Platts Harbor on Santa CruzIsland, was in ‘‘an area of intense feralanimal (sheep) disturbance,’’ and noplants could be found (Hochberg et al.1980a). In fact, in 1983, the Servicepublished in the Federal Register (48FR 53640) a notice of review thatconsidered this species to be extinct.However, surveys conducted by TNC in1985 were successful in relocating theplant near Platts Harbor (Schuyler1986).

According to Moran’s field notes, hecollected Arabis hoffmannii fromAnacapa Island in 1941 ‘‘on the slopesabove Frenchy’s Cove’’ (S. Junak, pers.comm. 1993). However, no specimensfrom this collection have been found inherbaria with known collections ofisland species, and recent surveys havefailed to relocate the plant on AnacapaIsland (S. Junak, pers. comm. 1993).Hoffmann reported the plant from ‘‘thebank above Water Canyon’’ on SantaRosa Island in 1930, but numerousrecent surveys have failed to locate anyplants from that location (S. Junak, pers.comm. 1993). In 1996, a new populationof the plant was discovered near themouth of Lobo Canyon on Santa RosaIsland (McEachern 1996, Wilken 1996).The population consists of eight plants,three of which were flowering and theremaining five were vegetative rosettes.The plants are located on a rocky shelfoverhanging the canyon, and are

associated with giant coreopsis(Coreopsis gigantea), Greene’s dudleya(Dudleya greenei), Indian pink (Silenelaciniata), and non-native grasses. Thecanyon bottom below the shelf isheavily grazed and trampled by deer,cattle, and elk.

In addition to the lone population onSanta Rosa Island, Arabis hoffmannii isalso currently known from three smallpopulations that collectively cover lessthan 0.4 hectare (1 acre) on Santa CruzIsland. One of these three populations,near Platts Harbor is located on rockyvolcanic cliffs along a north-facingcanyon on lands owned by TNC.Because of inaccessibility, and the loosestructure of the volcanic rock, the cliffsite has not been thoroughly surveyed.Only a few dozen plants have beendirectly observed, but the cliffs maysupport additional individuals. Asecond population, near CentinelaGrade, is growing on Santa Cruz Islandvolcanics and is associated with giantcoreopsis (Coreopsis gigantea), SantaCruz Island buckwheat (Eriogonumarborescens), and coastal prickly pear(Opuntia littoralis), on lands owned andmanaged by TNC. When Junak relocatedthis population, approximately 30individuals were seen. TNC hasmonitored this population since 1990,with fewer than 30 plants observed eachyear (Klinger 1994a). The thirdpopulation on Santa Cruz Island waslocated in 1995 near Stanton Ranch, andconsists of 16 plants as of 1996 (Wilken1996).

Recent research by Wilken (1996) onreproductive strategies of Arabishoffmannii shows that individual plantsin cultivation may reproduce within 2years following establishment, withsome plants surviving for at least 5years. Individual rosettes aremonocarpic, but some plants have morethan one rosette. Arabis hoffmannii

does not appear to be dependent uponpollinators for seed set, and individualplants may produce as many as 3,000 to4,000 seed. However, the small sizes ofnatural populations indicate thatestablishment success of new plants islow. Monitoring results at two sites onSanta Cruz Island (Centinela andStanton) suggest poor establishmentsuccess because of a lack of favorableseed germination sites, a high rate ofseedling mortality, or a combination ofboth factors (Wilken 1996). At these twosites, surviving plants tend to be foundin the shade of shrubs where there is alow cover of annual species, suggestingthat Arabis hoffmannii cannot toleratecompetition with a high cover of annualspecies. Fewer than 100 plants in totalwere present in the three studiedpopulations (Wilken 1996).

The major threats to Arabishoffmannii are loss of soil, habitatdegradation, trampling of potential seedgermination sites by non-nativeungulates, predation resulting from feralpig rooting, and competition withannual plants.

Arctostaphylos confertiflora (SantaRosa Island manzanita) was describedby Eastwood in 1934 from a collectionmade by Hoffmann 4 years earlier ‘‘in asheltered dell south of Black Mountain’’on Santa Rosa Island (Eastwood 1934).Munz (1958) published the newcombination Arctostaphylos subcordatavar. confertiflora. However, insubsequent treatments of the genusWells (1968, 1993) has continued to usethe original taxonomy.

Arctostaphylos confertiflora is aperennial shrub in the heath (Ericaceae)family that grows 0.1 to 2.0 m (4 in to6.5 ft) high (Wells 1993). The plant hassmooth, dark red-purple bark, denselyhairy branchlets, bracts, and pedicels,and light green, round-ovate leaves. Theflowers are borne in numerous dense


panicles that mature into flattenedreddish-brown fruits (McMinn 1951).The only other manzanita that occurs onSanta Rosa Island, Arctostaphylos.tomentosa, forms a fire-resistant burl atthe base of the stems. Arctostaphylosconfertiflora is not burl-forming and isconsidered an obligate seeder, requiringfire for regeneration. It occurs inprostrate and upright forms, the formermost likely due to climatic andherbivorous influences (McMinn 1951).

Arctostaphylos confertiflora is knownonly from two areas on Santa RosaIsland. All but a few plants occur in thenortheast portion of the island near, andeast of, Black Mountain. Individualplants have been observed at scatteredsites from upper Lobo Canyon east tothe Torrey pine groves along Beechen’sBay, a distance of about 5 km (3 mi).Junak estimated that total habitat for theplant comprises only a few acres (S.Junak, pers. comm. 1994); Clark et al.(1990) noted that it occurs in lownumbers. During 1994 surveys, threesmall patches were mapped within theTorrey pine groves, two in canyons onthe north side of Black Mountain, andone plant near South Point (Rindlaub1995). Additional surveys of potentialhabitat were begun in 1996 by UnitedStates Geological Survey BiologicalResources Division (BRD) staff, but todate, few shrubs have been found(McEachern 1996). Observed shrubshave had recent twig growth browsedoff by deer, and no seedlings or youngplants have been observed. Ungulateshave access to more than 90 percent ofthe plants (McEachern 1996). Fewerthan 400 plants are estimated to occur,all restricted to nearly vertical canyonwalls in eight populations in the BlackMountain vicinity (McEachern andWilken 1996). Despite the steepness ofthe slopes, deer and elk are capable oftraveling along trails which provideaccess to various portions of thepopulations. A few individuals are alsoknown from Johnson’s Lee on the southside of the island (Rindlaub 1994).

The plant is found on sedimentarysubstrates of Monterey shales and softvolcanoclastic sediments derived fromSan Miguel volcanics (Weaver et al.1969). Near the southern tip of theisland, a few individuals are scatteredon the slopes above South Point onsandstone outcrops. The taxon occurs asa component of mixed chaparral, mixedwoodland, Torrey pine woodland, andisland pine woodland communities.Researchers observed that elk and deerbed down in the shade of larger shrubs,including Arctostaphylos confertiflora,causing compaction and erosion of soils,and exposing the roots of the plants(McEachern and Wilken 1996).

Arctostaphylos confertiflora isthreatened by soil loss, lowreproductive success, and herbivory byelk and deer that has contributed toreproductive failure. The seed bank iseither absent or so depleted as a resultof soil loss that a catastrophic fire couldeliminate the species becauserecruitment is dependent upon firetreated seed.

Berberis pinnata ssp. insularis (islandbarberry) was described by Munz (Munzand Roos 1950) based on a specimencollected by Wolf in 1932 ‘‘west ofsummit of Buena Vista Grade (alsoknown as Centinela Grade), interior ofSanta Cruz Island.’’ In 1981, Roofincluded this taxon in the genusMahonia because the leaves arecompound, in contrast with the simpleleaves of Berberis (Roof 1981). However,Moran (1982) made the case that thisone character was insufficient to defendMahonia as a distinct natural group, andmany subsequent treatments haveincluded all North American taxapreviously referred to Mahonia asBerberis. This taxon has been treated asBerberis pinnata ssp. insularis by Munz(1974), Smith (1976), and Williams(1993).

Berberis pinnata ssp. insularis is aperennial shrub in the barberry family(Berberidaceae). The plant hasspreading stems that reach 2 to 8 m (5to 25 ft) high, with large leaves dividedinto five to nine glossy green leaflets.Clusters of yellow flowers at the branchtips develop into blue berries coveredwith a white bloom (waxy coating).Because new shoots can sprout fromunderground rhizomes, many stemsmay actually represent one geneticclone (Hochberg et al. 1980b, CaliforniaNative Plant Society (CNPS) 1984,Williams 1993). Recent researchindicates that, although the plant isgenetically self-compatible, it requiresinsect visitation for pollination. Eachflower produces from 2 to 3 seeds, butin seed germination experiments only 8out of 40 seedlings survived longenough to produce secondary leaves(Wilken 1996). Observations on the oneplant in upper Cañada Christy indicatedthat, of over 100 flowers that were inbud in January 1996, only 7 immaturefruit had developed by May, 1996(Wilken 1996).

In a letter to Hoffmann in 1932concerning Berberis pinnata ssp.insularis, Munz remarked that,‘‘Brandegee says of B. pinnata, that it is‘‘common’’ on S.C. [Santa Cruz]’’ (S.Junak, in litt. 1994). Berberis pinnatassp. insularis is currently known fromthree small populations in moist,shaded canyons on Santa Cruz Island.Hoffmann found several individuals ‘‘in

Elder canyon that runs from west intoCañada de la Casa’’ on Santa Rosa Islandin 1930 (California Natural DiversityData Base (CNDDB) 1993). No plantshave been found on Santa Rosa Islandsince that time despite surveys by stafffrom the Service, NPS, BRD, and SantaBarbara Botanic Garden between 1993and 1996. Dunkle collected Berberispinnata ssp. insularis on West AnacapaIsland in 1940, but the plant was notfound there again until 1980, when oneclone was found in Summit Canyonassociated with chaparral species,including poison oak (Toxicodendrondiversilobum), monkeyflower (Mimulusaurantiacus), coyote bush (Baccharissp.), goldenbush (Hazardia detonsus),island alum-root (Heuchera maxima)and wild cucumber (Marahmacrocarpus). In 1994, Junak,Halvorson, and Chaney visited this siteand found that the clone had died(Chaney 1994), and the plant istherefore believed to be extirpated fromAnacapa Island.

The three known populations ofBerberis pinnata ssp. insularis occur onSanta Cruz Island. One population onthe north slope of Diablo Peakcomprises 24 large stems and 75 smallstems (Klinger 1994c); this number ofstems may represent one or severalclonal individuals. In 1979, a secondpopulation near Campo Raton (CañadaCristy) was estimated to be fewer than10 individuals, but in 1985, only oneplant was seen (CNDDB 1994). Habitatfor the plant was systematicallysearched recently in the Campo Ratonarea and two individuals were located.Both plants were in danger of uprootingfrom erosion and only one plantflowered but it did not set fruit (Wilkenin litt. 1997). The size of the thirdknown population, at Hazard’s Canyon,has not been determined due toinaccessibility, but Schuyler estimatedthat there were between one and sevenplants at this location (Wilken 1996).

Berberis pinnata ssp. insularis isthreatened by soil loss and habitatalteration caused by feral pig rooting.Although ex-situ clones have beenestablished from vegetative cuttings,populations in the field show no signsof successful sexual reproduction.

Castilleja mollis (soft-leavedpaintbrush) was described by Pennell asCastilleja mollis in 1947, based onmaterial collected on Santa Rosa Islandin 1939 (Ingram 1990, Heckard et al.1991). Hoover (1970) and Munz andKeck (1973) included plants of coastalsand dunes of San Luis Obispo Countyin the description of this taxon.However, the taxon is now consideredto be endemic to Santa Rosa Island(Ingram 1990, Heckard et al. 1991).


Castilleja mollis is a partially parasiticperennial herb in the figwort(Scrophulariaceae) family. The mostlikely host in this case is goldenbush(Isocoma menziesii var. sedoides)(Painter 1995, Wetherwax 1995). Theplant has semi-prostrate branches thatreach 40 cm (16 in) in length, withbracts and upper leaves that are grayish,fleshy, broad and rounded and crowdedat the apex, and the bract and calyx areyellow to yellowish green above(Heckard et al. 1991). Ingram (1990)identified several morphologicaldifferences between Castilleja mollisand the similar Castilleja affinis,including the indument (covering) ofdistinctive branched hairs and roundedstem leaves in the former taxon.Observations by Rindlaub (1994) andNPS staff (NPS 1996) indicate thatindividuals at higher elevations at onesite (Carrington Point) may representhybrids between Castilleja affinis andCastilleja mollis.

Two specimens collected from PointBennett on San Miguel Island by Elmorein 1938 are possibly Castilleja mollis(Wallace 1985; Heckard et al. 1991).Despite recent searches, the taxon hasnot been seen on the San Miguel Islandsince then (S. Junak, pers. comm. 1994).Castilleja mollis is currently knownonly from two areas on Santa RosaIsland, Carrington Point in the northeastcorner of the island, and west of JawGulch and Orr’s Camp along the northshore of the island. At Carrington Point,the plant occurs in stabilized dunescrub vegetation dominated bygoldenbush (Isocoma menziesii var.sedoides), lupine (Lupinus albifrons),and Pacific ryegrass (Leymus pacificus).At Jaw Gulch, the paintbrush occurswith alien iceplants (Carpobrotus spp.and Mesembryanthemum spp.), nativemilk-vetch (Astragalus miguelensis),and alien grasses.

In 1993, the Jaw Gulch populationwas estimated to have up to 1,000individuals covering an area of less than2 ha (5 ac) (C. Rutherford and T.Thomas, USFWS, pers. obs. 1993), anestimate confirmed in recent fieldstudies (McEachern and Wilken 1996).During Ingram’s field studies in 1990,the Carrington Point populationconsisted of only 20 individuals (Ingram1990). The current estimate for theCarrington population is severalhundred plants (McEachern and Wilken1996).

In 1994, Rindlaub gatheredabundance and density data for the twopopulations: on Carrington Point,population density averaged 0.9 plants/sq m, and at Jaw Gulch, populationdensity averaged 2.0 plants/sq m.Demographic plots were established in

1995 in both populations. Althoughanalysis of 1995 and 1996 data is notcomplete, initial analysis indicates thatapproximately 50 percent of Castillejamollis stems were broken, eitherthrough browsing or trampling. Trailingand deer droppings have been observedat the Carrington Point population, andcattle, deer, and elk droppings wereobserved at the Jaw Gulch populationbetween 1994 and 1996 (McEachern1996). The Jaw Gulch population wasalso used as a bedding area for deerduring the fall of 1993 (Dan Richards,CINP, pers. comm. 1994).

The most severe threat to Castillejamollis is deer and elk browsing andgrazing. Other threats to Castillejamollis are soil loss, habitat alterationand herbivory by cattle, deer bedding,and competition with alien plant taxa.Castilleja mollis is also known to behemi-parasitic, or partially dependenton a host plant for water and dissolvedsubstances (Chuang and Heckard 1993).Therefore, loss of the probable hostplant, goldenbush, through these samemechanisms also reduces the ability ofCastilleja mollis to reproduce (E.Painter, in litt. 1997, M. Weatherwax, inlitt. 1995).

Dudleya nesiotica (Santa Cruz Islanddudleya) was described by Moran(1950b) as Hasseanthus nesioticus basedon a specimen collected from a ‘‘flatarea near edge of sea bluff, FraserPoint,’’ on the west end of Santa CruzIsland in 1950. Three years later, Moran(1953) transferred the species to thegenus Dudleya, as Dudleya nesiotica.

Dudleya nesiotica is a succulentperennial in the stonecrop family(Crassulaceae). The plant has a corm-like stem with 8 to 16 oblanceolateleaves in a basal rosette from whichseveral flowering stems 3 to 10 cm (1.2to 4.0 in) tall arise. The white five-petaled flowers and resulting fruits areerect to ascending. Recent research byWilken (1996) indicates that the numberof flowers per plant ranges from 6 to 12.

Dudleya nesiotica is known only fromone population, the type locality atFraser Point on the west end of SantaCruz Island (Vivrett in litt. 1996). Thepopulation is situated on the lowestmarine terrace in coastal scrub andgrasslands (Junak et al. 1995). The westend of the population is associated withsagebrush (Atriplex californica),iceplant (Mesembryanthemumnodiflorum), alkali heath (Frankeniasalina), goldfields (Lastheniacalifornica), and pickleweed (Salicorniasubterminalis). The east end of thepopulation is associated with Australiansaltbush (Atriplex semibaccata), brome(Bromus hordeaceus), goldfields(Lasthenia californica), purple

needlegrass (Nasella pulchra), andvulpia (Vulpia myuros).

Since the time the proposed rule wasprepared, more accurate information onlocation, extent, and size of populationshas been gathered by Wilken (1996).Within the general area near FraserPoint, where a total of 13 ha (32 ac) areoccupied by the plant, four sites of highdensities were sampled. From 1994 to1996, estimates of absolute populationsize ranged from 30,000 to 60,000 plants(Wilken in litt. 1997) which is asubstantial increase in the numbersbelieved to exist during the preparationof the proposed rule.

The Nature Conservancy hascalculated density, cover, and height ofplants within 30 randomly selectedplots at this location since 1991. Annualvariation in density has ranged from16.9 to 29.1 plants/sq m (20.2 to 34.8/sq yard), annual variation in cover hasranged from 8.7 to 16.1 percent, andannual variation in height of rosetteshas ranged from 1.27 to 1.68 cm (0.50to 0.66 in) (Klinger 1995).

Dudleya nesiotica remains vulnerableto soil loss, herbivory by feral pigs, anddisturbance by pig rooting. Like manydudleyas, Dudleya nesiotica is alsovulnerable to collecting for botanical orhorticultural use (Moran 1979).

Galium buxifolium (island bedstraw)was described by Greene in 1886 basedon specimens collected on Santa CruzIsland (Ferris 1960). In 1958, Dempsterincluded the taxon as a variety ofGalium catalinense. Ferris (1960)suggested that the taxon wassubspecifically distinct from Galiumcatalinense. In 1973, Dempsterrecognized the taxon as a separatespecies based on differences in thenutlet hairs between it and Galiumcatalinense.

Galium buxifolium is a small, stoutwoody shrub in the bedstraw(Rubiaceae) family. The plant grows to12 decimeters (dm) (4 ft) in height, andhas swollen nodes bearing numerousleafy branches. The leaves are largerthan those of most other Galium taxa,and have conspicuous lateral veins withstout hairs on the lower surface(Dempster 1973). The relatively broadleaves and the tiny upward-curved hairsthat cover the fruits are uniquecharacteristics that distinguish it fromthe six other species of Galium thatoccur on the islands (Hochberg et al.1980b).

A putative collection of Galiumbuxifolium was made from the ‘‘TorreyPine grove, Santa Rosa Island,’’ in 1941by Moran; apparently this was amisidentified collection of Galiumnuttallii (York, in litt. 1987). Thereforeno collections of this taxon are known


from Santa Rosa Island. Galiumbuxifolium is currently known fromSanta Cruz and San Miguel Islandswhere it occurs on north-facing seacliffs. Eight populations occur on TNClands on Santa Cruz Island. In 1980,Hochberg et al. (1980b) noted that twoof these populations had fewer than 50individuals each, and the remainingpopulations had less than sixindividuals each. No recent statusinformation is available for the SantaCruz Island populations. Twopopulations were located on San MiguelIsland in 1993, one with about 200individuals, and the other having fewerthan ten plants. Five other historicalcollections have been made from theisland, but no plants have been seen atthese other localities for almost 30years. The plant occurs on ‘‘bluffs androcky slopes’’ (Dempster 1973) incoastal sage scrub and island pineforest.

Galium buxifolium is threatened bysoil loss, and habitat alteration andherbivory from feral pig rooting andsheep grazing.

Gilia tenuiflora ssp. hoffmannii(Hoffmann’s slender-flowered Gilia) wasdescribed as Gilia hoffmannii byEastwood in 1940 based on collectionsmade by Hoffmann ‘‘in sandy soil atEast Point’’ on Santa Rosa Island tenyears earlier (Eastwood 1940). Eastwoodremarked that, although the taxon isrelated to Gilia tenuiflora, no variationof the latter included the leafy stemsand terminal congested inflorescence ofGilia hoffmannii (Eastwood 1940).Nevertheless, Jepson (1943) includedthe taxon in the description of Giliatenuiflora var. tenuiflora in his flora ofCalifornia, as did Abrams (1951) in hisflora of the Pacific states. In 1959, Munzincluded the varieties of tenuiflora assubspecies, including ssp. hoffmannii,as per a 1956 treatment by the Grants(Munz and Keck 1973). Thisnomenclature was used in the latesttreatment of the genus (Day 1993). Ofthe four subspecies of Gilia tenuiflora,the subspecies hoffmannii is the onlyone that occurs in southern California.Two other Gilia species occur on SantaRosa Island, but G. tenuiflora ssp.hoffmannii is distinguished from themby the presence of arachnoid woollypubescence at the base of the stem.

Gilia tenuiflora ssp. hoffmannii is asmall, erect annual herb in the phlox(Polemoniaceae) family. The centralstem grows 6 to 12 cm (2.4 to 4.7 in) tall,arising from a rosette of densely hairy,strap-shaped, short-lobed leaves. Theflowers are purplish and funnel-shapedbelow, widening to five pinkish corollalobes.

Gilia tenuiflora ssp. hoffmanniihistorically has only been collectedfrom two locations on Santa RosaIsland. A collection was made by ReidMoran from the ‘‘arroyo between Ranchand Carrington Point’’ in 1941(Rutherford and Thomas 1994). In 1994,Rindlaub located a population of 88individuals covering 2 sq m thatreasonably corresponds to Moran’s siteand is grazed by cattle (Rindlaub 1994).The other historical location is at thetype locality near East Point on SantaRosa Island, where it is still found.Here, it occurs as a component of dunescrub vegetation with sand verbena(Abronia maritima), silver beach-weed(Ambrosia chamissonis), saltgrass(Distichlis spicata), miniature lupine(Lupinus bicolor), plantain (Plantagoerecta), and sand-dune bluegrass (Poadouglasii) (T. Thomas, in litt. 1993). In1994, this population consisted of about2,000 plants (Rindlaub 1994). During1994 surveys, a third populationcomprised of three colonies was foundat Skunk Point. This populationcomprised approximately 3,000 to 3,500individuals that had been obviouslygrazed by cattle (Rindlaub 1994).

Gilia tenuiflora ssp. hoffmannii isthreatened by soil damage, habitatalteration and herbivory by cattle, elkand deer. A sandy service road used byNPS and ranchers bisects the East Pointpopulation. NPS constructed a fence toexclude cattle from a portion of thelargest population; however, aconsiderable portion of the populationhas had increased trampling by cattleand greater impacts from vehicles as aresult of the fence construction andcontinued use of the road.

Helianthemum greenei (Island rush-rose) was described by Robinson asHelianthemum greenei in 1895 (Abrams1951). The type locality was describedas ‘‘a dry summit near the central partof the island of Santa Cruz’’ (Abrams1951). This nomenclature was retainedin the most recent treatment for thegenus (McClintock 1993).

Helianthemum greenei is a smallshrub in the rock-rose (Cistaceae)family. The plant grows to 0.5 m (18 in)tall and has alternate leaves coveredwith star-shaped hairs. The reddish,glandular stalks support yellow-petaledflowers to 2.5 cm (1 in) wide. The fruitis a pointed capsule 0.6 cm (0.25 in)long. A more abundant species found onthe islands, Helianthemum scoparium,is similar in appearance, but is notglandular-hairy and has greenish stalksand smaller fruits (Hochberg 1980b).

McMinn (1951) and later Thorne(1967) reported seeing Helianthemumgreenei on San Miguel Island, but nocollections exist from that island in

herbaria (Hochberg et al. 1980b, Wallacen.d.). Two collections of the plant weremade from Santa Rosa Island by Eplingand Erickson and Dunn in the 1930’s(Wallace 1985), but no collections onSanta Rosa Island have been made sincethat time, despite recent surveys.Helianthemum greenei was reportedfrom the northeast side of Black JackMountain on Santa Catalina Island byThorne (1967) in 1966. No collectionshave been made at this locality but apopulation of three individuals wasrecently reported from there (JanetTakara, Catalina Island Conservancy,pers. comm. 1994). Habitat for the planton Santa Catalina Island is being grazedby goats, mule deer, and bison, and isbeing rooted by pigs.

In addition to the one population onSanta Catalina Island, Helianthemumgreenei is currently known from 14populations on Santa Cruz Island. Thetaxon is found in open, exposed areas inchaparral, coastal sage scrub, and islandpine forest. In 1980, prior to sheepremoval from TNC lands on Santa CruzIsland, Hochberg et al. (1980b) foundthat, of ten populations, two had severaldozen individuals, and six others hasfewer than six individuals. Hochberg etal. (1980b) indicated that the plant iseliminated by intense feral animaldisturbance, and noted that thepopulation recorded by Abrams andWiggins in 1930 at Pelican Bay has notbeen relocated. The BRD sponsoredsurveys in 1995 and 1996 reported 14populations, ten of which had nine asthe mean number of plants and four hadpopulations that ranged from 500 to1,000 (McEachern and Wilken 1996).The number of individuals was clearlyrelated to recent fire history with the tensites having few individuals beingunburned, and four populations with amean number of 663 having burned in1994 (McEachern and Wilken 1996).

Helianthemum greenei is vulnerableto soil damage, altered fire frequenciesand intensities, and rooting by feralpigs.

Malacothamnus fasciculatus var.nesioticus (Santa Cruz Islandbushmallow) was described byRobinson in 1897, as Malvastrumnesioticum, based on material collectedby Greene in 1886 (Robinson 1897).This taxon has been placed in severaldifferent genera, as Malacothamnusnesioticus (Abrams 1910), Sphaeralceanesiotica (Jepson 1925), Sphaeralceafasciculata var. nesiotica (Jepson 1936),and Malvastrum fasciculatum var.nesioticum by McMinn (Kearney 1951).Kearney (1951) published thecombination Malacothamnusfasciculatus var. nesioticus. Bates (1993)did not recognize var. nesioticus as


being distinct noting thatMalacothamnus fasciculatus is a highlyvariable species ‘‘with many indistinctand intergrading local forms.’’ Of var.nesioticus, Bates (1993) notes that thetaxon is essentially indistinguishablefrom the mainland var. nuttallii.However, recent studies on the geneticsof Malacothamnus have determined thatvar. nesioticus is a distinct variety(Swenson et al. 1995), and it isrecognized as such in the Flora of SantaCruz Island (Junak et al. 1995).

Malacothamnus fasciculatus var.nesioticus is a small soft-woody shrubin the mallow (Malvaceae) family. Theplant reaches up to 2 m (6 ft) tall, andhas slender branches covered with star-shaped hairs. The palmately shapedleaves are dark green on the uppersurface and gray on the lower surface.The rose-colored flowers are up to 3.75cm (1.5 in) broad and scattered alongthe ends of the branches (Hochberg et al.1980b). It is differentiated from themainland var. nuttallii by its bicoloredleaves and genetic distinction (Swensonet al. 1995).

Malacothamnus fasciculatus var.nesioticus was already rare by the turnof the century when Greene wrote thatthe plant was ‘‘rare; only two bushesseen, and these under the protection oflarge opuntias; perhaps thus kept fromthe sheep’’ (Hochberg et al. 1980a).Malacothanmus fasciculatus var.nesioticus is currently known from twosmall populations on Santa Cruz Islandwhere it occurs within a coastal sagescrub community (Wilken 1996). Onepopulation of less than 50 individuals(10 clones) is located on the west shoreof the island near the historic ChristyRanch. The second population wasdiscovered in 1993 in the Central Valleynear the University of California FieldStation. Recent genetic analyses of theCentral Valley population indicatedthat, although there are 19 individualshrubs, they consist of only 3 genotypesor 3 clones (Swensen et al. 1995).Malacothamnus fasciculatus var.nesioticus is threatened by soil loss,habitat alteration, and feral pig rooting.

Malacothrix indecora (Santa CruzIsland malacothrix) was described byGreene (1886) as Malacothrix indecorabased on specimens collected from‘‘islets close to the northern shore’’ ofSanta Cruz Island (Greene 1886). In1957, Williams published thecombination Malacothrix foliosa var.indecora (Ferris 1960). Munz (1974)subsequently synonymized the taxonwith Malacothrix foliosa. However,Ferris (1960) and others (Smith 1976,Davis 1980) continued to recognize thetaxon as a separate species with thename Malacothrix indecora. The latternomenclature was retained in the most

recent treatment of the genus (Davis1993).

Malacothrix indecora is an annualherb in the aster (Asteraceae) family.The 20 to 40 cm (8 to 16 in) tall stemssupport numerous broadly lobed fleshyleaves with blunt tips. The greenishyellow flowers are in hemispheric headssurrounded by linear bracts (Hochberg1980b; Scott in Junak et al. 1995). Twoother annual species of Malacothrixoccur on the same islands asMalacothrix indecora; however, theachenes (seeds) of Malacothrix similisare topped with 18 teeth and 1 bristleand Malacothrix squalida is toppedwith irregular teeth and no bristle,whereas Malacothrix indecora hasneither of these features (Scott in Junaket al. 1995).

Historical collections of Malacothrixindecora were made from severallocations on the northeast shore of SanMiguel Island, and on Prince Island offof the north shore of San Miguel Islandby Greene, and, later, by Hoffmann(Hochberg et al. 1979; Davis 1987). In1978, Hochberg et al. (1979) observedthree populations. Halvorson et al.(1992) reported finding this species atone location during surveys in 1988 and1989, but no collections were made toconfirm identification of the taxon. OnSanta Cruz Island, Malacothrixindecora was collected near TwinHarbor by Williams in 1939 (Davis1987), but this population has not beenrelocated.

Malacothrix indecora is currentlyknown from two populations. Junakdiscovered one population in 1980 atBlack Point on the west end of SantaCruz Island. Several hundredindividuals were observed at this site byJunak in 1985 in exposed coastal flats,where it was associated with Santa CruzIsland buckwheat (Eriogonum grandevar. rubescens) and iceplant(Mesembryanthemum nodiflorum)(CNDDB 1991). On a subsequent trip in1989, only 50 plants were observed inthe same location (S. Junak, pers. comm.1994), and fewer than 100 plants in1996 (Wilken in litt. 1997). The secondpopulation of Malacothrix indecora,also comprised of fewer than 100 plants,was discovered on Santa Rosa Island in1996 at the mouth of Lobo Canyon(Wilken in litt. 1997).

Malacothrix indecora is threatened bysoil loss, habitat alteration andherbivory resulting from feral pigrooting, cattle grazing and trampling,and seabird activity. Historical habitatfor Malacothrix indecora on San MiguelIsland and Prince Island has beenaltered by seabird nesting activity.

Malacothrix squalida (islandmalacothrix) was described by Greenein 1886 from specimens collected from

an islet off the northern shore of SantaCruz Island (Greene 1886). In 1957,Williams published the combinationMalacothrix foliosa var. squalida; a yearlater, Ferris (1960) published thecombination Malacothrix insularis var.squalida. In 1959, Munz recognized thetaxon as Malacothrix squalida; however,14 years later, he synonymized it withMalacothrix foliosa (Munz 1974). In areview of insular species of Malacothrix,Davis (1980) recognized the taxon asMalacothrix squalida, a treatment herecently retained (Davis 1993).

Malacothrix squalida is an annualherb in the aster family. UnlikeMalacothrix indecora, the plant onlyreaches 9 cm (3.5 in) tall, and has linearto widely lanceolate leaves that areirregularly toothed or lobed. The lightyellow flowers are clustered inhemispheric heads 12 to 15 millimeters(mm) (0.5 to 0.6 in) long. Malacothrixindecora is the only other annualMalacothrix that occurs on the sameisland as Malacothrix squalida;however, the latter is a much largerspecies, and also differs in the achenecharacteristics previously mentioned(Junak et al. 1995).

Malacothrix squalida has beencollected from two locations along thenorth shore of Santa Cruz Island; Greenecollected it near Prisoner’s Harbor in1886, but the species was not seen onthe island again until Philbrick andBenedict collected it in 1968 near PotatoHarbor where sheep overgrazing is amajor problem (Rutherford and Thomas1994). On Middle Anacapa Island, theplant was first collected by Martin Piehlin 1963, and more recently in 1978 and1986. The plant was known from severalsmall colonies atop coastal bluffs on theeast end of the island. Surveys by Junakand Davis in 1989 failed to find anyindividuals, however, this may havebeen due to the drought that year (S.Junak, pers. comm. 1994). AlthoughMalacothrix squalida has not been seenin recent years, all historical localitiesand potential habitat for the specieshave not been inventoried.

All of the historical localities forMalacothrix squalida are impacted bysoil loss, habitat alteration, sheepgrazing, and feral pig rooting. Anyextant populations are also likely to bethreatened by these factors. Seabirdnesting may have localized impacts tosome populations on Middle AnacapaIsland.

Phacelia insularis ssp. insularis(island phacelia) was described byMunz in 1932 based on plants growing‘‘on sand dunes at northeastern part ofSanta


Rosa Island’’ (Munz 1932). Jepsonpublished the new combinationPhacelia curvipes var. insularis in 1943.After examining specimens from coastalnorthern California and determiningtheir affinity to the island plants,Howell (1945) re-elevated the taxon tospecific level, separating out thenorthern California plants as Phaceliainsularis var. continentis, leavingPhacelia insularis var. insularis to referto the island plants. In 1951, Abrams,who did not have access to collectionsof Phacelia from northern California,included the taxon in the description ofPhacelia divaricata, a taxon common insouthern California. In 1959, Munzpublished the new combinationPhacelia divaricata var. insularis.Constance agreed with Howell’sinterpretation and has referred to thetaxon as Phacelia insularis var. insularis(Constance 1979). This nomenclaturewas retained in the latest treatment ofthe genus (Wilken et al. 1993).

Phacelia insularis ssp. insularis is adecumbent (reclining), branched annualof the waterleaf (Hydrophyllaceae)family. The short-hairy and glandularstems grow to 1.5 dm (6 in) high froma basal rosette of leaves. The smalllavender to violet, bell-shaped flowersare borne in loose cymes. Phaceliainsularis var. insularis can bedistinguished from the other species ofPhacelia on the islands based on thehastate leaf shape with basal lobes. Theother Phacelia have pinnately dividedor undivided but ovate leaves.

Phacelia insularis ssp. insularisoccurs on Santa Rosa Island and SanMiguel Island. Clifton Smith collectedthe species at Carrington Point on SantaRosa Island in 1973, where SarahChaney also found the species in 1994.In subsequent surveys 31 plants werereported from this site (Rindlaub 1994).On San Miguel Island, Phaceliainsularis ssp. insularis was collected byHoffmann in 1930 and by Munz in 1932.It was not collected again until 1978,when four populations were found(Hochberg et al. 1979). Drost relocatedone of these sites on a bluff aboveCuyler Harbor in 1984 (Halvorson et al.1992). NPS staff has been watching forthe taxon on San Miguel Island, but ithas not been seen. The population onSanta Rosa Island is currently the onlyknown occurrence. Phacelia insularisssp. insularis is found within the islandgrassland community which isdominated by alien grasses, includingslender wild oat (Avena barbata), wildoat (Avena fatua), ripgut (Bromusdiandrus), and soft chess (Bromushordeaceus), with scattered nativebunchgrasses, shrubs, and herbs(Hochberg et al. 1979).

Phacelia insularis ssp. insularis isthreatened by soil damage, competitionwith non-native grasses, and habitatalteration caused by cattle grazing, andelk and deer browsing.

Thysanocarpus conchuliferus (SantaCruz Island fringepod) was described byGreene in 1886 based on material heand Brandegee collected where theyfound it ‘‘common on mossy shelvesand crevices of high rocky summits andnorthward slopes’’ on Santa Cruz Island(Greene 1886b). Four decades later,Jepson published the new combinationThysanocarpus laciniatus var.conchuliferus as one of three varieties ofThysanocarpus laciniatus (Jepson1925). Later, Abrams (1944) treated theplant as a species. Munz, however,considered it to be one of six varietiesof Thysanocarpus laciniatus (Munz andKeck 1973). In the most recent treatmentof the genus, Rollins treated the plant asa species (Rollins 1993).

Thysanocarpus conchuliferus is asmall delicate annual herb in themustard (Brassicaceae) family. The oneto several branches grow 5 to 12.7 cm(2 to 5 in) high. The narrow, linearlylobed leaves alternate along the stems,which terminate in a raceme of minutepink to lavender flowers. While allmembers of this genus have round,flattened fruits with wings,Thysanocarpus conchuliferus is theonly species in the genus with a bowl-shaped fruit; this taxon is also smallerin stature than Thysanocarpuslaciniatus, which occurs in the samehabitat (Wilken in litt. 1997).

In 1932, Ralph Hoffmann reportedthat Thysanocarpus conchuliferus was‘‘frequent * * * from the north shore tothe southwest portion of the island’’(Hochberg et al. 1980a). Fourteenhistorical locations are known fromherbarium records. In 1980, eight ofthese populations were relocated(Hochberg et al. 1980b). In 1991, plantswere found at six of these locations, butno plants were found at five other sites(Klinger 1994b). In 1993, no individualswere found at any of the 14 reportedlocations. Survey reports indicate that,in addition to abundant rainfall thatmay have increased competition fromalien grasses, rooting by feral pigs wasobserved at all 14 locations (Klinger1994b). No verifiable observations ofthis species have been made in over 2years, but all historic locations have notbeen revisited (Wilken in litt. 1997).

Thysanocarpus conchuliferus occurson rocky outcrops on ridges and canyonslopes, and is associated with a varietyof herbs, ferns, grasses, dudleya, andSelaginella (Santa Barbara BotanicGarden 1994). All of the historicallocalities for Thysanocarpus

conchuliferus are impacted by soil loss,habitat alteration and predationresulting from feral pig rooting. Anyextant populations are also likely to bethreatened by these factors.

Because all 13 taxa occur only assmall, isolated populations with fewindividuals, these plant species are alsomore vulnerable to extinction by suchrandom events as storms, drought, orlandslide. The small populations andfew individuals may also make thesetaxa vulnerable to reduced reproductivevigor.

Previous Federal ActionFederal action on these plants began

as a result of section 12 of theEndangered Species Act of 1973, whichdirected the Secretary of theSmithsonian Institution to prepare areport on those plants considered to beendangered, threatened, or extinct in theUnited States. This report, designated asHouse Document No. 94–51, waspresented to Congress on January 9,1975. In that document, Arabishoffmannii, Castilleja mollis, Galiumbuxifolium, Gilia tenuiflora ssp.hoffmannii, and Berberis pinnata ssp.insularis were considered to bethreatened, and Dudleya nesiotica andMalacothamnus fasciculatus var.nesiotica (as Malacothamnusfasciculatus) were considered to beendangered. The Service published anotice in the July 1, 1975, FederalRegister (40 FR 27823) of its acceptanceof the report of the SmithsonianInstitution as a petition within thecontext of section 4(c)(2) (petitionprovisions are now found in section4(b)(3) of the Act) and its intentionthereby to review the status of the planttaxa named therein. On June 16, 1976,the Service published a proposal in theFederal Register (42 FR 24523) todetermine approximately 1,700 vascularplant species to be endangered speciespursuant to section 4 of the Act.Dudleya nesiotica was included in theJune 16, 1976, Federal Registerdocument.

General comments received inrelation to the 1976 proposal weresummarized in an April 26, 1978,Federal Register publication (43 FR17909). The Endangered Species ActAmendments of 1978 required that allproposals over 2 years old bewithdrawn. A 1-year grace period wasgiven to those proposals already morethan 2 years old. In the December 10,1979, Federal Register (44 FR 70796),the Service published a notice ofwithdrawal of the portion of the June 6,1976, proposal that had not been madefinal, along with four other proposalsthat had expired.


The Service published an updatednotice of review for plants on December15, 1980 (45 FR 82480). This noticeincluded Arabis hoffmannii, Berberispinnata ssp. insularis, Castilleja mollis,Dudleya nesiotica, and Malacothamnusfasciculatus var. nesiotica as category 1taxa. Category 1 taxa were those forwhich the Service had on filesubstantial information on biologicalvulnerability and threats to supportpreparation of listing proposals.Arctostaphylos confertiflora, Galiumbuxifolium, and Gilia tenuiflora ssp.hoffmannii were included as category 2taxa. Category 2 taxa were those forwhich data in the Service’s possessionindicate listing is possibly appropriate,but for which substantial data onbiological vulnerability and threats werenot currently known or on file tosupport proposed rules. On February 28,1996, the Service published a notice ofreview in the Federal Register (61 FR7596) that discontinued the designationof category 2 species as candidates.

On November 28, 1983, the Servicepublished in the Federal Register asupplement to the Notice of Review (48FR 53640), in which Arabis hoffmanniiwas listed as a category 1* taxon, theasterisk indicating that the species wasbelieved to be extinct. In the samenotice, Castilleja mollis, Dudleyanesiotica, Gilia tenuiflora ssp.hoffmannii, Helianthemum greenei,Berberis pinnata ssp. insularis (asMahonia), Malacothamnus fasciculatus,Phacelia insularis var. insularis, andThysanocarpus conchuliferus wereincluded as Category 2 candidates.

The plant notice was revised again onSeptember 27, 1985 (50 FR 39526). Inthat notice, all taxa maintained theirprevious status. On February 21, 1990(55 FR 6184), the plant notice was againrevised. In this notice, Arabishoffmannii was included as a category1 candidate, as individuals of this taxonhad been rediscovered since theprevious Notice of Review.Arctostaphylos confertiflora, Castillejamollis, Dudleya nesiotica, Galiumbuxifolium, Gilia tenuiflora ssp.hoffmannii, Helianthemum greenei,Berberis pinnata ssp. insularis,Malacothamnus fasciculatus, Phaceliainsularis var. insularis, andThysanocarpus conchuliferus wereincluded as category 2 candidates.Malacothrix indecora was included inthe February 21, 1990, notice for thefirst time as a category 2 candidate.

The plant notice was revised onSeptember 30, 1993 (58 FR 51144). Inthis notice, Arabis hoffmannii,Arctostaphylos confertiflora, Castillejamollis, Galium buxifolium, Giliatenuiflora ssp. hoffmannii, Berberis

pinnata ssp. insularis, Malacothamnusfasciculatus var. nesioticus, Malacothrixindecora, Phacelia insularis var.insularis, and Thysanocarpusconchuliferus were included as category1 candidates. Dudleya nesiotica andHelianthemum greenei were included ascategory 2 candidates; Malacothrixsqualida was included for the first timeas a category 2 candidate.

On July 25, 1995, the Servicepublished a proposed rule in theFederal Register (60 FR 37993) to listArabis hoffmannii, Arctostaphylosconfertiflora, Berberis pinnata ssp.insularis, Castilleja mollis, Dudleyanesiotica, Galium buxifolium, Giliatenuiflora ssp. hoffmannii,Helianthemum greenei, Malacothamnusfasciculatus var. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis var. insularis, andThysanocarpus conchuliferus asendangered. Also included in thisproposed rule were Dudleyablochmaniae ssp. insularis, Dudleya sp.nov. ‘‘East Point,’’ and Heucheramaxima as endangered. Based uponnew information received sincepublishing the proposed rule, theproposed listing of the latter three taxahas been withdrawn by the Service asannounced in a separate FederalRegister notice published concurrentlywith this final rule.

Section 4(b)(3)(B) of the Act requiresthe Secretary to make certain findingson pending petitions within 12 monthsof their receipt. Section 2(b)(1) of the1982 amendments further requires thatall petitions pending on October 13,1982, be treated as having been newlysubmitted on that date. This was thecase for Arabis hoffmannii, Castillejamollis, Dudleya nesiotica, Galiumbuxifolium, Gilia tenuiflora ssp.hoffmannii, Berberis pinnata ssp.insularis, and Malacothamnusfasciculatus var. nesioticus because the1975 Smithsonian report had beenaccepted as a petition. On October 13,1983, the Service found that thepetitioned listing of these species waswarranted, but precluded by otherpending listing actions, in accordancewith section 4(b)(3)(B)(iii) of the Act;notification of this finding waspublished on January 20, 1984 (49 FR2485). Such a finding requires thepetition to be recycled, pursuant tosection 4(b)(3)(C)(I) of the Act. Thefinding was reviewed in October of 1984through 1993. Publication of theproposed rule constituted the warrantedfinding for these species.

The processing of this final rulefollows the Service’s fiscal year 1997listing priority guidance published inthe Federal Register on December 5,

1996 (61 FR 64475). The guidanceclarifies the order in which the Servicewill process rulemakings following tworelated events: (1) the lifting, on April26, 1996, of the moratorium on finallistings imposed on April 10, 1995(Public Law 104–6), and (2) therestoration of significant funding forlisting through the Omnibus BudgetReconciliation Act passed on April 26,1996, following severe fundingconstraints imposed by a number ofcontinuing resolutions betweenNovember 1995 and April 1996. Theguidance calls for giving highest priorityto handling emergency situations (Tier1) and second highest priority (Tier 2)to resolving the listing status ofoutstanding proposed listings. This finalrule falls under Tier 2.

Summary of Comments andRecommendations

In the July 25, 1995 proposed rule andassociated notifications, all interestedparties were requested to submit factualreports or information that mightcontribute to the development of a finalrule. Appropriate Federal agencies,State agencies, local governments,scientific organizations, and otherinterested parties were contacted andrequested to comment. Newspapernotices inviting public comment werepublished on August 5, 1995 in theSanta Barbara News-Press and onAugust 11, 1995 in the Los AngelesTimes. The comment period closed onOctober 9, 1995. A second commentperiod was opened from January 22,1997 to February 21, 1997 (62 FR 3263)because of substantive changes in thestatus and conservation efforts for thebenefit of several of the taxa in the rule.

In compliance with Service policy oninformation standards under the Act (59FR 34270: July 1, 1994), the Servicesolicited the expert opinions of threeappropriate and independent specialistsregarding pertinent scientific orcommercial data and assumptionsrelating to the taxonomy, populationstatus, and supportive biological andecological information for the 16proposed plants. Comments from thesereviewers included corrections to therange of the species, the acceptance ofthe taxonomic determination for one ofthe species, and additional informationon populations and status for several ofthe species in the rule. These revisionshave been incorporated into this finalrule.

The Service received 15 lettersconcerning the proposed rule during thecomment periods, including those ofone State agency and 14 individuals orgroups. Eleven commenters supported


the listing proposal, one opposed it, andthree were neutral.

The Service has reviewed all of thewritten comments received during bothcomment periods. Some specificcomments were received pertaining tothe three taxa (Dudleya blochmaniaessp. insularis, Dudleya sp. nov. ‘‘EastPoint,’’ and Heuchera maxima) beingwithdrawn in a separate FederalRegister notice published concurrentlywith this rule. These comments wereincorporated into the notice ofwithdrawal. General comments receivedon all 16 taxa included in the proposedrule are addressed here. Severalcomments dealt with matters of opinionor legal history that were not relevant tothe listing decision. Several commentersprovided additional information that,along with other clarifications, has beenincorporated into the ‘‘Background’’ or‘‘Summary of Factors’’ sections of thisfinal rule. Opposing and technicalcomments on the rule have beenorganized into specific issues. Theseissues and the Service’s response toeach issue are summarized as follows:

Issue 1: One commenter asserted thatthe proposed action would result in ataking of private property, that the Vailand Vickers’ rights to graze on SantaRosa Island would be compromised, andthat the Service must consider theeconomic impact, including the cost ofpurchasing the remaining portion of the25 year lease, if the plants are listed.

Service Response: Santa Rosa Islandhas been the property of the UnitedStates Government since its acquisitionin 1986. The National Park andRecreation Act of 1978, as amended (16U.S.C. 410ff–1(d)(1)) states that theowner of a property acquired for aNational Park may retain the right of useand occupancy of all or a portion ofsuch property as the owner may elect.The warranty deed of sale between theFederal government and Vail andVickers specifies a right reserving to thegrantors (Vail) the right of theresidential use and occupancy for aperiod of 25 years under the terms andconditions set forth in Exhibit ‘‘A.’’ Thereserved premises were defined inExhibit ‘‘A’’ as three rectangular areas,including the ranch house, totaling 3 ha(7.6 ac) that shall be used only for non-commercial residential purposes (NPS1987). The conditions of 16 U.S.C. 410–1(d)(2) state that any property to whicha right of use and occupancy was notreserved by the former owner may beleased by the Secretary at the request ofthe former owner so long as the use ofthe property is compatible with theadministration of the park and with thepreservation of the resources therein. Nolease agreement exists between Vail and

Vickers and the NPS, and no grazingrights were retained by the grantors inthe deed of sale or in any documents orcommunications provided to the Serviceby the NPS. Grazing has been allowedthrough the issuance of discretionaryrenewable 5-year Special Use Permitsthat are separate and distinct from theconditions of sale. Uner 16 U.S.C. 410–1(d)(1), the Secretary was allowed totender to the prior owner the amountequal to the fair market value of thatportion which remains unexpired foronly the lands in the area specified inthe conditions of use and occupancy.The specified conditions of use andoccupancy will not be affected by thislisting action.

In addition, under section 4(b)(1)(A)of the Act, a listing determination mustbe based solely on the best scientificand commercial data available aboutwhether a species meets the Act’sdefinition of a threatened or endangeredspecies. The legislative history of thisprovision clearly states the intent ofCongress to ‘‘ensure’’ that listingdecisions are ‘‘based solely on biologicalcriteria and to prevent non-biologicalconsiderations from affecting suchdecisions,’’ H. R. Rep. No. 97–835, 97thCong. 2d Sess. 19 (1982). As furtherstated in the legislative history,‘‘Applying economic criteria * * * toany phase of the species listing processis applying economics to thedeterminations made under section 4 ofthe Act and is specifically rejected bythe inclusion of the word ‘‘solely’’ inthis legislation,’’ H. R. Rep. No. 97–835,97th Cong. 2d Sess. 19 (1982). Becausethe Service is precluded fromconsidering economic impacts in a finaldecision on a proposed listing, theService has not examined such impacts.

Issue 2: One commenter stated thatthe proposed listing action during thelisting moratorium was illegal.

Service Response: The listingmoratorium prohibited the Service fromfunding any actions for final listingdeterminations. It did not affect thepreparation and publication of proposedrules. The Service adhered strictly to theconditions of the moratorium andceased related listing activity once theproposed rule process was finished.

Issue 3: Two commenters stated thatthe Service did not give proper credenceto data presented by ranchers, otherland managers, and experts and that theService gave more weight to informationprovided by California Native PlantSociety volunteers.

Service Response: Starting in 1992,the Service requested from the public,in writing and in meetings, informationon the status of the plants and any datathat would assist the Service in making

a determination in this action. All dataprovided prior to and during the publiccomment periods or in the publicmeetings were included in the analysisto prepare the proposed rule and thisfinal rule. The Service is not aware ofany field data collected by the CaliforniaNative Plant Society.

Issue 4: Two commenters stated thatabrupt termination of livestock grazingwould be extremely harmful to theecosystems and plant communities ofSanta Rosa Island, specifically byincreasing the potential for weedinvasion.

Service Response: The Service hasnever advocated and is not proposingthe abrupt termination of livestockgrazing on Santa Rosa Island. AConservation Strategy Team (Team)composed of Service, NPS, and BRDbiologists have prepared a ConservationStrategy for Santa Rosa Island thatrecommends a gradual reduction ofcattle and horses, with total removal by2011, the expiration date of the reservedright of use and occupancy (Coonan etal. 1996). Santa Rosa Island has thesmallest proportion of weed species tonative species ratio of any of theChannel Islands and the NPS has beenactively managing the aggressiveinvasive aliens. Santa Rosa Island has98 non-native plants and Santa CruzIsland has 170 non-native plants (Junak1996). The life history and reproductivecharacteristics of the weedy species onSanta Rosa Island are adaptations thatallow them to take advantage of freshlydisturbed sites, such as those that arecreated by the current domesticlivestock management on the island.Surveys conducted by the NPS showthat the weed distribution correspondswith the areas that have the highestcattle use. It was the conclusion of theTeam that the removal of the non-nativegrazers and browsers (including deerand elk) from the island would decreasethe amount of open habitat available forweed invasion and would thereforeresult in a decline in weed numbers(Coonan et al. 1996). An additionalbenefit to the island ecosystem from thereduction and eventual elimination ofgrazing and browsing is that shrubwould reoccupy the introducedgrasslands that are artificiallymaintained by current grazing practices(Coonan et al. 1996).

Issue 5: One commenter claimed thatthe proposed rule seemed to imply thatall grazing is overgrazing. Thecommenter objected to the statementthat ‘‘the ultimate control on populationsizes for livestock on islands has beenstarvation’’ and asserted that the rulecharacterized cattle grazing as a diseaseor predation rather than utilization.


Service Response: The Service did notrefer to all grazing as overgrazing.Grazing during drought conditions hasresulted in severe damage to the nativevegetation and could be consideredovergrazing, especially when livestockstarvation has occurred. Such events aredescribed and documented in the‘‘Background’’ section of this rule.

The listing provisions of the Actprovide that a species may bedetermined to be endangered orthreatened species due to one or moreof the five factors described in section4(a)(1) of the Act. One of the factors is‘‘Disease or Predation’’ and the Servicenormally addresses the effects ofherbivory by any animal, includinglivestock, in the discussion of thisfactor.

Issue 6: One commenter stated thatthere was a lack of evidence of therelationship between grazing and theplants in question.

Service Response: The Service hasused over 100 references in preparingthe final rule. Three levels ofinformation are available: (i) Anextensive body of literature on theimpacts of non-native mammals toinsular vegetation and plant species, (ii)the results of long-term vegetationmonitoring by the NPS, and, (iii)specific observations on specific plants,e.g., deer and elk impacts to Castillejamollis and others cited in the ‘‘FactorsAffecting the Species’’ section of thisrule. This rule also cites informationconcerning how the condition of thehabitat upon which these speciesdepend has been degraded by grazingand browsing.

In addition, internationalconservation biologists familiar withisland biology recognized the damagethat non-native mammals cause toinsular biota when the Society forConservation Biology unanimouslypassed a resolution to promote theelimination of non-native mammalsfrom all of the islands off the coast ofwestern North America (Tershy et al.1994).

Issue 7: One commenter wasconcerned that the rule stated thatincreased sedimentation resulted fromlivestock grazing but that currentsedimentation rates were not presented.

Service Response: Data on currentsedimentation rates has been added tothe rule. A sediment and pollen analysishas documented both the increase insedimentation and the type conversionof habitat from brush to grass sincegrazing was introduced to the island.The current sedimentation level is anorder of magnitude greater than thatprior to the introduction of grazing.Please see the Factor A discussion

under the ‘‘Factors Affecting theSpecies’’ section for further details.

Issue 8: One commenter stated that anexisting range management plan wasdesigned to protect resources and thatthe Service claimed that the rangemanagement plan currently in use forSanta Rosa Island ‘‘does not addressprotection of the proposed taxa.’’

Service Response: The Servicemaintains that the range managementplan does not address protection of theproposed taxa. Although the plansuggests that monitoring and studiesshould occur, the Service does notconsider potential or actual studies as amanagement action that would provideprotection for the taxa underconsideration.

Issue 9: Two commenters expressedconcern that the Service is notproposing critical habitat for the taxathat occur on Santa Rosa Island.

Service Response: The Service hasconsidered the designation of criticalhabitat for these species and determinedthat it is not prudent to establish criticalhabitat. Because of the few, smallpopulations of each of the species onFederal land, any determination ofadverse modification would also resultin jeopardy. Thus, the establishment ofcritical habitat would provide noadditional benefit over that of thejeopardy standard contained in section7 (a)(2) of the Act. Please see the‘‘Critical Habitat’’ section of this rule forfurther information.

Issue 10: One commenter suggestedthat the listing of these species willseverely limit management options.

Service Response: The Servicebelieves that an array of managementoptions are available to the NPS that areconsistent with NPS regulations, policy,and guidelines.

Issue 11: One commenter raised theconcern that the Service was required tocomply with the NationalEnvironmental Policy Act (NEPA) andmust also prepare a Takings ImplicationAssessment, as directed by PresidentialExecutive Order 12630, before issuing afinal rule.

Service Response: NEPA is addressedunder the section entitled ‘‘NationalEnvironmental Policy Act’’ in this rule,as it was in the proposed rule. TheAttorney General has issued guidelinesto the Department of the Interior(Interior) on implementing ExecutiveOrder 12630 (Governmental Actions andInterference with ConstitutionallyProtected Property Rights). Under theseguidelines, a special rule applies whenan agency within Interior is required bylaw to act without exercising its usualdiscretion, that is, to act solely uponspecified criteria that leave the agency

no choice. In the present context, theService’s action cannot considereconomic information in reaching alisting decision.

In such cases, the Attorney General’sguidelines state that TakingImplications Assessments (TIAs) shallbe prepared after, rather than before, theagency makes the decision in which itsdiscretion is restricted. The urpose ofthe TIAs in these special circumstancesis to inform policy makers of areaswhere unavoidable taking exposuresexist. Such TIAs must not be consideredin the making of administrativedecisions that must, by law, be madewithout regard to their economicimpact. In enacting the EndangeredSpecies Act, Congress required thatlistings be based solely on scientific andcommercial data showing whether ornot the species are in danger ofextinction. Thus, by law and by U.S.Attorney General guidelines, the Serviceis forbidden to conduct TIAs prior tolisting.

Issue 12: One commenter indicatedthat the Service must undertake a morecomprehensive study of the proposedtaxa on Santa Rosa Island.

Service Response: Section 4(b)(1)(A)of the Act requires that a listingdetermination on whether a speciesmeets the Act’s definition of athreatened or endangered species bebased on the best scientific andcommercial data available. The Servicehas considered all available informationregarding the past, present, and futurethreats faced by the taxa in this rule,including that submitted during thepublic comment periods, in making thislisting determination.

Issue 13: Two commenters inquiredabout the justification for a secondpublic comment period. One commenterstated that the Service did not have thestatutory authority to considercomments and information after thestatutory deadline for issuing a finaldetermination on the proposed plants.One commenter suggested that theService should have published a moredetailed account of the newinformation.

Service Response: The processing ofthis final rule follows the Service’slisting priority guidance published inthe Federal Register on December 5,1996 (61 FR 64475). The processing ofa final listing is a Tier 2 action underthis guidance (61 FR 64479). TheService explained in the FederalRegister notification for reopening ofthe comment period that there wassignificant new information regardingthe status of several of the taxa underconsideration for listing that may affectthe determination of their listing. The


Congressional moratorium on fundingfor final rule determinations preventedthe Service from conforming to statutorydeadlines. The Federal Register noticeprovided an opportunity for the publicto request any information that wouldassist them in preparing a response. TheService is obligated to consider the bestavailable scientific and commercialevidence in deciding whether to list aspecies.

Summary of Factors Affecting theSpecies

After a thorough review andconsideration of all informationavailable, the Service has determinedthat Arabis hoffmannii (Munz) Rollins,Arctostaphylos confertiflora Eastw.,Berberis pinnata Lag. ssp. insularisMunz, Castilleja mollis Pennell, Galiumbuxifolium Greene, Gilia tenuifloraBenth. ssp. hoffmannii (Eastw.) A.D.Grant & V.E. Grant, Malacothamnusfasciculatus (Torr. & A.Gray) Greenessp. nesioticus (B.L. Rob. in A. Gray)Kearney, Malacothrix indecora Greene,Malacothrix squalida Greene, Phaceliainsularis Munz var. insularis, andThysanocarpus conchuliferus Greeneshould be classified as endangeredspecies, and that Dudleya nesioticaMoran and Helianthemum greenei B.L.Rob. in A. Gray should be classified asthreatened species. Section 4 of theEndangered Species Act (16 U.S.C. 1531et seq.) and regulations (50 CFR part424) promulgated to implement thelisting provisions of the Act set forth theprocedures for adding species to theFederal lists. A species may bedetermined to be an endangered orthreatened species due to one or moreof the five factors described in section4(a)(1).

These factors and their application tothe 13 plant taxa in this rule are asfollows:

A. The Present or ThreatenedDestruction, Modification, orCurtailment of Its Habitat or Range

The primary threat to the speciesincluded in this rule is the ongoing lossof soils, because the soils are thefoundation for the unique islandecosystems and their endemic species.A significant increase in the rate of soilloss resulting in substantial alterationsof the natural habitats of these speciesbegan with the introduction of non-native sheep, goat, cattle, deer, elk,bison, and pigs on the various islands inthe early 1800’s. Soil erosion continuesto this day at a rate that remains anorder of magnitude greater than thatprior to the introduction of alienmammals (Cole and Liu 1994). Soil lossis a significant threat to most existing

populations of, and precludes seedlingestablishment for, Arabis hoffmannii,Arctostaphylos confertiflora, Berberispinnata ssp. insularis, Castilleja mollis,Dudleya nesiotica, Galium buxifolium,Gilia tenuiflora ssp. hoffmannii,Helianthemum greenei, Malacothamnusfasciculatus ssp. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis var. insularis, andThysanocarpus conchuliferus.

The deep incision of many canyonson Santa Rosa Island illustrates thedramatic loss of sediment and, byinference, entire riparian systems thatare virtually absent from the island.These incised arroyos cut into fine-grained alluvium built up by thousandsof years of deposition, and thoseincisions and the sedimentation haveleft a quantitative record of the shift ingeomorphic regimes resulting from largeherbivores denuding the landscape thatcontinues today (Cole and Liu 1994).

The increased loss of soils and theconsequent changes in vegetation due tothe introduction of alien mammals havebeen documented from sediment andpollen records in a soil core dating back5,200 years from the Old Ranch Canyonmarsh on eastern Santa Rosa Island(Cole and Liu 1994). Rates ofsedimentation prior to the introductionof livestock averaged 0.7 mm/year (yr)(0.035 in/yr), increased to 23 mm/yr (0.9in/yr) during the peak sheep grazing era,and now average 13.4 mm/yr (0.13 in/yr), 19 times greater than that prior tograzing (Cole and Liu 1994).

Pollen records demonstrate that theconversion of brushland to grasslandoccurred with the onset of ranching inthe early 1800’s. This change invegetation is reflected by an increasedabundance of grass pollen and adecrease in pollen from the mint andpea families in the soil core (Cole andLiu 1994). Coastal sage scrub isdominated by sage species (mintfamily), lupines and deervetch (peafamily). Shallow rooted non-nativegrasses now dominate the island and aremuch less efficient as slope stabilizersthan the deep-rooted native shrubs theyhave replaced.

Continued grazing has prevented theability of the shrub species to recoverand reestablish their function as animportant source of erosion control.Large sediment loads remain asignificant problem as illustrated by therecent attempts to stabilize soils atJohnson’s Lee on the south side of SantaRosa Island, where rice straw wattlesplaced along hillside contours trappedlarge volumes of sediment after only oneseason of rain (Sellgren 1994).

A comparison of historicaldescriptions of island vegetation with

current conditions also indicates thatlarge-scale habitat alterations caused bylarge numbers of non-native mammalson the islands resulted in significantloss of soils as well as changes in thestructure, composition, and richness ofplant communities. In 1883, Thompsonand West described the effects of sheepgrazing on Santa Cruz Island—‘‘Theisland becomes at some timesoverstocked, and may be said to be inthat condition much of the time. Theresult is that the grasses, being croppedso close, die out, and allow the loosenedsoil to be removed by wind and rain’’(Hochberg et al. 1980a). At that time,however, vegetation elsewhere on theisland was still relatively intact; Greenedescribed mixed forests of large-leavedmaple (Acer macrophyllum), live oak(Quercus agrifolia), black cottonwood(Populus trichocarpa), and willow(Salix laevigata) thriving in the canyons(Hochberg et al. 1980a). Anotheraccount was given by DelphineAdelaide Caire in 1933, who reflectedon the conditions of Santa Cruz Island—‘‘Its present natural beauty does notcome up to that of the past. The bed ofthe stream that skirts the Main Ranch onits way from Picacho Diablo was muchnarrower than it is today; mountainslopes were heavily wooded andcenturies-old oaks were numerous. Inthe course of years, rains haveaccomplished their ruinous work,carrying off a great amount of topsoil,the innumerable trails cut by sharpsheep trotters having been acontributing factor in such devastation’’(Hochberg et al. 1980a). The historicand current presence of non-nativeherbivores and pigs has reduced leaflitter and compacted and degraded thesoil structure, resulting in acceleratedrates of erosion (Klinger et al. 1994,Nishida 1994).

The importance of soils inmaintaining habitat for the taxa is foundnot only in their physical properties, butin their biotic properties as well.Healthy soils provide habitat for acomplex assemblage of soil organisms,including fragile microbial components,that assist in such processes as water-holding capacity, soil fertility, andnutrient cycling. These processes havebeen adversely affected by the activitiesof alien mammals. For instance, the lossof leaf litter from trampling and rootingchanges soil temperatures, increases theloss of moisture, reduces the humuslayers, and results in a reduced soilfauna (Bennett 1993). Breakdown oforganic material, transport of fungalspores, and nutrient recycling by soilmites have all been documented onSanta Catalina Island (Bennett 1993).


Soil mite diversity decreased withincreased disturbance, and resulted inimpoverished nutrient levels in the soil(Bennett 1993). A feature of arid landsoils, such as those in the islands, is thepresence of a cyanobacterial-lichencrust that facilitates stabilization ofsteep slopes and nutrient cycling(Belnap 1994). These crusts areextremely brittle during the dry summermonths and can be eliminated by theshattering influences of trampling bynon-native herbivores (Belnap 1994).Mycorrhizal associations are likely tooccur with most of the species in thisrule, and may have been damaged andtherefore function at reducedefficiencies (Painter in litt. 1997). Suchassociations function as extensions ofthe root system and are of particularimportance to arid land plant speciessuch as those in this rule. Damagedmycorrhizal associations reduce thehealth and vigor of their host species.

The large herds of grazing animalsthat shatter the crustal integrity of thesoil surface also result in dust coatingthe foliage of all the native vegetation.Dust negatively affects plants byreducing photosynthesis, respiration,transpiration, and complicatingpollination efficiency (Painter in litt.1997). Intense winds blow from thenorthwest that can be highly erosive.When the integrity of the natural habitatis disturbed there is an accelerated rateof erosion above that which wouldresult from just rain alone. Noopportunity for leaf litter or soil toaccumulate exists on the exposed ridgetops with continual non-native animaldisturbance (Clark et al. 1990).

Even after the agents that initiatederosion have been removed, loss of soilscontinues (Clark et al. 1990, Halvorson1993). Because both the biotic andphysical properties of the soils havebeen degraded or lost altogether, thesoils that remain behind provide poorconditions for seedlings to germinateand establish. On Santa Rosa Island, agrove of island oaks (Quercustomentella), a species of specialconcern, has shown few signs ofregeneration on soils severely affectedby erosion even after an exclosure wasbuilt to eliminate cattle, elk, and deer(Danielsen 1989a, 1989b). The zonebelow an Arabis hoffmannii populationon Santa Rosa Island is inhospitable toseed germination because of cattletrampling and soil churning (McEachernand Wilken 1996). Seed rain from thatpopulation falls onto areas that arehighly trampled and churnedeliminating any chance for populationexpansion from its precarious clifflocation. Arabis hoffmannii ismonocarpic and damage from trampling

may delay flowering, or even precludereproduction of trampled individuals.Flowers produced later in the seasonout of synchrony with pollinatoractivity results in lower seedproductivity (Painter in litt. 1997).

Wherever shrubs of Arctostaphylosconfertiflora have been browsed to forma canopy, the understory is heavilytrampled by deer and elk and thebedrock is eroding away around theroots (McEachern 1996, McEachern andWilken 1996). The soil from around theroots of Berberis pinnata ssp. insularison Santa Rosa Island, Dudleya nesioticaon Santa Cruz Island, andMalacothamnus fasciculatus ssp.nesioticus on Santa Cruz Island, isactively eroding (Wilken in litt. 1997).Dudleya nesiotica plants at Fraser Pointon Santa Cruz Island were observed tohave been preferentially rooted by pigsin 1995 and 1996 (Painter in litt. 1997,McEachern 1996, Wilken 1996). In 1993,when perhaps as much as 20 percent ofthe Carrington Point populations ofCastilleja mollis was consumed by deer,individual plants were excavated,leaving depressions in the sandy soilswhere plants had been observed 5months earlier (Sarah Chaney, NPS,pers. comm. 1993). More recentlyresearchers have documented that bothdeer and elk are damaging bothpopulations of Castilleja mollis(McEachern 1996). Galium buxifolium isthreatened on Santa Cruz Island wheretrampling and pig rooting along theseacliffs increases the likelihood ofslope failure (Hochberg et al. 1980).Unfenced portions of Gilia tenuiflorassp. hoffmannii on Santa Rosa Island areareas where cattle concentrate andchurn the soil (Painter in litt. 1997). AllHelianthemum greenei habitat isdamaged from rooting by pigs on SantaCruz Island (Wilken in litt. 1997). Therecent discovery of Malacothrixindecora on Santa Rosa Island includedthe observation that the prehistoricmidden that the plants were growing onwas being eroded from damage bylivestock (Painter in litt. 1997).

Seabirds occur in historic habitat forMalacothrix indecora on San MiguelIsland and its offshore islet PrinceIsland, and known sites for Malacothrixsqualida on Anacapa Island. Many ofthese bird species experienced severepopulation declines in the late 1960’sand early 1970’s as a result of DDT-related reproductive failures (Ingram1992). However, monitoring resultsindicate that populations of most ofthese birds have increased over the pastdecade. Seabirds use local vegetation toconstruct nests on cliff and blufftopsites, create localized soil disturbancesthat facilitate establishment of alien

plant species, and promote erosion ofcoastal bluffs. Seabird activity has beennoted on Middle Anacapa Island withinhabitat for Malacothrix squalida (S.Junak, pers. comm. 1994). The extent towhich such localized disturbance hasaffected this plant species is unknown.

Compaction of soils and crushing ofplants by vehicle traffic is an ongoingthreat to Gilia tenuiflora ssp.hoffmannii. The largest population ofGilia tenuiflora ssp. hoffmannii isbisected by a road. Another roadcontinues to damage habitat and plantsalong the fence line established toprotect the western snowy plover;however, the proposed closure of OldRanch Pasture to cattle and horses willremove the necessity to maintain a fenceat that location (NPS 1997).

B. Overutilization for Commercial,Recreational, Scientific, or EducationalPurposes

Unrestricted collecting for scientificor horticultural purposes and excessivevisits by individuals interested in seeingrare plants constitutes a potential threatto certain of the taxa in this rule. Inparticular, the collection of wholeplants or reproductive parts of thoseannual or herbaceous perennial taxawith fewer than 100 individuals,including Arabis hoffmannii, Berberispinnata ssp. insularis, Malacothamnusfasciculatus var. nesioticus, Malacothrixindecora, Malacothrix squalida, andThysanocarpus conchuliferus, couldadversely affect the genetic viability andsurvival of those taxa. In thehorticultural trade, Dudleya specieshave, in particular, been favoritecollection items. Dudleya nesiotica,though not in the trade, has beencultivated by Dudleya enthusiasts. Thelimited distribution of this taxon,combined with the additional threatsfrom non-native annuals and pigrooting, makes it vulnerable to suchenthusiasts who want the rare speciesfrom the wild.

C. Disease or predationDiseases are not specifically known to

threaten any of the taxa included in thisrule. All of the taxa included in thisproposal, with the exception of Berberispinnata ssp. insularis, have populationsthat are subject to predation by one ormore non-native mammals. Apparently,the roots of Berberis species are oftentoxic (Williams 1993), makingconsumption by feral pigs unlikely.Island endemic plant species lackdefensive attributes as protection fromgrazing and browsing. The impact ofthis predation to the overall statusvaries by species, with predation posingthe most signficance to those with the


fewest and most accessible populations.Current research on Santa Cruz Islandhas compared similar species from themainland and from the island inlivestock feeding preferences. Livestockconsistently preferred the island plantsand the study showed that all mainlandplants possessed at least one protectivecharacteristic in higher quantity thanthe similar island taxa, the quantity ofspines being the most notable quality.The researcher stated that ‘‘[i]slandplants possessed reduced levels ofchemical defenses, morphologicaldefenses, or both, and were morevulnerable to herbivory’’ (Bowen in litt.1997).

Historical records document thatovergrazing by sheep in the late 1800’sand early 1900’s highly degraded thevegetation of Santa Rosa Island. Therecords also point out that sheep died ofstarvation due to drought on the islandduring this time. During a later droughtin 1948, the island was so overgrazedthat it made the local news, stating that‘‘[h]ardly a sprig of green is to be seen.The tiny tufts of grass that have escapedthe hungry mouths of the herd arestunted and dead. Shrubs haveperished. [There were] * * * starvedlooking valley elk * * * [and] * * *prickly pears were gnawed down to theearth.’’ (Ainsworth 1948). Drought inthe late 1980’s decimated the elkpopulation (Vail and Vickers in litt.1996). Herbivory by non-nativeherbivores continues to threaten andeffectively arrest recovery of the nativevegetation and perpetuate thedominance of non-native grasses andherbs. Native island plants evolved inthe absence of grazing and browsing andsuffer from reduced productivity andlower reproductive success due to thepresence of alien herbivores.

In 1875, when sheep stocking onSanta Cruz Island was around 50,000head, botanist J.T. Rothrock reportedthat the island was so overgrazed that‘‘it was with difficulty that I could geteven a decent botanical specimen’’(Hobbs 1983). Although sheep grazinghas been removed as a current threat onall but eastern Santa Cruz Island, thedecades of overgrazing by sheep havereduced the reproductive capabilitiesand distribution of many of the taxaincluded in this rule. A review ofliterature pertinent to effects of sheep onisland vegetation is included inHochberg et al. (1980a). In addition,feral pigs, feral goats, feral sheep, deer,elk, horses, and bison currently occur inhabitats that support some populationsof all of the taxa included in this rule.The effects of defoliation on plantsinclude decreased above groundbiomass, fewer stems, lowered seed

production, reduced height of leavesand stems, decreased root biomass,reduced root length, decreasedcarbohydrate reserves, and reducedvigor (Heady in Willoughby 1986).

Clark et al. (1990) noted that mostindividuals of Arctostaphylosconfertiflora are browsed severely by elkand deer. During a recent populationsurvey it was observed that more than90 percent of all individuals ofArctostaphylos confertiflora wereaccessible to ungulates and werebrowsed at the growing tips (McEachernand Wilken 1996). The shape ofindividual shrubs has been modified asa result of browsing. Short-staturedshrubs have been hedged to the pointthat they do not grow above a certainheight. On shrubs that attained a tallerstature before browsing pressure becamesevere, all lower limbs and leaves havebeen stripped, resulting in a ‘‘lollipop’’or tree-shaped shrub. Browsing pressureon this species appears to have affectedits ability to reproduce, since not asingle seedling was observed during a1988 survey (Ronilee Clark, CaliforniaPark Service, pers. comm., 1988). Thisspecies does not have a root crown burlthat allows some mainland species totolerate low levels of defoliation, and,without protection from non-nativemammals, continued recruitment failureand reduced vigor may provecatastrophic for this species. Thiscondition was noted in a 1989 letter toDr. Peter Raven from the leadingauthority on the genus Arctostaphylos,Dr. Phillip Wells, who expressed hisconcern that the time remaining for thegrazing operation would precipitate theextinction of Arctostaphylosconfertiflora if some protection fromnon-native mammals was notimplemented (Painter in litt., 1997).

Specific examples of browsing orgrazing by alien mammals on other taxain this rule have been observed,including Arabis hoffmannii, Castillejamollis, Dudleya nesiotica, Giliatenuiflora ssp. hoffmannii,Helianthemum greenei, andThysanocarpus conchuliferus (Hochberget al. 1980b, McEachern and Wilken1996, Wilken 1996, Painter in litt. 1997).

Grazing can completely eliminateplants and prevent the supplement ofseed to the seed bank. Of the sixcollections of Gilia in the herbarium atthe Santa Barbara Botanic Garden, onlythe two collections made during April1941 show no signs of browsing. Theremaining four collections were madebetween the months of May and Junebetween 1963 and 1978, and all showsigns of having been browsed(Rutherford and Thomas, in litt. 1994).In 1993, Thomas visited one Gilia

population twice. During the first visitin April, the Gilia had not beenbrowsed, but by the second visit in May,the Gilia had been browsed (Thomas, inlitt. 1993). In response to such browsing,the annual Gilia forms multiple sidebranches, and although a branchedplant may produce a greater number offlowers, this does not necessarilyincrease the fecundity of the plant(Painter and Belsky 1993). Flowersproduced later in the season out ofsynchrony with pollinator activityresults in lower seed productivity(Painter in litt. 1977).

The Nature Conservancy has beenmonitoring population sizes for Arabishoffmannii on Santa Cruz Island since1990. In 1993, only 19 individuals wereobserved in the Centinela population;this represented a net loss of 13individuals from the previous year, withmortality of nine of those plants‘‘directly attributed to pig rooting’’(Klinger 1994a).

D. The Inadequacy of ExistingRegulatory Mechanisms

Under the Native Plant Protection Act(sec. 1900 et seq. of the Fish and GameCode) and the California EndangeredSpecies Act (sec. 2050 et seq.), theCalifornia Fish and Game Commissionhas listed Dudleya nesiotica and Galiumbuxifolium as rare and Berberis pinnatassp. insularis and Malacothamnusfasciculatus ssp. nesiotica asendangered. The remaining taxaincluded in this listing proposal are onList 1B of the California Native PlantSociety’s Inventory (Smith and Berg1988), indicating that, in accordancewith sec. 1901, chapter 10 of theCalifornia Department of Fish and GameCode, they are eligible for State listing.Both the Native Plant Protection Actand the California Endangered SpeciesAct prohibit the ‘‘take’’ of State-listedplants on private and State lands, exceptunder permit (sec. 1908 and sec. 2080of the Fish and Game Code). Privatelyowned lands that support populationsof the taxa in this rule include most ofSanta Cruz Island, 90 percent of whichis owned by TNC; the remaining 10percent is owned jointly by NPS. OnSanta Catalina Island, habitat forHelianthemum greenei occurs on landmanaged by the Catalina Conservancy, aprivate conservancy owned by theCatalina Island Company. In general,these State regulatory mechanismswould not likely be invoked, becausemajor changes in land use, such asdevelopment projects, are not likely tobe proposed on these properties.

The California Fish and GameCommission (Commission) alsoregulates hunting on private and public


lands by issuing permits for the take ofa specified number of animals andtaking measures to manage herd sizes.The Commission issues permits for deerhunting on Santa Catalina Island. In1993, the Commission issued 300 tagsfor deer hunting on the island. Pigs areconsidered livestock if they are fencedor marked, but considered wild game ifthey are unfenced and unmarked. TheCatalina Island Company has enteredinto a memorandum of understanding(MOU) with CDFG to allow eradicationof feral pigs on Catalina Island (Mayer,pers. comm. 1994). A similar MOUbetween CDFG and TNC exists for theremoval of pigs from Santa Cruz Island.Bison, which occur on Santa CatalinaIsland, are considered livestock andtherefore not regulated by any agency.Apparently, the Commission has noregulatory authority over hunting orherd size of deer and elk on Santa RosaIsland, because these ungulates wereoriginally transported there under agame breeder’s permit in the early1900’s.

Several Federal laws, Interior policies,and NPS policies and guidelines applyto the management of NPS lands. Theselaws and guidelines include the NEPA,the Endangered Species Act, NPSguidelines for natural resourcesmanagement (NPS 1991), and the NPSStatement for Management (NPS 1985).The 1980 Congressional legislationenabling purchase of Santa Rosa Islandas a national park from the Vail andVickers Company stated that the owner‘‘may retain for himself a right of useand occupancy of all or such portion ofthe property as the owner may elect fora definite term of not more than twenty-five years, or ending at the death of theowner, or his spouse, whichever is later.The owner shall elect the term to bereserved. Any such right retainedpursuant to this subsection with respectto any property shall be subject totermination by the Secretary upon hisdetermination that such property isbeing used for any purpose which isincompatible with the administration ofthe park, or with the preservation of theresources therein, and it shall terminateby operation of law upon notification bythe Secretary to the holder of the rightof such determination and tendering tohim the amount equal to the fair marketvalue of that portion which remainsunexpired.’’ (Pub. L. 96–199, 94 Stat. 67,March 5, 1980). The legislation alsodirected the Secretary to complete anatural resources study within 2 yearsthat would supply an inventory of allterrestrial and marine species,indicating their population dynamics,and probable trends as to future

numbers and welfare, and torecommend action that should beadopted to better protect the naturalresources of the park.

Under the conditions of the deed ofsale, the former owners, the Vail andVickers Company, chose only to retainthe rights to occupy 3.0 ha (7.6 ac) (NPS1986). The NPS issues Special UsePermits for 5-year terms for grazing andhunting. The first Special Use Permitissued to Vail and Vickers Companyincluded a condition that a rangemanagement plan be developed within5 years. A range management plan wasadopted when the NPS issued thesecond special use permit. The plan,however, does not address protection ofthe taxa in this rule (USFWS 1991,1992, 1993).

In a recent review of the rangemanagement plan, the Service foundthat measuring residual dry matter, theidentified means of determiningappropriate stocking rates, is inadequateto monitor other important indicators ofecosystem health, includingcomposition and diversity of species,and the condition of plant species ofspecial concern (USFWS 1993). Themonitoring of sensitive resources withingrazed areas is commonly recommended(NPS 1991, Ruyle 1987, Willoughby1986), but in this case has not beenincluded in the range management plan.Currently, the condition of thevegetation on Santa Rosa Island ismonitored by assessing the residual drymatter of grassland vegetation, which iscomposed primarily of non-nativespecies (NPS 1993, NPS 1996).

The NPS has prepared a ResourceManagement Plan (Plan) for Santa RosaIsland to address water quality and rareplants (NPS 1997). The successfulimplementation of the Plan will beevaluated on a yearly basis to determinethe effects on the species in this rulethat occur on Santa Rosa Island. Whilereducing grazing and browsing, thepreferred action will allow impacts tocontinue to Arctostaphylos confertiflora,Castilleja mollis, Gilia tenuiflora ssp.hoffmannii, Malacothrix indecora, andPhacelia insularis ssp. insularis and inhistoric habitat for Arabis hoffmannii,Berberis pinnata ssp. insularis andHelianthemum greenei.

San Miguel Island and adjacent PrinceIsland (a small islet) are under thejurisdiction of the Department of theNavy (Navy), but NPS assists in themanagement of natural, historic, andscientific values of San Miguel Islandthrough a memorandum of agreement(MOA) originally signed in 1963, anamendment to this MOA signed in 1976,and a supplemental InteragencyAgreement (IA) signed in 1985. The

MOA states that the ‘‘paramount use ofthe islands and their environs shall befor the purpose of a missile test range,and all activities conducted by or inbehalf of the Department of the Interioron such islands, shall recognize thepriority of such use’’ (Department of theNavy 1963). In addition to San MiguelIsland, four other islands includingAnacapa, Santa Barbara, Santa Cruz,and Santa Rosa lie wholly within theNavy’s Pacific Missile Test Center(PMTC) Sea Test Range. The 1985 IAprovides for the PMTC to have accessand use of portions of those islands, forexpeditious processing of any necessarypermits by NPS, and for mitigation ofdamage of park resources from any suchactivity (Department of the Navy 1985).Should the Navy no longer require useof the islands, NPS would seekauthorization for the islands to bepreserved and protected as units withinthe NPS system (Department of theNavy 1976). To date, conflictsconcerning protection of sensitiveresources on San Miguel Island have notoccurred. Protection and managementfor the three taxa in this rule that occuron the island, Galium buxifolium,Malacothrix squalida, and Phaceliainsularis ssp. insularis, have not beenaddressed, leaving in question whichagency has ultimate responsibility to doso.

E. Other Natural or Manmade FactorsAffecting Its Continued Existence

Over 180 non-native plant specieshave been documented from thenorthern island group, and thedisruption of native habitats anddisplacement of native species by alienplants is a major concern for naturalresource managers on the islands(Hochberg et al. 1979, Halvorson et al.1987). Numerous aggressive non-nativeplants, including Australian fireweed(Erechtites glomerata), iceplants(Carpobrotus spp., Mesembryanthemumspp.), thistles (Centaurea spp., Cirsiumspp., Silybum sp.), German-ivy (Seneciomikanoides), hoary cress (Cardariadraba), and Russian thistle (Salsolatragus) pose threats to most of the taxaaddressed in this rule.

Fennel (Foeniculum vulgare) hasbecome widespread since the removal ofcattle and sheep from Santa Cruz Island.Fennel was noticed as a pest speciesprior to the removal of sheep as reportedin Hobbs (1983). Sheep kept the plantfrom growing to its full height of 2 m (6ft), and since their removal the plant has‘‘appeared’’ over large areas of theisland. When it is not grazed andcropped close to the ground, its brightgreen foliage and bright yellow flowersare very conspicuous. Several papers


were presented at a recent symposiumon techniques to control fennel (Brentonand Klinger 1994, Dash and Gliessman1994, Gliessman 1994). If leftunchecked, fennel completelydominates the habitats it occupies to theexclusion of all other species. Thisdominance may be facilitated by achemical that prevents other speciesfrom competing for occupied sites(Gliessman 1994).

Incidental introductions of seed to theChannel Islands occur continually fromwind-blown seed from the mainland,introductions from restocking of non-native animals, and seed carried onvehicles and in construction materials.Deliberate introductions of seed havealso occurred as during the 1960’s,when one pilot reported scattering bagsof commercial wildflower and grassseed on most of the northern ChannelIslands (Rutherford, in litt. 1994). Whennew introductions and established seedsources occur in areas with disturbanceresulting from grazing, browsing, androoting by non-native mammals, theinvasive species can dominate the site.Over the past decade there has been anincreasing trend in the numbers of non-native plants invading the ChannelIslands. Santa Rosa Island hasexperienced the least increase inpercentage of weed species to nativeflora ratio of any of the Channel Islandswith a 2 percent increase to 20 percent(Junak et al. 1995). Santa Cruz Islandhas at least 170 non-native plantsrecorded and Santa Rosa Island has 98non-natives (Junak et al. 1995). Theseinvasive species have a high probabilityof preventing recruitment and causinghabitat displacement of Arabishoffmannii, Castilleja mollis, Dudleyanesiotica, Galium buxifolium,Helianthemum greenei, Malacothamnusfasciculatus var. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis ssp. insularis, andThysanocarpus conchuliferus.

Many of the known pollinators on theislands are ground-nesting insects(Miller 1985, Miller and Davis 1985).Gilia tenuiflora has been reported to bepollinated by a ground nesting beefly(Oligodranes sp.) (Grant and Grant1965). The habitat of these ground-nesting insects has been and is beingdegraded by trampling and serious lossof soils to active erosion on all of theislands.

The few, small and isolatedpopulations with few individuals ofmost of these taxa increase the potentialfor their extinction from random events.One of the species in this rule, Dudleyanesiotica, is known from single apopulation. Seven other taxa in thisrule, Arabis hoffmannii, Berberis

pinnata ssp. insularis, Castilleja mollis,Gilia tenuiflora ssp. hoffmannii,Malacothamnus fasciculatus ssp.nesioticus, Malacothrix indecora, andPhacelia insularis ssp. insularis, areknown from only two to fivepopulations. Although recent surveyswere conducted for Malacothrixsqualida and Thysanocarpusconchuliferus (S. Junak, pers. comm.1994,Wilken in litt. 1997), and theyhave not been seen in over five years,the Service believes these species arestill likely to be extant because allhistoric locations have not been recentlyvisited.

Species with few populations andindividuals are subject to the threat ofrandom events causing extinction inseveral ways. First, the loss of geneticdiversity may decrease a species’ abilityto maintain fitness within theenvironment, often manifested indepressed reproductive vigor. Fromgenetic analyses conducted for the twopopulations of Malacothamnusfasciculatus var. nesioticus, (Swenson etal. 1995), it was concluded that thethree genotypes represented in each ofthe two populations ‘‘probably representonly a portion of the diversity oncepresent in var. nesioticus.’’ Elisens(1994) documented reduced levels ofgenetic diversity in Galvesia speciosa, aChannel Islands endemic species ofspecial concern, and noted that thelevels were ‘‘likely the result ofdecreased population sizes initiated byhuman activities and herbivoreintroductions.’’

Secondly, species with fewpopulations or individuals may besubject to forces that affect their abilityto complete their life cycle successfully.Arctostaphylos confertiflora, providesan excellent example of this type ofthreat. The only remaining individualsof this species are of moderate to oldage, and establishment of newindividuals is completely lacking(McEachern 1996, McEachern andWilken 1996, Wilken in litt. 1997). Theeffects of browsing animals on criticalportions of its life cycle has resulted inthe inability of Arctostaphylosconfertiflora to establish newindividuals to replenish its population.The degree of pollination success formanzanita flowers is unknown, but theabundance of alien grazing andbrowsing animals has likely depressedthe number of native pollinatorsavailable to the native plants. Even ifpollination occurs and results insuccessful fruiting, the fruits are eatenby browsing animals. Seed banks areabsent due to severe soil loss(McEachern and Wilken 1996). If thefruits escape predation and seeds do

germinate, the seedlings are eithertrampled or eaten by those sameanimals. Most of the species in this rulethat occur on Santa Rosa, Santa Cruz,and Santa Catalina Islands are likely tobe similarly affected. For Berberispinnata ssp. insularis the conspicuouslack of recruitment from seeds likelyrepresents a threat to its long-termsurvival (Wilken 1996). During the1995–1996 life history study for Arabishoffmannii there were only 11 plantsthat produced seed in three populations(Wilken in litt. 1997).

Thirdly, random natural events, suchas storms, drought, fire, or landslides,could destroy a significant percentage ofa species’ individuals, or the onlyknown extant population. Arabishoffmannii, Galium buxifolium, andThysanocarpus conchuliferus areexamples of species that could sustainlosses of individuals and populationsthrough landslides and soil sloughing asa result of storm events. If a fire wereto burn through the Arctostaphylosconfertiflora populations in its currentcondition with a highly reduced seedbank, the species would likely goextinct.

In summary, random events can affectspecies on three different levels:through loss of genetic diversity,through chance events in survival andreproduction, and through catastrophicevents. When numbers of populationsand individuals reach critically lowlevels, more than one of these threetypes of processes may combine tocause extinction. For instance, a specieswith low reproductive success due tograzing or browsing pressure during acritical portion of its life cycle maysubsequently be subject to a severedrought or storm that eliminates theremaining individuals or populations.Such random events increase thevulnerability of all of the taxa in thisrule.

The Service has carefully assessed thebest scientific and commercialinformation available regarding the past,present, and future threats faced bythese taxa in determining to make thisrule final. Based on this evaluation, theService finds that Arabis hoffmannii,Arctostaphylos confertiflora, Berberispinnata ssp. insularis, Castilleja mollis,Galium buxifolium, Gilia tenuiflora ssp.hoffmannii, Malacothamnusfasciculatus ssp. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis ssp. insularis, andThysanocarpus conchuliferus meet thedefinition of endangered species underthe Act. Threats to these 11 taxa includesoil loss, habitat alteration by mammalsalien to the Channel Islands (pigs, goats,sheep, donkeys, cattle, deer, elk, horses,


bison) and herbivory by these samealien mammals, habitat alteration bynative seabirds, habitat alteration due tovehicular traffic, and competition withalien plant taxa. The 11 taxa also havean increased vulnerability to extinctiondue to reduced genetic viability,depressed reproductive vigor, andrandom events resulting from few, smalland isolated populations with fewindividuals. Because these 11 taxa are indanger of extinction throughout all or asignificant portion of their ranges, theyfit the definition of endangered asdefined in the Act.

For the reasons discussed below, theService finds that Dudleya nesiotica andHelianthemum greenei are likely tobecome endangered in the foreseeablefuture throughout all or a significantportion of their range. Since the time theproposed rule was published, moreaccurate information on the populationstatus of Dudleya nesiotica has becomeavailable indicating that there areconsiderably more individuals thanpreviously understood and that thespecies occupies a larger area thanpreviously known. An estimated 30,000to 60,000 individuals are now known tooccur within an area of 13 ha (32 ac)(Wilken in litt. 1997). While the speciesremains vulnerable to soil loss, rootingfrom pig activity, and the possibility ofrandom events, the Service nowbelieves that the species is not inimmediate danger of extinction.Helianthemum greenei has been foundto have substantially larger populationsizes than were previously known inareas that burned in 1994, with aminimum estimate of between 500 and1,000 individuals at each of fourlocations (Wilken in litt. 1997). Thereare now 14 known locations for thistaxon with an estimated total of over3,000 individuals. While the speciesremains vulnerable to loss of soil, pigrooting, altered fire frequencies andintensities, and the possibility ofrandom events, the species is not inimmediate danger of extinction. TheService finds that Dudleya nesiotica andHelianthemum greenei meet thedefinition of threatened species underthe Act. Critical habitat is not beingproposed for these taxa for reasonsdiscussed in the ‘‘Critical Habitat’’section of this proposal.

Critical HabitatCritical habitat is defined by section

3 of the Act as: (i) the specific areaswithin the geographical area occupiedby a species, at the time it is listed inaccordance with the Act, on which arefound those physical or biologicalfeatures (I) essential to the conservationof the species and (II) that may require

special management considerations orprotection and; (ii) specific areasoutside the geographical area occupiedby a species at the time it is listed, upona determination that such areas areessential for the conservation of thespecies. ‘‘Conservation’’ means the useof all methods and procedures neededto bring any protected species to thepoint at which the measures providedpursuant to the Act are no longernecessary (50 CFR 424.02(c)).

Section 4(a)(3) of the Act, asamended, and implementing regulations(50 CFR 424.12) require that, to themaximum extent prudent anddeterminable, the Secretary specifycritical habitat at the time a species isproposed for listing. The Service findsthat designation of critical habitat is notprudent for Arabis hoffmannii,Arctostaphylos confertiflora, Berberispinnata ssp. insularis, Castilleja mollis,Dudleya nesiotica, Galium buxifolium,Gilia tenuiflora ssp. hoffmannii,Helianthemum greenei, Malacothamnusfasciculatus ssp. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis ssp. insularis, andThysanocarpus conchuliferus at thistime. Service regulations (50 CFR424.12(a)(1)) state that designation ofcritical habitat is not prudent when oneor both of the following situations exist:(1) the species is threatened by taking orother human activity, and identificationof critical habitat can be expected toincrease the degree of such threat to thespecies, or (2) such designation ofcritical habitat would not be beneficialto the species.

Critical habitat designation for Arabishoffmannii, Arctostaphylosconfertiflora, Berberis pinnata ssp.insularis, Castilleja mollis, Dudleyanesiotica, Galium buxifolium, Giliatenuiflora ssp. hoffmannii,Helianthemum greenei, Malacothamnusfasciculatus ssp. nesioticus, Malacothrixindecora, Malacothrix squalida,Phacelia insularis ssp. insularis, andThysanocarpus conchuliferus is notprudent due to lack of benefit. Dudleyanesiotica, Helianthemum greenei,Malacothamnus fasciculatus ssp.nesioticus, and Thysanocarpusconchuliferus all occur on private landswhere there is unlikely to be any needfor Federal involvement under section 7of the Act. Arabis hoffmannii,Arctostaphylos confertiflora, Berberispinnata ssp. insularis, Castilleja mollis,Galium buxifolium, Gilia tenuiflora ssp.hoffmannii, Malacothrix indecora,Malacothrix squalida, and Phaceliainsularis ssp. insularis all either havefewer than 100 individuals or fewerthan four populations and any actionthat would adversely modify occupied

or suitable habitat that might beconsidered critical habitat would alsojeopardize the species. Therefore, thedesignation of critical habitat would notprovide any benefit to the conservationof the species beyond that afforded bylisting.

The NPS, the Department of Defense(DOD), TNC, and other pertinent partieshave been notified of the location andimportance of protecting these species’habitats. Protection of these species’habitats will be addressed through thedevelopment of a conservationagreement with the Park, the recoveryprocess, and through the section 7consultation process as a result of listingthese species. The Service believes thateffects of Federal involvement in theareas where these plants occur can beidentified without the designation ofcritical habitat. The Service finds thatdesignation of critical habitat for theseplants is not prudent at this time,because such designation would notincrease the degree of protection to thespecies beyond the protection affordedby listing.

Available Conservation MeasuresConservation measures provided to

species listed as endangered orthreatened under the Act includerecognition, recovery actions,requirements for Federal protection, andprohibitions against certain practices.Recognition through listing encouragesand results in conservation actions byFederal, State, and private agencies,groups, and individuals. The Actprovides for possible land acquisitionand cooperation with the States andrequires that recovery actions be carriedout for all listed species. The protectionrequired of Federal agencies and theprohibitions against certain activitiesinvolving listed plants are discussed, inpart, below.

Section 7(a) of the Act, as amended,requires Federal agencies to evaluatetheir actions with respect to any speciesthat is listed as endangered orthreatened and with respect to itscritical habitat, if any is designated.Regulations implementing thisinteragency cooperation provision of theAct are codified at 50 CFR part 402.Section 7(a)(2) requires Federal agenciesto ensure that activities they authorize,fund, or carry out are not likely tojeopardize the continued existence ofsuch a species or to destroy or adverselymodify its critical habitat. If a Federalaction may affect a listed species or itscritical habitat, the responsible Federalagency must enter into formalconsultation with the Service.

The NPS has developed a ResourcesManagement Plan and Environmental


Impact Statement (EIS) for improvementof water quality and conservation of rarespecies and their habitats on Santa RosaIsland in response to a Cleanup andAbatement Order, issued by the CentralCoast Regional Water Quality ControlBoard and the proposed listing of the 16plants from the Northern ChannelIslands. The implementation of the Planis intended to improve the status of theplants in this rule; due to naturalvariability in population sizes of theannual plants in this rule, however, anyevaluation of the success ofimplementation will require at leastthree years to evaluate. For more long-lived species, even an accurateassessment of survivorship toreproductive maturity may takeconsiderably longer.

The Service and NPS have beencooperating to develop a conservationagreement (CA) in accordance with anMOU among several Federal land-managing agencies to cooperate in theconservation of species for which listingmay be appropriate (U.S. Department ofthe Interior 1994). The Service has beenworking with and advising NPS since atleast 1991 including the review of theirrange management plans effects on thespecies in this rule. The intent of the CAis to focus on the conservation needs ofthe plant and animal species of specialconcern from the northern ChannelIslands such that listing for some ofthose taxa may be avoided. The CAwould also serve as a template for thefuture development of a recoverystrategy for the 13 taxa included in thisrule.

The Service and NPS signed an MOUin 1995, for the purpose of developinga conservation strategy (CS) that wouldbe included as the basis for a portion ofthe preferred alternative for the NPSEIS. A team of biologists from threeagencies (NPS, Service, and BRD) wasassembled to prepare the CS. As a firststep in developing a CS for the northernChannel Islands, the conservation teamcompiled and reviewed availableliterature and data relevant to thesespecies and their plant communities.Two public meetings were held onSeptember 8, 1994, and January 9, 1995,to gather additional scientific data onthe species and their habitats,distributions, and threats. It was agreedthat the best strategy for recovery of thespecies would be a restoration of theecosystem processes and habitatstructures that support them. The NPSselected the CS alternative in the finalEIS (NPS 1997).

Of the 13 taxa in this rule, all exceptDudleya nesiotica, Malacothamnusfasciculatus ssp. nesioticus, andThysanocarpus conchuliferus have

populations or historical habitat locatedon Federal lands. Three of the taxa(Galium buxifolium, Malacothrixindecora, and Phacelia insularis ssp.insularis) have populations or historicalhabitat on San Miguel Island, which isowned by the Navy and managed byNPS through a MOA and IA. Navyactivities that could potentially affectthese taxa and their habitats includemilitary exercises and equipment testingand retrieval carried out under theExecutive Order that established thePMTC Sea Test Range, which includesAnacapa, San Miguel, Santa Barbara,Santa Cruz, and Santa Rosa Islands andtheir environs.

Two of the taxa (Berberis pinnata ssp.insularis and Malacothrix squalida)have populations or historical habitat onAnacapa Island, which is owned andmanaged by the NPS. Eight of the 13taxa have populations or historicalhabitat on Santa Rosa Island, which isowned and managed by the NPS. Threeof those eight taxa are single islandendemics (Arctostaphylos confertiflora,Castilleja mollis, Gilia tenuiflora ssp.hoffmannii). NPS activities that couldpotentially affect these taxa and theirhabitats include specific managementplans, including those that addressexpansion of NPS facilities; expansionof visitor services; range managementplans, including those that addresscattle ranching and deer and elkhunting; alien plant removal programs;and other ecosystem restorationprograms, including prescribed firemanagement. Other activities includethe issuing of permits, including SpecialUse Permits, that authorize continuedranching and hunting operations onSanta Rosa Island. Also included arepermits that authorize activities by otheragencies or organizations, includingrights-of-way to the Department ofCommerce to access lighthouse andcommunication facilities.

As mentioned above, there are threetaxa that occur wholly on lands ownedand managed by TNC. Futuremanagement of Santa Cruz Island mayinvolve NPS as a cooperator, since theisland is within National Parkboundaries. NPS has already developeda keen interest in the conservation of thetaxa in this rule on Santa Cruz Island,and the Service would anticipatecoordination with NPS on issuesaffecting those taxa.

The Act and its implementingregulations set forth a series of generalprohibitions and exceptions that applyto all endangered plants or threatenedplants. All prohibitions of section9(a)(2) of the Act, implemented by 50CFR 17.61 for endangered plants, and 50CFR 17.71 for threatened plants, apply.

These prohibitions, in part, make itillegal for any person subject to thejurisdiction of the United States toimport or export, transport in interstateor foreign commerce in the course of acommercial activity, sell or offer for salein interstate or foreign commerce, orremove and reduce the species topossession from areas under Federaljurisdiction. In addition, for plantslisted as endangered, the Act prohibitsthe malicious damage or destruction onareas under Federal jurisdiction and theremoval, cutting, digging up, ordamaging or destroying of such plantsin knowing violation of any State law orregulation, including State criminaltrespass law. Certain exceptions to theprohibitions apply to agents of theService and State conservation agencies.

It is the policy of the Service,published in the Federal Register (59FR 34272) on July 1, 1994, to identifyto the maximum extent practicable atthe time a species is listed thoseactivities that would or would not belikely to constitute a violation of section9 of the Act. The intent of this policyis to clarify the potential impacts of aspecies listing on proposed and ongoingactivities within its range. Eight of the13 taxa in this final rule are known tooccur on lands under the jurisdiction ofthe NPS or DOD; an additional 4 taxahistorically occurred on these sameFederal lands, and potential habitat maystill exist. Collection, damage, ordestruction of listed species on theselands is prohibited. However,authorization to incidentally remove ordestroy such species on Federal landsmay be granted by the Fish and WildlifeService for any otherwise legal actionfunded, authorized, or implemented bya Federal agency through section 7 ofthe Act. The removal and reduction topossession of listed species on Federallands for research activities may beauthorized by the Service under section10(a)(1)(A) of the Act.

Section 9 of the Act prohibitsremoval, cutting, digging up, damaging,or destroying endangered plants onFederal or non-Federal lands inknowing violation of any law orregulation of any State or in the courseof any violation of a State criminaltrespass law. As an example, ifindividuals of an endangered plantspecies were grazed or trampled bycattle while the livestock weretrespassing on either Federal or non-Federal land, a violation of section 9may exist. However, if the livestockgrazing occurred under the authority ofa local permit on non-Federal land orunder a section 7 consultation onFederal land, section 9 would not beviolated. Questions regarding whether


specific activities would constitute aviolation of section 9 should be directedto the Field Supervisor of the Service’sVentura Field Office (see ADDRESSESsection).

The Act and 50 CFR 17.62 and 17.63for endangered plants and 50 CFR 17.72for threatened plants also provide forthe issuance of permits to carry outotherwise prohibited activitiesinvolving endangered or threatenedplants under certain circumstances.Such permits are available for scientificpurposes and to enhance thepropagation or survival of the species.For threatened plants, permits also areavailable for botanical or horticulturalexhibition, educational purposes, orspecial purposes consistent with thepurposes of the Act. Requests for copiesof the regulations regarding listedspecies and inquiries about prohibitionsand permits may be addressed to theU.S. Fish and Wildlife Service,Endangered Species Permits, 911 N.E.11th Avenue, Portland, Oregon 97232–4181 (telephone 503/231–2063,facsimile 503/231–6243).

National Environmental Policy Act

The Fish and Wildlife Service hasdetermined that EnvironmentalAssessments and Environmental ImpactStatements, as defined under theauthority of the National EnvironmentalPolicy Act of 1969, need not beprepared in connection with regulationsadopted pursuant to section 4(a) of theEndangered Species Act of 1973, asamended. A notice outlining theService’s reasons for this determinationwas published in the Federal Registeron October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined thisregulation under the PaperworkReduction Act of 1995 and found it tocontain no information collectionrequirements.

References Cited

A complete list of all references citedherein is available upon request fromthe Ventura Field Office (seeADDRESSES section).

Authors: The primary authors of thisfinal rule are Tim Thomas and Connie

Rutherford, botanists, Ventura FieldOffice (see ADDRESSES section).

List of Subjects in 50 CFR Part 17Endangered and threatened species,

Exports, Imports, Reporting andrecordkeeping requirements,Transportation.

Regulations PromulgationAccordingly, the Service amends part

17, subchapter B of chapter I, title 50 ofthe Code of Federal Regulations, as setforth below:

PART 17—[AMENDED]


Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended byadding the following, in alphabeticalorder under FLOWERING PLANTS, tothe List of Endangered and ThreatenedPlants to read as follows:

§ 17.12 Endangered and threatened plants.* * * * *

(h) * * *

SpeciesHistoric range Family Status When listed Critical

habitatSpecialrulesScientific name Common name

* * * * * * *Flowering Plants

* * * * * * *Arabis hoffmannii ..... Hoffman’s rockcress U.S.A. (CA) ............. Brassicaceae—Mus-

tard.E 623 NA NA

* * * * * * *Arctostaphylos

confertiflora.Santa Rosa Island

manzanita.U.S.A. (CA) ............. Ericaceae—

Manzanita.E 623 NA NA

* * * * * * *Berberis pinnata ssp.

insularis.Island barberry ........ U.S.A. (CA) ............. Berberidaceae—

Barberry.E 623 NA NA

* * * * * * *Castilleja mollis ........ Soft-leaved Indian

paintbrush.U.S.A. (CA) ............. Scrophularia- ...........

ceae—Figwort .........E 623 NA NA

* * * * * * *Dudleya nesiotica .... Santa Cruz Island

dudleya.U.S.A. (CA) ............. Crassulaceae—

Stonecrop.T 623 NA NA

* * * * * * *Galium buxifolium .... Island bedstraw ....... U.S.A. (CA) ............. Rubiaceae—Bed-

straw.E 623 NA NA

* * * * * * *Gilia tenuiflora ssp.

hoffmannii.Hoffmann’s gilia ...... U.S.A. (CA) ............. Polemoniaceae—

Phlox.E 623 NA NA

* * * * * * *Helianthemum

greenei.Island rush rose ...... U.S.A. (CA) ............. Asteraceae—Aster .. T 623 NA NA


SpeciesHistoric range Family Status When listed Critical

habitatSpecialrulesScientific name Common name

* * * * * * *Malacothamnus

fasciculatus ssp.nesioticus.

Santa Cruz Islandbush-mallow.

U.S.A. (CA) ............. Malvaceae—Mallow E 623 NA NA

* * * * * * *Malacothrix indecora Santa Cruz Island

malacothrix.U.S.A. (CA) ............. Asteraceae—Aster .. E 623 NA NA

* * * * * * *Malacothrix squalida Island malacothrix ... U.S.A. (CA) ............. Asteraceae—Aster .. E 623 NA NA

* * * * * * *Phacelia insularis

ssp. insularis.Island phacelia ........ U.S.A. (CA) ............. Hydrophylla- ............

ceae—Waterleaf .....E 623 NA NA

* * * * * * *Thysanocarpus

conchuliferus.Santa Cruz Island

lacepod.U.S.A. (CA) ............. Brassicaceae—Mus-

tard.E 623 NA NA

* * * * * * *

Dated: July 24, 1997John G. Rogers,Director, Fish and Wildlife Service.[FR Doc. 97–20133 Filed 7–30–97; 8:45 am]BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and AtmosphericAdministration

50 CFR Part 679

[Docket No. 961107312–7012–02; I.D.072597A]

Fisheries of the Exclusive EconomicZone Off Alaska; Species in the RockSole/Flathead Sole/‘‘Other Flatfish’’Fishery Category by Vessels UsingTrawl Gear in Bering Sea and AleutianIslands

AGENCY: National Marine FisheriesService (NMFS), National Oceanic andAtmospheric Administration (NOAA),Commerce.ACTION: Closure.

SUMMARY: NMFS is closing directedfishing for species in the rock sole/flathead sole/‘‘other flatfish’’ fisherycategory by vessels using trawl gear inthe Bering Sea and Aleutian Islandsmanagement area (BSAI). This action isnecessary to prevent exceeding the 1997Pacific halibut bycatch allowancespecified for the trawl rock sole/flatheadsole/‘‘other flatfish’’ fishery category.

DATES: Effective 1200 hrs, Alaska localtime (A.l.t.), July 25, 1997, until 2400hrs, A.l.t., December 31, 1997.FOR FURTHER INFORMATION CONTACT:Mary Furuness, 907–586-7228.SUPPLEMENTARY INFORMATION: Thegroundfish fishery in the BSAI exclusiveeconomic zone is managed by NMFSaccording to the Fishery ManagementPlan for the Groundfish Fishery of theBering Sea and Aleutian Islands Area(FMP) prepared by the North PacificFishery Management Council underauthority of the Magnuson-StevensFishery Conservation and ManagementAct. Fishing by U.S. vessels is governedby regulations implementing the FMP atsubpart H of 50 CFR part 600 and 50CFR part 679.

The 1997 halibut bycatch allowancespecified for the BSAI trawl rock sole/flathead sole/‘‘other flatfish’’ fisherycategory, which is defined at§ 679.21(e)(3)(iv)(B)(2), was establishedby the Final 1997 Harvest Specificationsfor Groundfish of the BSAI (62 FR 7168,February 18, 1997) as 795 metric tons.

In accordance with § 679.21(e)(7)(iv),the Administrator, Alaska Region,NMFS, has determined that the 1997Pacific halibut bycatch allowancespecified for the trawl rock sole/flatheadsole/‘‘other flatfish’’ fishery in the BSAIhas been caught. Consequently, NMFSis closing directed fishing for species inthe rock sole/flathead sole/‘‘otherflatfish’’ fishery category by vesselsusing trawl gear in the BSAI.

Maximum retainable bycatch amountsmay be found in the regulations at§ 679.20(e) and (f).

ClassificationThis action responds to the best

available information recently obtainedfrom the fishery. It must beimplemented immediately to preventoverharvesting the 1997 Pacific halibutbycatch allowance specified for thetrawl rock sole/flathead sole/‘‘otherflatfish’’ fishery in the BSAI. Providingprior notice and an opportunity forpublic comment on this action isimpracticable and contrary to publicinterest. The fleet will soon take thePacific halibut bycatch allowancespecified for the trawl rock sole/flatheadsole/‘‘other flatfish’’ fishery in the BSAI.Further delay would only result inoverharvest and disrupt the FMP’sobjective of allowing incidental catch tobe retained throughout the year. NMFSfinds for good cause that theimplementation of this action cannot bedelayed for 30 days. Accordingly, under5 U.S.C. 553(d), a delay in the effectivedate is hereby waived.

This action is required by 50 CFR679.21 and is exempt from review underE.O. 12866.

Authority: 16 U.S.C. 1801 et seq.Dated: July 25, 1997.

Bruce Morehead,Acting Director, Office of SustainableFisheries, National Marine Fisheries Service.[FR Doc. 97–20097 Filed 7-25-97; 4:44 pm]BILLING CODE 3510–22–F

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

40975

Vol. 62, No. 147


NUCLEAR REGULATORYCOMMISSION

10 CFR Part 35

RIN AF77

License Term for Medical Use Licenses

AGENCY: Nuclear RegulatoryCommission.ACTION: Proposed rule.

SUMMARY: The U.S. Nuclear RegulatoryCommission is proposing to amend 10CFR part 35 to eliminate the five-yearterm limit for medical use licenses in 10CFR 35.18. License terms for licensesissued pursuant to part 35 would be set,by policy up to ten years, as are thelicense terms for other materialslicenses. The NRC would issue somelicenses for shorter terms, if warrantedby the individual circumstances oflicense applicants. The amendmentwould reduce the administrative burdenof license renewals for both NRC andlicensees, and would support NRC’sgoal of streamlining the licensingprocess.DATES: Submit comments by October 14,1997. Comments received after this datewill be considered, if it is practical to doso, but the NRC is able to assureconsideration only for commentsreceived on or before this date.ADDRESSES: Send comments to:Secretary, U.S. Nuclear RegulatoryCommission, Washington, DC 20555–0001. Hand-deliver comments to: 11555Rockville Pike, Rockville, Maryland,between 7:45 a.m. and 4:15 p.m.,Federal workdays.

Copies of any comments received maybe examined at the NRC PublicDocument Room, 2120 L Street NW(lower level), Washington, DC.

For information on submittingcomments electronically, see thediscussion under Electronic Access inthe Supplementary Information section.FOR FURTHER INFORMATION CONTACT:William B. McCarthy, Office of NuclearMaterial Safety and Safeguards, U.S.Nuclear Regulatory Commission,

Washington, DC 20555–0001, telephone(301) 415–7894; e-mail [email protected].


I. BackgroundIn 1995, the NRC Office of Nuclear

Material Safety and Safeguards (NMSS)initiated a review to determine whetherthe license term for material licensescould be increased so that NRC’slicensing resources could be redirectedto other areas of the materials program.The resources devoted to renewalsconstituted over 50 percent of the totalresources expended for licensing. NMSSundertook this review as a part of NRC’sbusiness process redesign efforts.

The license renewal process has beenused as an opportunity for theCommission to review: (1) The historyof the licensee’s operating performance(e.g., the record on compliance withregulatory requirements); and (2) thelicensee’s program. This review isperformed to ascertain if the licenseeemploys up-to-date technology andpractices in the protection of health,safety, and the environment, andcomplies with any new or amendedregulations. As part of a license renewal,the licensee is asked to provideinformation on the current status of itsprogram as well as any proposedchanges in operations (types andquantities of authorized materials),personnel (authorized users andradiation safety officers), facility,equipment, or applicable procedures.The renewal process has been perceivedto benefit both the licensee and NRCbecause it requires both to take acomprehensive look at the licensedoperation. However, in practice, most ofthe proposed changes are identified andrequested by licensees as amendmentsrather than during the license renewalprocess.

License terms have been reviewed onnumerous occasions since 1967. OnMay 12, 1967 (32 FR 7172), theCommission amended 10 CFR part 40 toeliminate a three-year limit on the termof source material licenses. At that time,there was no restriction on the term ofbyproduct licenses under 10 CFR part30 or special nuclear material licenses,under 10 CFR part 70. In the notice ofproposed rulemaking associated withthis rule, dated December 22, 1966, NRCindicated that if the proposedamendment to eliminate the three-yearrestriction were adopted, licenses would

be issued for five-year terms, exceptwhen the nature of the applicant’sproposed activities indicated a need fora shorter license period. At that time,the Commission believed there waslittle justification for granting licensesunder 10 CFR parts 30, 40, and 70 forterms of less than five years, in view ofthe cumulative experience up to thattime and the means available to NRC tosuspend, revoke, or modify suchlicenses if public health and safety orenvironment so required. Licenses havebeen issued for five-year terms since1967.

In March 1978, NMSS conducted astudy (SECY–78–284, ‘‘The LicenseRenewal Study for parts 30, 40 and 70Licenses’’) to consider changing thefive-year renewal period for parts 30, 40,and 70 licenses. The study concluded,in part, that the NRC should continue itspractice of issuing specific licenses forfive-year terms and should retain anoption to write licenses for shorterterms, if deemed necessary for newtypes of operations, or if circumstanceswarranted.

On July 26, 1985 (50 FR 30616), NRCproposed revising 10 CFR part 35,‘‘Medical Use of Byproduct Material.’’The proposed rulemaking indicated thatthe Commission had selected a term offive years for a license. It was believedthat a term shorter than five years wouldnot benefit health and safety becausepast experience indicated that medicalprograms did not generally changesignificantly over that period of time.The notice also indicated that a longerterm may occasionally result inunintentional abandonment of thelicense. On October 16, 1986 (51 FR36932), NRC issued the final rule thatconsolidated and clarified radiationsafety requirements related to themedical use of byproduct materials, andincluded a license term of five years.

On June 19, 1990 (55 FR 24948), theCommission announced that the licenseterm for major operating fuel cyclelicensees (i.e., licenses issued pursuantto 10 CFR parts 40 or 70) would beincreased from a five-year term to a ten-year term at the next renewal of theaffected licenses. This change enabledNRC resources to be used to improve thelicensing and inspection programs. Thebases for this change were that majoroperating fuel cycle facilities hadbecome stable in terms of significantchanges to their licenses and operations,

40976 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

and that licensees would be required toupdate the safety demonstrationsections of their licenses every twoyears.

On July 2, 1996, the Commissionapproved the NRC staff’s proposal toextend the license term for uraniumrecovery facilities from five years to tenyears. Extending the license termsreduces the administrative burdenassociated with the license renewalprocess for both the NRC staff and theuranium recovery licensees. Also, theextension reduces the licensee fees,brings the license term for thesefacilities more commensurate with thelevel of risk, and supports NRC’s goal ofstreamlining the licensing process.Licensees were informed of theextensions in July 1996.

On February 6, 1997 (62 FR 5656), theCommission gave notice of the policythat the license term for materiallicenses issued pursuant to 10 CFR parts30, 40, or 70 would be increased froma five-year term to up to a ten-year termat the next renewal of the affectedlicenses. The term for licenses issuedpursuant to 10 CFR part 35 isestablished by regulation at five years.The ten-year term for other licenses hasbeen set by policy. Part 35 license termswould be set by this policy after thefinal rule is effective that removes thereference to a five-year license termfrom 10 CFR 35.18. The NRC may issuea license for a shorter term, dependingon the individual circumstances of thelicense applicant.

II. DiscussionThe change in policy under which the

license term for materials licenses is upto ten years, has created aninconsistency between the license termsfor medical use and non-medical usematerials licenses. NRC believes that thelicense duration period may also beextended without adverse impacts onpublic health and safety, such asincreases in the unintentionalabandonment of licensed material, ordecreases in the licensees’ attention tolicensed activities, for the followingreasons:

(1) Licensees would continue to berequired to adhere to the regulationsand their license conditions, and toapply for license amendments forcertain proposed changes to theirprograms;

(2) No changes in either the frequencyor elements of the medical inspectionprogram are being proposed;

(3) NRC would continue to be in theposition to identify, by inspection orother means, violations that affectpublic health and safety, and to takeappropriate enforcement actions;

(4) Cases of abandonment of NRClicenses would be identified throughnonpayment of the annual licensing feesand regional follow-up;

(5) The staff would continue to makelicensees aware of health and safetyissues through the issuance of genericcommunications (such as informationnotices, generic letters, bulletins, andthe NMSS Licensee Newsletter); and

(6) NRC efforts are moving to a moreperformance-based regulatory approach,where emphasis is placed on thelicensee’s execution of commitmentsrather than on re-review of the details ofthe licensee’s program.

III. Proposed Regulatory ActionThe NRC is proposing to revise Part

35 to eliminate the five-year term limitin 10 CFR 35.18 for medical uselicenses, so that the term for medicallicenses can be set by policy for up toten years.

IV. Compatibility for Agreement StatesNo problems have been identified

regarding Agreement Stateimplementation of this rule change.Section 35.18 is a Division 3requirement. For purposes of NRC andAgreement State compatibilityrequirements, Division 3 rules apply toa number of the provisions in NRCregulations that would be appropriatefor Agreement States to adopt, but theydo not require any degree of uniformitybetween NRC and State rules. Suchrules are strictly matters for theregulatory agency and the regulatorycommunity within its jurisdiction. NRCencourages states to adopt the regulatoryapproach taken by NRC in such rules,but states are not required to do so.Under the new Commission PolicyStatement on Agreement StateCompatibility, Division 3 rules will beclassified as compatibility category Dwith the same description as Division 3.

V. Electronic AccessComments may be submitted

electronically, in either ASCII text orWordPerfect format, by calling the NRCElectronic Bulletin Board on FedWorld.The bulletin board may be accessedusing a personal computer, a modem,and one of the commonly availablecommunications software packages, ordirectly via Internet. Backgrounddocuments on the rulemaking are alsoavailable, as practical, for downloadingand viewing on the bulletin board.

If using a personal computer andmodem, the NRC rulemaking subsystemon FedWorld can be accessed directlyby dialing the toll-free number (800)303–9672. Communication softwareparameters should be set as follows:

parity to none, data bits to 8, and stopbits to 1 (N,8,1). Using ANSI or VT–100terminal emulation, the NRCrulemaking subsystem can then beaccessed by selecting the ‘‘Rules Menu’’option from the ‘‘NRC Main Menu.’’Users will find the ‘‘FedWorld OnlineUser’s Guides’’ particularly helpful.Many NRC subsystems and data basesalso have a ‘‘Help/Information Center’’option that is tailored to the particularsubsystem.

The NRC subsystem on FedWorld canbe accessed by a direct dial phonenumber for the main FedWorld BBS(703) 321–3339, or by using Telnet viaInternet: fedworld.gov. If using (703)321–3339 to contact FedWorld, the NRCsubsystem will be accessed from themain FedWorld menu by selecting the‘‘Regulatory, GovernmentAdministration and State Systems,’’then selecting ‘‘Regulatory InformationMall.’’ At that point, a menu will bedisplayed that has an option ‘‘USNuclear Regulatory Commission’’ thatwill take you to the NRC Online mainmenu. The NRC Online area also can beaccessed directly by typing ‘‘/go nrc’’ ata FedWorld command line. If you accessNRC from FedWorld’s main menu, youmay return to FedWorld by selecting the‘‘Return to FedWorld’’ option from theNRC Online main menu. However, ifyou access NRC at FedWorld by usingNRC’s toll-free number, you will havefull access to all NRC systems, but youwill not have access to the mainFedWorld systems.

If you contact FedWorld using Telnet,you will see the NRC area and menus,including the Rules menu. Althoughyou will be able to downloaddocuments and leave messages, you willnot be able to write comments or uploadfiles (comments). If you contactFedWorld using FTP, all files can beaccessed and downloaded but uploadsare not allowed; all you will see is a listof files without descriptions (normalGopher look). An index file listing allfiles within a subdirectory, withdescription, is available. There is a 15-minute time limit for FTP access.

Although FedWorld also can beaccessed through the World Wide Web,like FTP, that mode only providesaccess for downloading files and doesnot display NRC Rules menu.

You may also access the NRC’sinteractive rulemaking web site throughthe NRC home page (http://www.nrc.gov). This site provides thesame access as the FedWorld bulletinboard, including the facility to uploadcomments as files (any format), if yourweb browser supports that function.

For more information on the NRCbulletin boards call Mr. Arthur Davis.

40977Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

Systems Integration and DevelopmentBranch, NRC, Washington DC 20555–0001, telephone (301) 415–5780; [email protected]. For information aboutthe interactive rulemaking site, contactMs. Carol Gallagher (301) 415–6215; e-mail [email protected].

VI. Finding of No SignificantEnvironmental Impact: Availability

No Environmental Assessment will beneeded because the rulemaking iscovered by the categorical exclusion in10 CFR 51.22(c)(3)(i) for amendments toPart 35 that relate to renewals oflicenses.

VII. Paperwork Reduction ActStatement

This proposed rule will reduce theburden for both medical licensees andNRC, because terms could beestablished by policy, for up to tenyears, as is the case for other materiallicensees. However, the reduced burdenfrom less frequent license renewal willnot be realized in the near futurebecause the affected licenses areoperating under a five-year extension oftheir current licenses which weregranted in 1995. The impact of that one-time extension is addressed in thecurrent supporting statement for NRCForm 313, ‘‘Application for MaterialLicense’’ which was approved by theOffice of Management and Budget(OMB) under OMB clearance No. 3150–0120, and expires on July 31, 1999. Thedata on the reduced burden fromextension of the license term for allmaterial licenses, as well as from otheractions taken to streamline the licensingprocess, will be included in the requestfor renewal of the information collectionrequirements on NRC Form 313, in1999. This is appropriate because thenext OMB clearance extension willcover 1999–2002, during which time themedical licenses currently under thefive year extension will expire and beaffected by this rulemaking.

Public Protection NotificationThe NRC may not conduct or sponsor,

and a person is not required to respondto, an information collection unless itdisplays a currently valid OMB controlnumber.

VIII. Regulatory Analysis

ProblemThe current rule requirement,

regarding the term of medical licenses,is codified in Section 35.18 and statesthat, ‘‘The Commission shall issue alicense for the medical use of byproductmaterial for a term of five years.’’ TheLicense term of other materials licenses,as established by Commission policy, is

up to ten years. There is thus aninconsistency as to duration andmanner of determination of the licenseterm of medical use licenses and allother materials licenses. Based on theabove, the following options wereconsidered.

Alternative Approaches1. Take no action: Maintain the

requirement that licenses issuedpursuant to Part 35 would be issued forfive years.

This option would continue theinconsistency between how licenseterms for medical licenses, and all othermaterials licenses, are established.Terms for medical use licenses areestablished in codified regulations,whereas the term for other materialslicenses are set by policy. Also, thisoption would result in disparities in theduration of the term for materiallicenses, because medical use licenseswould continue to be issued for five-year terms whereas the duration of theterm for other materials licenses wouldbe up to ten years.

2. Revise 10 CFR 35.18: Revise theregulations to delete any reference to thelicense term for licenses issuedpursuant to Part 35.

This option would result inconsistency between how license termsfor medical licenses and all othermaterial licenses are established and inthe duration of such licenses.Commission decisions regarding theduration of a materials license couldtherefore apply uniformly to all types ofmaterial licenses. After final rulemakingaction to revise 10 CFR 35.18, thelicense term for licenses issuedpursuant to Part 35 would be set byalready established policy for up to tenyears.

Value and ImpactThe license renewal process is

resource-intensive for both the licenseeand NRC. At the time of licenserenewal, licensees submit to NRC anychanges in operations, personnel,facility, equipment, or applicableprocedures. Because NRC is in contactwith the licensees on an ongoing basis,many of these changes are identifiedduring the inspection and licenseamendment process. Therefore, therulemaking to remove the five-yearlicense term for medical use ofbyproduct material would not changethe health and safety requirementsimposed on licensees.

If the reference to the five-year termin 10 CFR 35.18 is removed, and withthe Commission’s approval (February1997) given to extend the license termup to ten years for all material licenses

issued pursuant to Parts 30, 40, and 70,there would be a reduction in theregulatory burden for approximately2,000 NRC licensees that use byproductmaterial for medical procedures.Estimated savings are based on theassumption that these licensees wouldonly be required to submit a renewalapplication every ten years as opposedto every five years, resulting, on average,in a savings of 200 applications peryear. However, countervailing thesesavings, medical licensees may need tosubmit an average of one additionalamendment during the ten year periodto account for changes in operations thatwould have routinely been addressedwhen the license was renewed on a fiveyear cycle. Assuming that a typicallicense renewal application and typicalamendment involves ten hours and twohours of licensee professional effort,respectively, there would be a netsavings per licensee of eight hours.Based on an industry professional laborrate of $70 per hour, the annualindustry-wide savings wouldapproximate $112,000. Over a 30-yeartime frame, based on a 7 percent realdiscount rate, the present worth savingsto industry would approximate $1.4million.

Similarly, this rulemaking would alsobe cost effective for the NRC becausefewer resources would be required toreview and process renewalapplications. On average, it takesapproximately 14 hours of NRCprofessional time to renew a medicallicense and four hours to review anamendment. This translates to a netsavings to the NRC of 10 hours perlicense. Assuming an NRC labor rate of$70 per hour, and on average, 200application per year, the annual NRCsavings would equal $140,000. The 30year present worth savings to the NRCwould approximate $1.7 million.

Conclusion

This rulemaking, to remove the five-year license term for medical use ofbyproduct material, is proposed so theterm for medical licenses will beconsistent with that of other materialslicenses (set by policy to be up to 10years). The extension will reduce theadministrative burden of licenserenewals for both NRC and the licenseeand will support NRC’s goal ofstreamlining the licensing processwithout any reduction in health andsafety. NRC may issue some licenses forshorter terms, if warranted by theindividual circumstances of licenseapplicants.


Decisional Rationale

Based on the consistency which iscreated between license terms formedical licenses and all other materiallicenses by the rulemaking, and the costeffectiveness of a license term of up toten years, the NRC is proposing toamend 10 CFR part 35 to eliminate thefive-year term limit for medical uselicenses and allow the license term to beset by the established policy for up toten years.

IX. Regulatory Flexibility Certification

As required by the RegulatoryFlexibility Act of 1980, 5 U.S.C. 605(b),the Commission certifies that this rule,if adopted, will not have a significantimpact on a substantial number of smallentities. If any small entity subject tothis regulation determines that, becauseof its size, it is likely to bear adisproportionate adverse economicimpact, the entity should notify theCommission of this in a comment thatindicates the following:

(a) The licensee’s size and how theproposed regulation would result in asignificant economic burden upon thelicense compared to the economicburden on a larger licensee;

(b) How the proposed regulationcould be modified to take into accountthe licensee’s differing needs andcapabilities;

(c) The benefits that would accrue, orthe detriments that would be avoided, ifthe proposed rule were modified assuggested by the licensee;

(d) How the proposed regulation, asmodified, would more closely equalizethe impact of NRC regulations or createmore equal access to the benefits ofFederal programs, as opposed toproviding special advantages to any oneindividual or group; and

(e) How the proposed regulation, asmodified, would still adequately protectpublic health and safety.

X. Backfit Analysis

The NRC has determined that thebackfit rule, 10 CFR 50.109, does notapply to this rule, and therefore abackfit analysis is not required becausethe amendment does not involve anyprovisions that would impose backfitsas defined in 10 CFR 50.109(a)(1).


Byproduct material, Criminalpenalties, Drugs, Health facilities,Health professions, Nuclear materials,Occupational safety and health,Radiation protection, Reporting andrecord requirements.

For the reasons set out in thepreamble and under the authority of the

Atomic Energy Act of 1954, as amended;the Energy Reorganization Act of 1974,as amended; and 5 U.S.C. 552 and 553;the NRC is adopting the followingamendments to 10 CFR part 35.

PART 35—MEDICAL USE OFBYPRODUCT MATERIAL


Authority: Secs. 81, 161, 182, 183, 68 Stat.935, 948, 953, 954, as amended (42 U.S.C.2111, 2201, 2232, 2233); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841).

2. The introductory text of § 35.18 isrevised to read as follows:

§ 35.18 License issuanceThe Commission shall issue a license

for the medical use of byproductmaterial if:* * * * *

Dated at Rockville, Maryland, this 10th dayof July, 1997.

For the Nuclear Regulatory Commission.Hugh L. Thompson, Jr.,Acting Executive Director for Operations.[FR Doc. 97–20189 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P



[PRM 50–59 and PRM 50–60]

RIN 3150–AF63

Frequency of Reviews and Audits forEmergency Preparedness Programs,Safeguards Contingency Plans, andSecurity Programs For Nuclear PowerReactors

AGENCY: Nuclear RegulatoryCommission.ACTION: Proposed rule.

SUMMARY: The Nuclear RegulatoryCommission is proposing to amend itsregulations to change the frequency oflicensees’ independent reviews andaudits of their emergency preparednessprograms, safeguards contingency plans,and security programs. This amendmentis being proposed in response topetitions for rulemaking submitted byVirginia Power Company. Specifically,instead of conducting reviews every 12months, as is currently required, theproposed amendment would requirenuclear power reactor licensees toconduct program reviews and audits inresponse to program performanceindicators, or after a significant changein personnel, procedures, equipment, orfacilities, but in no case less frequentlythan every 24 months.

DATES: Submit comments October 14,1997. Comments received after this datewill be considered if it is practical to doso, but the Commission is able to assureconsideration only for commentsreceived on or before this date.ADDRESSES: Comments may be sent to:Secretary, U.S. Nuclear RegulatoryCommission, Washington, DC 20555–0001. Attention: Rulemakings andAdjudications Staff.

Deliver comments to: 11555 RockvillePike, Rockville, Maryland, between 7:30a.m. and 4:15 p.m. on Federal workdays.

For information on submittingcomments electronically, see thediscussion under Electronic Access inthe Supplementary Information Section.

Certain documents related to thisrulemaking, including commentsreceived, may be examined at the NRCPublic Document Room, 2120 L StreetNW. (Lower Level), Washington, DC.These documents may also be viewedand downloaded electronically via theElectronic Bulletin Board established byNRC for this rulemaking as discussedunder Electronic Access in theSupplementary Information section.FOR FURTHER INFORMATION CONTACT: Dr.Sandra D. Frattali, Office of NuclearRegulatory Research, U.S. NuclearRegulatory Commission, Washington,DC 20555–0001, telephone (301) 415–6261, e-mail [email protected].


Background

On January 7, 1994, the Commissiondocketed a petition for rulemaking fromVirginia Power, dated December 30,1993, (PRM–50–59) to change therequired audit frequency for safeguardscontingency plans and securityprograms at nuclear power reactors. OnJanuary 19, 1994, the Commissiondocketed, as a separate petition forrulemaking (PRM–50–60), VirginiaPower’s request that the NRC change therequired audit frequency for emergencypreparedness programs at nuclear powerreactor facilities. NRC published thesetwo petitions for public comment in theFederal Register. PRM–50–59 waspublished on May 6, 1994 (59 FR23641). PRM 50–60 was published onApril 13, 1994 (59 FR 17449).

The Commission’s regulationscurrently require power reactorlicensees to conduct independentreviews and audits of each of theseprograms at least every 12 months.Virginia Power requested that thefrequency be changed to nominallyevery 24 months. This rulemakingaddresses the issues raised in thesepetitions.


1 Note that this appendix is currently cited byboth § 73.46, which applies to nuclear fuellicensees, and § 73.55, which applies to nuclearpower reactor licensees. This rulemaking appliesonly to nuclear power reactors.

The Commission notes that althoughthe petitioner uses the term ‘‘audit,’’ theemergency planning regulations use theterm ‘‘program reviews.’’ Further, thesecurity program and safeguardscontingency plan regulations also use‘‘reviews.’’ When describing what isrequired by a ‘‘review’’ of the physicalsecurity plan, the regulations use theterm ‘‘audits’’ for some of therequirements. This rule change willcontinue to use the term ‘‘programreviews’’ for the emergencypreparedness regulations and thesafeguards contingency and securityregulations. The use of the term ‘‘audit’’in the requirements for the ‘‘reviews’’ ofthe safeguards contingency and securityplans remains unchanged. The NRCunderstands that licensees haveassumed that the term ‘‘audit’’ inAppendix C to Part 73 means a qualityassurance (QA) audit that conforms totheir normal audit programrequirements and American NationalStandards Institute (ANSI) standardssuch as ANSI N45.2, ‘‘QualityAssurance Programs for NuclearFacilities;’’ ANSI N45.2.12,‘‘Requirements for Auditing of QualityAssurance Programs for Nuclear PowerPlants;’’ ANSI N45.2.33, ‘‘Qualificationsof Quality Assurance Program AuditPersonnel for Nuclear Power Plants;’’and ANSI N18.7, ‘‘AdministrativeControls and Quality Assurance for theOperation Phase of Nuclear PowerPlants.’’ The NRC does not require thatthese audits be performed by the QAorganization in accordance with the QAprogram commitments for the conductof the audits. As stated in the currentrule, the NRC expects that these auditsmust be conducted by individuals whoare qualified (technically competent) inthe subject(s) being audited and areindependent of the program (to assureobjectivity and no conflict of interest).At the licensee’s option, the QAorganization may perform, lead, or assistin these audits.

Along with the petitions forrulemaking related to security andemergency preparedness, VirginiaPower submitted a third petition (PRM–26–1) to relax the existing audit (i.e.program review) frequency required forfitness-for-duty (FFD). Issues related tothe FFD petition are being addressed ina separate NRC rulemaking.

Discussion

Requirements pertaining to the reviewfrequency of safeguards contingencyplans by power reactor licensees arecontained in § 50.54(p)(3) and in

Appendix C to Part 73.1 Section50.54(p)(3) requires that licenseesprovide for a review of the safeguardscontingency plan at least every 12months by individuals who areindependent of both security programmanagement and personnel who havedirect responsibility for implementationof the security program. This reviewmust include a review and audit ofsafeguards contingency procedures andpractices, an audit of the securitysystem testing and maintenanceprogram, and a test of the safeguardssystems along with commitmentsestablished for response by local lawenforcement authorities. The currentrecords retention period for the resultsof this review and audit in this sectionis 2 years. It is being changed to 3 yearsto correspond to the retention period forthe same records in Appendix C.

In Appendix C to Part 73, the sectionentitled ‘‘AUDIT AND REVIEW’’requires a review of the safeguardscontingency plan at intervals not toexceed 12 months. The review mustinclude an audit of safeguardscontingency procedures and practices,and an audit of commitmentsestablished for response by local lawenforcement authorities. The results ofthis review and audit must bemaintained for a period of 3 years.

Requirements for security programreviews are contained in § 73.55(g)(4).This section requires that the securityprogram be reviewed at least every 12months by individuals independent ofboth security program management andpersonnel who have directresponsibility for the implementation ofthe security program. The review mustinclude an audit of the securityprocedures and practices, an evaluationof the effectiveness of the physicalprotection system, an audit of thatsystem’s testing and maintenanceprogram, and an audit of commitmentsestablished for response by local lawenforcement authorities. The results ofthis review and audit must bemaintained for a period of 3 years.

Requirements pertaining to thefrequency of program reviews of theemergency preparedness program bynuclear power reactor licensees arecontained in § 50.54(t). This sectionrequires that licensees provide for areview of their emergency preparednessprogram at least every 12 months bypersons who have no directresponsibility for implementation of theemergency preparedness program. The

review must include an evaluation foradequacy of interfaces with State andlocal governments, as well as theadequacy of licensee drills, exercises,capabilities, and procedures. The resultsof the review, along withrecommendations for improvement,must be documented, reported to thelicensee’s corporate and plantmanagement, and must be retained fora period of 5 years.

The Virginia Power petitionsrequested that the regulations beamended to change the frequency of therequired audit (i.e. program review)from at least every 12 months tonominally every 24 months withadditional audits if performancewarranted. NRC has carefully reviewedthe arguments presented by thepetitioner and the public comments thatwere submitted on the petitions. TheNRC is proposing to resolve thepetitions with regard to 10 CFR Part 50licensees by initiating this rulemaking.The proposed rule incorporates thepetitions in part, and modifies somepetition requests in response to thepublic comments as indicated in thefollowing discussion.

Twenty-eight public commentsresulted from the publication of thepetitions in the Federal Register. Ofthese, 9 comments concerned thesafeguards contingency plan and thesecurity program, and 19 concerned theemergency preparedness program.

All the comments on the securityprogram were from the nuclear industryand supported the petition. Of the 19public comments on emergencypreparedness, 17 were from the nuclearpower industry and supported thepetition. Two were from States, whoexpressed some concern withlengthening the period between reviews.The States’ concern has been addressedin this proposed revision by clarifyingthat more frequent, focused programreviews and audits may be requiredbased on an assessment of security oremergency preparedness by the licenseeagainst performance indicators, or aftera significant change in personnel,procedures, equipment, or facilities.

The NRC staff is proposing changingthe regulations, which will reduce theburden on the licensees withoutaffecting public health and safety, forthe following reasons.

First, after these rules were firstimplemented, industry performanceimproved to the point that annualprogram reviews and audits are notnecessary to ensure that the emergencypreparedness programs, safeguardscontingency plans, or security programsare adequate. Inspection findings andenforcement actions, licensee


performance during exercises andoperational safeguards responseevaluation, and the systematicassessment of licensee performance(SALP) evaluations indicate sufficientimprovement to justify therecommended reduction in auditburden. Furthermore, if a licensee’sprogram is in fact not performingproperly, the proposed changes couldresult in audits more frequently thanevery 24 months.

Second, the current requirements forannual reviews and audits result in alack of licensee flexibility, which cancompromise the completion of effectiveaudits. Licensees are currently limitedin their ability to allocate auditresources according to safety needs andpriorities, because available resourcesand personnel must be committedaccording to a set review and auditschedule, rather than used to monitor orassess other areas of concern. Inaddition, licensees are not always ableto conduct reviews and audits at thesame time as other activities.Concurrent scheduling with activitiessuch as separately scheduled drills,inspections, or operational activitieswould permit a better review andevaluation of plant systems. This canlead to reviews and audits of little ormarginal benefit, or the need to performextra reviews and audits to reconfirmthat a program is still adequate afterthere has been a change. It can also leadto auditing before corrective actions arecompleted, when waiting a short timecould allow the review and audit to bedone when the effectiveness of acorrective action can be evaluated.

Third, the current requirementsconcerning review and audit frequencyare inconsistent with recent regulatorytrends, which have moved towardperformance-based requirements thatfocus attention on action to correctdemonstrated weaknesses rather thanschedule-driven needs. By establishingperformance-based criteria for triggeringreviews and audits, the NRC staff’sresolution to PRM–50–59 and PRM–50–60 would be consistent with recentrecommendations of the NRCRegulatory Review Group, the NationalPerformance Review, and the proposedamendments that were published in theFederal Register on May 9, 1996 (61 FR21105), to resolve the FFD auditfrequency petition for rulemaking,PRM–26–1. This approach is intendedto promote flexibility and efficiency innuclear facility operations whilemaintaining the highest standards ofpublic health and safety. Both NRCpolicy directives and Congressionalaction emphasize the need for the

Commission to move towardperformance-based regulations.

As a result, the NRC staff proposes torevise the regulations to require thatlicensees conduct focused programreviews and audits as needed, based onan assessment by the licensee againstperformance indicators or in response toa significant change in personnel,procedures, equipment, or facilities, andthat all program elements are reviewedand audited at least every 24 months.These changes are consistent with therequested changes in the two petitionsfor rulemaking (PRM 50–59 and PRM50–60) and will promote performance-based rather than compliance-basedreview and audit activities.

The proposed changes will furtherclarify that programs must be reviewedand audited following a significantchange in personnel, procedures, orequipment as soon as reasonablypracticable, but no later than 12 monthsafter the changes. The purpose of thesefocused audits would be to ensure thatchanges have not adversely affected theoperation of the particular programelement or function in question.Accordingly, this proposed rule wouldbetter ensure that programmaticproblems will be detected and correctedon a timely basis and that programreviews and audits are based on specificperformance indicators rather than onrigidly specified time limits.

It is anticipated that a regulatoryguide may be necessary. The NRCspecifically requests public commentson suggested performance indicatorsappropriate for the emergencypreparedness and security programs thatwould amplify the regulation.

Electronic AccessComments may be submitted

electronically, in either ASCII text orWordPerfect format (version 5.1 orlater), by calling the NRC ElectronicBulletin Board (BBS) on FedWorld orconnecting to the NRC interactiverulemaking web site, ‘‘RulemakingForum.’’ The bulletin board may beaccessed using a personal computer, amodem, and one of the commonlyavailable communications softwarepackages, or directly via Internet.Background documents on therulemaking are also available, aspractical, for downloading and viewingon the bulletin board.

If using a personal computer andmodem, the NRC rulemaking subsystemon FedWorld can be accessed directlyby dialing the toll free number (800)303-9672. Communication softwareindicators should be set as follows:parity to none, data bits to 8, and stopbits to 1 (N,8,1). Using ANSI or VT–100

terminal emulation, the NRCrulemaking subsystem can then beaccessed by selecting the ‘‘Rules Menu’’option from the ‘‘NRC Main Menu.’’Users will find the ‘‘FedWorld OnlineUser’s Guides’’ particularly helpful.Many NRC subsystems and data basesalso have a ‘‘Help/Information Center’’option that is tailored to the particularsubsystem.

The NRC subsystem on FedWorld canalso be accessed by a direct dial phonenumber for the main FedWorld BBS,(703) 321–3339, or by using Telnet viaInternet: fedworld.gov. If using (703)321–3339 to contact FedWorld, the NRCsubsystem will be accessed from themain FedWorld menu by selecting the‘‘Regulatory, GovernmentAdministration and State Systems,’’then selecting ‘‘Regulatory InformationMall.’’ At that point, a menu will bedisplayed that has an option ‘‘U.S.Nuclear Regulatory Commission’’ thatwill take you to the NRC Online mainmenu. The NRC Online area also can beaccessed directly by typing ‘‘/go nrc’’ ata FedWorld command line. If you accessNRC from FedWorld’s main menu, youmay return to FedWorld by selecting the‘‘Return to FedWorld’’ option from theNRC Online Main Menu. However, ifyou access NRC at FedWorld by usingNRC’s toll-free number, you will havefull access to all NRC systems, but youwill not have access to the mainFedWorld system.

If you contact FedWorld using Telnet,you will see the NRC area and menus,including the Rules Menu. Althoughyou will be able to downloaddocuments and leave messages, you willnot be able to write comments or uploadfiles (comments). If you contactFedWorld using FTP, all files can beaccessed and downloaded but uploadsare not allowed; all you will see is a listof files without descriptions (normalGopher look). An index file listing allfiles within a subdirectory, withdescriptions, is available. There is a 15-minute time limit for FTP access.

Although FedWorld also can beaccessed through the World Wide Web,like FTP, that mode only providesaccess for downloading files and doesnot display the NRC Rules Menu.

You may also access the NRC’sinteractive rulemaking web site throughthe NRC home page (http://www.nrc.gov). This site provides thesame access as the FedWorld bulletinboard, including the facility to uploadcomments as files (any format), if yourweb browser supports that function.

For more information on NRC bulletinboards call Mr. Arthur Davis, SystemsIntegration and Development Branch,NRC, Washington, DC 20555–0001,


telephone (301) 415–5780; [email protected]. For information aboutthe interactive rulemaking site, contactMs. Carol Gallagher, (301) 415–5905; e-mail [email protected].

Environmental Impact: CategoricalExclusion

The Commission has determined thatthis proposed rule is the type of actiondescribed as a categorical exclusion in10 CFR 51.22 (c)(3)(i). Therefore, neitheran environmental impact statement noran environmental assessment has beenprepared for this proposed rule.

Paperwork Reduction Act StatementThis proposed rule amends

information collection requirements thatare subject to the Paperwork ReductionAct of 1995 (44 U.S.C. 3501 et seq.).This rule has been submitted to theOffice of Management and Budget forreview and approval of the paperworkrequirements.

Because the rule will reduce existinginformation collection requirements, thepublic burden for this collection ofinformation is expected to be decreasedby approximately 275 hours per licenseeper year. This reduction includes thetime required for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded and completing and reviewingthe collection of information. The NRCis seeking public comments on thepotential impact of the collection ofinformation contained in the proposedrule and on the following issues:

1. Is the proposed collection ofinformation necessary for the properperformance of the functions of theNRC, including whether the informationwill have practical utility?

2. Is the estimate of the burdenaccurate?

3. Is there a way to enhance thequality, utility, and clarity of theinformation to be collected?

4. How can the burden of thecollection of information be minimized,including the use of automatedcollection techniques?

Send comments on any aspect of thisproposed collection of information,including suggestions for furtherreducing the burden, to the Informationand Records Management Branch (T–6F33), U.S. Nuclear RegulatoryCommission, Washington, DC 20555–0001, or by Internet electronic mail [email protected]; and to the DeskOfficer, Office of Information andRegulatory Affairs, NEOB–10202,(3150–0002), Office of Management andBudget, Washington, DC 20503.

Comments to OMB on the collectionsof information or on the above issues

should be submitted by September 2,1997. Comments received after this datewill be considered if it is practical to doso, but assurance of considerationcannot be given to comments receivedafter this date.

Public Protection NotificationThe NRC may not conduct or sponsor,

and a person is not required to respondto, a collection of information unless itdisplays a currently valid OMB controlnumber.

Regulatory AnalysisA discussion of each of the changes

proposed in this rule is provided abovein the supplementary informationsection. The proposed changes representa potential cost savings for licenseesbecause it is anticipated that fewerreviews and audits will be necessary.Most licensees include the safeguardscontingency plan as part of the physicalsecurity program and one audit andreview covers both. Informationprovided by licensees on the cost forconducting reviews and audits of thelicensee emergency preparedness andphysical security programs varies, but isestimated to cost approximately $15,000per annual review and audit, for a totalfor both audits of $30,000 annually.Each element of the program would beaudited at least once every 2 years. Thiswould represent a potential maximumsavings of 50 percent to licensees in theemergency preparedness and physicalsecurity program audit costs, or anestimated $30,000 per licensee every 2years. The total cost savings to theindustry would be approximately $1.1Mper year. Even if some elements of theprograms were audited more frequently,the cost to the licensee will likely beless than auditing the entire programevery year. Limited focused audits thataddress significant problems or changeswill cost about $5,000 per year if theyare needed. There is no additional costanticipated for collecting and analyzingprogram performance indicators sincemost licensees already do so in somefashion.

Regulatory Flexibility CertificationAs required by the Regulatory

Flexibility Act OF 1980, 5 U.S.C. 605(b),the Commission certifies that thisproposed rule, if adopted, would nothave a significant economic impact ona substantial number of small entities.This proposed rule would affect onlylicensees authorized to operate nuclearpower reactors. These licensees do notfall within the scope of the definition of‘‘small entities’’ set forth in theRegulatory Flexibility Act, or the SmallBusiness Size Standards set out in

regulations issued by the SmallBusiness Administration Act, 13 CFRPart 121.

Backfit AnalysisThe Commission has determined that

the backfit rule, 10 CFR 50.109, does notapply to this proposed amendmentbecause this amendment would notimpose new requirements on existing 10CFR part 50 licensees. The proposedchanges would reduce the frequencywith which licensees conductindependent reviews and audits of theiremergency preparedness programs,safeguards contingency plans, andsecurity programs. This action does notseek to impose any new or increasedrequirements in this area. It will be adecrease of burden on the licensee. Nobackfitting is intended or approved inconnection with this proposed rulechange. Therefore, a backfit analysis hasnot been prepared for this amendment.

List of Subjects

10 CFR Part 50Antitrust, Classified information,

Criminal penalties, Fire protection,Intergovernmental relations, Nuclearpower plants and reactors, Radiationprotection, Reactor siting criteria,Reporting and recordkeepingrequirements.

10 CFR Part 73Criminal penalties, Hazardous

materials transportation, Export, Import,Nuclear materials, Nuclear power plantsand reactors, Reporting andrecordkeeping requirements, Securitymeasures.

For the reasons set out in thepreamble and under the authority of theAtomic Energy Act of 1954, as amended;the Energy Reorganization Act of 1974,as amended; and 5 U.S.C. 553; the NRCis proposing to adopt the followingamendments to 10 CFR part 50 and 73.

PART 50—DOMESTIC LICENSING OFPRODUCTION AND UTILIZATIONFACILITIES


Authority: Secs. 102, 103, 104, 105, 161,182, 183, 186, 189, 68 Stat. 936, 937, 938,948, 953, 954, 955, 956, as amended, sec.234, 83 Stat. 1244, as amended (42 U.S.C.2132, 2133, 2134, 2135, 2201, 2232, 2233,2236, 2239, 2282); secs. 201, as amended,202, 206, 88 Stat. 1242, as amended, 1244,1246 (42 U.S.C. 5841, 5842, 5846).

2. Section 50.54 is amended byrevising paragraphs (p)(3) and (t) to readas follows:

§ 50.54 Conditions of license.* * * * *


(p) * * *(3) The licensee shall provide for the

development, revision, implementation,and maintenance of its safeguardscontingency plan by a review, asnecessary, based on an assessment bythe licensee against performanceindicators, or as soon as reasonablypracticable after a significant changeoccurs in personnel, procedures,equipment, or facilities, but no longerthan 12 months after the change. Thelicensee shall ensure that all programelements are reviewed at least every 24months by individuals independent ofboth security program management andpersonnel who have directresponsibility for implementation of thesecurity program. The review mustinclude a review and audit of safeguardscontingency procedures and practices,an audit of the security system testingand maintenance program, and a test ofthe safeguards systems along withcommitments established for responseby local law enforcement authorities.The results of the review and audit,along with recommendations forimprovements, must be documented,reported to the licensee’s corporate andplant management, and kept available atthe plant for inspection for a period of3 years.* * * * *

(t) The licensee shall provide for thedevelopment, revision, implementation,and maintenance of its emergencypreparedness program by a review, asnecessary, based on an assessment bythe licensee against performanceindicators, or as soon as reasonablypracticable after a significant changeoccurs in personnel, procedures,equipment, or facilities, but no longerthan 12 months after the change. Thelicensee shall ensure that all programelements are reviewed at least every 24months by persons who have no directresponsibility for the implementation ofthe emergency preparedness program.The review shall include an evaluationfor adequacy of interfaces with Stateand local governments and of licenseedrills, exercises, capabilities, andprocedures. The results of the review,along with recommendations forimprovements, shall be documented,reported to the licensee’s corporate andplant management, and retained for aperiod of five years. The part of thereview involving the evaluation foradequacy of interface with State andlocal governments shall be available tothe appropriate State and localgovernments.* * * * *

PART 73—PHYSICAL PROTECTION OFPLANTS AND MATERIALS


Authority: Secs. 53, 161, 68 Stat. 930, 948,as amended, sec. 147, 94 Stat. 780 (42 U.S.C.2073, 2167, 2201); sec. 201, as amended, 204,88 Stat. 1242, as amended, 1245, sec. 1701,106 Stat. 2951, 2952, 2953 (42 U.S.C. 5841,5844, 2297(f)).

Section 73.1 also issued under secs.135, 141, Pub. L. 97–425, 96 Stat. 2232,2241 (42 U.S.C. 10155, 10161). Section73.37(f) also issued under sec. 301, Pub.L. 96–295, 94 Stat. 789 (42 U.S.C. 5841note). Section 73.57 is issued under sec.606, Pub. L. 99–399, 100 Stat. 876 (42U.S.C. 2169).

4. Section 73.55 is amended byrevising paragraph (g)(4) to read asfollows:

§ 73.55 Requirements for physicalprotection of licensed activities in nuclearpower reactors against radiologicalsabotage.

* * * * *(g) * * *(4) The licensee shall review the

security program, as necessary, based onan assessment by the licensee againstperformance indicators, or as soon asreasonably practicable after a significantchange occurs in personnel, procedures,equipment, or facilities, but no longerthan 12 months after the change. Thelicensee shall ensure that all programelements are reviewed at least every 24months by individuals who have nodirect responsibility for theimplementation of the security program.The security program review mustinclude an audit of security proceduresand practices, an evaluation of theeffectiveness of the physical protectionsystem, an audit of the physicalprotection system testing andmaintenance program, and an audit ofcommitments established for responseby local law enforcement authorities.The results and recommendations of thesecurity program review, management’sfindings on whether the securityprogram is currently effective, and anyactions taken as a result ofrecommendations from prior programreviews must be documented in a reportto the licensee’s plant manager and tocorporate management at least one levelhigher than that having responsibilityfor the day-to-day plant operation.These reports must be maintained in anauditable form, available for inspection,for a period of 3 years.* * * * *

5. Appendix C to Part 73, LicenseeSafeguards Contingency Plans, is

amended by revising the section titled‘‘Audit and Review’’ to read as follows:

Appendix C to Part 73—LicenseeSafeguards Contingency Plans.* * * * *

Audit and Review

For nuclear facilities subject to therequirements of § 73.46, the licensee shallprovide for a review of the safeguardscontingency plan at intervals not to exceed12 months. For nuclear power reactorlicensees subject to the requirements of§ 73.55, the licensee shall provide for areview of the safeguards contingency plan, asnecessary, based on an assessment by thelicensee against performance indicators, or assoon as reasonably practicable after asignificant change occurs in personnel,procedures, equipment, or facilities, but nolonger than 12 months after the change andshall ensure that all program elements arereviewed at least every 24 months. A licenseesubject to either requirement shall ensurethat the review of the safeguards contingencyplan is by individuals independent of bothsecurity program management and personnelwho have direct responsibility forimplementation of the security program. Thereview must include an audit of safeguardscontingency procedures and practices, andan audit of commitments established forresponse by local law enforcementauthorities.

The licensee shall document the resultsand the recommendations of the safeguardscontingency plan review, managementfindings on whether the safeguardscontingency plan is currently effective, andany actions taken as a result ofrecommendations from prior reviews in areport to the licensee’s plant manager and tocorporate management at least one levelhigher than that having responsibility for theday-to-day plant operation. The report mustbe maintained in an auditable form, availablefor inspection for a period of 3 years.

* * * * *Dated at Rockville, Maryland, this 8th day

of July 1997.For the Nuclear Regulatory Commission.

Hugh L. Thompson, Jr.,Acting Executive Director for Operations.[FR Doc. 97–20191 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P

FEDERAL ELECTION COMMISSION


[Notice 1997—12]

Definition of ‘‘Member’’ of aMembership Association

AGENCY: Federal Election Commission.ACTION: Advance notice of proposedrulemaking.

SUMMARY: The Commission is seekingcomments on how to revise its rulesgoverning who is a ‘‘member’’ of a


membership association following thedecision of the United States Court ofAppeals for the District of ColumbiaCircuit in Chamber of Commerce of theUnited States v. Federal ElectionCommission. The Commission is notproposing specific amendments to therules at this time but is ratherattempting to obtain general guidanceon the factors to be considered indetermining this relationship.DATES: Comments are due on September2, 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, NW., 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] and shouldinclude the full name, electronic mailaddress and postal service address ofthe commenter. Additional informationon electronic submission is providedbelow.FOR FURTHER INFORMATION CONTACT: Ms.Susan E. Propper, Assistant GeneralCounsel, or Ms. Rita A. Reimer,Attorney, 999 E Street NW.,Washington, DC 20463, (202) 219–3690or (800) 424–9530.SUPPLEMENTARY INFORMATION: TheFederal Election Campaign Act of 1971as amended (‘‘FECA’’ or ‘‘Act’’) permitsmembership associations to solicitcontributions from their members for aseparate segregated fund (‘‘SSF’’), whichcontributions can be used for federalpolitical purposes. The Act also allowsmembership associations tocommunicate with their members onany subject, including communicationsthat include express electoral advocacy.2 U.S.C. 441b(b)(2)(A), 441b(b)(4)(C).The implementing regulations definingwho is a ‘‘member’’ of a membershipassociation are found at 11 CFR100.8(b)(4)(iv) and 11 CFR 114.1(e).

On August 30, 1993, the Commissionpublished the text of revisions to theseregulations. 58 FR 45770. The revisedrules became effective on November 10,1993. 58 FR 59640. The rules providethat either a significant financialattachment to the membershipassociation (not merely the payment ofdues) or the right to vote directly for allmembers of the association’s highestgoverning body is sufficient in and ofitself to confer membership rights.However, in most instances acombination of regularly-assessed duesand the right to vote directly orindirectly for at least one member of the

association’s highest governing body isrequired. The term ‘‘membershipassociation’’ includes membershiporganizations, trade associations,cooperatives, corporations withoutcapital stock, and local, national andinternational labor organizations thatmeet the requirements set forth in theserules.

These rules were adopted in responseto the Supreme Court’s ruling in FederalElection Commission v. National Rightto Work Committee (‘‘NRWC’’), 459 U.S.196 (1982), and a series of AdvisoryOpinions (‘‘AO’’) adopted by theCommission following that decision.NRWC rejected an argument by anonprofit, noncapital stock corporation,whose articles of incorporation statedthat it had no members, that it shouldbe able to treat as members, and thussolicit funds to its SSF from, individualswho had at one time responded, notnecessarily financially, to an NRWCadvertisement, mailing, or personalcontact. The Supreme Court rejectedthis definition of ‘‘member,’’ saying thatto accept it ‘‘would virtually excise fromthe statute the restriction of solicitationto ‘members.’’’ Id. at 203. The Courtdetermined that ‘‘members’’ of nonstockcorporations should be defined, at leastin part, by analogy to stockholders ofbusiness corporations and members oflabor unions. Viewing the question fromthis perspective meant that ‘‘somerelatively enduring and independentlysignificant financial or organizationalattachment is required to be a‘member’’’ for these purposes. Id. at 204.The recent revisions to theCommission’s rules were intended toincorporate this standard.

The United States District Court forthe District of Columbia held that therevised ‘‘member’’ rules were notarbitrary, capricious or manifestlycontrary to the statutory language, andtherefore deferred to what the courtfound to be a valid exercise of theCommission’s regulatory authority.Chamber of Commerce of the UnitedStates (‘‘Chamber’’) v. Federal ElectionCommission, Civil Action No. 94–2184(D.D.C. Oct. 28, 1994)(1994 WL 615786).However, the United States Court ofAppeals for the District of ColumbiaCircuit reversed. 69 F.3d 600 (D.C.Cir.1995), amended on denial of rehearing,76 F.3d 1234 (D.C.Cir. 1996).

The case was jointly brought by theChamber of Commerce and theAmerican Medical Association(‘‘AMA’’), two associations that do notprovide their asserted ‘‘members’’ withthe voting rights necessary to confer thisstatus under the current rules. The courtheld that the ties between thesemembers and the Chamber and the

AMA are sufficient to comply with theSupreme Court’s NWRC criteria, andtherefore concluded that theCommission’s rules are invalid becausethey define the term ‘‘member’’ in anunduly restrictive fashion. 69 F.2d at604.

The Chamber is a nonprofitcorporation whose members include3,000 state and local chambers ofcommerce, 1,250 trade and professionalgroups, and 215,000 ‘‘direct businessmembers.’’ The members pay annualdues ranging from $65 to $100,000 andmay participate any of 59 policycommittees that determine theChamber’s position on various issues.However, the Chamber’s Board ofDirectors is self-perpetuating (that is,Board members elect their successors);so no member entities have either director indirect voting rights for members ofthe Board.

The AMA challenged the exclusionfrom the definition of member 44,500‘‘direct’’ members, those who do notbelong to a state medical association.Direct members pay annual duesranging from $20 to $420; receivevarious AMA publications; andparticipate in professional programs puton by the AMA. They are also bound byand subject to discipline under theAMA’s Principles of Medical Ethics.However, since state medicalassociations elect members of theAMA’s House of Delegates, thatorganization’s highest governing body,direct members do not satisfy the votingcriteria set forth in the current rules.

The Chamber of Commerce court, inan Addendum to the original decision,noted that the Commission ‘‘still has agood deal of latitude in interpreting’’ theterm ‘‘member.’’ 76 F.3d at 1235.However, in its original decision, thecourt held the rules to be arbitrary andcapricious (as applied to the Chamber),since under the current rules even thosepaying $100,000 in annual dues cannotqualify as members. As for the AMA,the rule excludes members who pay upto $420 in annual dues and, amongother organizational attachments, aresubject to sanctions under the Principlesof Medical Ethics. The court explainedthat this latter attachment ‘‘might bethought, [] for a professional, [to be] themost significant organizationalattachment.’’ 69 F.3d at 605 (emphasisin original).

On February 24, 1997, theCommission received a Petition forRulemaking from James Bopp, Jr., onbehalf of the National Right to LifeCommittee, Inc. The Petition urged theCommission to revise its rules definingwho is a member of a membership


association to reflect the Chamber ofCommerce decision.

The Commission published a Noticeof Availability (‘‘NOA’’) in the FederalRegister on March 29, 1997. 62 FR13355. The Commission received twocomments in response to the NOA.

Other than its comments on theChamber’s and the AMA’s memberattachments that it found sufficient tocomply with the Supreme Court’sNRWC criteria, the Chamber ofCommerce court provided littleguidance on how the current rulesshould be revised to comply with thisruling. Both of these associationspresent specific and somewhat uniquecircumstances that do not necessarilylend themselves to generalizationsapplicable to the broader membershipassociation community. Nor did thePetition for Rulemaking suggestalternative language for this purpose.

The Commission has thereforedecided to issue an Advance Notice ofProposed Rulemaking (‘‘ANPRM’’),seeking general comments on how bestto effectuate this decision. Afteranalyzing the comments received inresponse to the ANPRM, theCommission may issue a Notice ofProposed Rulemaking (‘‘NPRM’’)seeking comments on specific regulatorylanguage.

The current rules provide a ‘‘safeharbor’’ for membership associations,since those who meet the requirementsset forth in these rules clearly enjoy‘‘member’’ status. Associations can alsoseek advisory opinions pursuant to 2U.S.C. 437f and 11 CFR part 112 todetermine how the rules, as interpretedin the Chamber of Commerce decision,apply to their particular situations. Thishas already been done by certainentities, including the ChicagoMercantile Exchange (‘‘CME’’ or the‘‘Exchange’’). See discussion of AO1997–5, infra.

The Commission notes that there arethree preliminary requirements anentity must meet before it qualifies as a‘‘membership association’’ for purposesof these rules: It must expressly providefor ‘‘members’’ in its articles and by-laws; expressly solicit members; andexpressly acknowledge the acceptanceof membership, such as by sending amembership card or including themember on a membership newsletterlist. 11 CFR 100.8(b)(4)(iv)(A),114.1(e)(1). These requirements werenot challenged in the litigation and theCommission does not anticipate that itwill propose any changes to thislanguage.

The Chamber of Commerce, incommenting on the NOA, argued thatthese three requirements should in and

of themselves be sufficient to confermembership status. However, it may bethat these attachments, standing alone,are insufficient to meet the ‘‘relativelyenduring and independently significantfinancial or organizational attachment’’standard articulated by the NRWCCourt. (The other comment, from theInternal Revenue Service (‘‘IRS’’), statedthat a potential rulemaking on this topicwould not conflict with the InternalRevenue Code or any IRS regulation.)

In addition to retaining these threepreliminary requirements, theCommission believes that the currentrules recognizing as members those whohave a stronger financial interest in anassociation than paying dues (forexample, the ownership of a stockexchange seat) and those who have theright to vote directly for all members ofthe association’s highest governingbody, should likewise be retained forthose associations that meet either ofthese requirements. 11 CFR100.8(b)(4)(iv)(B) (1), (3); 114.1(e)(2) (i),(iii). Thus, the Commission is seekingcomments on what other attachments,or combination of attachments, shouldalso be sufficient to confer membershipstatus in lieu of current100.8(b)(4)(iv)(B)(2) and 114.1(e)(2)(ii).

One approach would be to establish acertain level of annual dues as in and ofitself sufficient for this purpose. Thosewho paid this amount would beconsidered members regardless ofwhether they had organizationalattachments to the association. Onepossibility is that any amount of annualdues set by an association would be asufficient financial attachment,regardless of amount. Anotherpossibility is a $200 per year cut-offpoint, since $200 is the amount thatCongress has decided is such asignificant attachment to a politicalcommittee that itemized disclosure isrequired for what could be considered‘‘membership’’ in a political committee.The Commission welcomes commentson this approach as well as suggestionsfor what level of annual dues would beappropriate to confer membershipstatus, if this were to be included in therules.

For a lesser dues obligation, the rulesmight list other factors the Commissionwould consider per se sufficient toprovide the required organizationalattachment, provided that some level ofdues was also required. These couldinclude such attachments as the votingrights contained in the current rule; theright to serve on policy-making boardsand/or vote on policy issues; eligibilityto be elected to governing positions inthe organization; and whether themember may be subject to disciplinary

action by the association. If thisapproach is adopted, the Commissionwould like to make this list ascomprehensive as possible, so that thelarge majority of covered entities will beable to quickly determine who qualifiesas a member.

On May 16, 1997, the Commissiondetermined in AO 1997–5 that, based onthe facts presented, both owners andlessees of seats on the ChicagoMercantile Exchange could beconsidered ‘‘members’’ of the CME forpurposes of these rules. The member-owners, by virtue of their ownershipstake, qualify as members under 11 CFR100.8(b)(4)(iv)(B)(1) and 114.1(e)(2)(i).In addition, the Commission found,member-lessees have sufficient rightsand obligations to also qualify asmembers. These attachments includesubstantial financial obligations to theCME, the right to serve on policy-formulating committees, and thepossibility of sanctions by the CME thatwould impact on their professionalstatus. AO 1997–5 overruled AO 1988–39 and 1987–31 (in part), which hadconcluded that only one membership inthe Exchange existed with respect toeach leased membership. TheCommission is seeking comments onwhether to incorporate this result intothe regulatory text.

The Commission’s rules at 11 CFR100.8(b)(4)(iv)(B) and 114.1(e)(2) thatrequire both a financial and anorganizational attachment for membersof most membership associations clearlyinclude two-tiered associations, such asthose in which members vote fordelegates to a convention, and thosedelegates elect those who serve on theassociation’s highest governing body. Atthe time of the 1993 amendment, theCommission explained that multi-tieredassociations could solicit across all tiers,as long as the various tiers met the samecriteria that govern solicitations by two-tiered associations. Explanation andJustification for Regulations on theDefinition of ‘‘Member’’ of aMembership Association, 58 FR 45770(1993). In addition, the Commissionauthorized farm cooperatives as definedin the Agricultural Marketing Act of1929 (12 U.S.C. 1141j) and those entitieseligible for assistance under the RuralElectrical Act of 1936 as amended (7U.S.C. 901–950aa–1) to solicit across alltiers even though the preciseattachments set forth at 11 CFR100.8(b)(4)(iv)(B) and 114.1(e)(2) mightnot always be present. 11 CFR114.7(k)(1). Federations of tradeassociations had earlier been given thissame right, 11 CFR 114.8(g), as hadlabor organizations, 11 CFR 114.1(e)(4).The Chamber of Commerce court, in


discussing the AMA’s organizationalattachments, cited these exceptions asanother basis for its ruling that the AMAshould be able to cross-solicit acrossmultiple tiers even where no votingrights were present. 69 F.3d at 606.

If the Commission expands themembership definition, many multi-tiered associations that may notpresently qualify for cross-tiersolicitation would likely be able to doso. The Commission welcomescomments on whether this should bestated explicitly in the rules, as well aswhether the particular circumstances ofcertain multi-tiered associations mightjustify different standards.

All comments on this ANPRM shouldbe addressed to Susan E. Propper,Assistant General Counsel, and must besubmitted in either written or electronicform. Written comments should be sentto the Commission’s postal serviceaddress: Federal Election Commission,999 E Street, NW., Washington, DC20463. Faxed comments should be sentto (202) 219–3923. Commenterssubmitting faxed comments should alsosubmit a printed copy to theCommission’s postal service address toensure legibility. Comments may also besent by electronic mail [email protected]. Commenters sendingcomments by electronic mail shouldinclude their full name, electronic mailaddress and postal service addresswithin the text of their comments. Allcomments, regardless of form, must besubmitted by September 2, 1997.

The Commission also welcomescomments on any related topic.

Dated: July 25, 1997.John Warren McGarry,Chairman, Federal Election Commission.[FR Doc. 97–20094 Filed 7–30–97; 8:45 am]BILLING CODE 6713–01–P


Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–ANE–13]

RIN 2120–AA64

Airworthiness Directives; AlliedSignalInc. TPE331 Series Turboprop andTSE331 Turboshaft Engines

AGENCY: Federal AviationAdministration, DOT.ACTION: Notice of proposed rulemaking(NPRM).

SUMMARY: This document proposes theadoption of a new airworthinessdirective (AD) that is applicable to

AlliedSignal Inc., (formerly GarrettEngine Division, Garrett Turbine EngineCompany and AiResearchManufacturing Company of Arizona)TPE331 series turboprop and TSE331turboshaft engines. This proposal wouldrequire replacement or radiographicinspection, and replacement , ifnecessary, of certain third stage turbinestators with serviceable parts. Thisproposal is prompted by a report of anouter band weld that crackedsubsequent to a radiographic inspectionrequired by a previous AD. The actionsspecified by the proposed AD areintended to prevent third stage turbinewheel separation due to thermal fatiguecracking and shifting of the third stageturbine stator, which could contact thethird stage turbine wheel and result inan uncontained engine failure anddamage to the aircraft.DATES: Comments must be received bySeptember 29, 1997.ADDRESSES: Submit comments intriplicate to the Federal AviationAdministration (FAA), New EnglandRegion, Office of the Assistant ChiefCounsel, Attention: Rules Docket No.97–ANE–13, 12 New England ExecutivePark, Burlington, MA 01803–5299.Comments may also be sent via theInternet using the following address: ‘‘[email protected]’’. Commentssent via the Internet must contain thedocket number in the subject line.Comments may be inspected at thislocation between 8:00 a.m. and 4:30p.m., Monday through Friday, exceptFederal holidays.

The service information onAlliedSignal Service Bulletin No.TPE331–A72–0861, Revision 2, datedApril 23, 1997, referenced in theproposed rule may be obtained fromAlliedSignal Aerospace, Attn: DataDistribution, M/S 64–3/2101–201, P.O.Box 29003, Phoenix, AZ 85038–9003;telephone (602) 365–2493, fax (602)365–5577. The service information onNational Flight Services ServiceBulletin No. NF–TPE331–A72–10961,dated April 28, 1997, referenced in theproposed rule may be obtained fromeither National Flight Services, Inc.10971 E. Airport Services Road, ToledoExpress Airport, Swanton, OH 43558;telephone (419) 865–2311, fax (419)867–4224, or http://www.natfs.com, orNational Flight Services of Arizona,Inc., 5170 W. Bethany Home Road,Glendale, AZ 85301; telephone (602)931–1143, fax (602) 931–7264. Thisinformation may be examined at theFAA, New England Region, Office of theAssistant Chief Counsel, 12 NewEngland Executive Park, Burlington,MA.

FOR FURTHER INFORMATION CONTACT:Joseph Costa, Aerospace Engineer, LosAngeles Aircraft Certification Office,FAA, Transport Airplane Directorate,3960 Paramount Blvd., Lakewood, CA90712–4137; telephone (562) 627–5246;fax (562) 627–5210.


Comments InvitedInterested persons are invited to

participate in the making of theproposed rule by submitting suchwritten data, views, or arguments asthey may desire. Communicationsshould identify the rules docket numberand be submitted in triplicate to theaddress specified above. Allcommunications received on or beforethe closing date for comments, specifiedabove, will be considered before takingaction on the proposed rule. Theproposals contained in this notice maybe changed in light of the commentsreceived.

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–ANE–13.’’ 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, New England Region, Office of theAssistant Chief Counsel, Attention:Rules Docket No. 97–aNE–13, 12 NewEngland Executive Park, Burlington, MA01803–5299.

DiscussionThe Federal Aviation Administration

(FAA) has received a report of a thirdstage turbine stator outer band weld thatcracked on an AlliedSignal Inc. ModelTPE331–5 turboprop engine. This weld,removed from service in January 1996after the crack was discovered duringturbine maintenance, had passed a one-time radiographic inspection forunacceptable weld penetration andthermal fatigue cracking required by AD87–19–02. While AD 87–19–02 was


superseded by AD 93–05–09, therequirement for a one-time radiographicinspection of the outer band weld forcracks was carried forward in to AD 93–05–09. The FAA determined thatcracking initiated due to inadequateouter band butt weld penetrationbetween the outer sheet metal ring andthe nozzle casting. The FAA alsodetermined that some radiographicfilms of unacceptable outer band weldsmay possibly have been misread byAlliedSignal Inc. In addition, numerousradiographic films are no longer on fileat AlliedSignal Inc., and thereforereexamination of radiographic films ofother welds is impossible. AlliedSignalInc. no longer reads radiographic films;operators may use radiographicinspection in accordance with this ADas an alternate method of compliancewith the radiographic inspectionrequirement of paragraph (h) of AD 93–05–09. Inadequate weld penetrationcould lead to fatigue cracking, shiftingaft, and third stage turbine stator contactwith the third stage turbine rotor. Thiscondition, if not corrected, could resultin third stage turbine wheel separation,which could result in an uncontainedengine failure and damage to theaircraft.

The FAA has reviewed and approvedthe technical contents of National FlightServices Service Bulletin (SB) No. NF-TPE331-A72–10961, dated April 28,1997, that provides a list by serialnumber of third stage turbine stators notaffected by this AD and describesprocedures for the reinspection forunacceptable weld penetration andthermal fatigue cracking in third stageturbine stators initially inspected byAlliedSignal Inc.; and AlliedSignal Inc.SB No. TPE331-A72–0861, Revision 2,dated April 23, 1997, that describesprocedures for replacing affected thirdstage turbine stators with redesignedserviceable stators.

Since an unsafe condition has beenidentified that is likely to exist ordevelop on other products of this sametype design, the proposed AD wouldrequire replacement of certain thirdstage turbine stators or radiographicinspection, and replacement, ifnecessary, with serviceable parts. Theactions would be required to beaccomplished in accordance with theSBs described previously.

There are approximately 1,000engines of the affected design in theworldwide fleet. The FAA estimates that700 engines installed on aircraft of U.S.registry would be affected by thisproposed AD. The FAA estimates that210 engines would require unscheduledreplacement, that it would takeapproximately 40 work hours per engine

to accomplish the proposed actions, andthat the average labor rate is $60 perwork hour. Required parts would costapproximately $6,500 per engine.Approximately 350 engines wouldrequire replacement during hot sectioninspection, which would takeapproximately 2 work hours per engine,with a parts cost of $6,500.Approximately 14 engines wouldrequire unscheduled inspection, whichwould take approximately 50 workhours to accomplish, with a parts costof $1,500. Approximately 21 engineswould require inspection during hotsection inspection, which would takeapproximately 10 work hours toaccomplish, with zero parts cost.Approximately 35 engines wouldrequire unscheduled inspection andreplacement, which would takeapproximately 50 work hours toaccomplish, with a $6,500 parts cost.Approximately 70 engines wouldrequire inspection and replacementduring hot section inspection, whichwould take approximately 10 workhours to accomplish, with a $5,000 partscost. The FAA has been informed byAlliedSignal Inc. that they will providea redesigned third stage turbine statorassembly at a special program price andwill pay for the labor to install thisassembly. Based on these figures,without the special price program fromthe manufacturer, the total cost impactof the proposed AD on U.S. operators isestimated to be $4,986,100.

The regulations proposed hereinwould 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.

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

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:

PART 39—AIRWORTHINESSDIRECTIVES


Authority: 49 U.S.C. 106(g), 40113, 44701.

§39.13 [Amended]2. Section 39.13 is amended by adding the

following new airworthiness directive:AlliedSignal Inc.: Docket No. 97-ANE–13.

Applicability: AlliedSignal Inc., (formerlyGarrett Engine Division, Garrett TurbineEngine Company and AiResearchManufacturing Company of Arizona) ModelTPE331-1, -2, -2UA, -3U, -3UW, -5, -5A,-5AB, -5B, -6, and—6A turboprop andTSE331–3U turboshaft engines with thirdstage turbine stators, Part Number (P/N)868379–3, except those engines with turbinestators listed by Serial Number (S/N) in Table1 of the National Flight Services ServiceBulletin (SB) No. NF-TPE331-A72–10961,dated April 28, 1997. These engines areinstalled on but not limited to: MitsubishiMU-2B series (MU–2 series); ConstruccionesAeronauticas, S.A. (CASA) C–212 series;Fairchild SA226 series (Swearingen Merlinand Metro series); Prop-Jets, Inc. Model 400;Twin Commander 680 and 690 (JetpropCommander); Rockwell Commander S–2R;Shorts Brothers and Harland, Ltd. SC7(Skyvan); Dornier 228 series; Beech 18 and45 series and Models JRB–6, 3N, 3NM, 3TM,and B100; Pilatus PC–6 series (FairchildPorter and Peacemaker); De Havilland DH104 series 7AXC (Dove); Ayres S–2R series;Grumman American G-164 series; andSchweizer G–164 series airplanes; andSikorsky S–55 series (Helitec Corp. S55T)helicopters.

Note 1: This airworthiness directive (AD)applies to each engine identified in thepreceding applicability provision, regardlessof whether it has been modified, altered, orrepaired in the area subject to therequirements of this AD. For engines thathave been modified, altered, or repaired sothat the performance of the requirements ofthis AD is affected, the owner/operator mustrequest approval for an alternative method ofcompliance in accordance with paragraph (g)of this AD. The request should include anassessment of the effect of the modification,alteration, or repair on the unsafe conditionaddressed by this AD; and, if the unsafecondition has not been eliminated, therequest should include specific proposedactions to address it.

Compliance: Required as indicated, unlessaccomplished previously.

To prevent third stage turbine wheelseparation due to fatigue cracking and


shifting of the third stage turbine stator,which could result in an uncontained enginefailure and damage to the aircraft,accomplish the following:

(a) For engines with third stage turbinestators with S/Ns listed in Table 1 of NationalFlight Services SB No. NF-TPE331-A72–10961, dated April 28, 1997, no action isrequired.

(b) For engines with third stage turbinestators with S/Ns not listed in Table 1 ofNational Flight Services SB No. NF-TPE331-A72–10961, dated April 28, 1997, remove theunserviceable third stage turbine statorassembly in accordance with the applicableengine maintenance manual and thefollowing schedule:

Third stage turbinestator cycles in serv-ice (cis) since radio-graphic inspection inaccordance with AD87–19–02 paragraph(b) or AD 93–05–09

paragraph (h)

Removal schedule

Unknown CIS sinceinspection.

Remove within 600CIS after the effec-tive date of this AD,at next access, orprior to March 31,2002, whicheveroccurs first.

2200 or more CISsince inspection.

Remove within 600CIS after the effec-tive date of this AD,at next access, orprior to March 31,2002, whicheveroccurs first.

Less than 2200 CISsince inspection.

Remove prior to ac-cumulating 2,800CIS, at next ac-cess, or prior toMarch 31, 2002,whichever occursfirst.

(c) For the purpose of this AD, the nextaccess to the third stage stator assembly isdefined as disassembly of the turbine beyondthe removal of the third stage rotor.

Note 2: This AD does not supersede AD93–05–09. The removal schedule inparagraph (b) of this AD does not affect therequirements of AD 93–05–09.

(d) For the purpose of determining thirdstage turbine stator removal under paragraph(b) of this AD, third stage turbine stator hourstime in service (TIS) may be converted to CISsince inspection by multiplying by 1.5 thenumber of hours since radiographicinspection in accordance with paragraph (b)of AD 87–19–02 or paragraph (h) of AD 93–05-09.

(e) For third stage turbine stator assembliesremoved in accordance with paragraph (b) ofthis AD, accomplish either a radiographicinspection for inadequate weld penetrationand fatigue cracking, and, if necessary,replace with a serviceable assembly inaccordance with the AccomplishmentInstructions of National Flight Services SBNo. NF-TPE331-A72–10961, dated April 28,1997; or replace with a serviceable assemblyin accordance with the Accomplishment

Instructions of AlliedSignal Inc. SB No.TPE331-A72–0861, Revision 2, dated April23, 1997. Accomplishing the radiographicinspection required by this paragraphconstitutes compliance with the radiographicinspection requirement of paragraph (h) ofAD 93–05–09.

(f) An alternative method of compliance oradjustment of the compliance time thatprovides an acceptable level of safety may beused if approved by the Manager, LosAngeles Aircraft Certification Office.Operators shall submit their requests throughan appropriate FAA Principal MaintenanceInspector, who may add comments and thensend it to the Manager, Los Angeles AircraftCertification Office.

Note 3: Information concerning theexistence of approved alternative methods ofcompliance with this airworthiness directive,if any, may be obtained from the Los AngelesAircraft Certification Office.

(g) 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 aircraft toa location where the requirements of this ADcan be accomplished.

Issued in Burlington, Massachusetts, onJuly 8, 1997.Ronald L. Vavruska,Acting Manager, Engine and PropellerDirectorate, Aircraft Certification Service.[FR Doc. 97–20193 Filed 7–30–97; 8:45 am]BILLING CODE 4910–13–U

DEPARTMENT OF ENERGY

Federal Energy RegulatoryCommission

18 CFR Parts 101, 116, 201, 216 and352

[Docket No. RM97–6–000]

Units of Property AccountingRegulations

July 25, 1997.AGENCY: Federal Energy RegulatoryCommission.ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal EnergyRegulatory Commission is proposing toamend its units of property and oilpipeline regulations to requirecompanies to maintain a writtenproperty units listing, to apply thelisting consistently, and to furnish theCommission with a justification of anychanges in the listing, if requested, andto clarify that companies may useestimates when it is impractical orunduly burdensome for companies toidentify the cost of retired property. Inaddition, the Commission proposes toremove certain regulations whichprescribe unit-of-property listings forjurisdictional companies. These changes

will allow companies additionalflexibility in maintaining their recordsof units of property. Finally, theCommission also proposes to removethe regulation which prescribes aminimum rule that requires OilPipelines to charge operating expensesfor acquisitions, additions andimprovements costing less than $500.DATES: Comments are due on or beforeSeptember 15, 1997.ADDRESSES: File comments with theOffice of the Secretary, Federal EnergyRegulatory Commission, 888 FirstStreet, NE., Washington, DC 20426.FOR FURTHER INFORMATION CONTACT:Harris S. Wood, Office of the General

Counsel, Federal Energy RegulatoryCommission, 888 First Street, NE,Washington, DC 20426, (202) 208–0224

Mark Klose, Office of the ChiefAccountant, Federal EnergyRegulatory Commission, 888 FirstStreet, NE, Washington, DC 20426,(202) 219–2595

SUPPLEMENTARY INFORMATION: Inaddition to publishing the full text ofthis document in the Federal Register,the Commission provides all interestedpersons an opportunity to inspect orcopy the contents of this documentduring normal business hours in Room2A, 888 First Street, NE., WashingtonDC 20426.

The Commission Issuance PostingSystem (CIPS), an electronic bulletinboard service, provides access to thetexts of formal documents issued by theCommission. CIPS is available at nocharge to the user and may be accessedusing a personal computer with amodem by dialing 202–208–1397 ifdialing locally or 1–800–856–3920 ifdialing long distance. To access CIPS,set your communications software to19200, 14400, 12000, 9600, 7200, 4800,2400, or 1200 bps, full duplex, noparity, 8 data bits and 1 stop bit. Thefull text of this order will be availableon CIPS in ASCII and WordPerfect 6.1format. CIPS user assistance is availableat 202–208–2474.

CIPS is also available on the Internetthrough the Fed World system. Telnetsoftware is required. To access CIPS viathe Internet, point your browser to theURL address: http://www.fedworld.govand select the ‘‘Go to the FedWorldTelnet Site’’ button. When your Telnetsoftware connects you, log on to theFedWorld system, scroll down andselect FedWorld by typing: 1 and at thecommand line and type: /go FERC.FedWorld may also be accessed byTelnet at the address fedworld.gov.

Finally, the complete text on diskettein WordPerfect format may be


1 FERC Form No. 1: Annual Report of MajorElectric Utilities, Licensees and Others; FERC Form1-F: Annual Report for Non-major Public Utilitiesand Licensees; FERC Form No. 2: Annual Report ofMajor Natural Gas Companies; FERC Form 2-A:Annual Report of Non-major Natural GasCompanies; FERC Form No. 6: Annual Report of OilPipeline Companies.

2 2 FR 135, January 26, 1937.3 The current version of the USofA for Public

Utilities is found at 18 CFR, subchapter C, part 101,et seq.; for natural gas companies, 18 CFR,subchapter F, part 201 et seq.; and for Oil Pipelines,18 CFR, subchapter Q, part 352.

4 List of Property for Use in Accounting for theAddition and Retirement of Reactor PlantEquipment, FERC Stats. & Regs., RegulationsPreamble 1986–1990 ¶ 30,779 (1987).

5 4 FR 4764, December 5, 1939.6 Order Amending the Uniform System of

Accounts for Natural Gas Companies and RelatedRegulations to Provide for Base Load LiquefiedNatural Gas Facilities, FERC Stats. & Regs.,Regulations Preamble 1977–1981, ¶ 30,009A (1978).

7 42 U.S.C.A. § 7101 (1995).8 Edison Electric Institute, Interstate Natural Gas

Association, American Gas Association, andAssociation of Oil Pipelines.

purchased from the Commission’s copycontractor, La Dorn SystemsCorporation. La Dorn SystemsCorporation is also located in the PublicReference Room at 888 First Street, NE.,Washington, DC 20426.

Federal Energy Regulatory Commission

[Docket No. RM97–6–000]

Notice of Proposed Rulemaking

July 25, 1997Recordkeeping for Units of Property

Accounting Regulations for Public Utilitiesand Licensees, Natural Gas Companies andOil Pipeline Companies.

The Federal Energy RegulatoryCommission (Commission) proposes tomodify its regulations governing units ofproperty to simplify the fixed-assetrecordkeeping requirements for PublicUtilities and Licensees (Public Utilities),Natural Gas Companies, and OilPipeline Companies. These three groupsare collectively called ‘‘Companies’’ inthis Notice of Proposed Rulemaking(NOPR).

This NOPR proposes to remove theCommission’s prescribed units ofproperty listings contained in 18 CFRparts 116 and 216 and instruction 3–14of part 352, thereby giving Companiesthe flexibility to maintain their ownproperty listings and correspondingfixed-asset records. The NOPR alsoproposes to require Companies tomaintain their own written propertyunits listing for use in accounting foradditions and retirements of plant,apply the listing consistently, and ifrequested, furnish the Commission withthe justification for any changes to thelisting.

The NOPR proposes to clarify existingrequirements for Public Utilities andNatural Gas Companies, and add therequirement for Oil Pipelines regardingestimating property costs when it isunduly burdensome to determine thecost of retired property. This will permitOil Pipelines, as well as Public Utilitiesand Natural Gas Companies, to useestimates, and requires that Companiesfurnish the basis of their estimate to theCommission, if requested.

Lastly, the NOPR proposes to removethe minimum rule for Oil Pipelines.This rule requires that Oil Pipelinesmust expense additions andimprovements of less than $500 andmust seek Commission approval tochange this amount.

The proposed regulations will giveCompanies the opportunity to identifyand maintain property unit listings thatare up-to-date and more in harmonywith the needs of their businesses. Itwill permit Companies to reduce thelevel and number of detailed property

unit records that they currentlymaintain. Additionally, the Commissionwill not need to commit resources formaintaining and approving changes tothe property listings.

The elimination of parts 116, 216, and352 (instruction 3–14) will not affect theinformation currently reported in theFERC Forms 1, 1–F, 2, 2–A or 6.1 TheseForms do not report costs at the level ofdetail prescribed by parts 116, 216 and352 (instruction 3–14). Therefore, theNOPR will not affect the informationcontained in these Forms. Theelimination of parts 116, 216, and 352(instruction 3–14) will not affect themanner in which costs are recognizedfor accounting or rate-making purposes.Companies will continue to treat allplant as consisting of retirement unitsand minor items of property. Under theproposed rule, Companies will accountfor the additions and retirements ofsuch plant in accordance withinstructions contained in theCommission’s Uniform System ofAccounts (USofA) for Public Utilities,Natural Gas Companies, and OilPipeline Companies.

I. Background

a. Public Utilities and Natural GasCompanies

In 1937, the Federal PowerCommission (FPC) issued Order No. 45 2

that prescribed the USofA for PublicUtilities subject to the Federal PowerAct.3 Order No. 45 also established theproperty unit listing for use inaccounting for additions andretirements of electric plant.

These regulations do not permitPublic Utilities to combine the items inthe listing into fewer, higher level unitswithout Commission approval. TheCommission made only one significantrevision to the electric plant propertyunit listing when, in 1987, it addednuclear plant equipment.4

Similarly, in 1939, the FPC issuedOrder No. 69, effective January 1, 1940,which established the property unit

listing for use in accounting foradditions and retirements of gas plant.These regulations also do not permitnatural gas companies to combine theitems in the listing into fewer, higherlevel units without Commissionapproval.5 The Commission made onlyone significant revision to the gas plantproperty unit listing when, in 1978, itadded liquefied natural gas plantequipment.6

b. Oil Pipelines

In 1977, the Commission beganregulating Oil Pipelines, with theimplementation of the Department ofEnergy Organization Act.7 Prior to 1977,the Interstate Commerce Commission(ICC) regulated interstate oil pipelinesand prescribed a property units listing.The Commission continues to use theICC’s prescribed listing as identified in18 CFR part 352 (instruction 3–14). Theregulations do not permit Oil Pipelinesto combine, add or expand the propertyitems contained in the listing withoutCommission approval. Oil Pipelineplant property listings have not beenrevised or updated since theCommission began regulating OilPipelines.

II. Proposed Changes to Regulations

The Commission performed a reviewof current practices by Public Utilities,Natural Gas Companies, and OilPipelines in applying Parts 116, 216 and352. Between January and April 1997,Commission staff met with severalrepresentatives from Public Utilities,Natural Gas Companies, Oil Pipelines,and associated Industry Groups 8 todiscuss the effects on Companies ofidentifying and tracking units ofproperty at the prescribed detailed level.Based on this review, the Commissionproposes to reduce detailedrecordkeeping across all industrysegments.

For Public Utilities and Natural GasCompanies, the Commission proposes todelete 18 CFR parts 116 and 216 whichprescribe a units of property listing forthe additions and retirements of electricplant and gas plant, respectively. TheCommission proposes to modify 18 CFRpart 101, Electric Plant Instruction 10,and 18 CFR part 201, Gas PlantInstruction 10, to require companies to


9 18 CFR parts 101, 201 and 352. The USofA forPublic Utilities and Natural Gas Companiesspecifies in the plant instructions of parts 101 and201, respectively, the type of informationcompanies must keep related to their fixed assets.

10 The process of sub-dividing a fixed asset intoits various major components or unit of propoertyunits is also referred to as the ‘‘unitization process.’’

maintain a written property unitslisting, to apply the listing consistently,and to furnish the Commission with thejustification for any changes to thelisting, if requested. In addition, theCommission proposes to clarify 18 CFRparts 101 and 201, concerning the useof estimates when it is impractical orunduly burdensome for Companies toidentify the cost of retired property.

For Oil Pipelines, the Commissionproposes to delete 18 CFR part 352(instruction 3–14), which prescribes aunits-of-property listing. TheCommission proposes to modify 18 CFRpart 352 (instruction 3–4) to require OilPipelines to maintain a written propertyunits listing, to apply the listingconsistently, and to furnish theCommission with the justification forany changes to the listing, if requested.In addition, the Commission proposes toclarify 18 CFR part 352 (instruction 3–7), concerning the use of estimates whenit is impractical or unduly burdensomefor Oil Pipelines to identify the cost ofproperty retired.

Finally, the Commission alsoproposes to delete 18 CFR part 352(instruction 3–2), which prescribes aminimum rule that requires OilPipelines to charge operating expensesfor acquisitions, additions andimprovements costing less than $500,and to delete any references to theminimum rule in Part 352 (instructions3–4, 3–5, and 3–6(a)).

III. DiscussionThe USofA requires Companies to

record the cost of additions andretirements of property and equipmentin the appropriate plant account.9Additionally, Companies maintain afixed asset recordkeeping system thattracks these plant account costs byproperty units. Parts 116, 216, and 352of the Commission’s regulationsprescribe the detailed property unitlistings that Companies must use toidentify the items of property andequipment tracked by the fixed assetrecordkeeping system.

These listings prescribe a level ofdetail that companies maintain tosupport the amounts in the plantaccounts. However, the property unitlistings do not reflect the technologicalchanges that have taken place in theutility industry. The NOPR proposes toremove the prescribed property unitlistings, and allow Companies toidentify property units and maintain alevel of support determined by their

business needs. The NOPR will noteliminate the need for Companies tomaintain a property recordkeepingsystem. Companies will continue tomaintain support of the amounts shownin the plant accounts.

As discussed below, the level of detailprescribed by the property unit listingsand regulations place an unnecessaryburden on Companies, are not current,are too restrictive, and appear to provideminimal benefit to either the Companiesor to the Commission.

A. Burdens for Companies

(1) Recordkeeping Burden

Companies are experiencing fixedasset recordkeeping burdens due to thelevel of detail currently prescribed by 18CFR parts 116, 216, and 352 (instruction3–14). These regulations requirecompanies to keep detailed fixed assetrecords for each unit of property and itsassociated cost, and track the units’costs throughout the life of the asset.

For example, under the Commission’sprescribed property unit listings, aCompany may keep several fixed assetrecords for a building. These recordsdetail the cost of the building’sfoundation, ventilating system, fireescape system, fire protection system,plumbing system, roof, and variousother units of property, if thecomponents or systems are relativelycostly, and are identified in the List ofGeneral Retirement Units.10

In April 1997, Industry Groupsinitiated and conducted their ownsurvey of their associated companies.The survey requested Companies toestimate the burden associated withtracking units of property in accordancewith parts 116, 216 and 352 (instruction3–14). Companies’ responses includedestimated annual number of hours, labordollars, and the portion of softwarecosts used for complying with theregulations. Table 1 shows the estimatedcost of identifying units of property inaccordance with the current regulations,based upon meetings with the IndustryGroups and their survey results.

TABLE 1.—AVERAGE ANNUAL LABORCOSTS INCURRED PER SURVEYEDCOMPANY TO TRACK UNITS OFPROPERTY AT DETAILED LEVEL PRE-SCRIBED BY PARTS 116, 216 AND352. INSTRUCTION 3–14

Source*

Averageannual

labor costsper sur-veyed

company

Edison Electric Institute (EEI) ..... $592,000Interstate Natural Gas Associa-

tion of America (INGAA) ......... 122,000American Gas Association

(AGA) ...................................... 315,000Association of Oil Pipelines

(AOPL) .................................... 80,000

* 13 Public Utilities responded to EEI’s pre-liminary survey; 16 Natural Gas Companiesresponded to INGAA’s preliminary survey, and19 Oil Pipelines responded to AOPL’s prelimi-nary survey. AGA did not identify the numberof respondents.

Eliminating the property unit listingsand regulations would give Companiesthe flexibility to maintain their ownproperty listings and track the costs offixed assets at the level of detail tailoredto their business. This would reduce theburden Companies experience whentracking fixed assets at a level moredetailed than either their business or theCommission needs.

(2) Software BurdenAnother burden placed on Companies

is the cost of developing fixed assetsoftware that is utility specific, orpurchasing and modifying non-utilityspecific software. Companies often mustmodify the software in order to trackunits of property in the mannerprescribed by the Commission. Thepreliminary surveys that were initiatedand conducted by Industry Groupsshow their associated companies incurcosts ranging from $20,000 to $2.7million for fixed asset software.

Based on the preliminary surveys,Companies could realize substantialsavings if the Commission deletesunnecessary detailed recordkeepingrequirements. The proposed changeswould also eliminate the burden placedon the Commission to update the itemsin the listings.

B. Revamping Fixed Asset Regulations

(1) Property Units ListingsThe Commission’s review of electric,

gas and oil pipeline property listingsfound that the Commission’s propertylistings do not contain all types ofproperty currently used by Companies.The listings in Parts 116, 216, and 352(instruction 3–14) do not include


11 18 CFR part 101 for Public Utilities states inelectric plant instruction 10(D) that the ‘‘book costof electric plant retired shall be the amount atwhich such property is included in the electricplant accounts. . . The book cost shall bedetermined from the utility’s records and if thiscannot be done, it shall be estimated;’’ 18 CFR part201 for Natural Gas Companies states in gas plantinstruction 10(D) that the ‘‘book cost of gas plantretired shall be the amount at which such propertyis included in the gas plant accounts * * * Thebook cost shall be determined from the utility’srecords and if this cannot be done, it shall beestimated.’’

property resulting from technologicaladvances, such as scrubbers, microwavetowers, and smart pigging equipment.Additionally, the property unit listingscontain items of property that are nolonger used by Companies such astelegraph and teletype equipment andgas storage cleaning equipment. Byallowing Companies the flexibility toidentify and maintain their ownproperty unit listings the proposedrevisions to the regulations willeliminate the need for the Commissionto devote resources necessary to updatethe listings.

(2) Minimum Rule for Oil PipelinesUnlike Public Utilities and Natural

Gas Companies, Oil Pipelines aresubject to a Minimum Rule asprescribed in Part 352 (instruction 3–2).The minimum rule requires OilPipelines to charge operating expensesfor acquisitions, additions andimprovements costing less than $500. Italso requires Oil Pipelines to obtainCommission approval if they wish tochange the minimum level.

The Commission considers the $500dollar threshold to be inadequate intoday’s environment. Consequently, theCommission proposes to delete theprescribed minimum rule, and permitOil Pipelines to establish their owndollar threshold in order to avoid unduerefinement in accounting foracquisitions, additions, andimprovements.

C. Restrictions on Estimating CostCarrier regulations do not permit

companies to estimate property costs atthe time of retirement when the cost isnot determinable. However, PublicUtilities and Natural Gas Companies arepermitted to use estimates in similarcircumstances.11 Unlike Oil Pipelines,they may use cost trending indices todetermine an estimated cost of retiredproperty when it is impractical orunduly burdensome to identify the cost.

Therefore, the Commission proposesto permit Oil Pipeline to use estimatesin Oil Pipeline plant instructions whenit is impractical or unduly burdensometo identify the cost of the propertyretired. The Commission will also

require that Oil Pipelines be prepared tofurnish the Commission with the basisof such estimates if requested.

IV. Information Collection StatementThe following collections of

information contained in this proposedrule are being submitted to the Office ofManagement and Budget (OMB) forreview under the Paperwork ReductionAct of 1995. (See 44 U.S.C. 3507(d)) Theinformation provided under 18 CFRparts 101 and 116 is approved underOMB Control Nos. 1902–0021, 1902–0029 and 1902–0092; for parts 201 and216, OMB Control Nos. 1902–0028,1902–0030 and 1902–0092 and for part352 OMB Control Nos. 1902–0022.Applicants shall not be penalized forfailure to respond to these collections ofinformation unless the collection(s) ofinformation display a valid OMBcontrol number.

The Commission’s regulationsgoverning units of property in parts 116,216 and 352 (instruction 3–14) requirecompanies to keep detailed fixed assetrecords, including the costs for eachunit of property, and then track theunits’ costs throughout the life of theasset. These regulations placerecordkeeping burdens on Companies.

Information Collection Burden andCosts: In the preliminary surveyconducted in April 1997, Companiesprovided an estimate of the annualnumber of hours they incur whenidentifying units of property inaccordance with parts 116, 216 and 352(instruction 3–14) regulations. Table 2displays the average number of hoursspent per respondent in each industrygroup:

TABLE 2.—AVERAGE ANNUAL LABORHOURS INCURRED PER SURVEYEDCOMPANY TO TRACK UNITS OFPROPERTY AT THE PRESCRIBED DE-TAILED LEVEL

Source

AverageAnnualLabor

Hours perSurveyedCompany

Public Utilities (source: EdisonElectric Institute) ...................... 16,430

Natural Gas Companies (source:Interstate Natural Gas Asso-ciation of America) .................. 5,863

Total Average Annual Labor Hours forCollection of Information for PublicUtilities and Natural Gas Companies:4,224,259.

The Commission anticipatessubstantial savings with the proposedreduction of these recordkeeping

requirements and, as part of theproposed rule, solicits comments onpotential cost savings. (See 5 CFR1320.11)

Comments are solicited on theCommission’s continuing need for thisinformation, whether the informationhas practical use, ways to enhance thequality, use and clarity of theinformation collected, and anysuggested methods for minimizing therespondent’s burden, including the useof automated information techniques.

The Commission requires publicutilities and licensees, natural gascompanies and oil pipeline companiesto identify units of property as listed in18 CFR parts 116, 216 and 352(instruction 3–14). The listing identifiesmajor components of plant propertyeach company must track throughoutthe property’s life. The Commission alsospecifies in parts 101 and 201 (Electricand Gas Plant Instructions), the type ofinformation and level of detailCompanies must keep of their fixedassets.

The proposed rule seeks to modifythese requirements to reduce therecordkeeping burden imposed onCompanies and to make the regulationscurrent with industry practices.Therefore, the Commission proposes todelete parts 116, 216 and 352(instruction 3–14)—Property UnitListings and requirements.

The Commission’s internal reviewdetermined that there is specific,objective support for the burdenestimates associated with theCommission’s requirements.

Interested persons may obtaininformation on the reportingrequirements by contacting thefollowing: Federal Energy RegulatoryCommission, 888 First Street, NE,Washington, DC 20426, (Attention:Michael Miller, Division of InformationServices, Phone: (202) 208–1415, fax:(202) 273–0873, E-mail:[email protected]

For submitting comments concerningthe collection of information(s) and theassociated burden estimate(s) send yourcomments to the contact listed aboveand to the Office of Management andBudget, Office of Information andRegulatory Affairs, Washington, D.C.20503. (Attention: Desk Officer for theFederal Energy Regulatory Commission,phone: (202) 395–3087, fax: (202) 395–7285)

V. Environmental AnalysisThe Commission is required to

prepare an Environmental Assessmentor an Environmental Impact Statementfor any action that may have asignificant adverse effect on the human


12 Order No. 486, Regulations Implementing theNational Environmental Policy Act, 52 FR 47897(Dec. 17, 1987), FERC Statutes and Regulations,Regulations Preambles 1986–1990 ¶ 30,783 (1987).

13 18 CFR 380.4.14 See 18 CFR 380.4(a)(2)(ii).15 5 U.S.C. 601–612.16 5 U.S.C. 605(b).

environment.12 The Commission hascategorically excluded certain actionsfrom these requirements as not having asignificant effect on the humanenvironment.13 The action proposedhere is procedural in nature andtherefore falls within the categoricalexclusions provided in theCommission’s regulations.14 Therefore,neither an environmental impactstatement nor an environmentalassessment is necessary and will not beprepared in this proposed NOPR.

VI. Regulatory Flexibility ActCertification

The Regulatory Flexibility Act 15

generally requires the Commission todescribe the impact that a proposed rulewould have on small entities or tocertify that the rule will not have asignificant economic impact on asubstantial number of small entities. Ananalysis is not required if a proposedrule will not have such an impact.16

Pursuant to section 605(b), theCommission certifies that the proposedrule, if promulgated, will not have asignificant adverse economic impact ona substantial number of small entities.

VII. Comment Procedures

The Commission invites interestedpersons to submit written comments onthe matters and issues proposed in thisnotice to be adopted, including anyrelated matters or alternative proposalsthat commenters may wish to discuss.All comments must be filed with theCommission no later than September 15,1997. An original and 14 copies ofcomments should be submitted to theOffice of the Secretary, Federal EnergyRegulatory Commission, 888 FirstStreet, NE, Washington, DC 20426, andshould refer to Docket No. RM97–6–000.Additionally, comments should besubmitted electronically. Participantscan submit comments on computerdiskette in WordPerfect 6.1 or lowerformat or in ASCII format, with thename of the filer and Docket No. RM97–6–000 on the outside of the diskette.

All written comments will be placedin the Commission’s public files andwill be available for inspection in theCommission’s Public Reference Room at888 First Street, NE, Washington, DC20426, during regular business hours.

List of Subjects

18 CFR Part 101Electric power, Electric utilities,

Reporting and recordkeepingrequirements, Uniform System ofAccounts

18 CFR Part 116Electric power plants, Electric

utilities, Reporting and recordkeepingrequirements, Uniform System ofAccounts

18 CFR Part 201Natural gas, Reporting and

recordkeeping requirements, UniformSystem of Accounts

18 CFR Part 216Natural gas, Reporting and

recordkeeping requirements, UniformSystem of Accounts

18 CFR Part 352Pipelines, Reporting and

recordkeeping requirements, UniformSystem of Accounts.

By direction of the Commission.Lois D. Cashell,Secretary.

In consideration of the foregoing, theCommission gives notice of its proposalto amend Parts 101, 116, 201, 216, and352 Chapter I, Title 18, Code of FederalRegulations, as set forth below.

PART 101—UNIFORM SYSTEM OFACCOUNTS PRESCRIBED FORPUBLIC UTILITIES AND LICENSEESSUBJECT TO THE PROVISIONS OFTHE FEDERAL POWER ACT


Authority: 16 U.S.C. 791a–825r, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7102–7352,7651–7651o.

2. In Part 101, Electric PlantInstruction 10, paragraphs A and D arerevised to read as follows:

10. Additions and Retirements ofElectric Plant.

A. For the purpose of avoiding unduerefinement in accounting for additionsto and retirements and replacements ofelectric plant, all property shall beconsidered as consisting of (1)retirement units and (2) minor items ofproperty. Each utility shall maintain awritten property units listing for use inaccounting for additions andretirements of electric plant, apply thelisting consistently, and if requested,furnish the Commission withjustifications for any changes to thelisting.* * * * *

D. The book cost of electric plantretired shall be the amount at whichsuch property is included in the electricplant accounts, including allcomponents of construction costs. Thebook cost shall be determined from theutility’s records and if this cannot bedone it shall be estimated. Utilities mustfurnish the particulars of such estimatesto the Commission, if requested. Whenit is impracticable to determine the bookcost of each unit, due to the relativelylarge number or small cost thereof, anappropriate average book cost of theunits, with due allowance for anydifferences in size and character, shallbe used as the book cost of the unitsretired.* * * * *

3. In Part 101, Electric PlantInstruction 11, paragraph C is revised toread as follows:

11. Work Order and Property RecordSystem Required.

* * * * *C. In the case of Major utilities, each

utility shall maintain records in which,for each plant account, the amounts ofthe annual additions and retirements areclassified so as to show the number andcost of the various record units orretirement units.

PART 116—UNITS OF PROPERTY FORUSE IN ACCOUNTING FOR ADDITIONSTO AND RETIREMENTS OF ELECTRICPLANT

4. Part 116 is removed.

PART 201—UNIFORM SYSTEM OFACCOUNTS PRESCRIBED FORNATURAL GAS COMPANIES SUBJECTTO THE PROVISIONS OF THENATURAL GAS ACT


Authority: 15 U.S.C. 717–717w, 3301–3432; 42 U.S.C. 7101–7352, 7651–7651o.

6. In Part 201, Gas Plant Instruction10, paragraphs A and D are revised toread as follows:

10. Additions and retirements of gasplant. A. For the purpose of avoidingundue refinement in accounting foradditions to and retirements andreplacements of gas plant, all propertyshall be considered as consisting of (1)retirement units and (2) minor items ofproperty. Each utility shall maintain awritten property units listing for use inaccounting for additions andretirements of gas plant, apply thelisting consistently, and if requested,furnish the Commission with


justifications for any changes to thelisting.* * * * *

D. The book cost of gas plant retiredshall be the amount at which suchproperty is included in the gas plantaccounts, including all components ofconstruction costs. The book cost shallbe determined from the utility’s recordsand if this cannot be done it shall beestimated. Utilities must furnish theparticulars of such estimates to theCommission, if requested. When it isimpracticable to determine the bookcost of each unit, due to the relativelylarge number or small cost thereof, anappropriate average book cost of theunits, with due allowance for anydifferences in size and character, shallbe used as the book cost of the unitsretired.* * * * *

7. In Part 201, Gas Plant Instruction11, paragraph C is revised to read asfollows:

11. Work order and property recordsystem required.* * * * *

C. Each utility shall maintain recordsin which, for each plant account, theamounts of the annual additions andretirements are classified so as to showthe number and cost of the variousrecord units or retirement units.

PART 216—UNITS OF PROPERTY FORUSE IN ACCOUNTING FOR ADDITIONSTO AND RETIREMENTS OF GASPLANT

8. Part 216 is removed.

PART 352—UNIFORM SYSTEM OFACCOUNTS PRESCRIBED FOR OILPIPELINE COMPANIES SUBJECT TOTHE PROVISIONS OF THEINTERSTATE COMMERCE ACT

9. The authority citation for Part 352is revised to read as follows:

Authority: 49 U.S.C. 60502; 49 App. U.S.C.1–85.

10. In Part 352, Instructions forCarrier Property Accounts, instruction3–2, Minimum Rule is removed. Ininstructions 3–5, introductory text, and3–6(a), the phrase ‘‘subject to theminimum rule’’ is removed.

11. In Part 352, Instructions forCarrier Property Accounts, instruction3–4, Additions is revised to read asfollows:

3–4 Additions. Each carrier shallmaintain a written property units listingfor use in accounting for additions andretirements of carrier plant, apply thelisting consistently, and if requested,furnish the Commission withjustifications for any changes to the

listing. When property units are addedto Carrier plant, the cost thereof shall beadded to the appropriate carrier plantaccount as set forth in the policy.

12. In Part 352, Instructions forCarrier Property Accounts, instruction3–7, Retirements, introductory text andparagraph (b)(1) are revised and newparagraph (c) is added to read asfollows:

3–7 Retirements. When property unitsare retired from carrier plant, with orwithout replacement, the cost thereofand the cost of minor items of propertyretired and not replaced shall becredited to the carrier plant account inwhich it is included. The retirement ofcarrier property shall be accounted foras follows:

(a) * * *(b) Property. (1) The book cost, as set

forth in paragraph (c) of this instruction,of units of property retired and of minoritems of property retired and notreplaced shall be written out of theproperty account as of date ofretirement, and the service value shallbe charged to account 31, AccruedDepreciation—Carrier Property.* * * * *

(c) The book cost of carrier propertyretired shall be determined from thecarrier’s records and if this cannot bedone it shall be estimated. When it isimpracticable to determine the bookcost of each unit, due to the relativelylarge number or small cost thereof, anappropriate average book cost of theunits, with due allowance for anydifferences in size and character, shallbe used as the book cost of the unitsretired. Oil Pipelines must furnish theparticulars of such estimates to theCommission, if requested.

13. In Part 352, Instructions forCarrier Property Accounts, instruction3–14 Accounting units of property isremoved.


DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 4, 122, 123, 148 and 192

RIN 1515–AB99

Lay Order Period; General Order;Penalties

AGENCY: U.S. Customs Service,Department of the Treasury.ACTION: Notice of proposed rulemaking.

SUMMARY: This document proposes toamend the Customs Regulations to

require that the importing carrier notifya bonded warehouse proprietor of thepresence of merchandise that hasremained at the place of arrival orunlading beyond the lay order periodwithout entry having been completed,thereby initiating the obligation of thebonded warehouse proprietor to arrangefor transportation and storage of theunentered merchandise at the risk andexpense of the consignee. The documentalso proposes to amend the CustomsRegulations to provide for penaltiesagainst importing carriers for failure tonotify Customs of the presence of suchmerchandise. These proposed regulatorychanges reflect amendments to theunderlying statutory authority enactedas part of the Customs Modernizationprovisions of the North American FreeTrade Agreement Implementation Act.Finally, the document makes certainconforming changes to the CustomsRegulations in order to reflect a numberof other statutory amendments andrepeals enacted by the CustomsModernization provisions and in orderto reflect the recent recodification andreenactment of title 49, United StatesCode.DATES: Comments must be received onor before September 29, 1997.ADDRESSES: Written comments(preferably in triplicate) may beaddressed to the Regulations Branch,Office of Regulations and Rulings, U.S.Customs Service, Franklin Court, 1301Constitution Avenue NW., Washington,DC 20229. Comments submitted may beinspected at the Regulations Branch,Office of Regulations and Rulings,Franklin Court, 1099 14th Street NW.,Suite 4000, Washington, DC.FOR FURTHER INFORMATION CONTACT:Jeremy Baskin, Penalties Branch, Officeof Regulations and Rulings (202) 482–6950.


BackgroundOn December 8, 1993, amendments to

certain Customs and navigation lawsbecame effective as the result ofenactment of the North American FreeTrade Agreement Implementation Act,Public Law 103–182, 107 Stat. 2057.Title VI of that Act sets forth CustomsModernization provisions that arepopularly referred to as the Mod Act.

Section 656 of the Mod Act amendedsection 448(a) of the Tariff Act of 1930(19 U.S.C. 1448(a)) to provide, inter alia,that: (1) The owner or master of anyvessel or vehicle, or the agent thereof,shall notify Customs of anymerchandise or baggage unladen forwhich entry is not made within the timeprescribed by law or regulation; (2) the


Secretary of the Treasury shall byregulation prescribe administrativepenalties not to exceed $1,000 for eachbill of lading for which notice is notgiven; (3) any such administrativepenalty shall be subject to mitigationand remission under section 618 of theTariff Act of 1930, as amended (19U.S.C. 1618); and (4) such unenteredmerchandise or baggage shall be theresponsibility of the master or person incharge of the importing vessel orvehicle, or agent thereof, until it isremoved from the carrier’s control inaccordance with section 490 of theTariff Act of 1930, as amended (19U.S.C. 1490). This document proposesto revise paragraph (a) of § 4.37 of theCustoms Regulations (19 CFR 4.37) andadd new § 122.50 and § 123.10 (19 CFR122.50 and 19 CFR 123.10) toimplement these Mod Act statutorychanges for air, land and sea carriers.Under the proposed regulatory text,importing carriers would be afforded afive-working-day lay order period afterthe conclusion of an initial five-working-day period after unlading orarrival of merchandise to notifyCustoms, in writing or by any Customs-authorized electronic data interchangesystem, of the presence of the unenteredmerchandise or baggage. Penalties mayresult if, after the five-day lay orderperiod, Customs has not been notified ofthe presence of the merchandise.Applications for lay order will no longerbe required on Customs Form 3171; theform will continue to be maintained forother purposes.

Section 658 of the Mod Act amendedsection 490 of the Tariff Act of 1930 (19U.S.C. 1490) to provide that: (1) Exceptin the case of U.S. governmentimportations, the importing carrier shallnotify the bonded warehouse of anyimported merchandise for which entryis not made within the time prescribedby law or regulation, or for which entryis incomplete because of failure to payestimated duties, fees or interest, or forwhich entry cannot be made for want ofproper documents or other cause, orwhich Customs believes is not correctlyand legally invoiced; and (2) after suchnotification from the importing carrier,the bonded warehouse shall arrange forthe transportation and storage of themerchandise at the risk and expense ofthe consignee. This document proposesto revise paragraph (b) of § 4.37 of theCustoms Regulations and add §§ 122.50and 123.10 to the Customs Regulationsto implement these Mod Act statutorychanges. The proposed regulatory textrequires the carrier to provide theappropriate notification, in writing or byany Customs-authorized electronic data

interchange system, and also requiresthat the bonded warehouse operatortake possession of the merchandisewithin five working days after receipt ofsuch notification or else be liable forliquidated damages under the terms andconditions of his custodial bond (andwith a cross-reference to 113.63(a)(1) ofthe Customs Regulations whichCustoms believes provides anappropriate basis for such liability). Inaddition, it is proposed to amendparagraph (d) of § 4.37 by replacing theword ‘‘owner’’ by ‘‘consignee’’ to alignon the corresponding statutorylanguage.

Section 611 of the Mod Act amendedsection 436 of the Tariff Act of 1930 (19U.S.C. 1436), inter alia, by includingtherein a reference to 46 U.S.C. App. 91,with the result that penalties forviolations of outbound vessel manifestfiling requirements would be incurredunder the provisions of 19 U.S.C. 1436rather than under 46 U.S.C. App. 91.This document proposes to amend§ 192.4 of the Customs Regulations (19CFR 192.4) to reflect this change.

Section 690 of the Mod Act providedfor the repeal of a number of statutoryprovisions, some of which are stillreferred to in parts 4 and 122 of theCustoms Regulations (19 CFR parts 4and 122). This document proposes tocorrect those outdated references byremoving them or replacing them withreferences to their successor statutoryprovisions.

Finally, Pub. L. 103–272, 108 Stat.745, dated July 5, 1994, reenacted andrecodified the provisions of title 49,United States Code. Section 2(b) thereofreenacted as a new section (19 U.S.C.1644a) certain title 49 provisionsdealing with the application, to civilaircraft, of the laws and regulationsregarding the entry and clearance ofvessels. This document proposes toamend parts 122, 123 and 148 of theCustoms Regulations (19 CFR parts 122,123 and 148) by updating the ‘‘49 U.S.C.App.’’ statutory references therein toreflect the changes made by section 2(b)or other provisions of Pub. L. 103–272.

CommentsBefore adopting this proposed

regulation as a final rule, considerationwill be given to any written commentstimely submitted to Customs. Commentssubmitted will be available for publicinspection in accordance with theFreedom of Information Act (5 U.S.C.552), § 1.4 of the Treasury DepartmentRegulations (31 CFR 1.4), and§ 103.11(b) of the Customs Regulations(19 CFR 103.11(b)), on regular businessdays between the hours of 9:00 a.m. and4:30 p.m. at the Regulations Branch,

Office of Regulations and Rulings, U.S.Customs Service, Franklin Court, 109914th St. NW., 4th floor, Washington, DC.

Inapplicability of the RegulatoryFlexibility Act and Executive Order12866

For the reasons set forth above andbecause the proposed amendmentsconform the Customs Regulations tostatutory requirements that are alreadyin effect, pursuant to the provisions ofthe Regulatory Flexibility Act, 5 U.S.C.601 et seq., it is certified that theproposed amendments, if adopted, willnot have a significant economic impacton a substantial number of smallentities. Accordingly, the amendmentsare not subject to the regulatory analysisor other requirements of 5 U.S.C. 603and 604. Further, this document doesnot meet the criteria for a ‘‘significantregulatory action’’ as specified in E.O.12866.

List of Subjects

19 CFR Part 4

Cargo vessels, Common carriers,Customs duties and inspection, Entry,Exports, Fishing vessels, Imports,Maritime carriers, Passenger Vessels,Penalties, Reporting and recordkeepingrequirements, Shipping, Vessels,Yachts.

19 CFR Part 122

Air carriers, Aircraft, Airports, Airtransportation, Baggage, Bonds, Customsduties and inspection, Foreigncommerce and trade statistics, Freight,Imports, Penalties, Reporting andrecordkeeping requirements.

19 CFR Part 123

Aircraft, Canada, Customs duties andinspection, Imports, Internationalboundaries, International traffic,Mexico, Motor carriers, Railroads,Reporting and recordkeepingrequirements, Trade agreements,Vehicles, Vessels.

19 CFR Part 148

Aliens, Baggage, Crewmembers,Customs duties and inspection,Declarations, Foreign officials,Government employees,Internationalorganizations, Privileges andImmunities, Reporting andrecordkeeping requirements.

19 CFR Part 192Aircraft, Customs duties and

inspection, Export Control, Penalties,Reporting and recordkeepingrequirements, Seizures and forfeiture,Vehicles, Vessels.


Proposed Amendments to theRegulations

For the reasons stated above, it isproposed to amend parts 4, 122, 123,148 and 192 of the Customs Regulations(19 CFR parts 4, 122, 123, 148 and 192)as set forth below:

PART 4—VESSELS IN FOREIGN ANDDOMESTIC TRADES

1. The general authority citation forpart 4 and the specific authoritycitations for §§ 4.7a, 4.36 and 4.37continue to read, and the specificauthority citations for §§ 4.9 and 4.68are revised to read, as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66,1431, 1433, 1434, 1624; 46 U.S.C. App. 3, 91.

* * * * *Section 4.7a also issued under 19

U.S.C. 1498, 1584;* * * * *

Section 4.9 also issued under 42U.S.C. 269;* * * * *

Section 4.36 also issued under 19U.S.C. 1431, 1457, 1458, 46 U.S.C. App.100;

Section 4.37 also issued under 19U.S.C. 1448, 1457, 1490;* * * * *

Section 4.68 also issued under 46U.S.C. App. 817d, 817e;* * * * *

§§ 4.7a, 4.12, 4.36, and 4.37 [Amended]

2. Part 4 is amended by removing andreserving footnotes 17, 24, 71, and 74 in§§ 4.7a(a), 4.12(a)(3), and 4.36(c), and4.37(d).

§ 4.6 [Amended]

3. In § 4.6, paragraph (c) is amendedby removing the reference ‘‘19 U.S.C.1585’’ and adding, in its place, thereference ‘‘19 U.S.C. 1436’’.

§ 4.7a [Amended]

4. In § 4.7a, the first sentence ofparagraph (a) is amended by removingthe words ‘‘, required by section 432,Tariff Act of 1930, to be separatelyspecified’’.

§ 4.36 [Amended]

5. In § 4.36, paragraph (c) is amendedby removing the words ‘‘within thepurview of the proviso to the firstsubdivision of section 431 of the TariffAct of 1930’’.

6. In § 4.37, paragraph (d) is amendedby removing the word ‘‘owner’’ andadding, in its place, the word‘‘consignee’’ and paragraphs (a) and (b)are revised to read as follows:

§ 4.37 Lay order; general order.

(a) Any merchandise or baggageregularly landed but not covered by apermit for its release shall be allowed toremain at the place of unlading until theclose of business on the fifth workingday after the day the vessel was entered.Within an additional five-working-daylay order period following theexpiration of the original five-workingday period after landing, 19 U.S.C.1448(a) requires the master or owner ofthe vessel or the agent thereof to notifyCustoms of any such merchandise orbaggage for which entry has not beenmade. Such notification shall beprovided in writing or by any Customs-authorized electronic data interchangesystem. Failure to provide suchnotification may result in assessment ofa monetary penalty of up to $1,000 perbill of lading against the master orowner of the vessel or the agent thereofas provided in 19 U.S.C. 1448(a).

(b) In addition to the notification toCustoms referred to in paragraph (a) ofthis section, within five working daysfollowing the expiration of the lay orderperiod specified in paragraph (a) of thissection, 19 U.S.C. 1490(a) requires themaster or owner of the vessel or theagent thereof to provide notification ofthe presence of such unreleased andunentered merchandise or baggage to abonded warehouse certified by the portdirector as qualified to receive generalorder merchandise. Such notificationshall be provided in writing or by anyCustoms-authorized electronic datainterchange system. It shall then be theresponsibility of the bonded warehouseproprietor to arrange for thetransportation and storage of themerchandise or baggage at the risk andexpense of the consignee. Anyunentered merchandise or baggage shallremain the responsibility of the masteror person in charge of the importingvessel or the agent thereof until it isremoved from his control in accordancewith this paragraph. If the bondedwarehouse operator fails to takepossession of the merchandise orbaggage within five working days afterreceipt of notification of the presence ofthe unentered and unreleasedmerchandise or baggage, he shall beliable for the payment of liquidateddamages under the terms and conditionsof his custodial bond (see § 113.63(a)(1)of this chapter).* * * * *

PART 122—AIR COMMERCEREGULATIONS


Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66,1433, 1436, 1448, 1459, 1590, 1594, 1623,1624, 1644, 1644a.

§ 122.2 [Amended]2. Section 122.2 is amended by

removing the reference ‘‘49 U.S.C. App.1509(c)’’ and adding, in its place, thereference ‘‘19 U.S.C. 1644 and 1644a’’.

§ 122.49 [Amended]3. Section 122.49(f) is amended by

removing the words ‘‘sections 440(concerning post entry) and 584(concerning manifest violations), TariffAct of 1930, as amended (19 U.S.C.1440, 1584), apply’’ and adding, in theirplace, the words ‘‘section 584(concerning manifest violations), TariffAct of 1930, as amended (19 U.S.C.1584), applies’’.

4. In subpart E, § 122.50 is added toread as follows:

§ 122.50 Lay order; general order.(a) Any merchandise or baggage

regularly landed but not covered by apermit for its release shall be allowed toremain at the place of unlading until theclose of business on the fifth workingday after the day the aircraft wasentered. Within an additional five-working-day lay order period followingthe expiration of the original five-working day period after landing, 19U.S.C. 1448(a) requires the pilot orowner of the aircraft or the agent thereofto notify Customs of any suchmerchandise or baggage for which entryhas not been made. Such notificationshall be provided in writing or by anyCustoms-authorized electronic datainterchange system. Failure to providesuch notification may result inassessment of a monetary penalty of upto $1,000 per bill of lading against thepilot or owner of the aircraft or the agentthereof as provided in 19 U.S.C. 1448(a).

(b) In addition to the notification toCustoms referred to in paragraph (a) ofthis section, within five working daysfollowing the expiration of the lay orderperiod specified in paragraph (a) of thissection, 19 U.S.C. 1490(a) requires thepilot or owner of the aircraft or the agentthereof to provide notification of thepresence of such unreleased andunentered merchandise or baggage to abonded warehouse certified by the portdirector as qualified to receive generalorder merchandise. Such notificationshall be provided in writing or by anyCustoms-authorized electronic datainterchange system. It shall then be theresponsibility of the bonded warehouseproprietor to arrange for thetransportation and storage of themerchandise or baggage at the risk andexpense of the consignee. Anyunentered merchandise or baggage shall


remain the responsibility of the pilot orperson in charge of the importingaircraft or the agent thereof until it isremoved from his control in accordancewith this paragraph. If the bondedwarehouse operator fails to takepossession of the merchandise orbaggage within five working days afterreceipt of notification of the presence ofthe unentered and unreleasedmerchandise or baggage, he shall beliable for the payment of liquidateddamages under the terms and conditionsof his custodial bond (see § 113.63(a)(1)of this chapter).

§ 122.161 [Amended]

5. In § 122.161, the first sentence isamended by removing the reference‘‘§ 122.14’’ and adding, in its place, thewords ‘‘subpart S of this part’’ and byremoving the reference ‘‘49 U.S.C. App.1474’’ and adding, in its place, thereference ‘‘19 U.S.C. 1644 and 1644a’’.

§ 122.165 [Amended]

6. In § 122.165, the first sentence ofparagraph (a) is amended by removingthe parenthetical reference ‘‘(49 U.S.C.App. 1508(b))’’ and adding, in its place,the parenthetical reference ‘‘(49 U.S.C.41703)’’, and the second sentence ofparagraph (b) is amended by removingthe reference ‘‘49 U.S.C. App. 1471’’ andadding, in its place, the reference ‘‘49U.S.C. Chapter 463’’.

PART 123—CUSTOMS RELATIONSWITH CANADA AND MEXICO

1. The general authority citation forpart 123 and the specific authoritycitation for § 123.8 are revised to read,and the specific authority citation for§ 123.1 continues to read, as follows:

Authority: 19 U.S.C. 66, 1202 (GeneralNote 20, Harmonized Tariff Schedule of theUnited States (HTSUS)), 1431, 1433, 1436,1448, 1624.

Section 123.1 also issued under 19 U.S.C.1459;

* * * * *Section 123.8 also issued under 19 U.S.C.

1450–1454, 1459;

* * * * *2. The specific authority citation for

§ 123.11 is removed.

§ 123.1 [Amended]

3. In § 123.1, paragraph (a)(2) isamended by removing the words‘‘sections 1433 or 1644 of title 19,United States Code (19 U.S.C. 1433,1644), or section 1509 of title 49, UnitedStates Code App. (49 U.S.C. App.1509),’’ and adding, in their place, thewords ‘‘section 1433, 1644 or 1644a oftitle 19, United States Code (19 U.S.C.1433, 1644, 1644a),’’.

4. In subpart A, § 123.10 is added toread as follows:

§ 123.10 Lay order; general order.

(a) Any merchandise or baggageregularly landed but not covered by apermit for its release shall be allowed toremain at the place of unlading until theclose of business on the fifth workingday after the day the vehicle wasentered. Within an additional five-working-day lay order period followingthe expiration of the original five-working day period after unlading, 19U.S.C. 1448(a) requires the operator orowner of the vehicle or the agent thereofto notify Customs of any suchmerchandise or baggage for which entryhas not been made. Such notificationshall be provided in writing or by anyCustoms-authorized electronic datainterchange system. Failure to providesuch notification may result inassessment of a monetary penalty of upto $1,000 per bill of lading against theoperator or owner of the vehicle or theagent thereof as provided in 19 U.S.C.1448(a).

(b) In addition to the notification toCustoms referred to in paragraph (a) ofthis section, within five working daysfollowing the expiration of the lay orderperiod specified in paragraph (a) of thissection, 19 U.S.C. 1490(a) requires theoperator or owner of the vehicle or theagent thereof to provide notification ofthe presence of such unreleased andunentered merchandise or baggage to abonded warehouse certified by the portdirector as qualified to receive generalorder merchandise. Such notificationshall be provided in writing or by anyCustoms-authorized electronic datainterchange system. It shall then be theresponsibility of the bonded warehouseproprietor to arrange for thetransportation and storage of themerchandise or baggage at the risk andexpense of the consignee. Anyunentered merchandise or baggage shallremain the responsibility of the operatoror person in charge of the importingvehicle or the agent thereof until it isremoved from his control in accordancewith this paragraph. If the bondedwarehouse operator fails to takepossession of the merchandise orbaggage within five working days afterreceipt of notification of the presence ofthe unentered and unreleasedmerchandise or baggage, he shall beliable for the payment of liquidateddamages under the terms and conditionsof his custodial bond (see § 113.63(a)(1)of this chapter).

PART 148—PERSONALDECLARATIONS AND EXEMPTIONS

1. The authority citation for part 148continues to read in part as follows:

Authority: 19 U.S.C. 66, 1496, 1498, 1624.The provisions of this part, except for subpartC, are also issued under 19 U.S.C. 1202(General Note 20, Harmonized TariffSchedule of the United States).

* * * * *

§ 148.67 [Amended]2. In § 148.67, paragraph (b) is

amended by removing the words‘‘section 1474 of title 49, United StatesCode,’’ and adding, in their place, thereference ‘‘19 U.S.C. 1644 and 1644a’’.

PART 192—EXPORT CONTROL


Authority: 19 U.S.C. 66, 1624, 1627a,1646a.

§ 192.4 [Amended]2. In § 192.4, the first sentence is

amended by removing the reference ‘‘46U.S.C. App. 91’’ and adding, in itsplace, the reference ‘‘19 U.S.C. 1436’’and the second sentence is amended byremoving the words ‘‘a liability of notmore than $1,000 nor less than $500will be incurred’’ and adding, in theirplace, the words ‘‘a liability forpenalties may be incurred’’.Samuel H. Banks,Acting Commissioner of Customs.

Approved: May 21, 1997.Dennis M. O’Connell,Acting Deputy Assistant Secretary of theTreasury.[FR Doc. 97–20227 Filed 7–30–97; 8:45 am]BILLING CODE 4820–02–P

RAILROAD RETIREMENT BOARD

20 CFR Part 295

RIN 3220–AB29

Payments Pursuant to Court Decree orCourt-Approved Property Settlement

AGENCY: Railroad Retirement Board.ACTION: Proposed rule.

SUMMARY: The Railroad RetirementBoard hereby proposes to amend itsregulations under part 295 byeliminating the Medicare Part Bpremium as a deduction from theamount of benefits available for divisionin a divorce proceeding or propertysettlement related to a divorce or legalseparation.DATES: Comments must be received onor before September 29, 1997.


ADDRESSES: Secretary to the Board,Railroad Retirement Board, 844 NorthRush Street, Chicago, Illinois 60611.FOR FURTHER INFORMATION CONTACT:Thomas W. Sadler, Senior Attorney,Railroad Retirement Board, 844 NorthRush Street, Chicago, Illinois 60611,telephone (312) 751–4513, TTD (312)751–4701.SUPPLEMENTARY INFORMATION: Part 295describes the Board’s requirements forobtaining an enforceable order directingthe Board to partition a railroadretirement annuity incident to a divorce,settlement, or annulment. Section295.1(b) describes what benefits aresubject to division under this part.Section 295.5(e)(1) further defines thenet amount of benefits subject todivision as excluding amounts deductedfor an employee’s elected Medicare PartB premium. When § 295.5(e)(1) wasinitially approved in 1986, the Boardwas concerned about the risk thatMedicare premium deductions mightnot be satisfied from the nondivisibleportion of an employee’s annuity in theevent that the portion would not bepayable due to work deductions. Inpractice, however, the agency hasdetermined that only in rare cases is thenondivisible portion insufficient toaccommodate the Medicare Part Bdeduction. The Medicare Part Bpremium is a personal expense electedto be made by the employee. The Boardbelieves that it is more consistent withthe nature of the Part B premium that itbe paid entirely by the employee ratherthan, in effect, partly by the employeeand partly by the divorced spouse.Accordingly, the agency proposes thatthe Medicare Part B deduction need notbe deducted from the divisible benefitsprior to partition in an action fordivorce, settlement, or annulment.

The Board, with the concurrence ofthe Office of Management and Budget,has determined that this is not asignificant regulatory action underExecutive Order 12866; therefore, noregulatory impact analysis is required.There are no information collectionsassociated with this rule.

List of Subjects in 20 CFR Part 295Railroad employees, Railroad

retirement.For the reasons set out in the

preamble, chapter II of title 20 of theCode of Federal Regulations is proposedto be amended as follows:

PART 295—PAYMENTS PURSUANTTO COURT DECREE OR COURT-APPROVED PROPERTY SETTLEMENT

1. The authority for part 295continues to read as follows:

Authority: 45 U.S.C. 231f; 45 U.S.C. 231m.

§ 295.5 [Amended]

2. Section 295.5(e)(1) is amended byremoving the comma after ‘‘Board’’ andby removing ‘‘and the amount of anyMedicare Part B premium’’.

Dated: July 24, 1997.By authority of the Board.

Beatrice Ezerski,Secretary to the Board.[FR Doc. 97–20206 Filed 7–30–97; 8:45 am]BILLING CODE 7905–01–P



21 CFR Part 50

[Docket No. 90N–0302]

Accessibility to New Drugs for Use inMilitary and Civilian Exigencies WhenTraditional Human Efficacy StudiesAre Not Feasible; Determination Underthe Interim Rule That InformedConsent Is Not Feasible for MilitaryExigencies; Request for Comments

AGENCY: Food and Drug Administration,HHS.ACTION: Request for comments.

SUMMARY: The Food and DrugAdministration (FDA) is requestingwritten comments related to theadvisability of revoking or amending theinterim final rule that permitted theCommissioner of Food and Drugs (theCommissioner) to determine thatobtaining informed consent frommilitary personnel for the use of aninvestigational drug or biologic is notfeasible in certain situations related tomilitary combat. The agency is alsosoliciting written comments identifyingthe evidence needed to demonstratesafety and effectiveness for suchinvestigational drugs that cannotethically be tested on humans forpurposes of determining their efficacy.FDA is seeking written comments fromall interested parties, including, but notlimited to: Consumers, patient groups,veterans and veteran groups, active-dutymilitary personnel, organizations anddepartments, ethicists, scientists,researchers with particular expertise inthis area, and health care professionals.The written comments are intended toprovide FDA with information to helpthe agency in making policy decisionson the use of investigational productsduring military exigencies and theappropriate evidence needed todemonstrate safety and effectiveness for

drug and biological products used inmilitary or other exigencies whentraditional human efficacy studies arenot feasible.DATES: Submit written comments byOctober 29, 1997.ADDRESSES: Submit written commentson the questions identified in section IIof this document (specificallyreferencing the number of thequestion(s) being addressed) to theDockets Management Branch (HFA–305), Food and Drug Administration,12420 Parklawn Dr., rm. 1–23,Rockville, MD 20857. Two copies of anycomments are to be submitted, exceptthat individuals may submit one copy.Comments are to be identified withdocket number found in brackets in theheading of this document.FOR FURTHER INFORMATION CONTACT:Bonnie M. Lee, Office of the ExecutiveSecretariat (HF–40), Food and DrugAdministration, 5600 Fishers Lane,Rockville, MD 20857, 301–827–4450.SUPPLEMENTARY INFORMATION:

I. BackgroundThere will continue to be military

combat situations in which there will bea threat to U.S. military personnel fromthe possible use of chemical andbiological weapons. The Department ofDefense (DOD), therefore, has alegitimate interest in protecting militarypersonnel by using products which mayprovide protection from such chemicaland biological agents. In order tosupport this interest of DOD, FDAissued an interim rule during thePersian Gulf War that permitted DOD touse specified investigational productsintended to provide potential protectionagainst chemical and biological warfareagents without obtaining informedconsent. A copy of the interim rule thatpublished in the Federal Register ofDecember 21, 1990 (55 FR 52813), canbe viewed on FDA’s website at http://www.fda.gov.

Specifically, following a request fromthe DOD, FDA granted waivers from itsinformed consent requirements for theuse of two products in specific protocolsin the Persian Gulf War: Pyridostigminebromide and botulinum toxoid vaccine.FDA recognizes that the interim finalrule did not work the way that theagency anticipated it would work;therefore, the agency is seeking broadpublic input to provide information tohelp FDA in making policy decisions onthe future use of such investigationalproducts and possible efficacydemonstrations for these products.

In order to provide a context for thedecisionmaking process on the use ofpyridostigmine bromide and the


botulinum toxoid vaccine during thePersian Gulf War, the followinginformation is provided.

A. The Regulatory ProcessFDA regulates the use of

investigational drugs under provisionsof the Federal Food, Drug, and CosmeticAct (the act). In FDA terms, drugs notapproved for marketing and drugsstudied for treatment other than thatidentified in the approved labeling, areinvestigational. In order for clinicaltesting to proceed with unapprovedproducts (or, in some cases, for testingapproved products for unapproveduses), an investigational new drug (IND)application is filed with FDA. The INDmust contain information sufficient todemonstrate that it is reasonable tostudy the drug in humans, includingdrug composition, manufacturing andcontrol data, the results of animalstudies and, if available, prior humantesting, and the protocol for the plannedstudy. The investigator must agree to anumber of commitments includingobtaining approval of an institutionalreview board (IRB) before proceeding,obtaining written informed consentfrom subjects, and reporting adverseeffects that occur as specified in theprotocol.

The act requires that investigatorsinform subjects receiving drugs underan IND that the drugs are investigationaland ‘‘obtain the consent of such humanbeings or their representatives, exceptwhere they deem it not feasible, or intheir professional judgment, contrary tothe best interests of such humanbeings.’’ There have been few instancesin which obtaining informed consenthas not been considered feasible orcontrary to patients’ interests.

During the months preceding thePersian Gulf War, DOD had discussionswith FDA regarding the potential use ofspecific investigational products inmilitary personnel serving in the Gulf.It was thought that the productsdiscussed represented the bestpreventive or therapeutic treatment fordiseases endemic to the area and inproviding protection against possiblechemical or biological weapons. DODrequested the assistance of FDA inallowing the use of these products incertain battlefield or combat-relatedsituations in which they consideredobtaining informed consent ‘‘notfeasible.’’ DOD’s explanation as to whyobtaining informed consent would notbe feasible under battlefield conditionsincluded the following:

(1) It is not acceptable from a militarystandpoint to defer to whatever might bethe soldier’s personal preferenceconcerning a preventive or therapeutic

treatment that might save his life, avoidendangerment of the other personnel inhis unit and accomplish the combatmission.

(2) Based on unalterable requirementsof the military field commander, it isnot an option to excuse a nonconsentingsoldier from the military mission.

(3) It would not be defensiblemilitarily, or ethically, to send thesoldier unprotected into danger.

(4) Special military exigenciessometimes must supersede normalrights and procedures that apply in thecivilian community and, thus, militaryregulations state that military membersmay be required to submit to medicalcare determined necessary to preservelife, alleviate suffering or protect thehealth of others.

At the time, FDA gave considerabledeference to the DOD’s judgment andexpertise regarding the feasibility ofobtaining informed consent underbattlefield conditions. Thus, in responseto DOD’s request, in the FederalRegister of December 21, 1990 (55 FR52813), FDA published an interimregulation amending its informedconsent regulations at 21 CFR 50.23(d).

B. The Interim RegulationThe interim regulation allowed the

Commissioner to determine, uponreceipt of an appropriate request fromDOD, that obtaining informed consentfrom military personnel for use of aspecific investigational drug or biologicwould not be feasible in certaincircumstances, and to grant a waiverfrom the requirement for obtaining suchconsent.

The exception applied, on a case-by-case basis, only to investigational drugs(including antibiotic and biologicalproducts) for use in a specific militaryoperation involving combat or theimmediate threat of combat. Theregulation requires the request toinclude: (1) The justification for theconclusion (made by physiciansresponsible for the medical care of themilitary personnel involved and theinvestigators involved) that the use isrequired to facilitate theaccomplishment of the military mission,and the use would preserve the healthof the individuals and the safety of otherpersonnel, without regard for anyindividual’s preference for alternatetreatment or no treatment; and (2) astatement that a duly constituted IRBhas reviewed and approved the use ofthe investigational drug withoutinformed consent.

Under the interim rule, theCommissioner may find that informedconsent is not feasible (and thus may bewaived) ‘‘only when withholding

treatment would be contrary to the bestinterests of military personnel and thereis no available satisfactory alternativetherapy.’’ The rule sets forth fouradditional factors that theCommissioner is to consider in makinghis determination. These factors are: (1)The extent and strength of the evidenceof the safety and efficacy of the drug forthe intended use, (2) the context inwhich the drug will be administered(e.g., battlefield or hospital), (3) thenature of the disease or condition forwhich the preventive or therapeutictreatment is intended, and (4) the natureof the information to be provided to therecipients of the drug concerning thepotential risks and benefits of taking ornot taking the drug. A determination bythe Commissioner that obtaininginformed consent is not feasible andwithholding treatment would becontrary to the best interests of militarypersonnel expires at the end of 1 year,unless renewed at DOD’s request, orwhen DOD informs the Commissionerthat the specific military operationcreating the need for the use of theinvestigational drug has ended,whichever is earlier. In addition, whenthe Commissioner has issued a waiverto DOD, he may revoke the waiver basedon changed circumstances.

The appropriate FDA review divisionand the Informed Consent WaiverReview Group (ICWRG) assessed eachrequest for waiver from the informedconsent requirements. The ICWRGincluded senior management of FDAand the National Institutes of Health’sOffice of Protection from ResearchRisks, supplemented by technicalagency experts as appropriate for theparticular investigational drug beingconsidered for exception. The ICWRGconsidered DOD’s justificationsupporting the request for the waiverand the reviewing division’s evaluationof the available safety and efficacy data.The ICWRG requested additionalsupporting information in some casesand identified changes needed in theinformation to be provided to thetroops. The ICWRG then made arecommendation to the Commissionerregarding whether or not to grant thewaiver. The Commissioner made adecision on the request and informedDOD in writing.

On December 28, 1990, DODsubmitted protocols under IND’s andrequests for waiver of informed consentfor pyridostigmine bromide 30-milligram (mg) tablets and botulinumtoxoid vaccine. (Subsequently, DODsubmitted a waiver request formultishield topical skin protectant, butlater withdrew this request.)Pyridostigmine bromide was considered


a potentially useful pretreatment againstcertain nerve gases; botulinum toxoidvaccine is widely accepted as offeringprotection against toxins produced byClostridium Botulinum, the bacteriumthat causes botulism.

The Commissioner approved DOD’swaiver requests for pyridostigminebromide 30-mg tablets and botulinumtoxoid vaccine on December 31, 1990,and January 8, 1991, respectively. Bothproducts were administered to portionsof the military personnel whoparticipated in Operation Desert Storm.

Following the cessation of combatactivities, the Assistant Secretary ofDefense (Health Affairs) notified theCommissioner in a letter dated March15, 1991, that DOD considered the twowaivers granted under the interim ruleto be no longer in effect. He alsoinformed the Commissioner that DODhad ultimately decided to administerthe botulinum toxoid on a voluntarybasis.

C. Comments Received on the InterimRule

Twenty-two written comments weresubmitted to the agency in the brief 30-day comment period followingpublication of the interim rule in theFederal Register of December 21, 1990.Comments were received fromphysicians, members of IRB’s,organizations concerned with bioethicalissues, patient advocacy groups, andprivate citizens. The majority of thecomments were supportive of the rule,although often with some qualificationor suggested change. However, anumber of comments expressedvehement opposition to the interim rule,both on general principle and withregard to one or more of its provisions.For example, one comment stated thatthe request for waiver of informedconsent is merely an expedient solutionto a problem that should be solvedmuch better in other ways. Thiscomment suggested that FDA modify itsdrug approval process so that therapiessuch as those that were sanctioned foruse under the interim rule could begranted marketing approvalnotwithstanding the absence ofsubstantial evidence of theireffectiveness against nerve gas orbiological warfare agents. Severalcomments stated that the interimregulation did not provide for recipientsof investigational therapies to receiveappropriate information on thetreatment to be administered. Twocomments stated that the interim ruleshould be modified to require that thereviewing IRB be unaffiliated with DOD.Five comments stated that the interimrule is a violation of fundamental

ethical principles. The commentsdescribed the rule as ‘‘* * * a flagrantlyimmoral violation of human rights,’’adding that ‘‘Wartime does not justifyexperimentation without consent,’’ and‘‘No explanation, whatever it might be,is acceptable to justify these actions.’’

D. Summary of Litigation Regarding theInterim Rule

On January 11, 1991, Public CitizenHealth Research Group filed suit againstthe Department of Health and HumanServices in the United States DistrictCourt on behalf of an unnamedserviceman stationed in Saudi Arabia,his wife, and all others similarlysituated. In the Complaint, the plaintiff(‘‘Doe’’) alleged that: (1) The interimrule was outside FDA’s statutoryauthority under the act, (2) DOD’s useof unapproved investigational drugs,under the informed consent waiver,could not be reconciled with languagein the 1985 Defense DepartmentAuthorization Act, and (3) theGovernment’s use of drugs onunconsenting persons was a deprivationof liberty in violation of the FifthAmendment. The district courtdismissed the Complaint holding thatthe Complaint questioned ‘‘a militarydecision that is not subject to judicialreview.’’ (Doe v. Sullivan, 756 F. Supp.12, 14 (D.D.C. 1991)). In an alternativeholding, the district court also rejectedon the merits the statutory andconstitutional challenges stated in thecomplaint.

On appeal, a three-judge panel of theUnited States Court of Appeals for theDistrict of Columbia Circuit affirmed bya two-to-one vote the district court’sorder dismissing the Complaint on thegrounds that FDA’s rule was withinFDA’s authority, and not barred by the1985 Department of DefenseAuthorization Act or the due processclause of the Fifth Amendment. Thedissenting judge was of the opinion thatthe case was moot.

E. DOD’s Experience WithPyridostigmine Bromide and BotulinumToxoid

Following the approval of the waiverrequests, DOD dispensedpyridostigmine bromide tablets andadministered botulinumtoxoid to U.S.troops involved in Operations DesertShield and Desert Storm who weredeemed to be at high risk for exposureto organophosphorus nerve agents orbacterial agents. As part of the legalrequirements for the use of productsunder an IND, DOD was required tocollect data on the safety and efficacy ofthe two agents. This information issummarized as follows:

1. Safety Data on Pyridostigmine

U.S. troops who were deemed to be athigh risk for exposure toorganophosphorus nerve agentsreceived pyridostigmine bromide tabletpackages for self-administration usewhen ordered to take them asprophylaxis against nerve agents. Unitcommanders had discretion on whether,and when, to order use of thepyridostigmine bromide, and coulddelegate this authority to the lowestlevel of field command. Documentationdoes not exist on how far down thecommand chain the authority wasdelegated in each unit, or whether orwhen each unit issued orders to begintaking the pyridostigmine, or who tookpyridostigmine.

The Department of the Armyconducted three separate surveys in aneffort to determine the incidence andseverity of side effects associated withthe use of pyridostigmine bromide as anerve agent pretreatment.

Survey I was a questionnaire sent to42 selected medical personnel involvedin Operation Desert Shield andOperation Desert Storm; 23 of thesequestionnaires were completed andreturned. Among the 23 medical officerswho returned the survey, 10 respondedthat their overall impression was thatthe drug was tolerated either very wellor well. The most common side effectsreported were gastrointestinal(abdominal cramps, nausea, anddiarrhea). Less common side effectswere weakness and light-headedness,exacerbation of asthmatic symptoms,fatigue, sleep disturbances, and reducedmental concentration. Of the 5,825medical personnel reported on, 8 werehospitalized for side effects that wereattributed to pyridostigmine. Thereasons listed for hospitalizationincluded exacerbation of cholelithiasis,asthma, and allergic skin reaction.

Survey II was a questionnaire given toan unspecified number of soldiersdeployed in Operation Desert Storm;149 of these soldiers responded. Ofthose individuals who took the drug,37.5 percent experienced side effects.The most common side effects weregastrointestinal in nature. Nausea wasreported most frequently (11 percent ofsubjects), and headache was the secondmost frequent side effect reported (7.5percent of subjects).

Survey III was designed to documentthe effects of pyridostigmine onaviators’ ability to carry out combatmissions. One hundred eighteenaviators participated in the survey, 48 ofwhom were taking other medicationsconcomitantly. The majority of thosetaking other medications were taking


the antibiotic ciprofloxacin. Twenty-sixof the 108 aviators who indicated thatthey had taken the drug reportedexperiencing side effects they attributedto pyridostigmine, mainly headachesand diarrhea.

The Journal of the American MedicalAssociation published the result of oneretrospective study that reported on the18th Airborne Corps (Corps) use ofpyridostigmine. The Corps instructed41,650 soldiers (6.5 percent women) totake pyridostigmine at the beginning ofOperation Desert storm in January 1991.Approximately 30 medical officers(physicians and physician’s assistants)provided their impressions of theincidence of physiologic responses andpotential adverse effects topyridostigmine. A total of 483 aidstation or clinic visits were related topyridostigmine administration; 313 ofthese visits were due to ‘‘gastrointestinaldisturbances severe enough to promptmedical attention.’’ And ‘‘[a]nother 150soldiers had frequency or urgency ofurination.’’ Less than 5 percent of the41,650 soldiers complained ofheadaches, rhinorrhea, diaphoresis, ortingling of extremities. The articlereported that 1 percent of the troopsperceived the need for a medical visitand less than 0.1 percent discontinuedpyridostigmine based on medical advice(LTC Jill R. Keeler, et al.,‘‘Pyridostigmine Used as a Nerve AgentPretreatment Under WartimeConditions,’’ Journal of the AmericanMedical Association, vol. 266, no. 5,August 7, 1991).

2. Safety and Efficacy Data onBotulinum Toxoid Vaccine

As noted previously, DOD advisedFDA that the military command in thetheater of operations administered thisvaccine on a voluntary basis.Approximately 8,000 service memberswere reported to have received thebotulinum toxoid vaccine. Most of theseindividuals received two doses.

The Department of the Army collectedsafety information through aretrospective survey on local andgeneralized reactions experienced bysoldiers vaccinated with the botulinumtoxoid vaccine. The survey, conductedon August 27, 1991, was given toindividuals who received one or moredoses of the vaccine (between January 3,1991, and March 2, 1991) in the PersianGulf, and who had received no othervaccines against biological warfareagents. One hundred and twenty-oneresponses were received. With respectto local reactions, 84 percent ofvaccinated individuals reported eitherno local reactions (72.5 percent) orredness and/or swelling less than 6

inches in any dimension (11.57percent). One individual reported post-vaccination injection site pain thattemporarily (one half day) interferedwith his ability to perform his duties butresolved quickly. With respect tosystemic reactions to the vaccine, 97.52percent of respondents reported havingnone. Of the three respondents whoreported systemic reactions, tworeported mild systemic effects such asheadache and muscle aches, and thethird also reported nausea, fever, andfatigue; none of these events werereported to have persisted or haveresulted in limitations on activity.

In 1992, DOD carried out a followupstudy, with informed consent, on 327selected military personnel whoreceived the botulinum toxoid vaccineduring Operation Desert Shield andOperation Desert Storm. The objectivesof this study were, in part, to evaluatethe persistence of antibodies tobotulinum toxoid vaccine receivedduring the Gulf War and, to determinethe serological response 30 days after abooster dose. The evaluationdemonstrated that 35 of the 327 hadmeasurable antibody 18 to 24 monthsfollowing primary vaccination. Thepercentage of antibody varieddepending on whether the individualshad received 1, 2, or 3 primaryvaccinations ((0/10 (0 percent), 27/244(11.1 percent), and 8/73 (11 percent) ofindividuals who had received 1, 2, or 3primary vaccinations, respectively).This response was to be expected at thisfollowup time point in individualsreceiving anything less than the fullprimary immunization and boosterdose. Thirty days after the booster dosewas administered, 7/10 (70 percent),238/244 (97.5 percent), and 72/72 (98.6percent) of individuals who hadreceived 1, 2, or 3 of the primary doseseries, respectively, responded with asignificant increase in toxin neutralizingantibody titer to botulinum type A.

3. Information Supplied to MilitaryPersonnel

DOD has stated that itsimplementation of plans for providingservice members with information aboutthe investigational products wasfrustrated due to time limitations.

In order to evaluate the effectivenessof its efforts to disseminate informationto military personnel regarding thesafety, risks, and possible benefits ofpyridostigmine, the Army surveyed anunspecified number of personnelregarding their views on the adequacy ofthe information that they received. Thiswas a part of Survey II described insection I.E.1 of this document. Thosesurveyed were asked whether they

thought the training that they receivedwas adequate and to comment about anyproblems with their training.

One hundred forty-nine individualsresponded to this survey. In response tothe question ‘‘Was training aboutpyridostigmine adequate?’’, 43.7 percentof the respondents answered in thenegative. Most of those who felt that thetraining was inadequate expressed adesire for more information on sideeffects, long-term effects, and the drug’smechanism of action. The following isa sample of some of the commentsreceived (both by those who felt thetraining was inadequate and those whofelt it was adequate but could have beenbetter):

(a) ‘‘No standard side effects given.’’(b) ‘‘No training on side effects.’’(c) ‘‘People were worried about the

drug’s side effects. Many peopleavoided taking it. Some people woulddouble dose after missing one.’’

(d) ‘‘Not trained on drug action, butyes on side effects.’’

(e) ‘‘Combat lifesavers brief it and saidit was FDA approved.’’

(f) ‘‘Many soldiers didn’t take thetablets due to the fact that they weren’tFDA approved or thought not.’’

(g) ‘‘Didn’t know what it did, what itwas for. Disregarded instructions to takeit.’’

(h) ‘‘Training was not enough inlayman’s terms. You would need toknow more about nerve agents.’’

Veterans made similar comments onthe adequacy of the information theyreceived at hearings before the SenateCommittee on Veterans’ Affairs and thePresidential Advisory Committee onGulf War Veterans’ Illnesses.

As part of Survey I described insection I.E.1 of this document, 15 of the23 medical officers who returned thesurvey responded that to theirknowledge, the information sheet onpyridostigmine bromide was notdistributed to personnel instructed totake pyridostigmine bromide. Tworespondents said that the informationwas distributed, and one respondent,whose unit was not instructed to beginpretreatment with pyridostigminebromide, replied that he had the sheetavailable for distribution.

Although FDA did not require theArmy to attempt to evaluate theeffectiveness of its educational efforts,the Army did so in an effort to monitorits own performance and perhaps learnabout how education might be improvedin the future. While it is difficult toevaluate the validity of the Army’sfindings (due to the difficulty ofmeasuring the effect of response bias inSurvey II), FDA is concerned about thehigh level of dissatisfaction expressed


by this small sample of militarypersonnel. Their responses indicate thatthe information on pyridostigmine wasnot distributed as intended and theArmy’s educational activities wereuneven and possibly inappropriate tothe education level of all personnel.Their responses also indicate thatbecause of the inadequate informationprovided to the soldiers, that at leastsome soldiers either took the wrongamount of pyridostigmine ordisregarded orders to take it completely.Based on subsequent DOD statements,FDA has concluded that the informationsheet on pyridostigmine was notprovided and disseminated to militarypersonnel in the Gulf as conditioned inthe Commissioner’s letter granting thewaiver under the interim rule.

With respect to botulinum toxoidvaccine, there is a lack of clarity as towhether the conditions of waiver weremet and applied or whether informedconsent was actually obtained.

F. Other Information Related to theInterim Rule

There has been extensive examinationof the use of the interim rule,pyridostigmine bromide, and thebotulinum toxoid vaccine duringOperation Desert Storm. This focusedexamination is, in part, the result ofinterest in determining the cause of avariety of health effects suffered byveterans who served in the Gulf War.

On May 6, 1994, the United StatesSenate Committee on Veterans’ Affairsheld a hearing on ‘‘Is Military ResearchHazardous to Veterans’ Health? LessonsFrom World War II, the Persian Gulf,and Today.’’ The Chairman, in hisopening statement, stated his view thatthe issue needed to be resolved.Witnesses at the hearing includedethicists, four veterans with stories ofillnesses allegedly related to exposuresthey experienced either in the militaryor working for the military, andscientists and officials from theDepartment of Veterans Affairs, DOD,FDA, and the Department ofAgriculture.

The Presidential Advisory Committeeon Gulf War Veterans’ Illnesses’ finalreport reviewed these issuesextensively. In its interim report(February 1996), the committeedescribed a number of shortcomings inDOD’s use of investigational productsduring the Gulf War and recommended,among other things, that:

If FDA decides to reissue the interim finalrule as final, it should first issue a Notice ofProposed Rule Making. Among the areas thatspecifically should be revisited are: adequacyof disclosure to service personnel; adequacyof recordkeeping; long term followup of

individuals who receive investigationalproducts; review by an IRB outside of DOD;and additional procedures to enhanceunderstanding, oversight, and accountability.(p. 24)This report further stated:

The activities of FDA and DOD related tothe use of drugs and biologics intended toprotect against [chemical and biologicalwarfare] CBW remain an area of considerableinterest to the Committee. In particular, weplan to explore with FDA possiblealternatives to the interim final rule to helpensure troops are protected against CBW.Some observers have suggested an approvalstandard that recognizes surrogate endpointsand other data indicative of efficacy forvaccines, drugs, devices, and antibioticsintended for CBW defense might be a moreappropriate policy than a waiver of informedconsent. (p. 44)

On May 7, 1996, Public Citizen, theNational Veterans Legal ServicesProgram, and the National Gulf WarResource Center, Inc., submitted apetition to FDA requesting that theCommissioner repeal the interim rule.The petition set forth a number ofgrounds for this request, including: Theethics of the rule continues to bequestioned; the military did not providethe information regarding the effects ofexperimental drugs that FDA consideredessential to permitting their use withoutinformed consent; DOD failed to keepthe necessary records on theadministration and effects of theexperimental drugs; the waiver ofinformed consent was not necessary(botulinum toxoid vaccine was orderedto be given on a voluntary basis and‘‘the fact that the PB tablets were self-administered by the troops underscoresthat it was possible to inform and obtainthe consent of the military personnelwho took these tablets’’); the safety ofthe experimental drugs is stillquestionable; and administration ofthese drugs without informed consentwas not limited to military personnel.

The petition concluded with thefollowing:

The FDA should repeal the Interim Rule inlight of all the problems encountered in itsimplementation. Not only did the InterimRule fail to operate in the manner the FDAintended, but it also allowed the military tocircumvent the safeguards the FDA offered torationalize this departure from its ordinaryrules on informed consent. The military didnot follow through with many conditionsthat the FDA deemed crucial to granting awaiver of this critical requirement. (p. 26)

On September 13, 1996, the AssistantSecretary of Defense, Health Affairs,provided DOD’s comments on thepetition to FDA and urged that it bedenied. DOD’s comments included thefollowing statements:

1. When the President commits U.S.military forces to a combat, peacekeeping, orhumanitarian deployment, the U.S.

Government has a duty to take all reasonableprecautions to bring about a successfulcompletion of the mission and a safe returnof the deployed forces.

2. The Government’s duty to take allreasonable precautions to preserve thefighting force must include recognition of thestartling proliferation of chemical andbiological weapons among potentialadversaries and terrorist organizations and anobligation to implement the best possiblemedical countermeasures.

3. Implementation of the best possiblemedical countermeasures may require thestandardized treatment use of aninvestigational new drug or vaccine for allpersonnel at risk in a military combatexigency, including those personnel who, forwhatever reason or no reason at all, wouldprefer an alternate treatment or no treatment.

4. The current rule is an extremely limitedauthority, requiring case-by-case justification,available only under extraordinarycircumstances, and explicitly restricted toadvancing the best interests of the militarypersonnel concerned.

5. The current rule is fully consistent withlaw and ethics.

6. Overall, notwithstanding some problemsin carrying out the designed treatmentprotocols, the two uses made of the currentrule during the Persian Gulf War support therule’s continuation.

7. Initiatives since the Gulf War, includingcurrent operations in Bosnia, have improvedDOD’s ability to implement medicalcountermeasures under the authority of thecurrent rule, should that become necessary inthe future.This petition is pending before theagency.

II. Scope of Comments Requested

In light of the many complex ethical,scientific, and public health issuesassociated with the use ofinvestigational products during the GulfWar and the waiver of the requirementto obtain informed consent, FDA issoliciting broad public comment on theadvisability of the agency: (1) Revokingor amending the interim final rule thatpermits the Commissioner to determinethat obtaining informed consent frommilitary personnel for the use of aninvestigational drug or biologic is notfeasible in certain situations related tomilitary combat, and (2) identifying theevidence needed to demonstrate safetyand effectiveness for suchinvestigational drugs that cannotethically be tested on humans forpurposes of determining their efficacybecause they would involveadministering a severely toxic substanceto human volunteers. The agencyencourages written comments from allinterested parties, including, but notlimited to, consumers, patient groups,veterans and veteran groups, activemilitary personnel, organizations anddepartments, ethicists, scientists,


researchers with particular expertise inthis area, and health care professionals.

Interested persons may, on or beforeOctober 29, 1997, submit to the DocketsManagement Branch (address above)written comments regarding thequestions identified in section II of thisdocument (referencing the number ofthe question(s) being addressed). Twocopies of any comments are to besubmitted, except that individuals maysubmit one copy. Comments are to beidentified with the docket numberfound in brackets in the heading of thisdocument. Received comments may beseen in the office above between 9 a.m.and 4 p.m., Monday through Friday.

The agency specifically requestscomments on the following:

A. The Interim Rule

(1) Should the agency revoke theinterim rule? If so, why?

(2) Are there circumstances underwhich use of the interim rule would bejustified? If so, what are thosecircumstances?

(3) The interim rule is based on thepremise that informed consent is notfeasible in military combat exigenciesbecause if a soldier were permitted tosay ‘‘no,’’ this could jeopardize theindividual soldier’s life, endanger otherpersonnel in his or her unit, andjeopardize the accomplishment of thecombat mission. DOD has alleged that itis not an option to excuse anonconsenting soldier from a militarymission. Given the experience in theGulf War, does this rationale still hold?

(4) Instead of waiving the requirementfor informed consent, is it feasible toobtain anticipatory consent frommilitary personnel during peace time forthe future use of investigationalproducts during a military conflict? If itis feasible, would such consent be validas ‘‘informed consent’’? What would bethe needed consent algorithm to make itvalid and feasible?

(5) Instead of waiving the requirementfor informed consent, is it feasible toobtain anticipatory consent frommilitary recruits (prior to theirrecruitment into the military) for thefuture use of investigational productsduring a military conflict? If it isfeasible, would such consent be valid?What would be the needed consentalgorithm to make it valid and feasible?

(6) If the interim rule is needed, arethere changes that should be made to itbased on experiences during andfollowing the Gulf War? If so, what are

these changes and why should they bemade?

(7) Can or should the interim rule benarrowed in scope? If so, how?

(8) If the rule were to be reproposed:(a) Should there be a requirement that

DOD’s proposed use of theinvestigational product(s) be approvedby an IRB that is independent of DOD?If so, why should DOD be held to arequirement not imposed on otherinstitutions, and what should be therequirement for that independent IRB?Can this be accomplished withoutcompromising military or nationalsecurity?

(b) Should the authority to make the‘‘feasibility determination’’ (i.e.,whether obtaining informed consent is‘‘not feasible’’) under the interim rule bevested in persons or entities other thanthe Commissioner of FDA?

(c) Should the rule be more specificin describing the information that mustbe supplied to military personnel, orshould FDA have wide latitude to makesuch determinations on a case-by-casebasis?

(d) Should additional measures betaken to insure that informationrequired by FDA is effectively conveyedto the affected military personnel? If so,what should these measures be?

(e) Should the rule address whatconstitutes adequate recordkeeping andadequate long term followup ofindividuals who receive investigationalproducts? If so, in what way?

(f) Should the rule contain additionalprocedures to enhance understanding,oversight, and accountability? If so,what are these procedures?

(g) Should the rule contain additionalprocedures to track noncompliance?

B. When Is It Ethical to ExposeVolunteers to Toxic Chemical andBiological Agents to Test theEffectiveness of Products That May BeUsed to Provide Potential ProtectionAgainst Those Agents?

The agency recognizes that relianceon nonhuman studies will almostalways give greater uncertainty abouteffectiveness than would studies inhumans. Therefore, the agency is alsoseeking comments on the ethical andscientific considerations of conductinghuman efficacy trials with theseproducts. For example, the agency isinterested in receiving comment onwhether it is ethical to conductchallenge studies in humans if, shouldthe test product fail, there is strongreason to believe the effect of the

challenge could be reversed oreffectively treated. What if the effect ofthe challenge could not be reversed oreffectively treated? What would be theneeded risk/benefit assessment? Whocould volunteer for such studies? Wouldit be ethically preferable to carry outsuch studies in people who could beexposed to the toxic substance? Shouldthe agency further explore these issuesin a separate public forum?

C. If Products That May Be Used toProvide Potential Protection AgainstToxic Chemical and Biological AgentsCannot Be Ethically Tested in Humans,What Evidence Would Be Needed toDemonstrate Their Safety andEffectiveness?

(1) Should FDA identify the evidenceneeded to demonstrate safety andeffectiveness for drugs that cannotethically be tested on humans todemonstrate efficacy when such testswould involve administering a severelytoxic substance to human volunteers? If‘‘yes,’’ what should constitute theevidence needed to demonstrate safetyand efficacy? (The current statutorystandard requires, among other things,there be ‘‘substantial evidence’’ that thedrug is effective; ‘‘substantial evidence’’means evidence ‘‘consisting of adequateand well-controlled investigations,including clinical investigations * * *on the basis of which it could fairly andresponsibly be concluded by suchexperts that the drug’’ is effective.)

(2) If the agency were to identify theevidence needed to demonstrate safetyand effectiveness of these products,would this preclude the need for theinterim rule? What specific advantageswould this offer over the interim rule?

(3) Civilian populations may requireproducts used in the prevention ortreatment of the serious or life-threatening effects from exposure totoxic chemical or biological agents, e.g.,in the event of exigencies such as therelease of toxic chemical agents in theTokyo subway system. Thus, should theagency consider identifying theevidence needed to demonstrate safetyand effectiveness for these productswhich would apply to both civilian aswell as military populations?

Dated: July 7, 1997.Michael A. Friedman,Lead Deputy Commissioner for the Food andDrug Administration.[FR Doc. 97–20311 Filed 7–29–97; 10:58 am]BILLING CODE 4160–01–F


DEPARTMENT OF LABOR

Occupational Safety and HealthAdministration

29 CFR Part 1910

[Docket No. S–012–B]

Review of the Control of HazardousEnergy Sources (Lockout/Tagout)Standard

AGENCY: Occupational Safety and HealthAdministration, U.S. Department ofLabor.ACTION: Extension of time for filingpublic comments.

SUMMARY: The Occupational Safety andHealth Administration (OSHA) isconducting a review of the Control ofHazardous Energy Sources (Lockout/Tagout) standard in order to determine,consistent with Executive Order 12866on Regulatory Planning and Review andsection 610 of the Regulatory FlexibilityAct, whether this standard should bemaintained without change, rescinded,or modified in order to make it moreeffective or less burdensome, consistentwith the objectives of the OccupationalSafety and Health Act. The review willconsider the application of ExecutiveOrder 12866 and the directive of theRegulatory Flexibility Act to achievestatutory goals with as little economicimpact as possible on small employers.

OSHA published a Federal Registernotice on May 29, 1997 requestingpublic comments concerning OSHA’sreview of the Lockout/Tagout standard(29 CFR 1910.147) and announcing apublic meeting on June 30, 1997 (62 FR29089, May 29, 1997). In the FederalRegister notice announcing the publicmeeting, OSHA stated that it wouldaccept written comments throughAugust 1, 1997. In response to requestsfrom persons commenting at the publicmeeting held on June 30, 1997, OSHAhas granted a one week extension of thetime period to file written comments.DATES: Written comments will beaccepted through August 8, 1997.ADDRESSES: Written comments shouldbe sent to the Docket Officer, Docket S–012–B, OSHA Docket Office, RoomN2625, 200 Constitution Avenue, NW.,Washington, DC 20210, Telephone (202)219–7894.FOR FURTHER INFORMATION CONTACT:Nancy Dorris, Office of RegulatoryAnalysis, Directorate of Policy,Occupational Safety and HealthAdministration, Room N3627, 200Constitution Avenue, NW., Washington,DC 20210, Telephone (202) 219–4690,extension 134, Fax (202) 219–4383.

Authority: This document was preparedunder the direction of Gregory R. Watchman,Acting Assistant Secretary of Labor forOccupational Safety and Health, 200Constitution Avenue, NW., Washington, DC20210.

Signed at Washington, D.C., this 25th dayof July, 1997.Gregory R. Watchman,Acting Assistant Secretary.[FR Doc. 97–20107 Filed 7–30–97; 8:45 am]BILLING CODE 4510–26–P

DEPARTMENT OF LABOR

Occupational Safety and HealthAdministration

29 CFR Part 1910

[Docket No. H–200–C]

Review of the Ethylene Oxide Standard

AGENCY: Occupational Safety and HealthAdministration, U.S. Department ofLabor.ACTION: Extension of time for filingpublic comments.

SUMMARY: The Occupational Safety andHealth Administration (OSHA) isconducting a review of the EthyleneOxide standard in order to determine,consistent with Executive Order 12866on Regulatory Planning and Review andsection 610 of the Regulatory FlexibilityAct, whether this standard should bemaintained without change, rescinded,or modified in order to make it moreeffective or less burdensome inachieving its objectives, to bring it intobetter alignment with the objectives ofExecutive Order 12866, or to make itmore consistent with the objectives ofthe Regulatory Flexibility Act to achieveregulatory goals while imposing as fewburdens as possible on small employers.

OSHA published a Federal Registernotice on May 27, 1997 requestingpublic comments concerning OSHA’sreview of the Ethylene Oxide standard(29 CFR 1910.1047) and announcing apublic meeting on June 30, 1997 (62 FR28649, May 27, 1997). In the FederalRegister notice announcing the publicmeeting, OSHA stated that it wouldaccept written comments throughAugust 1, 1997. In response to requestsfrom persons commenting at the publicmeeting held on June 30, 1997, OSHAhas granted a one week extension of thetime period to file written comments.DATES: Written comments will beaccepted through August 8, 1997.ADDRESSES: Written comments shouldbe sent to the Docket Officer, Docket H–200–C, OSHA Docket Office, RoomN2625, 200 Constitution Avenue, NW.,

Washington, DC 20210, Telephone (202)219–7894.FOR FURTHER INFORMATION CONTACT:Nancy Dorris, Office of RegulatoryAnalysis, Directorate of Policy,Occupational Safety and HealthAdministration, Room N3627, 200Constitution Avenue, NW., Washington,DC 20210, Telephone (202) 219–4690,extension 134, Fax (202) 219–4383.

Authority: This document was preparedunder the direction of Gregory R. Watchman,Acting Assistant Secretary of Labor forOccupational Safety and Health, 200Constitution Avenue, NW., Washington, DC20210.

Signed at Washington, D.C., this 25th dayof July, 1997.Gregory R. Watchman,Acting Assistant Secretary.[FR Doc. 97–20108 Filed 7–30–97; 8:45 am]BILLING CODE 4510–26–P


40 CFR Part 52

[LA–33–1–7343; FRL–5866–7]

Approval and Promulgation of AirQuality State Implementation Plans(SIP); Louisiana: Enhanced MotorVehicle Inspection and Maintenance (I/M) Program

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Withdrawal of proposedconditional approval, and proposeddisapproval.

SUMMARY: The EPA previouslypublished a Federal Register (FR) noticeproposing conditional approval of theLouisiana I/M SIP. The notice waspublished on June 9, 1997 (62 FR31388). The approval was conditionedon the State obtaining reauthorizationand continuous operating authority forthe I/M program, and program start-upon January 1, 1999. The State failed toobtain the necessary legislation duringthe 1997 regular Legislative Session.Consequently, EPA believes thatconditional approval is no longerappropriate. Therefore, EPA iswithdrawing its proposed conditionalapproval. At the same time, EPA isproposing disapproval of the revision tothe I/M SIP submitted by the State ofLouisiana on August 18, 1995 and May30, 1996. This action is taken undersection 110 of the Clean Air Act (theAct) as amended in 1990. The EPA isproposing a disapproval because theState has not obtained the legislativeauthority needed for reauthorization


and continuous implementation of theprogram. The EPA cannot approve aSIP, under the Clean Air Act, whichlacks continuing legislative authority.DATES: This withdrawal is made on July31, 1997. Comments on the proposeddisapproval must be received on orbefore September 2, 1997.ADDRESSES: Written comments on theproposed action should be addressed toMr. Thomas H. Diggs, Chief, AirPlanning Section, at the EPA RegionalOffice listed below. Copies of thedocuments relevant to this action areavailable for public inspection duringnormal business hours at the followinglocations. Persons interested inexamining these documents shouldmake an appointment with theappropriate office at least 24 hoursbefore the visiting day.Environmental Protection Agency,

Region 6, Air Planning Section (6PD–L), 1445 Ross Avenue, Suite 700,Dallas, Texas 75202–2733.

Louisiana Department of EnvironmentalQuality, Air Quality ComplianceDivision, 7290 Bluebonnet, 2nd Floor,Baton Rouge, Louisiana.

Louisiana Department of EnvironmentalQuality Capital Regional Office, 11720Airline Highway, Baton Rouge,Louisiana.

FOR FURTHER INFORMATION CONTACT: Ms.Sandra G. Rennie, Air Planning Section(6PD–L), EPA Region 6, 1445 RossAvenue, Dallas, Texas 75202–2733,telephone (214) 665–7367.


I. BackgroundOn August 18, 1995, and in a later

submittal, the State of Louisianasubmitted plans for an I/M program inresponse to the requirements of the Actand to Federal I/M rules promulgated onNovember 5, 1992 (40 CFR 51.350, etseq.). Serious ozone nonattainmentareas are required by the Act toimplement enhanced vehicle I/Mprograms. The Louisiana plan wouldput a vehicle I/M program in place inthe six parish Baton Rouge ozonenonattainment area starting January1999. The plan was not submitted underthe National Highway SystemDesignation Act, which amended theClean Air Act I/M requirement incertain respects. An I/M program is notneeded to provide the reductionsnecessary to support a demonstration ofthe Baton Rouge 15% Rate-of-ProgressPlan or the Post-1996 Rate of Progress/Attainment Demonstration Plan. Aproposed conditional approval of thisplan was published in the FederalRegister on June 9, 1997 (62 FR 31388).The plan was proposed for approval

with the conditions that the programstart in January 1999, and that the Stateobtain legislative authority forcontinuous program operation. TheState statute had required programreauthorization in 1997 and in odd-numbered years thereafter.

II. Analysis of Legislative AuthorityUnder 40 CFR 51.372(a)(6) of the

Federal I/M rule, the SIP submittal mustinclude legal authority for the I/Mprogram until such time as it is nolonger necessary. Legal authority in therevised Louisiana SIP is limited toreauthorization by the State Legislaturein odd-numbered years starting in 1997.The EPA considered this a majordeficiency in the SIP, and madecorrecting this deficiency one conditiontoward full approval of the SIP. TheClean Air Act section 110(a)(2)(E)requires that all SIPS, to be approvable,must include adequate authority underState law to implement the plan.

The State Legislature held a regularsession from April 1, 1997, through June23, 1997. Neither of the two billsrelating to I/M were enacted. TheLegislature recessed without providingthe necessary legal authority forprogram reauthorization or continuousprogram operation, and will not meet inregular session until the spring of 1999.A fee bill to fund program developmentalso was not acted upon. Consequently,the State will not have legal authority toimplement the I/M program after 1997.

III. Rulemaking ActionThe EPA is withdrawing the proposed

conditional approval appearing at 62 FR31388, June 9, 1997, since Louisianafailed to enact continuing legislativeauthority during the 1997 session.Louisiana could not comply with theproposed condition in the notice.

The EPA also proposes to disapprovethe Louisiana I/M SIP under sections110(k) and 182 of the Act since the Statedid not obtain reauthorization andcontinuous legislative authority for I/Mprogram operation. A disapproval isbeing proposed because the State’s I/MSIP does not meet all the requirementsof the Act and the federal I/M rules.

Today’s rulemaking action withdrawsthe previous proposed conditionalapproval, and proposes to disapprovethe State’s I/M SIP until such time as theState corrects the major deficiencyrelating to legislative authority.

Under section 179(a)(2), if the EPAAdministrator takes final disapprovalaction on a submission under section110(k) for an area designatednonattainment based on thesubmission’s failure to meet one or moreof the elements required by the Act, the

Administrator must apply one of thesanctions set forth in section 179(b) ofthe Act (unless the deficiency has beencorrected within 18 months of suchdisapproval). Section 179(b) providestwo sanctions available to theAdministrator: revocation of highwayfunding and the imposition of emissionoffset requirements. The 18-monthperiod referred to in section 179(a) willbegin on the effective date establishedin the final disapproval action. If thedeficiency is not corrected within sixmonths of the imposition of the firstsanction, the second sanction will alsoapply. This sanctions process is set forthin 40 CFR 52.31. Today’s action servesonly to propose disapproval of theState’s revision, and does not constitutefinal agency action. Thus, the sanctionsprocess described above does notcommence with today’s action.

Also, 40 CFR 51.448(b) of the federaltransportation conformity rulescurrently state that if the EPAdisapproves a submitted control strategyimplementation plan revision whichinitiates the sanction process undersection 179 of the Act, the conformitystatus of the transportation plan andtransportation improvement programshall lapse 120 days after the EPA’s finaldisapproval without a protectivefinding, and no new project-levelconformity determinations may bemade. Furthermore, no newtransportation plan, TransportationImprovement Program, or projects maybe found to conform, until anothercontrol strategy implementation planrevision fulfilling the same Clean AirAct requirements is submitted, foundcomplete, and conformity to thissubmission is determined.

The timeframe for the conformitylapse, which, as discussed above, is 120days after the effective date of EPA’sfinal disapproval action, could bechanged by a revision to EPA’sconformity rule. On July 9, 1996, EPApublished (61 FR 36112) a proposedrule which would modify theTransportation Conformity rule. A keyprovision contained in the proposal wasa change in the penalty that occurs 120days after a final disapproval action.Instead of a lapse, a less punitiveconformity freeze was proposed to occurin 120 days. In EPA’s proposedconformity rule revision, the morerestrictive lapse would be imposed 2years after a final disapproval action.Therefore, if the conformity rule isfinalized as proposed, the conformitylapse will take place 2 years from theeffective date of the final disapprovalaction, and a freeze would be imposedin the period between 120 days and 2years following the effective date of this


action. Louisiana will ultimately besubject to the provisions contained inEPA’s final conformity rule.

Nothing in today’s action should beconstrued as permitting or allowing orestablishing a precedent for any futurerequest for revision to any stateimplementation plan. Each request forrevision to the state implementationplan shall be considered separately inlight of specific technical, economic,and environmental factors and inrelation to relevant statutory andregulatory requirements.

The Regional Administrators’decision to approve or disapprove theSIP revision will be based on whetherit meets the requirements of section110(a)(2)(A)–(K) and part D of the Act,as amended, and EPA regulations in 40CFR part 51.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budgethas exempted this regulatory actionfrom Executive Order 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. See 5 U.S.C.603 and 604. Alternatively, EPA maycertify that the rule will not have asignificant 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.

The EPA’s proposed disapproval ofthe State request under section 110 andsubchapter I, part D of the Act does notaffect any existing requirementsapplicable to small entities. Anypreexisting Federal requirements remainin place after this disapproval. Federaldisapproval of the state submittal doesnot affect its state-enforceability.Moreover, EPA’s disapproval of thesubmittal does not impose any newFederal requirements. Therefore, EPAcertifies that this disapproval actiondoes not have a significant impact on asubstantial number of small entitiesbecause it does not remove existingrequirements and does not impose anynew Federal requirements.

C. Small Business RegulatoryEnforcement Fairness Act

Under section 801(a)(1)(A) of theAdministrative Procedures Act (APA) asamended by the small businessRegulatory Enforcement Fairness Act of1996, EPA submitted a report containing

this rule and other required informationto the U.S. House of Representatives andthe Comptroller General of the generalAccounting Office prior to publicationof the rule in today’s Federal Register.This rule is not a ‘‘major rule’’ asdefined by section 804(2) of the APA asamended.

D. Unfunded Mandates ActUnder section 202 of the Unfunded

Mandate Reform Act of 1995, 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 aggregate;or to the private sector, of $100 millionor more. Under section 205, EPA mustselect the most cost-effective and leastburdensome alternative that achievesthe objectives of the rule and isconsistent with statutory requirements.Section 203 requires EPA to establish aplan for informing and advising anysmall governments that may besignificantly or uniquely impacted bythe rule. This Federal action imposes nonew requirements.

List of Subjects in 40 CFR Part 52Environmental protection, Air

pollution control, Carbon monoxide,Hydrocarbons, Nitrogen dioxide, Ozone.

Authority: 42 U.S.C. 7401–7671q.Dated: July 21, 1997.

Lynda F. Carroll,Acting Regional Administrator.[FR Doc. 97–20179 Filed 7–30–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 52

[CA 173–0044b; FRL–5867–4]

Approval and Promulgation of StateImplementation Plans; California StateImplementation Plan Revision,Sacramento Metropolitan Air QualityManagement District and SantaBarbara County Air Pollution ControlDistrict

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

SUMMARY: EPA is proposing to act onrevisions to the California StateImplementation Plan (SIP) consisting oftwo volatile organic compound (VOC)negative declarations from theSacramento Metropolitan Air QualityManagement District for Plastic PartsCoating: Business Machines and Plastic

Parts Coating: Other and six negativedeclarations from the Santa BarbaraCounty Air Pollution Control District forthe following VOC source categories:Industrial Wastewater, Plastic PartsCoating: Business Machines, PlasticParts Coating: Other, Industrial CleaningSolvents, Offset Lithography, andShipbuilding Coatings. The intendedeffect of proposing to include thesenegative declarations in the SIP is tomeet the requirements of the Clean AirAct, as amended in 1990 (CAA or theAct). In the Final Rules Section of thisFederal Register, the EPA is acting onthe state’s SIP revision as a direct finalrule without prior proposal because theAgency views this as a noncontroversialrevision amendment and anticipates noadverse comments. A rationale for thisaction is set forth in the direct final rule.If no adverse 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. The EPA will notinstitute a second comment period onthis document. Any parties interested incommenting on this action should do soat this time.DATES: Comments on this proposed rulemust be received in writing bySeptember 2, 1997.ADDRESSES: Written comments on thisaction should be addressed to: Julie A.Rose, Rulemaking Office (AIR–4), AirDivision, U.S. Environmental ProtectionAgency, Region 9, 75 Hawthorne Street,San Francisco, CA 94105–3901.

Copies of the negative declarations areavailable for public inspection at EPA’sRegion 9 office and at the followinglocations during normal business hours.Rulemaking Office (AIR–4), Air

Division, U.S. EnvironmentalProtection Agency, Region IX, 75Hawthorne Street, San Francisco, CA94105

Air Docket (6102), U.S. EnvironmentalProtection Agency, 40l ‘‘M’’ Street,S.W., Washington, D.C. 20460

California Air Resources Board,Stationary Source Division, RuleEvaluation Section, 2020 ‘‘L’’ Street,Sacramento, CA 95812

Sacramento Metropolitan Air QualityManagement District, 8411 JacksonRoad, Sacramento, CA 95826

Santa Barbara County Air PollutionControl District, Agency, 26 CastilianDrive, B–23, Goleta, CA 93117.

FOR FURTHER INFORMATION CONTACT: JulieA. Rose, Rulemaking Office (AIR–4), AirDivision, U.S. Environmental Protection


1 53 FR 35412 (September 13, 1988)

Agency, 75 Hawthorne Street, SanFrancisco, CA 94105–3901 Telephone:(415) 744–1184SUPPLEMENTARY INFORMATION: Thisdocument concerns negativedeclarations for VOC source categoriesfrom the Sacramento Metropolitan AirQuality Management District(SMAQMD) and the Santa BarbaraCounty Air Pollution Control District(SBCAPCD). On June 6, 1996, theSMAQMD submitted two negativedeclarations for the following VOCsource categories: Plastic Parts Coating:Business Machines and Plastic PartsCoating: Other. On July 12, 1996, theSBCAPCD submitted six negativedeclarations for the following VOCsource categories: IndustrialWastewater, Plastic Parts: BusinessMachines, Plastic Parts: Other,Industrial Cleaning Solvents, OffsetLithography, and Shipbuilding Coating.These negative declarations confirm thatthe respective source categories are notpresent in the SMAQMD or theSBCAPCD. The negative declarationswere submitted to EPA by the CaliforniaAir Resources Board as revisions to theSIP on the dates indicated.

For further information, please see theinformation provided in the Direct Finalaction which is located in the RulesSection of this Federal Register.

Authority: 42 U.S.C. 7401–7671q.Dated: July 16, 1997.

Felicia Marcus,Regional Administrator.[FR Doc. 97–20218 Filed 7–30–97; 8:45 am]BILLING CODE 6560–50–P


40 CFR Part 261

[SW–FRL–5862–8]

Hazardous Waste ManagementSystem; Identification and Listing ofHazardous Waste; Proposed Removalof Final Rule

AGENCY: Environmental ProtectionAgency.ACTION: Proposed rule and request forcomment.

SUMMARY: The Environmental ProtectionAgency (EPA) is proposing repeal of theexclusion that appears in the final rulepublished at 56 FR 67197 (December 30,1991) regarding a delisting granted toReynolds Metals Company (Reynolds),Gum Springs, Arkansas. The exclusiongranted to Reynolds on December 30,1991, was to exclude (or delist), certainsolid wastes (i.e., kiln residue from

treatment of spent potliner from primaryaluminum reduction) generated atReynolds’ facility from the lists ofhazardous wastes contained in 40 CFR261.24, 40 CFR 261.31, 40 CFR 261.32and 40 CFR 261.33 (hereinafter allsectional references are to 40 CFRunless otherwise indicated). Thisproposed decision to repeal theexclusion is based on an evaluation ofwaste-specific information provided byReynolds and obtained by EPA eitherindependently or from the ArkansasDepartment of Pollution Control andEcology (ADPC&E) subsequent to thepromulgation of the exclusion. If thisproposed decision is finalized, all futurewaste generated at Reynold’s GumSprings, Arkansas facility will no longerbe excluded from the requirements ofhazardous waste regulations under theResource Conservation and RecoveryAct (RCRA) and must be handled ashazardous waste in accordance with 40CFR parts 260 through 266, 268 and 273as well as any permitting standards of40 CFR part 270.DATES: The EPA is requesting publiccomments on this proposed decision.Comments will be accepted untilSeptember 2, 1997. Commentspostmarked after the close of thecomment period will be stamped ‘‘late’’,and will not be considered informulating a final decision.

Any person may request a hearing onthis proposed decision by filing arequest by August 15, 1997. The requestmust contain the information prescribedin § 260.20(d).ADDRESSES: Send three copies of yourcomments. Two copies should be sent toWilliam Gallagher, Delisting Program,Multimedia Planning and PermittingDivision (6PD–O), EnvironmentalProtection Agency, Region 6, 1445 RossAvenue, Dallas, Texas 75202. A thirdcopy should be sent to the ArkansasDepartment of Pollution Control andEcology, P.O. Box 8913, Little Rock,Arkansas 72209–8913. Identify yourcomments at the top with this regulatorydocket number: F–97–ARDEL–REYNOLDS. Requests for a hearingshould also be addressed to WilliamGallagher.

The RCRA regulatory docket for thisproposed rule is located at Region 6,Environmental Protection Agency, 1445Ross Avenue, Dallas, Texas 75202 andis available for viewing in the EPAlibrary on the 12th floor from 8:30 a.m.to 4:00 p.m., Monday through Friday,excluding Federal holidays. Call (214)665–6444 for appointments. The docketmay also be viewed at the ArkansasDepartment of Pollution Control andEcology, 8001 National Drive, Little

Rock, Arkansas 72209. The public maycopy material from any regulatorydocket at no cost for the first 100 pages,and at $0.15 per page for additionalcopies.FOR FURTHER INFORMATION, CONTACT: Fortechnical information concerning thisnotice, contact William Gallagher,Delisting Program (6PD–O), Region 6,Environmental Protection Agency, 1445Ross Avenue, Dallas, Texas 75202, (214)665–6775.


I. Background

A. ‘‘Delisting’’, in General

On January 16, 1981, as part of itsfinal and interim final regulationsimplementing section 3001 of RCRA,the EPA published an amended list ofhazardous wastes from nonspecific andspecific sources. This list has beenamended several times, and ispublished in §§ 261.31, 261.32 and261.33. These wastes are listed ashazardous because they typically andfrequently exhibit one or more of thecharacteristics of hazardous wastesidentified in subpart C of part 261 (i.e.,ignitability, corrosivity, reactivity, andtoxicity) or meet the criteria for listingcontained in § 261.11 (a)(2) or (a)(3).

In 1988,1 the Agency determined thatspent potliners are a solid waste thatmay pose a substantial present orpotential hazard to human health or theenvironment when improperlytransported, treated, stored, disposed of,or otherwise managed. It wasdetermined that spent potliners containtoxic constituents that are mobile and/or persistent in the environment. Spentpotliners were originally listed ashazardous waste because: (1) Spentpotliners contain significant amounts ofiron cyanide complexes and freecyanide, both of which EPA detected inspent potliners in significantconcentrations; (2) free cyanide isextremely toxic to both humans andaquatic life if ingested; (3) available dataindicated that significant amounts offree cyanide and iron cyanide will leachfrom potliners if spent potliners arestored or disposed in unprotected pilesoutdoors and are exposed to rain water;(4) damage incidents have been reportedthat are attributable to improperdisposal of spent potliners,demonstrating migration, mobility, andpersistence of waste constituents anddemonstrating that substantial hazardcan result from improper managementof this waste; and (5) generation of largequantities of the waste increases the


2 The Extraction Procedure was the acceptedleachate test in 1989 when Reynolds originallysubmitted its petition.

3 The Toxicity Characteristic Leaching Procedurereplaced the Extraction Procedure as the standardleaching procedure for hazardous waste in 1990.

potential for hazard if mismanagementshould occur.

Individual waste streams may vary,however, depending on raw materials,industrial processes, and other factors.Thus, while a waste described in theseregulations generally is hazardous, aspecific waste from an individualfacility meeting the listing descriptionmay not be hazardous. Therefore,§§ 260.20 and 260.22 provide a varianceprocedure, allowing persons todemonstrate that a specific waste froma particular generating facility shouldnot be regulated as a hazardous waste.

To have their wastes excluded,petitioners must show that wastesgenerated at their facilities do not meetany of the criteria for which the wasteswere listed. See, § 260.22(a) and thebackground documents for the listedwastes. In addition, the Hazardous andSolid Waste Amendments (HSWA) of1984 require EPA to consider anyfactors (including additionalconstituents) other than those for whichthe waste was listed, if there is areasonable basis to believe that suchadditional factors could cause the wasteto be hazardous. Accordingly, apetitioner also must demonstrate thatthe waste does not exhibit any of thehazardous waste characteristics (i.e.,ignitability, reactivity, corrosivity, andtoxicity), and must present sufficientinformation for EPA to determine basedon actual or theoretical data whether thewaste contains any of the otheridentified constituents at levels notprotective of human health and theenvironment through comparison tomaximum contaminant levels, drinkingwater standards, etc. See, § 260.22(a), 42U.S.C. 6921(f), and the backgrounddocuments for the listed wastes.Although wastes that are delisted (i.e.,excluded) are evaluated to decidewhether they exhibit any of thecharacteristics of hazardous waste,generators remain obligated underRCRA to determine whether their wasteexhibits a hazardous wastecharacteristic as defined by §§ 261.21through 261.24. The Agency may alsoimpose additional conditions to ensurethe waste does not result in a healthhazard, and has the ability to considerand act on new information if itbecomes available.

In addition, mixtures containinglisted hazardous wastes and residuesfrom the treatment, storage, or disposalof listed hazardous wastes are alsoconsidered hazardous wastes. See,§§ 261.3 (a)(2)(iv) and (c)(2)(i), referredto as the ‘‘mixture’’ and ‘‘derived-from’’rules, respectively. Such wastes are alsoeligible for exclusion but remainhazardous wastes until excluded.

B. The Reynold’s ‘‘Delisting’’ PetitionOn August 14, 1989, Reynolds Metals

Company (Reynolds), located inBauxite, Arkansas, petitioned EPApursuant to §§ 260.20 and 260.22 toexclude kiln residue derived fromprocessing K088 spent potliner wastesat its R.P. Patterson facility in GumSprings, Arkansas from hazardous wasteregulation. Reynolds conducted thedemonstration for the delisting at itsBauxite, Arkansas, facility but latermoved its thermal treatment processfrom Bauxite, Arkansas, to the Reynoldsfacility located in Gum Springs,Arkansas. Specifically, Reynoldsrequested an exclusion (i.e., for a wastethat had not yet been generated) for kilnresidue from the treatment of spentpotliner from four Reynolds aluminumreduction facilities. Reynolds petitionedEPA for the exclusion based on: (1)descriptions of a full-scale process usedto treat spent potliner; and (2)characterization of untreated spentpotliner and residue generated atReynolds’ Bauxite, Arkansas, facilityduring the treatment of spent potlinersfrom four Reynolds aluminum reductionfacilities. In support of its petition,Reynolds submitted: (1) Detaileddescriptions of its waste treatmentprocess; (2) a description of theprocesses generating spent potliners thatwere treated by the rotary kiln process;(3) total constituent analysis results forthe eight metals listed in § 261.24; (4)total constituent analysis results forantimony, beryllium, nickel, cyanide,and fluoride from representativesamples of both the kiln residue and theuntreated spent potliner; (5) ExtractionProcedure 2 leachate analysis results forthe eight metals listed in § 261.24,antimony, beryllium, nickel, cyanide,and fluoride from representativesamples of the kiln residue; (6) ToxicityCharacteristic Leaching Procedure, testMethod 1311 in ‘‘Test Methods forEvaluating Solid Waste, Physical/Chemical Methods,’’ EPA PublicationSW–846 (hereinafter the TCLP) 3

leachate analyses for the metals in§ 261.24 (except mercury), antimony,beryllium, nickel, cyanide, and fluoridefrom representative samples of the kilnresidue; (7) total constituent analysisresults for volatile and semivolatileorganic compounds, dioxins, and furansfrom representative samples of the kilnresidue; and (8) test results andinformation regarding the hazardous

waste characteristics of ignitability,corrosivity, and reactivity.

Moreover, Reynolds requested thatthe exclusion also apply to the wastegenerated by an additional kiln in orderfor Reynolds to expand its treatmentcapacity. The second kiln wasestablished in conjunction with the firstkiln in Gum Springs, Arkansas, andsimilarly treats spent potliner.

C. EPA Evaluation of Reynolds‘‘Delisting’’ Petition

The EPA evaluated the informationand analytical data provided byReynolds in support of its petition.Specifically, EPA evaluated thepetitioned waste (i.e., the treatmentresidues) against the listing criteria forK088 listed waste and factors cited in§ 261.11(a)(3). Based on that review,EPA determined that the waste wasnonhazardous with respect to theoriginal listing criteria (i.e., presence ofcyanide in the residue). The EPA thenevaluated the waste with respect toother factors or criteria to assesswhether there was a reasonable basis tobelieve that additional factors couldcause the waste to be hazardous. Inaccordance with § 260.22, EPA wasrequired to consider whether the wastewas acutely toxic, the toxicity of theconstituents, the concentration of theconstituents in the waste, ‘‘theirtendency to migrate and tobioaccumulate, their persistence in theenvironment once released from thewaste, plausible and specific types ofmanagement of the petitioned waste, thequantities of waste generated, and wastevariability’’.

For this delisting determination, theEPA used such information to identifyplausible exposure routes (i.e., groundwater, surface water, air) for hazardousconstituents present in the petitionedwaste. As explained in the final ruledelisting the waste, EPA assumed thatdisposal in a subtitle D landfill was themost reasonable, worst-case disposalscenario for Reynolds’ petitioned waste.This assumption is based in part onReynolds’ original delisting petition thatstated that the waste would be disposedof in an on-site monofill or in amunicipal landfill. The EPA determinedthe major exposure route of concernwould be ingestion of contaminatedground water. Evaluations of windblown dust and surface water runoffwere conducted and determined not tobe a concern. The EPA CompositeModel for Landfills (EPACML) was usedto predict the maximum allowableconcentrations of hazardousconstituents that may be released fromthe petitioned waste after disposal andto determine the potential impact of the


disposal of Reynolds’ petitioned wasteon human health and the environment.At the time of the Reynolds petitionsubmittal, the Agency had developed aground water model which couldaddress a large number of limitations inthe ground water models used in 1989.See, 56 FR 32993, July 18, 1991 and 56FR 67197, December 30, 1991.Specifically, EPA used the maximumestimated waste volume and themaximum reported TCLP extractconcentrations as inputs to estimate theconstituent concentrations in theground water at a hypothetical receptorwell downgradient from the disposalsite. The calculated receptor wellconcentrations (referred to ascompliance-point concentrations) werethen compared directly to the health-based levels (i.e, MaximumContaminant levels, drinking waterstandards, etc.) used in delistingdecision-making for the hazardousconstituents of concern.

The EPA believed that this fate andtransport model represented areasonable worst-case scenario fordisposal of the petitioned waste in alandfill, and that a reasonable worst-case scenario was appropriate whenevaluating whether a waste should berelieved of the protective managementconstraints of RCRA subtitle C. Thedelisting process was established on thebasis that if it could be demonstratedthat the waste concentrations would notexceed the health based concentrationsat a hypothetical downgradient well,when modeled using the assumed

worst-case scenario, the waste could bedelisted. Based on this evaluation, EPAbelieved that the hazardous constituentsin Reynolds’ petitioned waste would notleach and migrate at concentrationsabove the health-based levels used indelisting decision-making and,therefore, would not pose a threat tohuman health and the environment.Accordingly, after providing therequired public notice and opportunityto comment EPA concluded that: (1)The waste to be excluded was nothazardous based upon the criteria forwhich K088 was listed, and (2) no otherhazardous constituents or factors thatcould cause the waste to be hazardouswere present in the waste at levels ofregulatory concern. For completeinformation on EPA’s proposed andfinal decisions to grant Reynold’sdelisting petition see 56 FR 32993 (July18, 1991) and 56 FR 67197 (December30, 1991) respectively.

As part of the decision to grant theReynolds delisting petition, EPAimposed requirements that Reynoldsconduct ongoing sampling of thetreatment residue using the TCLP toverify that the hazardous constituentsremaining in the residue were below theestablished delisting levels for thoseconstituents. No requirements wereestablished for sampling the monofillresidue leachate.

D. Reynolds’ Current Disposal of theDelisted Treatment Residue

Reynolds presently uses its process totreat its own spent potliner K088 wastes

and those from other sources, and hasdisposed approximately 300,000 cubicyards of the residue in a single linedmonofill located at the Gum Springssite. According to Reynolds, from June1994 to March 1996, the leachategenerated from the landfill(approximately 7,000,000 gallons ofleachate) was shipped off-site to aReynolds facility located in Sherwin,Texas, for use as a water conditioner (apractice now no longer employed byReynolds). Since April 1996, thecompany also has used approximately150,000 cubic yards of the delistedresidues in mine reclamation activitiesat its Hurricane Creek, Arkansas, miningsite as fill material in unlined pits, andas test material for all-weather roadsurfaces at the mining site and at theGum Springs Plant.

As required by the delistingconditions, Reynolds has conductedongoing daily sampling (TCLP) of thetreatment residue generated by itstreatment of spent potliner K088 wasteto determine if the hazardousconstituents remaining in the residueare below the established delistinglevels. See Part 261 Appendix IX-Table2, Reynolds Metals Company, Condition(2)(B). According to Reynolds’ testresults, the leachate generated fromusing the test method prescribed byReynolds’ exclusion (the TCLP) do notindicate that the health-based delistinglevels established for the constituents ofconcern in the residue have beenexceeded. (See Table 1).

TABLE 1.— TCLP LEACHATE DATA FOR RESIDUES (MILLIGRAMS PER LITER, mg/L)1

TCLP results from ongoing verification testing

Date of report Arsenic(mg/L)

Cyanide 2(mg/L)

Fluoride(mg/L)

Delisting Limit ..................................................................................................................................................... 0.6 2.4 48Health Based Level ............................................................................................................................................ 30.05 40.2 444/6/94 ................................................................................................................................................................. <0.002 <0.5 28.85/10/94 ............................................................................................................................................................... 0.002 0.733 26.63/22/95 ............................................................................................................................................................... <0.005 1.28 32.49/28/95 ............................................................................................................................................................... 0.008 2.00 27.01/14/96 ............................................................................................................................................................... 0.010 1.22 32.04/2/96 ................................................................................................................................................................. <0.002 1.90 31.19/26/96 ............................................................................................................................................................... 0.015 1.70 25.5

1 Representative sample of data collected from daily analyses for Reynolds Metals Company’s Laboratory Reports for the Kiln Product.2 Deionized water leachate used in lieu of TCLP extraction media.3 Maximum Contaminant Level.4 National Primary and Secondary Drinking Water Standards.

II. Repeal of Final Rule GrantingReynolds’ Delisting Petition

A. Highly Alkaline Nature of Reynolds’Treatment Residue

Subsequent to issuing the final rulegranting Reynolds’ delisting petition,EPA has obtained additional

information gathered after theoperations at the Gum Springs facilitybegan. Specifically, EPA now hasreceived and analyzed data regardingthe makeup of the actual residueleachate generated by Reynolds’ K088treatment process and data from the

Hurricane Creek mining site. Asexplained in greater detail below, thosedata indicate that the monofill leachatecontains levels of hazardousconstituents significantly higher thanthe health-based delisting levels. Thosedata also show that the leachate is


4 Attachments to December 9, 1996, letter fromPat Grover of Reynolds Metals Company to MichaelShapiro, Director, Office of Solid Waste. Results

cited are from the analysis of 100 grams of solidmaterial leached with 2-liters of deionized water(1:20 ratio).

hazardous waste as defined by § 261.22.The leachate is corrosive with a pH inthe range of 12.5–13.5. In light of thoseactual field data, EPA has now initiallyconcluded that the Agency’s 1991determination under § 260.22, that noother hazardous constituents or factorsthat could cause the K088 treatmentresidue resulting from Reynolds’treatment process to be hazardous arepresent in the waste at levels ofregulatory concern, needs to be revised.

Specifically, EPA now preliminarilyconcludes that the highly alkalinenature of the treatment residue is afactor which warrants retaining it as ahazardous waste. As supported by thedata recently gathered by EPA and theState of Arkansas and discussed below,the mobility of the arsenic, cyanide, andfluoride remaining in the treatmentresidue increases in the highly alkalinematrix. This results in these compoundsleaching from the residue at hazardouslevels under most disposal scenarios,including those utilized by Reynolds. Inaddition, the leachate is a hazardouswaste because it exhibits the hazardouswaste characteristic of corrosivity.Therefore, based on this new data, thetreatment residue should not remaindelisted.

The EPA believes that the highlyalkaline nature of the Reynoldstreatment residue is due to the high pHof each of the materials being combinedin the treatment process (i.e., spentpotliner, brown sand, and limestone).Spent potliner alone has been found toraise the pH of deionized water from 7

to 12.0.4 Historically, the pH of spentpotliner has ranged from 11–13 whenmeasured. Brown sand is an alkalinemud produced from the extraction ofalumina from bauxite ore with sodiumhydroxide, and contains significantconcentrations of highly caustic sodiumhydroxide residuals. Its pH has beenmeasured at ranges from 12–14.Limestone (pH 9–10) is a causticmaterial whose intended use in theprocess is to react with soluble fluoridesalts in spent potliner to form stable,relatively insoluble, calcium fluoride.However, the high alkalinity of brownsand together with spent potliner andlimestone provides no neutralization ofthe inherent alkalinity of the residue; inconfirmation, the pH of deionized waterleach solutions (for cyanide extraction)of the Reynolds’ treatment residue hasbeen found to range from 11.9 to 12.2.5

As EPA noted in the Emergency Rulefor the K088 national capacity variance(See, 62 FR 1993, January 14, 1997)cyanide (for example, alkali-metalliccyanide complexes) is soluble, and eveninsoluble iron cyanides can besolubilized under highly alkalineconditions. While the total cyanideconcentration in the treated waste hasbeen reduced by Reynolds’ treatmentprocess, cyanide remaining in theresidue is environmentally mobile andappears in high concentrations in thealkaline leachate from the Gum Springslandfill. As a result, almost all forms ofremaining cyanide (free cyanide andcyanide complexes) are detected in theGum Springs leachate. However, at a

neutral pH, only the soluble freecyanide would be expected in theleachate. Moreover, although, the finalexclusion did not express concerns withthe presence of arsenic in the treatmentresidue, high concentrations of arsenicare present in the residue leachatesampled from the monofill. It isbelieved that the high degree of arsenicin the leachate is also due to the highlyalkaline nature of the treatment residue.Arsenic in the treated spent potlinerwill be predominantly in the IIIoxidation state because of the highoperating temperature of the rotarykilns. Arsenic probably would normallyremain in the III oxidation state,whether in the solid phase or inleachate, however, arsenic III solubilityand mobility tend to increase underhighly alkaline conditions.

B. EPA Analysis of Data

The EPA has completed an analysis ofdata gathered from Reynolds, theADPC&E and its independent samplingof the residue. Those data consist ofleachate samples from Reynolds’monofill and from the ReynoldsHurricane Creek mining site. Those datasupport the Agency’s preliminaryconclusion that Reynolds’ treatmentresidue should not remain delisted. Forexample, the Reynolds and ADPC&Esampling data from the residue leachatefrom the dedicated monofill show thatthe leachate contains concentrations ofhazardous constituents above thedelisting limits, (See Table 2).

TABLE 2

Residue leachate data from monofill 1

Date pH Arsenic(mg/L)

Cyanide(mg/L)

Fluoride(mg/L)

Delisting Limits ......................................................................................................... ...................... 0.6 2.4 48Health-Based Level .................................................................................................. ...................... 2 0.05 3 0.2 3 44/6/94 ........................................................................................................................ 13.5 ...................... 18.8 5.25/11/94 ...................................................................................................................... ...................... 3.54 ...................... ......................3/22/95 ...................................................................................................................... ...................... 12.8 22 ......................9/28/95 ...................................................................................................................... 13.1 10.6 35.3 26501/5/96 ........................................................................................................................ 12.5 7.0 ...................... ......................4/2/96 ........................................................................................................................ 12.9 11.5 41.4 23209/26/96 ...................................................................................................................... 12.75 6.55 46.5 2228

1 These samples were collected during Reynolds’ semi-annual landfill sampling events and an ADPC&E inspection.2 Maximum Contaminant Level.3 National Primary and Secondary Drinking Water Standards.

Data from samples of the actualleachate from the monofill taken inSeptember 1996, shows total cyanideconcentrations in the actual leachate are46.5 mg/L (the maximum cyanide

concentration allowable under theReynolds’ exclusion is 2.4 mg/L);arsenic concentrations are at 6.55 mg/L(Reynolds’ delisting maximumconcentration is 0.6 mg/L); and fluoride

concentrations are at 2228 mg/L(Reynolds’ delisting maximumconcentration is 48 mg/L). The residueleachate concentrations from themonofill are orders of magnitude higher


5 Id. at Attachment 1.6 See 56 FR 33006.7 Id.8 Id.9 Id.

than the average predicted TCLPleachate values, (See Table 3).

TABLE 3

Comparison of leachate concentrations from monofill and TCLP concentrations (mg/L)

Constituent DL 1 HBL 1 (A) (B) (A)÷(B)

Monofill Leachate (4/94–9/96).

Average TCLP (4/94–9/96).

Leachate-TCLP=ComparativeStrength of MonofillLeachate.

Arsenic .............................. 0.6 2 0.05 3.54—12.8 ....................... 0.006 ................................ 590—2133Cyanide ............................. 2.4 30.2 18.8—46.5 ....................... 1.30 .................................. 14.46—35.77Fluoride ............................. 48 3 4 5.2—2650 ........................ 29.06 ................................ .179—91.19

1 DL=Delisting Limit in mg/L; HBL = Health Based Level in mg/L.2 Maximum Contaminant Level.3 National Primary and Secondary Drinking Water Standards.

Further, the Gum Springs monofillleachate also has a pH of 12.5 to 13.5,exceeding the pH level of 12.5identifying a waste as hazardous due tothe characteristic of corrosivity. See§ 261.22. The leachate from the residueis a hazardous waste.

An analysis of surface water run offfrom treated spent potliner used as testroadbeds at the Hurricane Creek Mineby ADPC&E in September 1996 foundconcentrations of the followinghazardous constituents of concern: totalcyanide concentrations of 2.0 mg/L(compared with a health-based level of0.2 mg/L) 6; arsenic concentrations at1.24 mg/L (compared with the health-based level of 0.05 mg/L) 7; and fluorideconcentrations at 229 mg/L (comparedwith the health-based level of 4.0 mg/L) 8,(See, sampling results provided byADPC&E included in the docket, itemsF–97–ARDEL–REYNOLDS–002). Inaddition, EPA performed sampling atthe Hurricane Creek mine reclamationsite in March 1997. Results from thesampling of the residue used as fillmaterial indicate TCLP leachableconcentrations of fluoride in the residueused as fill material at the mine siteranged from 17.0 mg/L—86.4 mg/L(compared to the health-based level of4.0 mg/L).9 The cyanide concentrationsin the residue used as fill materialranged from 0.01 mg/L—0.79 mg/L.(compared to the health-based numberof 0.2 mg/L).10 Water samples takenfrom boreholes placed in the minereclamation area show arsenicconcentrations at 19.8 mg/L (comparedto the health-based level of 0.05 mg/L),cyanide concentrations at 3.3 mg/L

(compared to the health-based level of0.2 mg/L) and fluoride concentrations at2320 mg/L (compared to the health-based level of 4.0 mg/L). This indicatesthat when placed in an acidicenvironment, the waste continues toleach at levels which would not beprotective of human health and theenvironment.

Values for pH, arsenic, fluoride, andcyanide differ significantly between theTCLP extract for treated spent potlinerand the actual residue leachate from themonofill. EPA assumed that the TCLPwould accurately predict the leachatequality of the treated spent potlinerwhen evaluating Reynolds’ petition in1991 and used the maximum TCLPleachate concentrations and theEPACML model to evaluate thecompliance point concentrations for thewaste. The EPACML projected that nohazardous constituents would migratefrom the landfill at concentrations thatwould exceed the health-based levels ata receptor well.

Based on the actual data when usingthe TCLP the delisted material hasalways met the delisting criteria asprescribed in the December 1991exclusion or the residue has beenfurther treated when a batch failed tomeet the delisting criteria. Thepredicted leachate characteristics (viaTCLP), however, do not correlate to theactual leachate concentrations, (See,Table 4).

TABLE 4.—Leachate Concentrations (mg/L) TCLP vs. Actual Leachate

Inorganic constitu-ents

Leachate analyses

TCLP (1991petition)

Landfill(1994–1996)

Arsenic .............. 0.018 3.54–12.8Cyanide ............. 0.014 18.8–46.5Fluoride ............. 29.0 5.2–2650

In this limited circumstance, theTCLP was not an accurate predictor forthe actual leachability of the treatedresidue. This is a distinct and unusualcase. The Agency anticipated thatcertain situations might arise, as statedin the Response to Comments on thepromulgation of revisions to the TCLPmethod. See, 55 FR 11798 (March 29,1990).

The EPA is continuing to investigatethe reasons for the discrepanciesbetween the predicted and actualresults, but the initial findings indicatea possible explanation. The EPAsuspects that the highly alkaline residuedoes not leach under the TCLP testconditions because the solubility andmobility of arsenic, cyanide, andfluoride remaining in the residue do notoccur at the extraction conditions of thetest (liquid to solid ratio). The liquid tosolid ratio for the TCLP test is 20:1 (2liters of extraction fluid/100 grams ofresidue). The liquid to solid ratios of themonofill range 0.15:1—0.09:1 based onrainfall amounts and in situ wastevolume. See, F–97–ARDEL-REYNOLDS–010. The difference in theTCLP liquid to solid ratio and the actualmonofill liquid to solid ratio contributesto the differing results. The TCLPappears to be diluting theconcentrations of the constituentsleaching from the residue.

When the measured leachateconcentrations are input into theEPACML model, the residue fails tomeet the delisting criteria for arsenic,cyanide, and fluoride, (See, Table 5).The concentrations of constituents inthe actual landfill leachate can pose athreat to human health and theenvironment. Further, the leachateexhibits the characteristic of corrosivity.


Table 5.—EPACML: CALCULATED COMPLIANCE-POINT CONCENTRATIONS (MG/L) TCLP /ACTUAL LANDFILL LEACHATE

Inorganic constituents

Compliance point con-centrations 1 (mg/L)

Healthbased lev-els 2 (mg/

L)TCLP Landfill

Arsenic ............................................................................................................................................................ 0.0026 0.295–1.07 3 0.05Cyanide ........................................................................................................................................................... 0.021 1.57–4.291 4 0.2Fluoride ........................................................................................................................................................... 2.42 0.433–221 4 4.0

1 Compliance Point Concentrations are calculated using the TCLP leachate concentration divided by a dilution attenuation factor (DAF) of 12.The DAF corresponds to the maximum volume of 300,000 cubic yards of residue generated Reynolds annually).

2 See, 56 FR 33006, December 30, 1991 located in the RCRA public docket for today’s document.3 Maximum Contaminant Level.4 National Primary and Secondary Drinking Water Standards.

The EPA believes that this is ananomalous case because of the uniquecharacteristics of Reynolds’ waste (i.e.,very caustic) and treatment process. TheEPA’s reasoning in evaluating thedifference between predicted using theTCLP and actual landfill leachate resultsand findings relating to the minereclamation site are expressly limited tothis isolated waste, treatment process,and circumstance. It is to be anticipatedthat no test methodology will beuniversally appropriate in allcircumstances and will be varied basedupon discrete site-specific conditions aswas anticipated by the rulepromulgating revisions to the TCLPreferenced above. It is for just suchreasons that the Agency did not so limitthe appropriate test method for makingall delisting decisions. The EPA findsthat there are distinct differences in theassumptions made in use of the TCLPand the actual monofill conditions aswell as most other potential disposalscenarios. For example, Reynolds’ wasteis not co-disposed with 95 per centmunicipal waste as assumed by theTCLP worst case scenario. The leachingof Reynolds’ waste by rain water (withlittle buffer capacity) occurs in lieu ofthe simulated municipal landfillleachate (where the leaching media isdesigned with a certain buffer capacity).Finally, highly alkaline conditions (pH12.5–13.5) exist in the monofill asopposed to the low pH (<5) conditionsnormally anticipated in municipallandfills.

C. Conclusion

Based on the information describedabove, EPA believes that Reynolds’residue from the treatment of K088spent potliner from the list of hazardouswaste contained in § 261.32 should notremain delisted. Based on more thantwo years of sampling data from theactual treatment residue leachate anddata gathered during EPA’s samplingevent in March 1997, EPA believes thatthe residue does not meet the § 260.22criteria for delisting. Therefore, EPA

proposes to repeal the final rulepublished at 56 FR 67197 (July 18, 1991)granting Reynolds’ petition for anexclusion from K088 hazardous wastelisting contained in §§ 261.31 and261.32 for certain solid waste generatedat Reynolds Metals Company, GumSprings, Arkansas.

The leachate from the kiln residuecontains cyanide concentrations whichgreatly exceed the health-based limit of0.2 mg/L. Cyanide is extremely toxicwhen it is ingested in free form and lesstoxic when ingested in complex form. Inits most toxic form, cyanide can be fatalto humans at a concentration of 300parts per million. Cyanide affectshuman tissues ability to use oxygen.Some health effects from low levelcyanide exposures are breathingdifficulties, headaches, skin irritationand in some cases sores. Moreover, theconcentrations of arsenic, a humancarcinogen, far exceed the maximumcontaminant level of 0.05 mg/L. Theconcentrations of fluoride at thecompliance point are well above thedrinking water standard of 4 mg/L.Fluoride concentrations as low as 4 mg/L have been determined to mottle teeth.

The resultant leachate from the kilnresidue is a characteristic hazardouswaste (corrosive). The premise on whichthe delisting was based, that the TCLPtest would be an appropriate test tomodel the fate and transport ofhazardous constituents in this waste isnot supported by the actual leachatedata. The inherent waste-like qualitiesof the kiln residue (i.e., the high pH andthe potential for the leachate contactingthe residual to solubilize and increasethe mobility of toxic constituents) alsosupport repeal of the rule whichdelisted the treated kiln residue. Thekiln residue’s potential to cause damageto human health and the environment,especially under its currentmanagement practices, provides yetanother reason for reestablishingregulatory control over the kiln residue.Based on the leachate data provided,information from the treatment process,

and evaluation of the additional uses ofthe residue employed by Reynolds, EPAconcludes that the rule delisting the kilnresidue should be repealed.

It is EPA’s understanding thatReynolds is currently making severaltreatment process modifications toaddress the leachate issues surroundingthe treated kiln residue. If the repeal ofthe final rule becomes effective,Reynolds may submit to the Agency anew delisting petition for the wastesgenerated from the modified treatmentprocess.

D. Interim Status for Reynolds’ Monofill

Because of the delisting granted toReynolds’ treatment residue generatedat its Gum Springs facility, Reynoldscan presently dispose of the treatmentresidue in its single lined on-sitemonofill without obtaining ResourceConservation and Recovery Act (RCRA)subtitle C interim status or an RCRAsubtitle C permit. However, if EPAfinalizes this proposed repeal of theReynolds’ delisting, Reynolds mustmanage the treatment residue as ahazardous waste and must dispose ofthe waste in either a unit permittedunder subtitle C of RCRA or a unitwhich meets interim status standardsunder subtitle C of RCRA and allapplicable state regulations.

Under RCRA Section 3005(e), anyperson who owns or operates a facilityrequired to have a permit under subtitleC and which ‘‘is in existence on theeffective date of statutory or regulatorychanges under [subtitle C] that renderthe facility subject to the requirement tohave a permit under Section 3005’’, mayqualify for interim status, provided therequirements of Section 3005 are met. Itis EPA’s understanding that Reynoldshas begun a lateral expansion of itslandfill, which should meet the subtitleC minimum technological requirements(MTR), for disposal of future wastes. InEPA’s view, the repeal represents a‘‘regulatory change’’ that may renderReynolds’’ upgraded monofill subject tothe requirements of subtitle C, if the


repeal of Reynolds’ delisting isfinalized. If Reynolds’ new MTR landfillis in existence at the time of theregulatory change, EPA expects that thenew MTR landfill may be eligible forinterim status under RCRA Section3005(e) provided that Reynoldscomplies with the interim statusstandards contained in § 265.1, et seq.and meets applicable State regulations.

E. Best Demonstrated AvailableTechnology

The EPA also notes that LandDisposal Restrictions (LDR) treatmentstandards for spent potliners expressedas numerical concentrations limits wereestablished in 61 FR 15584 (April 8,1996). There is no inherent conflictbetween a finding that a waste has beentreated to satisfy LDR requirements anda finding that the treatment residuenevertheless remains a hazardous waste.This in fact is the normal case (fewresidues from treating listed wastes havebeen delisted even after being treated tosatisfy LDR requirements), and isdirectly contemplated in RCRA Section3004 (m)(2).

III. Effective DateThis rule, if made final, will become

effective 60 days from final publication.The HSWA of 1984 amended Section3010 of RCRA to allow rules to becomeeffective in less than six months whenthe regulated community does not needthe six-month period to come intocompliance. The EPA believes that 60days will be sufficient for Reynolds tocome into compliance with today’s rule.The 60 days will allow Reynolds toeither make arrangements to send itshazardous waste treatment residue to adisposal facility permitted undersubtitle C of RCRA or to seek interimstatus for its on-site disposal facility (seeinterim status discussion above).

IV. Regulatory Impact Analysis UnderExecutive Order 12866

Under Executive Order 12866, 58 FR51735 (October 4, 1993), EPA mustdetermine whether the regulatory actionis ‘‘significant’’ and therefore subject toreview by the Office of Management andBudget (OMB) and to the requirementsof the Executive Order (EO), whichinclude assessing the costs and benefitsanticipated as a result of the proposedregulatory action. 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 theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, or

State, local, or tribal governments orcommunities; (2) create seriousinconsistency or otherwise interferewith an action taken or planned byanother agency; (3) materially alter thebudgetary impact of entitlements,grants, user fees, or loan programs or therights and obligations of recipientsthereof; or (4) raise novel legal or policyissues arising out of legal mandates, thePresident’s priorities, or the principlesset forth in the EO.

The EPA has determined that today’sfinal rule is a not a significant ruleunder EO 12866 because it is a site-specific rule that directly affects onlythe waste treatment residue from theReynolds’ Gum Springs, Arkansas,facility.

V. Regulatory Flexibility ActThe Regulatory Flexibility Act (RFA)

of 1980 requires Federal agencies toconsider ‘‘small entities’’ throughout theregulatory process. Section 603 of theRFA requires an initial screeninganalysis to be performed to determinewhether small entities will be adverselyaffected by the regulation. If affectedsmall entities are identified, regulatoryalternatives must be considered tomitigate the potential impacts. Smallentities as described in the Act are onlythose ‘‘businesses, organizations andgovernmental jurisdictions subject toregulation.’’

Today’s rule, if promulgated, willdirectly affect only the Reynolds MetalsCompany, therefore, no small entitieswill be adversely affected. The EPAcertifies pursuant to the provisions at 5U.S.C. 605(b), that this rule will nothave a significant economic impact ona substantial number of small entities.

VI. Paperwork Reduction ActThe Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq., authorizesthe Director of the OMB to reviewcertain information collection requestsby Federal agencies. The EPA hasdetermined that this proposed rule willnot impose any new record keeping orreporting requirements that wouldrequire OMB approval under theprovisions of the Paperwork ReductionAct of 1980.

VII. Unfunded Mandate 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, Tribal,and local governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final rules

with ‘‘Federal mandates’’ that mayresult in expenditures to State, local,and tribal governments, in the aggregate,or to the private sector, of $100 millionor more in any one year. When a writtenstatement is needed for an EPA rule,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 why that alternativewas not adopted. Before EPA establishesany regulatory requirements that maysignificantly or uniquely affect smallgovernments, including Tribalgovernments, it must have developedunder section 203 of the UMRA a smallgovernment agency plan. The plan mustprovide for notifying potentiallyaffected small governments, giving themmeaningful and timely input in thedevelopment of EPA regulatoryproposals with significant Federalintergovernmental mandates, andinforming, educating, and advising themon compliance with the regulatoryrequirements. The UMRA generallydefines a Federal mandate for regulatorypurposes as one that imposes anenforceable duty upon state, local ortribal governments or the private sector.

The EPA has determined that thisproposed rule does not contain aFederal mandate that may result inexpenditures of $100 million or morefor State, local, and tribal governments,in the aggregate, or the private sector inany one year. Because today’s proposedrule directly affects only the ReynoldsGum Springs, Arkansas, facility, EPAfinds that the rule does not impose anyenforceable duty upon State, local, andtribal governments. Thus, today’s rule isnot subject to the requirements ofsections 203 and 205 of the UMRA.

List of Subjects in 40 CFR Part 261Environmental Protection, Hazardous

waste, Recycling, Reporting andrecordkeeping requirements.

Dated: July 16, 1997.Robert E. Hannesschlager,Acting Director, Multimedia Planning andPermitting Division.

For the reasons set out in thepreamble, title 40, chapter I of the Codeof Federal Regulations is proposed to beamended as follows:


PART 261—IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE


Authority: 42 U.S.C. 6905, 6912(a), 6921,6922 and 6938.

Appendix IX to Part 261—[Amended]

2. In Appendix IX to part 261, table2 is amended by removing the entry‘‘Reynolds Metals Company’’, GumSprings, Arkansas’’.



47 CFR Part 2

[ET Docket No. 97–157; FCC 97–245]

Reallocation of TV Channels 60–69, the746–806 MHz Band

AGENCY: Federal CommunicationsCommission.ACTION: Proposed rule.

SUMMARY: By this Notice of ProposedRule Making (NPRM), the Commissionproposes to reallocate the 746–806 MHzband, currently comprising television(TV) channels 60–69. The Commissionproposes to allocate 24 megahertz, at764–776 MHz and 794–806 MHz, to thefixed and mobile services, and todesignate this spectrum for public safetyuse. The Commission proposes toallocate the remaining 36 megahertz at746–764 MHz and 776–794 MHz to thefixed, mobile, and broadcasting services;and anticipates that licenses in thisportion of the band may be assignedthrough competitive bidding. Theseallocations would help to meet theneeds of public safety for additionalspectrum, make new technologies andservices available to the Americanpublic, and allow more efficient use ofspectrum in the 746–806 MHz band.The Commission also considers issuesrelated to protecting existing andproposed TV stations on channels 60–69from interference until the transition todigital TV (DTV) is complete, but deferspecific interference protectionstandards to a separate proceeding onservice rules in the 746–806 MHz band.DATES: Comments must be filed on orbefore September 15, 1997, and replycomments must be filed on or beforeOctober 14, 1997.ADDRESSES: Comments and replycomments should be sent to the Officeof Secretary, Federal CommunicationsCommission, Washington, DC 20554. If

participants want each Commissioner toreceive a personal copy of theircomments, an original plus nine copiesmust be filed.FOR FURTHER INFORMATION CONTACT:Sean White, Office of Engineering andTechnology, (202) 418–2453,[email protected] INFORMATION: This is asummary of the Commission’s Notice ofProposed Rule Making, ET Docket 97–157, FCC 97–245, adopted July 9, 1997,and released July 10, 1997. The full textof this Commission decision is availablefor inspection and copying duringregular business hours in the FCCReference Center (Room 239), 1919 MStreet, NW., Washington, DC. Thecomplete text of this decision also maybe purchased from the Commission’sduplication contractor, InternationalTranscription Service, Inc., (202) 857–3800, 1231 20th Street, NW.,Washington, DC 20036.

Summary of Notice of Proposed RuleMaking

1. In this NPRM, the Commissionproposes to reallocate 24 megahertz ofspectrum at 764–776 MHz and 794–806MHz to the fixed and mobile services,and reserve this spectrum for theexclusive use of public safety services.The Commission also proposes toreallocate the 746–764 MHz and 776–794 MHz bands to the fixed, mobile, andbroadcasting services, and anticipatesthat licenses in this spectrum will beassigned by competitive bidding.

2. TV channels 60–69 (746–806 MHz)are relatively lightly used for full servicetelevision operations. There arecurrently only 95 full service analogstations, either operating or withapproved construction permits on thesechannels. In the Sixth Report and Orderin MM Docket No. 87–268 (DTVProceeding), 62 FR 26684, May 14,1997, the Commission adopted a Tableof Allotments for digital television. ThisTable provides all eligible broadcasterswith a second 6 MHz channel to be usedfor DTV service during the transitionfrom analog to digital television service.The DTV Table also, inter alia,facilitates the early recovery of a portionof the existing broadcast spectrum,specifically, channels 60–69, byminimizing the use of these channels forDTV purposes. The DTV Table providesonly 15 allotments for DTV stations onchannels 60–69 in the continentalUnited States.

3. In providing for early recovery ofspectrum, the Commission alsoobserved that there is an urgent need foradditional spectrum to meet importantpublic safety needs, including voice and

data communications, and to providefor improved interoperability betweenpublic safety agencies. We indicatedthat spectrum in the region of the 746–806 MHz band may be appropriate tomeet some of these needs. TheCommission stated that we wouldinitiate a separate proceeding toreallocate the spectrum at channels 60–69 in the very near future, and that wewould give serious consideration toallocating 24 megahertz of this spectrumfor public safety use and considerallocating the remaining 36 megahertzin the 746–806 MHz band forassignment by auction.

4. In 1995, the Commission, alongwith the National Telecommunicationsand Information Administration,established the Public Safety WirelessAdvisory Committee (PSWAC) to studypublic safety telecommunicationsrequirements. The PSWAC waschartered, inter alia, to advise theCommission on total spectrumrequirements for the operational needsof public safety entities in the UnitedStates through the year 2010. OnSeptember 11, 1996, the PSWAC issuedits Final Report. The PSWAC found thatthe currently allocated public safetyspectrum is insufficient to supportcurrent voice and data needs of thepublic safety community, does notprovide adequate capacity forinteroperability channels, and isinadequate to meet future needs, basedon projected population growth anddemographic changes. In the FinalReport, the PSWAC stated that datacommunication needs are also expectedto grow rapidly in the next few years,and wireless video needs are expectedto expand quickly. In addition, newspectrum is required to support newcapabilities and technologies, includinghigh speed data and video. The PSWACfound that, in the short term, 24 or 25megahertz of new public safetyspectrum is needed, and concluded thatpublic safety users should be grantedaccess to portions of the unusedspectrum in the 746–806 MHz band.

5. The Commission tentativelyproposes to allocate the spectrum at TVchannels 63, 64, 68, and 69 (the 764–776 MHz and 794–806 MHz bands) forpublic safety. There are several reasonswhy the Commission believes thesechannels would best serve the needs ofpublic safety. These channels arerelatively lightly used by full servicetelevision broadcasting, so thisspectrum would offer the fewestrestrictions on public safety operations.Further, since the 794–806 MHz band issubjacent to existing public safetyoperations in the 806–824 MHz band, itholds the best potential for expansion of


1 5 U.S.C. 603. 2 See id. § 603(a).

3 13 CFR § 121.201, Standard Industrial Code(SIC) 4833 (1996).

4 Economics and Statistics Administration,Bureau of Census, U.S. Department of Commerce,1992 Census of Transportation, Communicationsand Utilities, Establishment and Firm Size, SeriesUC92–S–1, Appendix A–9 (1995).

5 Id. See Executive Office of the President, Officeof Management and Budget, Standard IndustrialClassification Manual (1987), at 283, whichdescribes ‘‘Television Broadcasting Stations (SICCode 4833) as:

Establishments primarily engaged in broadcastingvisual programs by television to the public, exceptcable and other pay television services. Included in

Continued

and interoperability with existingsystems. The close proximity to existingspectrum used for public safety couldalso reduce the difficulty and cost ofdesigning equipment. The Commissionis aware that public safety systemstypically employ systems that fortechnical reasons require someminimum separation between thereceive and transmit frequencies, andbelieves the proposed allocation wouldpermit systems to be deployed withadequate separation between transmitand receive frequencies.

6. The Commission proposes toreallocate the remaining 36 MHz ofspectrum in the 746–806 MHz band tothe fixed and mobile services, and retainthe existing broadcast allocation. Thiswould allow the maximum diversity inservice offerings and the broadestlicensee discretion, consistent withinternational allocations.Internationally, the band is allocated ona primary basis to the broadcastingservice and on a secondary basis to thefixed and mobile services in Region 2.A footnote to the International Table ofFrequency Allocations elevates theallocation to the fixed and mobileservices to primary status in the UnitedStates, Mexico, and several other Region2 countries. This spectrum is locatednear spectrum now used for cellulartelephone and other land mobileservices, and it could be used to expandthe capacities of these services. Otherpossible applications for this spectruminclude wireless local loop telephoneservice, video and multimediaapplications, wireless cable services,and industrial communications services.Additionally, under the proposal,parties would be able to obtain licensesin this spectrum to offer broadcasting.

7. The Commission solicits publiccomment on the proposed allocation,and defers consideration of protection ofTV transmission in the bands, licensing,and service rules to a separateproceeding.

Initial Regulatory Flexibility AnalysisAs required by the Regulatory

Flexibility Act,1 the Commission hasprepared an Initial RegulatoryFlexibility Analysis of the expectedsignificant economic impact on smallentities by the policies and rulesproposed in this Notice of ProposedRule Making (NPRM). Written publiccomments are requested on the IRFA.Comments must be identified asresponses to the IRFA and must be filedby the deadlines for comments on theNPRM provided above. The Secretaryshall send a copy of this NPRM,

including the IRFA, to the ChiefCounsel for Advocacy of the SmallBusiness Administration.2

A. Need for and Objectives of theProposed Rules

This NPRM proposes to reallocate the746–806 MHz band, television (TV)Channels 60–69, to other services. Wepropose to allocate 24 megahertz at 764–776 MHz and 794–806 MHz for publicsafety use. We propose to allocate theremaining 36 megahertz at 746–764MHz and 776–794 MHz to the fixed andmobile services, and to retain theallocation to the broadcasting service inthese bands. We further propose toprotect full-power TV stations in theband until the transition to digitaltelevision (DTV) is complete, and toretain the secondary status in the bandof Low Power TV (LPTV) and TVtranslator stations. These allocationswould help alleviate a critical shortageof public safety spectrum, make newtechnologies and services available tothe American public, and allow moreefficient use of spectrum in the 746–806MHz band.

B. Legal Basis

The proposed action is taken pursuantto sections 4(i), 303(c), 303(f), 303(g),and 303(r) of the Communications Actof 1934, as amended, 47 U.S.C. 154(i),303(c), 303(f), 303(g), and 303(r).

C. Description and Estimate of theNumber of Small Entities to Which theProposed Rules Will Apply

1. Definition of a ‘‘Small Business’’

Under the RFA, small entities mayinclude small organizations, smallbusinesses, and small governmentaljurisdictions. 5 U.S.C. 601(6). The RFA,5 U.S.C. 601(3), generally defines theterm ‘‘small business’’ as having thesame meaning as the term ‘‘smallbusiness concern’’ under the SmallBusiness Act, 15 U.S.C. 632. A smallbusiness 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 Small BusinessAdministration (‘‘SBA’’). According tothe SBA’s regulations, entities engagedin television broadcasting StandardIndustrial Classification (‘‘SIC’’) Code4833—Television Broadcasting Stations,may have a maximum of $10.5 millionin annual receipts in order to qualify asa small business concern. This standardalso applies in determining whether anentity is a small business for purposesof the RFA.

2. Issues in Applying the Definition ofa ‘‘Small Business’’

As discussed below, we could notprecisely apply the foregoing definitionof ‘‘small business’’ in developing ourestimates of the number of small entitiesto which the rules will apply. Ourestimates reflect our best judgmentsbased on the data available to us.

An element of the definition of ‘‘smallbusiness’’ is that the entity not bedominant in its field of operation. Wewere unable at this time to define orquantify the criteria that wouldestablish whether a specific televisionstation is dominant in its field ofoperation. Accordingly, the followingestimates of small businesses to whichthe new rules will apply do not excludeany television station from thedefinition of a small business on thisbasis and are therefore overinclusive tothat extent. An additional element of thedefinition of ‘‘small business’’ is that theentity must be independently ownedand operated. As discussed furtherbelow, we could not fully apply thiscriterion, and our estimates of smallbusinesses to which the rules may applymay be overinclusive to this extent. TheSBA’s general size standards aredeveloped taking into account these twostatutory criteria. This does notpreclude us from taking these factorsinto account in making our estimates ofthe numbers of small entities.

3. Television Station Estimates Based onCensus Data

The NPRM will affect full servicetelevision stations, TV translatorfacilities, and LPTV stations. The SmallBusiness Administration defines atelevision broadcasting station that hasno more than $10.5 million in annualreceipts as a small business.3 Televisionbroadcasting stations consist ofestablishments primarily engaged inbroadcasting visual programs bytelevision to the public, except cableand other pay television services.4Included in this industry arecommercial, religious, educational, andother television stations.5 Also included


this industry are commercial, religious, educationaland other television stations. Also included here areestablishments primarily engaged in televisionbroadcasting and which produce taped televisionprogram materials.

6 Economics and Statistics Administration,Bureau of Census, U.S. Department of Commerce,supra note 7, Appendix A–9.

7 Id.; SIC 7812 (Motion Picture and Video TapeProduction); SIC 7922 (Theatrical Producers andMiscellaneous Theatrical Services (producers oflive radio and television programs).

8 FCC News Release No. 31327, January 13, 1993;Economics and Statistics Administration, Bureau ofCensus, U.S. Department of Commerce, supra note7, Appendix A–9.

9 FCC News Release No. 7033, March 6, 1997.10 Census for Communications’ establishments are

performed every five years ending with a ‘‘2’’ or‘‘7’’. See Economics and Statistics Administration,Bureau of Census, U.S. Department of Commerce,supra note 7, at III.

11 The amount of $10 million was used toestimate the number of small businessestablishments because the relevant Censuscategories stopped at $9,999,999 and began at$10,000,000. No category for $10.5 million existed.Thus, the number is as accurate as it is possible tocalculate with the available information.

12 We use the 77 percent figure of TV stationsoperating at less than $10 million for 1992 andapply it to the 1997 total of 1551 TV stations toarrive at 1,194 stations categorized as smallbusinesses.

13 Minority Commercial Broadcast Ownership inthe United States, U.S. Dep’t of Commerce, NationalTelecommunications and InformationAdministration, The Minority TelecommunicationsDevelopment Program (‘‘MTDP’’) (April 1996).MTDP considers minority ownership as ownershipof more than 50% of a broadcast corporation’s

stock, voting control in a broadcast partnership, orownership of a broadcasting property as anindividual proprietor. Id. The minority groupsincluded in this report are Black, Hispanic, Asian,and Native American.

14 See Comments of American Women in Radioand Television, Inc. in MM Docket No. 94–149 andMM Docket No. 91–140, at 4 n.4 (filed May 17,1995), citing 1987 Economic Censuses, Women-Owned Business, WB87–1, U.S. Dep’t of Commerce,Bureau of the Census, August 1990 (based on 1987Census). After the 1987 Census report, the CensusBureau did not provide data by particularcommunications services (four-digit StandardIndustrial Classification (SIC) Code), but rather bythe general two-digit SIC Code for communications(#48). Consequently, since 1987, the U.S. CensusBureau has not updated data on ownership ofbroadcast facilities by women, nor does the FCCcollect such data. However, we sought comment onwhether the Annual Ownership Report Form 323should be amended to include information on thegender and race of broadcast license owners.Policies and Rules Regarding Minority and FemaleOwnership of Mass Media Facilities, Notice ofProposed Rule Making, 10 FCC Rcd 2788, 2797(1995), 60 FR 06068, February 1, 1995.

15 FCC News Release No. 7033, March 6, 1997.16 The Commission’s definition of a small

broadcast station for purposes of applying its EEOrule was adopted prior to the requirement ofapproval by the Small Business Administrationpursuant to section 3(a) of the Small Business Act,15 U.S.C. § 632(a), as amended by section 222 of theSmall Business Credit and Business OpportunityEnhancement Act of 1992, Public Law 102–366,§ 222(b)(1), 106 Stat. 999 (1992), as further amendedby the Small Business AdministrationReauthorization and Amendments Act of 1994,

Public Law 103–403, § 301, 108 Stat. 4187 (1994).However, this definition was adopted after publicnotice and an opportunity for comment. See Reportand Order in Docket No. 18244, 23 FCC 2d 430(1970), 35 FR 8925, June 6, 1970.

17 See, e.g., 47 CFR § 73.3612 (Requirement to fileannual employment reports on Form 395-B appliesto licensees with five or more full-time employees);First Report and Order in Docket No. 21474 (In theMatter of Amendment of Broadcast EqualEmployment Opportunity Rules and FCC Form395), 70 FCC 2d 1466 (1979), 44 FR 6722, February2, 1979. The Commission is currently consideringhow to decrease the administrative burdensimposed by the EEO rule on small stations whilemaintaining the effectiveness of our broadcast EEOenforcement. Order and Notice of Proposed RuleMaking in MM Docket No. 96–16 (In the Matter ofStreamlining Broadcast EEO Rule and Policies,Vacating the EEO Forfeiture Policy Statement andAmending Section 1.80 of the Commission’s Rulesto Include EEO Forfeiture Guidelines), 11 FCC Rcd5154 (1996), 61 FR 09964, March 12, 1996. Oneoption under consideration is whether to define asmall station for purposes of affording such reliefas one with ten or fewer full-time employees. Id. at¶ 21.

18 We base this estimate on a compilation of 1995Broadcast Station Annual Employment Reports(FCC Form 395–B), performed by staff of the EqualOpportunity Employment Branch, Mass MediaBureau, FCC.

19 5 U.S.C. § 601(5).20 Id.

are establishments primarily engaged intelevision broadcasting and whichproduce taped television programmaterials.6 Separate establishmentsprimarily engaged in producing tapedtelevision program materials areclassified under another SIC number.7

There were 1,509 television stationsoperating in the nation in 1992.8 Thatnumber has remained fairly constant asindicated by the approximately 1,551operating television broadcastingstations in the nation as of February 28,1997.9 For 1992 10 the number oftelevision stations that produced lessthan $10.0 million in revenue was 1,155establishments, or approximately 77percent of the 1,509 establishments.11

Thus, the rules will affectapproximately 1,551 television stations;approximately 1,194 of those stationsare considered small businesses.12

These estimates may overstate thenumber of small entities since therevenue figures on which they are baseddo not include or aggregate revenuesfrom non-television affiliatedcompanies. We recognize that the rulesmay also impact minority and womenowned stations, some of which may besmall entities. In 1995, minoritiesowned and controlled 37 (3.0%) of1,221 commercial television stations inthe United States.13 According to the

U.S. Bureau of the Census, in 1987women owned and controlled 27 (1.9%)of 1,342 commercial and non-commercial television stations in theUnited States.14

There are currently 4,977 TVtranslator stations and 1,952 LPTVstations which would be affected by theallocation policy and other policies inthis proceeding.15 The Commission doesnot collect financial information of anybroadcast facility and the Department ofCommerce does not collect financialinformation on these broadcastfacilities. We will assume for presentpurposes, however, that most of thesebroadcast facilities, including LPTVstations, could be classified as smallbusinesses. As indicated earlier,approximately 77 percent of televisionstations are designated under thisanalysis as potentially small business.Given this, LPTV and TV translatorstations would not likely have revenuesthat exceed the SBA maximum to bedesignated as small businesses.

4. Alternative Classification of SmallTelevision Stations

An alternative way to classify smalltelevision stations is by the number ofemployees. The Commission currentlyapplies a standard based on the numberof employees in administering its EqualEmployment Opportunity (‘‘EEO’’) rulefor broadcasting.16 Thus, radio or

television stations with fewer than fivefull-time employees are exempted fromcertain EEO reporting andrecordkeeping requirements.17 Weestimate that the total number ofcommercial television stations with 4 orfewer employees is 132 and that thetotal number of noncommercialeducational television stations with 4 orfewer employees is 136.18

We have concluded that the 746–806MHz band can be recoveredimmediately, and that it is in the publicinterest to reallocate this spectrum touses in addition to TV broadcasting. Webelieve that such a reallocation ispossible while continuing to protect TV.There are 95 full power TV stations,either operating or with approvedconstruction permits, in Channel 60–69.There are also nine proposed stations,and approximately 15 stations will beadded during the DTV transition period,for a total of approximately 119nationwide. There are alsoapproximately 1,366 LPTV stations andTV translator stations in the band,operating on a secondary basis to fullpower TV stations. We propose toimmediately reallocate the 746–806MHz band in order to maximize thepublic benefit available from its use.

The RFA also includes smallgovernmental entities as a part of theregulatory flexibility analysis.19 Thedefinition of a small governmentalentity is one with a population of fewerthan 50,000.20 There are approximately85,006 governmental entities in the


21 1992 Census of Governments, U.S. Bureau ofthe Census, U.S. Department of Commerce.

22 Id.

nation.21 This number includes suchentities as states, counties, cities, utilitydistricts and school districts. There areno figures available on what portion ofthis number have populations of fewerthan 50,000. However, this numberincludes 38,978 counties, cities andtowns, and of those, 37,566, or 96percent, have populations of fewer than50,000.22 The Census Bureau estimatesthat this ratio is approximately accuratefor all governmental entities. Thus, ofthe approximately 85,006 governmentalentities, we estimate that 96 percent, or81,600, are small entities that may beaffected by our rules.

D. Description of Projected Reporting,Recordkeeping and Other ComplianceRequirements

None.

E. Significant Alternatives to ProposedRules which Minimize SignificantEconomic Impact on Small Entities andAccomplish Stated Objectives

We do not propose to provide LPTVand TV translator stations with the sameprotection afforded to full-power TVstations. Because of the large number ofsuch stations, protecting them wouldsignificantly diminish the utility of the746–806 MHz band to both public safetyand commercial users. Also, LPTV andTV translator stations are secondary inthis band, and we have proposed tomake public safety and commercialservices primary in the band. We remainconcerned, however, for the interests ofLPTV and TV translator stations becausethey are a valuable part of the Americantelecommunications structure andeconomy. For this reason, we seekmeasures which will allow as manyLPTV and TV translator stations aspossible to remain in operation. At aminimum, we propose to continue thesecondary status of these stations, sothat they will not be required to changeor cease their operations until theyactually interfere with one of the newly-allocated services. We also requestcomment on a number of measureswhich may alleviate the impact ofreallocation of the 746–806 MHz bandon LPTV and TV translator stations. Werequest comment on these options, withemphasis on how we can ensurefairness to all licensees, and how we canbest balance the interests of current and

future licensees to the benefit of thepublic.

F. Federal Rules That May Duplicate,Overlap, or Conflict With the ProposedRules.

None.


Frequency allocations and radio treatymatters, Radio.

Federal Communications Commission.William F. Caton,Acting Secretary.[FR Doc. 97–20078 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P


47 CFR Part 73

[MM Docket No. 97–161; RM–9111]

Radio Broadcasting Services;Susquehanna, PA and Walton, NY


SUMMARY: The Commission requestscomments on a petition filed by KGBroadcasting, Inc., proposing thesubstitution of Channel 223B1 forChannel 223A at Susquehanna,Pennsylvania, and the modification ofStation WKGB–FM’s licenseaccordingly. To accommodate theupgrade, petitioner also proposes thesubstitution of Channel 248A forChannel 221A at Walton, New York,and the modification of Station WDLA–FM’s license accordingly. Channel223B1 can be allotted to Susquehannain compliance with the Commission’sminimum distance separationrequirements with a site restriction of5.9 kilometers (3.7 miles) east toaccommodate petitioner’s requestedsite. The coordinates for Channel 223B1at Susquehanna are North Latitude 41–56–05 and West Longitude 75–32–00.See Supplementary Information, infra.DATES: Comments must be filed on orbefore September 15, 1997, and replycomments on or before September 30 ,1997.ADDRESSES: Federal CommunicationsCommission, Washington, DC 20554. Inaddition to filing comments with theFCC, interested parties should serve thepetitioner, or its counsel or consultant,as follows: Benjamin J. Smith, President,

KG Broadcasting, Inc., 776 ConklinRoad, Binghamton, New York 13903(Petitioner).FOR FURTHER INFORMATION CONTACT:Sharon P. McDonald, Mass MediaBureau, (202) 418–2180.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s Notice ofProposed Rule Making, MM Docket No.97–161, adopted July 16, 1997, andreleased July 25, 1997. The full text ofthis Commission decision is availablefor inspection and copying duringnormal business hours in the FCCReference Center (Room 239), 1919 MStreet, NW., Washington, DC. Thecomplete text of this decision may alsobe purchased from the Commission’scopy contractor, InternationalTranscription Service, Inc., (202) 857–3800, 2100 M Street, NW., Suite 140,Washington, DC 20037.

Additionally, Channel 248A can beallotted to Walton in compliance withthe Commission’s minimum distanceseparation requirements with a siterestriction of 5.5 kilometers (3.4 miles)southeast to avoid a short-spacing to thelicensed site of Station WYXL(FM),Channel 247B, Ithaca, New York. Thecoordinates for Channel 248A at Waltonare North Latitude 42–08–10 and WestLongitude 75–04–48. SinceSusquehanna and Walton are locatedwithin 320 kilometers (200 miles) of theU.S.-Canadian border, concurrence ofthe Canadian government has beenrequested.

Provisions of the RegulatoryFlexibility Act of 1980 do not apply tothis proceeding.

Members of the public should notethat from the time a notice of proposedrule making is issued until the matter isno longer subject to Commissionconsideration or court review, all exparte contacts are prohibited inCommission proceedings, such as thisone, which involve channel allotments.See 47 CFR 1.1204(b) for rulesgoverning permissible ex parte contacts.

For information regarding properfiling procedures for comments, see 47CFR 1.415 and 1.420.


Radio broadcasting.

Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20166 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P



47 CFR Part 73

[MM Docket No. 97–162, RM–9112]

Radio Broadcasting Services;Hutchinson, KS


SUMMARY: The Commission requestscomments on a petition filed by Gary L.Violet requesting the allotment ofChannel 240A to Hutchinson, Kansas.Channel 240A can be allotted toHutchinson in compliance with theCommission’s minimum distanceseparation requirements without theimposition of a site restriction. Thecoordinates for Channel 240A atHutchinson are 38–04–54 NL and 97–55–42 WL.DATES: Comments must be filed on orbefore September 15, 1997, and replycomments on or before September 30,1997.ADDRESSES: Federal CommunicationsCommission, Washington, DC 20554. Inaddition to filing comments with theFCC, interested parties should serve thepetitioner, or its counsel or consultant,as follows: Gary L. Violet, 331 LookoutPoint, Hot Springs National Park,Arkansas 71913 (Petitioner).FOR FURTHER INFORMATION CONTACT: PamBlumenthal, Mass Media Bureau, (202)418–2180.SUPPLEMENTARY INFORMATION: This is asynopsis of the Commission’s notice ofproposed rule making, MM DocketNo.97–162, adopted July 16, 1997, andreleased July 25, 1997. The full text ofthis Commission decision is availablefor inspection and copying duringnormal business hours in the FCC’sReference Center (Room 239), 1919 MStreet, NW, Washington, DC. Thecomplete text of this decision may alsobe purchased from the Commission’scopy contractor, ITS, Inc., (202) 857–3800, 2100 M Street, NW, Suite 140,Washington, DC 20037.

Provisions of the RegulatoryFlexibility Act of 1980 do not apply tothis proceeding.

Members of the public should notethat from the time a notice of proposedrule making is issued until the matter isno longer subject to Commissionconsideration or court review, all exparte contacts are prohibited inCommission proceedings, such as thisone, which involve channel allotments.See 47 CFR 1.1204(b) for rulesgoverning permissible ex parte contacts.

For information regarding properfiling procedures for comments, see 47CFR 1.415 and 1.420.


Radio broadcasting.Federal Communications Commission.John A. Karousos,Chief, Allocations Branch, Policy and RulesDivision, Mass Media Bureau.[FR Doc. 97–20167 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P



50 CFR Part 17

RIN 1018–AD39

Endangered and Threatened Wildlifeand Plants; Withdrawal of ProposedRule To List Dudleya Blochmaniae ssp.Insularis, Dudleya sp. nov. ‘‘EastPoint’’, and Heuchera Maxima asEndangered

AGENCY: Fish and Wildlife Service,Interior.

ACTION: Proposed rule; withdrawal.

SUMMARY: The U.S. Fish and WildlifeService (Service) withdraws theproposal to list Dudleya blochmaniaessp. insularis, Dudleya sp. nov. ‘‘EastPoint’’, and Heuchera maxima asendangered species under theEndangered Species Act of 1973, asamended (Act). The Service finds thatinformation now available, discussedbelow, justifies withdrawal of theproposed listings of these species asendangered. The National Park Service(NPS) has implemented measures thatsignificantly reduce the risks to Dudleyablochmaniae ssp. insularis and Dudleyasp. nov. ‘‘East Point’’ and has sponsoredfield surveys that have identified agreater abundance and distribution forHeuchera maxima. Based on thisinformation the Service concludes thatlisting of these species is not warranted.

DATES: This withdrawal notice is madeJuly 31, 1997.

ADDRESSES: The complete file for thisrule is available for public inspection,by appointment, during normal businesshours at the Ventura Field Office, U.S.Fish and Wildlife Service, 2493 PortolaRoad, Ventura, California, 93003.

FOR FURTHER INFORMATION CONTACT: TimThomas, at the above address or bytelephone (805) 644–1766.


BackgroundOn July 25, 1995 the Service

published in the Federal Register (60FR 37993) a proposal to list 16 plantspecies from the northern ChannelIslands as endangered.

Included among these 16 taxa wereDudleya blochmaniae ssp. insularis(Santa Rosa Island dudleya), Dudleyasp. nov. ‘‘East Point’’ (munchkindudleya), and Heuchera maxima (Islandalum-root), the subject taxa of thisnotice of withdrawal. Santa Rosa Islanddudleya (Dudleya blochmaniae ssp.insularis) was first described asHasseanthus blochmaniae ssp. insularisby Reid Moran (1950a) based on acollection made at ‘‘Old Ranch Point’’on Santa Rosa Island in 1950. Moran(1953) treated Hasseanthus as asubgenus of Dudleya; Hasseanthus hadpreviously been segregated fromDudleya on the basis of stemcharacteristics and the presence ofvernal (withering) leaves. In so doing,he published the new combinationDudleya blochmaniae ssp. insularis(Moran 1953). Though Thompson (1993)recently resegregated Hasseanthus fromDudleya at the generic level, heprovided no new evidence for thisaction. Moreover, given that the basechromosome number of Hasseanthusand Dudleya is the same (n=17) and thatspecies of Hasseanthus and Dudleya arecompletely interfertile but will not crosswith other family genera, splitting thesetaxa at the generic level isinappropriate. As a result, the taxon willbe recognized in this notice ofwithdrawal under the name Dudleyablochmaniae ssp. insularis.

Dudleya blochmaniae ssp. insularis isa small succulent perennial in thestonecrop family (Crassulaceae). Theplant has a corm-like root structure, and15 to 30 oblanceolate leaves in a basalrosette, from which several floweringstems 3 to 7 centimeters (cm) (1.2 to 2.8inches (in)) long arise. The white, five-petaled flowers and the resulting fruitsare fused at the base and wide-spreadingdistally. This subspecies isdistinguished from two other mainlandsubspecies of D. blochmaniae on thebasis of the more numerous rosetteleaves, shorter floral stems, morepronounced glaucousness of youngfloral stems and their leaves, and thesize and shape of the lower bracts(Moran 1950a, Bartel 1993).

Dudleya blochmaniae ssp. insularis isonly known from the type locality nearOld Ranch Point, also known as MarshPoint, on the east end of Santa RosaIsland. The taxon occupies an area ofless than 1 hectare (2 acres) of an


ancient marine terrace with a cobblesurface, and associated with owl’sclover (Castilleja exserta), goldfields(Lasthenia californica), and alien annualgrasses, primarily Bromus and Vulpiaspecies. The habitat is relatively openwith low densities of non-native annualgrasses. In 1993, the number ofindividuals was estimated to be 2,000(Rutherford and Thomas, pers. obs.1993). NPS and National BiologicalSurvey (now Biological ResourcesDivision of the U.S. Geological Survey)staff established demographic plots in1994. In 1995 and 1996, the NPS erectedan electric fence around Skunk Point,including all habitat occupied by D.blochmaniae ssp. insularis and apopulation of the federally threatenedsnowy plover, during the spring andsummer seasons to eliminate potentialdamage from cattle. Cattle tracks anddroppings inside the exclosure indicatethat entry has occurred in both years(McEachern 1996). However, cattle wereremoved whenever found within thefenced area and were not present longenough to adversely affect D.blochmaniae ssp. insularis (Jim Hutton,Island Ranger, pers. comm. 1996).Breaks in the fence were repairedimmediately.

Dudleya sp. nov. ‘‘East Point’’ wascollected by Reid Moran in 1950. In hisdissertation on the genus Dudleya, heincluded it in the description of D.greenei, but remarked upon how itdiffered, and described it as ‘‘formanana.’’ Subsequent floras treated theform in synonymy with D. greenei(Munz and Keck 1973, Smith 1976). In1993, Paul H. Thomson illegitimatelypublished the name D. nana, based onthe description of forma nana inMoran’s dissertation. An articledescribing this new species has beensubmitted by Stephen McCabe to thejournal Madroño. This manuscript hasbeen peer reviewed, the description wasfound to meet the code requirements forvalid publication, and the reviewers feltthat it was a distinct taxon (Painter inlitt. 1997).

Like Dudleya blochmaniae ssp.insularis described above, Dudleya sp.nov. ‘‘East Point’’ is a small succulentperennial in the stonecrop family(Crassulaceae). The plant has a shortcaudex-like stem, and small, gray, ovateto oblanceolate leaves in a cluster of upto 20 basal rosettes, from which severalflowering stems 2.5 to 7 cm (1 to 2.75in) long arise. The pale yellow, five-petaled flowers are fused at the base andspread only at the tips.

Dudleya sp. nov. ‘‘East Point’’ isknown only from one populationcomprising three colonies near EastPoint on Santa Rosa Island. The

colonies occur on a low windsweptridge with a cobble soil surface, whichis bereft of any other vegetation savescattered alien annual grasses, small-flowered iceplant (Mesembryanthemumnodiflorum), pineappleweed(Ambylopappus pusillus), andgoldenbush (Lasthenia californica). Theuppermost colony covers 26 squaremeters, the middle colony covers 88square meters, and the lowermostcolony covers 77 square meters(McEachern 1994). The total number ofindividuals in the three colonies hasbeen estimated to be 3,200 (S. McCabe,pers. comm. 1994). In 1994, the NPSconstructed a fence around thepopulation to reduce browsing andtrampling impacts, and to eliminatevehicle access to the middle colony.Observations by researchers indicate thefollowing: the fencing has excludedcattle but not deer; the number ofseedling plants was higher in late winterof 1995 than in May, a few months later,which may indicate a high seedlingrecruitment rate but a low seedlingsurvivorship rate; and severalinflorescences were clipped off by anunknown predator, possibly mice orinsects (McEachern 1996). A lowseedling survivorship rate is commonamong wild plants and is unlikely topose a significant threat to a perennialspecies, which needs only to replaceitself once over a period of many yearsto maintain a stable population size. Asmall fire burned vegetationsurrounding the lower colony, but didnot appear to damage the dudleya wherethe fuels are so light that fire cannotcarry through the site.

Heuchera maxima (island alumroot)was described by E.L. Greene (1886a)based on collections from the‘‘northward slope of Santa Cruz Island.’’This nomenclature was retained in themost recent treatment of the genus(Elvander 1993). Heuchera maxima is aperennial herb in the saxifrage(Saxifragaceae) family. The round basalleaves are up to 7 cm (2.8 in) broad onlong petioles up to 25 cm (10 in) inlength. The flowering stalks are up to6.1 decimeters (dm) (2 ft) long andscattered with small white-petaledflowers (Hochberg 1980b). No otherHeuchera species occurs on the islands;however, young plants of H. maximacan resemble species of Jepsonia,Lithophragma, or Saxifraga that occurson the islands. Heuchera maxima canbe distinguished from these other taxaby its larger size at maturity, andflowers with ten stamens rather thanfive.

Heuchera maxima grows primarily onmoist, shady, north-facing canyonbottoms, walls, and sea cliffs, but occurs

in a few interior localities as well.Collections of Heuchera maxima weremade from Santa Rosa Island byHoffmann in 1929 and Dunkle in 1939;however, locality information for thesecollections is vague. More recently, theplant was collected from Cherry, Lobos,Ranch, and Windmill Canyons on SantaRosa Island (Rutherford and Thomas1994). It was relocated in three of thosecanyons during the 1994–1996 surveys,during which 27 additional populationswith up to 150 plants in each werefound (McEachern and Wilken 1996). H.maxima is also known from 11 locationson West Anacapa Island (Rutherfordand Thomas 1994; S. Junak, in litt.1984). On Santa Cruz Island, 16populations with up to 170 plants perpopulation have been reported from thewest half of the northern shore(McEachern and Wilken 1996).

Summary of Comments andRecommendations

In the July 25, 1995, proposed rule (60FR 37933) and associated notifications,all interested parties were requested tosubmit factual reports or information tobe considered in making a final listingdetermination. An initial 75-daycomment period closed on October 9,1995. A second 30-day comment periodclosed on February 21, 1997.Appropriate Federal and State agencies,local governments, scientificorganizations, and other interestedparties were contacted and asked tocomment. In accordance with Servicepolicy published on July 1, 1994 (59 FR34270), three appropriate andindependent specialists were solicitedregarding pertinent scientific orcommercial data and assumptionsrelating to the proposed rule. Legalnotices of the availability of theproposed rule were published onAugust 5, 1995, in the Santa BarbaraNews-Press and on August 11, 1995, inthe Los Angeles Times.

The Service received 14 lettersconcerning the proposed rule during thecomment periods, including those ofone State agency and 11 individuals orgroups. Because of the two publiccomment periods, some individuals orgroups commented twice. Because theproposed rule included 16 plant taxa,only those comments specific to thethree taxa addressed in this notice arediscussed here. Comments not specificto these three taxa and generalcomments relevant to the proposed ruleare discussed in a separate final rulepublished in today’s Federal Register(Vol. 62 No. 147, July 31, 1997).

The Service has reviewed all of thewritten comments received during bothcomment periods and status reports and


population surveys that occurred inbetween the comment periods. Fourcommenters supported the listingproposal for the three taxa, one opposedtheir listing, and seven stated nospecific opinion on the three taxaconsidered herein. Several commentersprovided additional information andother clarifications that have beenincorporated into the ‘‘Summary ofFactors’’ section of this notice. Severalcomments dealt with matters of opinionor legal history, which were not relevantto the listing decision. The Servicecarefully considered all comments andinformation submitted relevant to thisdecision to withdraw the proposedlisting. The Service response to thosecommenters supporting listing of thesetaxa can be found in the ‘‘Summary ofFactors’’ section. Comments submittedare available for review at the VenturaField Office (see ADDRESSES).

Summary of Factors Affecting theSpecies

The Service must consider five factorsdescribed in section 4(a)(1) of the Actwhen determining whether to list aspecies. These factors, and theirapplication to the Service’s decision towithdraw the proposal to list Dudleyablochmaniae (Eastw.) Moran ssp.insularis (Moran) Moran, Dudleya sp.nov. ‘‘East Point’’ S. McCabe, andHeuchera maxima Greene, are asfollows:

A. The Present or ThreatenedDestruction, Modification, orCurtailment of Its Habitat or Range

The single most important loss ofresources to insular ecosystems is theloss of soils, as the soils are thefoundation for the unique islandecosystems and the insular endemicspecies found within them. This loss ofsoils is the result of historic grazing andbrowsing by sheep, goat, cattle, deer,elk, and bison, and rooting by pigs onthe various islands starting in the early1800’s, and in certain cases, continuingtoday. Fencing installed by the NPS toexclude cattle from the two Dudleyataxa populations has significantlyreduced the threat of soil loss in thehabitat of these species. Cattletrampling, previously known to removelarge numbers of Dudleya sp. nov. ‘‘EastPoint’’ plants, is no longer a significantthreat. No cattle have broken throughthe fence at East Point. Although cattlehave on several occasions gained accessto the fenced areas through breaks in thefence where Dudleya blochmaniae ssp.insularis occurs, NPS staff hasimmediately removed the cattle upondiscovery with no adverse impacts.Although deer and elk are not excluded

by the fencing (Painter, in litt., 1997),the Service believes that the impacts ofthese animals on the habitat for the twoDudleya species, in the absence ofcattle, do not constitute a significantthreat to the survival of these taxa. Bothof the Dudleya populations occur onsites that are not favorable to either elkor deer utilization. If elk or deer doenter these areas, it is in limitednumbers and for brief periods of time.Most of the habitat currently occupiedby Heuchera maxima is out of reach ofthe effects of the trampling influence ofthe non-native mammals on the islands(McEachern and Wilken 1996).

B. Overutilization for Commercial,Recreational, Scientific, or EducationalPurposes

In the horticultural trade, Dudleyahave, in particular, been favoritecollector species. Dudleya sp. nov. ‘‘EastPoint’’ was collected and introducedinto the horticultural trade long ago as‘‘white sprite.’’ Dudleya blochmaniaessp. insularis though not in the trade,has been cultivated by Dudleyaenthusiasts. While the limiteddistribution of these two taxa makesthem of interest to such enthusiasts, inthe absence of the larger combinedthreats of cattle trampling, collectionalone does not pose a significant threatto these species. Heuchera maxima isalso found in cultivation. Although theextent of collection of this taxon isuncertain, the Service believes that thethreat from overcollection isinsignificant given the number ofpopulations of the species that are nowknown.

C. Disease or Predation

Disease is not known to be a factoraffecting the taxa considered in thisrule. Grazing by cattle was identified asa threat in the proposed rule.Consumption of individual plants bygrazing animals has been known toimpact the reproduction of these plantsand has had other effects, such astrampling, erosion (see Factor A) andthe introduction of non-native species(see Factor E). The fencing constructedto protect Dudleya blochmaniae ssp.insularis and Dudleya sp. nov. ‘‘EastPoint’’ populations from cattle hasreduced the level of herbivory on thesetwo taxa to where it no longerconstitutes a significant threat to thesurvival of these species. The majorityof the Heuchera maxima occur out ofthe reach of the effects of most non-native mammals on the islands(McEachern and Wilken 1996).

D. The Inadequacy of ExistingRegulatory Mechanisms

The Service evaluated existingFederal, State, and local regulatorymechanisms prior to preparing theproposed rule for listing the two planttaxa. The Service found evidence ofinadequacy of the existing regulatorymechanisms at that time. Theseregulatory mechanisms included: (1)Listing under the California EndangeredSpecies Act (CESA); (2) the CaliforniaEnvironmental Quality Act (CEQA) andNational Environmental Policy Act(NEPA); (3) conservation provisionsunder section 404 of the Federal CleanWater Act and Section 1603 of theCalifornia Fish and Game Code; (4)occurrence with other species protectedby the Federal Endangered Species Act;(5) land acquisition and management byFederal, State, or local agencies, or byprivate groups and organizations; and(6) local laws and regulations. TheService believes that actions taken bythe NPS for the protection of Dudleyablochmaniae ssp. insularis and Dudleyasp. nov. ‘‘East Point’’ are sufficient toassure that regulatory mechanisms areadequate to protect these two plant taxa.Heuchera maxima is now known to bepresent in a sufficient number ofpopulations (McEachern and Wilken1996) so that any inadequacies of theseregulatory mechanisms no longer pose asignificant threat to this species.

E. Other Natural or Manmade FactorsAffecting Its Continued Existence

Introduced species of grasses andforbs have invaded many of California’splant communities. Such weedy speciescan displace the native flora by out-competing them for nutrients, water,light, and space. Weedy plant invasionsare facilitated by disturbances such asgrazing, developments, and variousrecreational activities.

Grazing by livestock typically changesthe composition of native plantcommunities by reducing or eliminatingspecies that cannot withstand tramplingand predation (see Factors A and C),and enabling more resistant (usuallyalien) plant species to increase inabundance. Seed from non-sterile hayand animal feces increases thelikelihood of invasion of exotic speciesand prevents re-establishment of nativeplants. Exotic species may flourish withgrazing and may reduce or eliminatenative plant species throughcompetition for resources. The invasionof non-native species into the habitats ofDudleya blochmaniae ssp. insularis andDudleya sp. nov. ‘‘East Point’’ was citedas a significant threat to thesepopulations in the proposed rule


primarily due to the ongoing effects ofalien mammals on these habitats. Due tothe fencing installed by the NPS, theseimpacts have been reduced to the pointthat they no longer pose a significantthreat to the survival of these taxa. Withover 50 recently reported populations,Heuchera maxima is now known tooccur in greater abundance than waspreviously known and, due to thediscovery of these additionalpopulations, the Service believes thatthis species is no longer threatened withextinction.

Because Dudleya blochmaniae ssp.insularis and Dudleya sp. nov. ‘‘EastPoint’’ are both known only from singlepopulations with few individuals, theyremain vulnerable to extinction due torandom events, such as drought, andstorms. Neither taxon has ever beenreported to occur at any locality otherthan the single sites to which it iscurrently restricted. Pro-active recoveryefforts to lessen the threat of suchrandom events typically involve theestablishment of additional populations,but Service policy precludes theintroduction of listed species outsidetheir historic range without specificapproval from the Director. To lessenthe vulnerability of these taxa to randomevents, the NPS has proposed toestablish a seed banking program (NPS1997). Because of the low probability ofsuch a random event taking place, the

significance of the threat from such anevent in the absence of other factors, isinsufficient to warrant listing of thesespecies. Heuchera maxima is nowknown to occur in sufficient numbersthat threats resulting from few, smallpopulations are no longer of concern.

Finding and WithdrawalAfter a thorough review and

consideration of all informationavailable the Service has determinedthat listing of Dudleya blochmaniae ssp.insularis, Dudleya sp. nov. ‘‘East Point’’and Heuchera maxima as endangered isno longer warranted. The Service hascarefully assessed the best scientific andcommercial information available in thedevelopment of this withdrawal notice.Fencing installed by the NPS since thetime of the proposed rule hassufficiently reduced the threats of soilloss, trampling and herbivory by cattleand non-native mammals, and theinvasion of competitive alien weeds intohabitat of the two dudleya species sothat listing is no longer warranted.Other factors cited in the proposed rule,including overcollection, inadequateregulatory mechanisms, and extinctionfrom random events, are of insufficientmagnitude to warrant listing in theabsence of any significant threat fromother factors. Heuchera maxima is nowknown to occur in more than 50populations and the Service nowbelieves that this species is no longer

threatened with extinction. A final rulelisting the other 13 plant taxa includedin the original proposed rule ispublished in the Federal Registerconcurrently with this notice ofwithdrawal of the proposal to listDudleya blochmaniae ssp. insularis,Dudleya sp. nov. ‘‘East Point’’ andHeuchera maxima.

References Cited

A list of all references cited herein isavailable upon request from the U.S.Fish and Wildlife Service Ventura FieldOffice (see ADDRESSES section).

Author: The primary author of thiswithdrawal notice is Tim Thomas,Ventura Field Office (see ADDRESSESsection).

Authority

The authority for this action is section4(b)(6)(B)(ii) of the Endangered SpeciesAct of 1973, as amended (16 U.S.C. 1531et seq.).


Endangered and threatened species,Exports, Imports, Reporting andrecordkeeping requirements,Transportation.

Dated: July 24, 1997John G. Rogers,Director, U.S. Fish and Wildlife Service.[FR Doc. 97–20132 Filed 7–30–97; 8:45 am]BILLING CODE 4310–55–P

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

41020

Vol. 62, No. 147



Submission for OMB Review;Comment Request

July 25, 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 tothe Department 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) 720–6204 or(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 informspotential persons who are to respond tothe collection of information that suchpersons are not required to respond tothe collection of information unless it

displays a currently valid OMB controlnumber.

• National Agricultural StatisticsService

Title: Agricultural ResourcesManagement, Chemical Use and Post-harvest Chemical Use Surveys.

OMB Control Number: 0535–0218.Summary of Collection: Collect

production cost data and data on theapplication of chemicals after harvestingof fruits and vegetables.

Need and Use of the Information: Toprovide estimates on the extent ofresidue of chemicals on fruits andvegetables; to produce environmentaland economic estimates of the costs offarming.

Description of Respondents: Farms.Number of Respondents: 72,195.Frequency of Responses: Reporting:

On occasion; Annually.Total Burden Hours: 35,232.

• Rural Housing ServiceTitle: 7 CFR 3570–B, Community

Facilities Grant Program.OMB Control Number: 0575–0173.Summary of Collection: The

information collection includes anagreement for administrativerequirements and a statement ofinability to obtain credit from othersources.

Need and Use of the Information: Theinformation is used to fulfill therequirements for the communityfacilities grant program.

Description of Respondents: Not-for-profit institutions; State, Local or TribalGovernment.

Number of Respondents: 200.Frequency of Responses: Reporting:

On occasion.Total Burden Hours: 438.

• Animal and Plant Health InspectionService

Title: Importation of Fresh HassAvocado Fruit.

OMB Control Number: 0579–New.Summary of Collection: Information

collected includes an application forpermit, phytosanitary inspectioncertificate, marking requirements and anannual work plan.

Need and Use of the Information: Theinformation is needed to safely importfresh Hass Avocado fruit from Mexico.

Description of Respondents: Businessor other for-profit; Individuals orhouseholds; Farms; State, Local orTribal Government.

Number of Respondents: 157.Frequency of Responses: Reporting:

On occasion.Total Burden Hours: 3,098.

• Rural Business-Cooperative ServiceTitle: Cooperative Value-Added

Program.OMB Control Number: 0570–0019.Summary of Collection: Information

collected from respondents includes anapplication for Federal assistance and aproject proposal.

Need and Use of the Information: Theinformation will be used to determineeligibility for the funding of programsthat will encourage value-addedactivities to enhance the economicsustainability of rural communities.

Description of Respondents: Not-for-profit institutions; Federal Government;State, Local or Tribal Government.

Number of Respondents: 75.Frequency of Responses:

Recordkeeping; Reporting: On occasion;Quarterly.

Total Burden Hours: 1,446.

• Grain Inspection, Packers andStockyards Administration

Title: Regulations and RelatedReporting and RecordkeepingRequirements—Packers and StockyardPrograms.

OMB Control Number: 0580–0015.Summary of Collection: Information

collected includes applications forregistration, trust fund agreements,special reports, and scale tests.

Need and Use of the Information: Theinformation is used to provide businesstransaction safeguards that are necessaryto protect financial interests and tradepractices of livestock producers andothers in the livestock industry.

Description of Respondents: Businessor other for-profit.

Number of Respondents: 10,950.Frequency of Responses:

Recordkeeping; Reporting: On occasion;Semi-annually; annually.

Total Burden Hours: 301,106.

• Agricultural Marketing ServiceTitle: Olives Grown in California

Marketing Order No. 932.OMB Control Number: 0581–0142.Summary of Collection: Information

collected includes referendum ballots,assessments, sales reports, inventoryholdings and marketing agreements.

Need and Use of the Information: Theinformation is used to regulate theprovisions of Marketing Order No. 932.

41021Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Notices

Description of Respondents: Businessor other for-profit; Farms.

Number of Respondents: 692.Frequency of Responses:

Recordkeeping; Reporting: On occasion;Every 2–6 yrs.

Total Burden Hours: 3,880.Donald Hulcher,Departmental Clearance Officer.[FR Doc. 97–20235 Filed 7–30–97; 8:45 am]BILLING CODE 3410–01–M


Agricultural Marketing Service

[Docket No. FV97–998–2 NC]

Request for Extension and Revision ofa Currently Approved InformationCollection

AGENCY: Agricultural Marketing Service,USDA.ACTION: Notice and request forcomments.

SUMMARY: In accordance with thePaperwork Reduction Act of 1995 (44U.S.C. Chapter 35), this noticeannounces the Agricultural MarketingService’s (AMS) intention to request anextension for and revision to a currentlyapproved information collection forMarketing Agreement No. 146Regulating the Quality of DomesticallyProduced Peanuts (7 CFR part 998).DATES: Comments on this notice must bereceived by September 29, 1997 to beassured of consideration.ADDITIONAL INFORMATION OR COMMENTS:Contact Jim Wendland, MarketingSpecialist, DC Marketing Field Office,Marketing Order AdministrationBranch, Fruit and Vegetable Division,AMS, USDA, P.O. Box 96456, room2525–S, Washington, DC 20090–6456;telephone: (202) 720–2170, or Fax: (202)720-5698.


Title: Marketing Agreement No. 146,Regulating the Quality of DomesticallyProduced Peanuts—7 CFR part 998.

OMB Number: 0581–0067.Expiration Date of Approval: January

31, 1998.Type of Request: Extension and

revision of a currently approvedinformation collection.

Abstract: Marketing agreement andorder programs provide an opportunityfor producers of fresh fruits, vegetablesand specialty crops, in a specifiedproduction area, to work together tosolve marketing problems that cannot besolved individually. Such regulationshelp ensure adequate supplies of highquality product and adequate returns to

producers. Under the AgriculturalMarketing Agreement Act of 1937(AMAA), as amended (7 U.S.C. 601–674), the Agreement was established forhandlers who voluntarily signed it.Signers agreed to have peanutsinspected, meet both incoming andoutgoing quality regulations, bechemically tested and certified‘‘negative’’ as to aflatoxin. The Secretaryof Agriculture is authorized to overseethe Agreement’s operations andconsider issuing regulationsrecommended by a committee ofproducer and handler representativesfrom each of the three areas.

The information collectionrequirements in this request areessential to carry out the intent of theAMAA, to provide the respondents thetype of service they request, and toadminister the Peanut MarketingAgreement program, which has beenoperating since 1965.

The Agreement authorizes theissuance of quality regulations alongwith inspection requirements. TheAgreement also provides authority forlimited indemnification. TheAgreement, and rules and regulationsissued thereunder, authorize the PeanutAdministrative Committee (Committee),which is responsible for locallyadministering the program, to requirehandlers and growers to submit certaininformation. Much of the information iscompiled in aggregate and provided tothe industry to assist in marketingdecisions.

The Committee has developed formsas a means for persons to file requiredinformation with the Committee relatingto peanut supplies, shipments,dispositions, and other informationneeded to carry out the purpose of theAMAA and Agreement. USDA forms areused by peanut growers and handlers,who are nominated by their peers toserve as representatives on theCommittee, to submit theirqualifications to the Secretary. OtherUSDA forms are used by handlers tosign the Agreement.

These forms require the minimuminformation necessary to effectivelycarry out the requirements of theAgreement, and their use is necessary tofulfill the intent of the AMAA asexpressed in the Agreement.

The information collected is usedonly by authorized representatives ofthe USDA, including AMS, Fruit andVegetable Division regional andheadquarter’s staff, and authorizedemployees of the Committee.Authorized Committee employees, andthe industry, which may be providedonly aggregate (not confidential)information, are the primary users of the

information and AMS is the secondaryuser.

Estimate of Burden: Public reportingburden for this collection of informationis estimated to average 0.246 hours perresponse.

Respondents: Peanut producers andfor-profit businesses handling fresh andprocessed peanuts produced in the 16-state production area.

Estimated Number of Respondents:29.

Estimated Number of Responses perRespondent: 9.19.

Estimated Total Annual Burden onRespondents: 126 hours.

Comments are invited on: (1) Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the agency, includingwhether the information will havepractical utility; (2) the accuracy of theagency’s estimate of the burden of theproposed collection of information,including the validity of themethodology and assumptions used; (3)ways to enhance the quality, utility, andclarity of the information to becollected; and (4) 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 should reference OMB No.0581–0067 and the Peanut MarketingAgreement No. 146, and be sent toUSDA in care of Jim Wendland at theaddress above. All comments receivedwill be available for public inspectionduring regular business hours at thesame address.

All responses to this notice will besummarized and included in the requestfor OMB approval. All comments willbecome a matter of public record.

Dated: July 24, 1997.Ronald L. Cioffi,Acting Director, Fruit and Vegetable Division.[FR Doc. 97–20041 Filed 7–30–97; 8:45 am]BILLING CODE 3410–02–P


Food and Consumer Service

Agency Information CollectionActivities: Proposed Collection;Comment Request—The IntegrityProfile (TIP)

AGENCY: Food and Consumer Service,USDA.ACTION: Notice.

41022 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Notices

SUMMARY: In accordance with thePaperwork Reduction Act of 1995, thisnotice announces the Food andConsumer Service’s (FCS) intention torequest OMB review of The IntegrityProfile (TIP) data collection andreporting system.DATES: Comments on this notice must bereceived by September 29, 1997.ADDRESSES: Send comments andrequests for copies of this informationcollection to: Stanley C. Garnett,Director, Supplemental Food ProgramsDivision, Food and Consumer Service,U.S. Department of Agriculture, 3101Park Center Drive, Alexandria, VA22302.

Comments are invited on: (a) Whetherthe proposed collection of informationis necessary for the proper performanceof the functions of the agency, includingwhether the information will havepractical utility; (b) the accuracy of theagency’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.

All responses to this notice will besummarized and included in the requestfor OMB approval, and will become amatter of public record.FOR FURTHER INFORMATION CONTACT:Stanley C. Garnett, (703) 305–2749.


Title: The Integrity Profile (TIP).OMB Number: 0584–0401.

Expiration Date: 1–31–98.Type of Request: Extention of a

Currently Approved Collection.Abstract: State agencies administering

the Special Supplemental NutritionProgram for Women, Infants andChildren (WIC Program) are required by7 CFR 246.12(i)(3) to submit to FCS anannual summary of the results of theirvendor monitoring efforts in order toprovide Congress, senior FCS officials,as well as the general public, assurancethat every reasonable effort is beingmade to ensure integrity in the WICProgram.

Since 1989, integrity data has beenrequired to be submitted annually foranalysis and the Vendor ActivityMonitoring Profile (VAMP) report hasbeen traditionally produced by FCSwhich shows the level of monitoringand investigation conducted by WICState agencies to detect and eliminate,or substantially reduce, vendor fraudand abuse. The WIC Program recentlyreassessed State and Federal datacollection and reporting needs as theyrelate to the integrity of the WICProgram. Based on this reassessment,The Integrity Profile (TIP) wasdeveloped, which will replace thecurrent VAMP data system.

Approximately 25 data elements thathad been reported in VAMP wereeliminated and about 15 data elementswere added to the data that is currentlyreported to form the new TIP reportingsystem. Whereas VAMP focused onvendors that were investigated, TIP willbetter reflect all monitoring efforts, notjust investigations conducted. The TIPreport will better describe State agencyefforts to not only detect abuse but alsoprevent abuse from occurring and betterdescribe the characteristics of thevendor population. Lastly, the TIPreport makes better use of existing datathat is captured in State automated

systems. Reporting will be streamlined,as data will be downloaded from Statesystems and transmitted to FCSelectronically.

Estimate of Burden: Public reportingburden for this collection of informationis estimated to average 20.8 hours perresponse, including the time forreviewing instructions, searchingexisting data sources, gathering andmaintaining the data needed, andcompleting and reviewing the collectionof information.

Respondents: The Program Director ofeach WIC State agency, which isgenerally a State Health Department oran Indian Tribal Organization.

Estimated Number of Respondents: 88respondents.

Estimated Number of Responses PerRespondent: One.

Estimated Total Annual Burden onRespondents: 1,830.4 hours.

Dated: July 21, 1997.William E. Ludwig,Administrator, Food and Consumer Service.[FR Doc. 97–20237 Filed 7–30–97; 8:45 am]BILLING CODE 3410–30–P


Economic DevelopmentAdministration

Notice of Petitions by Producing Firmsfor Determination of Eligibility to Applyfor Trade Adjustment Assistance

AGENCY: Economic DevelopmentAdministration (EDA), Commerce.ACTION: To give firms an opportunity tocomment.

Petitions have been accepted for filingon the dates indicated from the firmslisted below.

LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 06/26/97–07/22/97

Firm name AddressDate

petitionaccepted

Product

Sensor Scientific, Inc ................ 6 Kings Bridge Road, Fairfield,NJ 07004.

06/26/97 Thermistors for measuring and controlling temperature.

S-Tech Design & Manufactur-ing, Inc.

480 SE 13th Avenue, Albany,OR 97321.

06/26/97 Golf club parts.

L.D.C., Inc ................................. 30R Houghton Street, Provi-dence, RI 02904.

06/27/97 Metal jewelry findings.

Division Lead Limited Partner-ship.

7742 West 61st Street, Sum-mit, IL 60501.

06/30/97 Lead shot, tubes and shapes of bismuth, tin and cadmium.

Golden West Circuits, Inc ......... 15622 Computer Lane, Hun-tington Beach, CA 92649.

07/03/97 Printed circuit boards.

R.K.B. Opto-Electronics, Inc ..... P.O. Box 157, 6677 MooreRoad, Syracuse, NY 13211.

07/07/97 Optical defect detection systems and replacement parts.

Beacon Looms, Inc ................... 411 Alfred Avenue, Teaneck,NJ 07666.

07/09/97 Curtains, bedding products and linings and trimmings for cas-kets.

Curtiss-Wright Flow ControlCorporation.

1966 East Broadhollow Road,East Farmingdale, NY 11735.

07/10/97 Valves.


LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 06/26/97–07/22/97—Continued

Firm name AddressDate

petitionaccepted

Product

Lasertechnics Marking Corpora-tion.

5500 Wilshire Avenue, NE., Al-buquerque, NM 87113.

07/11/97 Laser coding machines and systems for container labeling.

Michele Audio Corporation ofAmerica.

P.O. Box 566, Massena, NY13662.

07/14/97 Plastic CD and cassette holders, audio cassette duplicationand sound recordings and blank cassettes.

Berlin Glove Company, Ltd ....... 150 West Franklin Street, Ber-lin, WI 54923.

07/14/97 Leather gloves and leather accessories.

Staab Battery ManufacturingCo., Inc.

931 South 11th Street, Spring-field, IL 62703.

07/14/97 Batteries for autos, trucks, small engines, and marine use.

Solitron Devices, Inc ................. 3301 Electronics Way, WestPalm Beach, FL 33407.

07/14/97 Semi-conductor devices for defense and aerospace applica-tions.

American Automated StitchingService.

3051 Industrial 25th Street,Fort Pierce, FL 34946.

07/15/97 Ladies’ underwear and sewing machine attachments.

Bateman Manufacturing Com-pany, Inc.

2379 American Avenue, Hay-ward, CA 94545.

07/17/97 Metal parts for semi-conductor manufacturing.

Roma Tool & Plastics, Inc ........ 19131 Industrial Boulevard, ElkRiver, MN 55330.

07/17/97 Molded thermoplastic and thermoset components.

Sutton Products, Inc .................. P.O. Box 160, Bergman, AR72615.

07/17/97 Bar stools, wood turnings, quilt racks, chairs and other lumberproducts.

Binder Brothers, Inc .................. 663 Grand Avenue, Ridgefield,NJ 07657.

07/17/97 Sterling silver and gold filled jewelry.

A. Diamond Productions, Inc.dba The Futon Shop.

2150 Cesar Chavez Road,San Francisco, CA 94124.

07/22/97 Futon furniture and accessories.

The petitions were submittedpursuant to section 251 of the Trade Actof 1974 (19 U.S.C. 2341). Consequently,the United States Department ofCommerce has initiated separateinvestigations to determine whetherincreased imports into the United Statesof articles like or directly competitivewith those produced by each firmcontributed importantly to total orpartial separation of the firm’s workers,or threat thereof, and to a decrease insales or production of each petitioningfirm.

Any party having a substantialinterest in the proceedings may requesta public hearing on the matter. Arequest for a hearing must be receivedby Trade Adjustment Assistance, Room7315, Economic DevelopmentAdministration, U.S. Department ofCommerce, Washington, DC 20230, nolater than the close of business of thetenth calendar day following thepublication of this notice.

The Catalog of Federal DomesticAssistance official program number andtitle of the program under which thesepetitions are submitted is 11.313, TradeAdjustment Assistance.


Anthony J. Meyer,Coordinator, Trade Adjustment andTechnical Assistance.[FR Doc. 97–20074 Filed 7–30–97; 8:45 am]

BILLING CODE 3510–24–M


Technical Advisory Committee toDevelop a Federal InformationProcessing Standard for the FederalKey Management Infrastructure

AGENCY: Technology Administration,Commerce.ACTION: Notice of open meeting.

SUMMARY: Pursuant to the FederalAdvisory Committee Act, 5 U.S.C. App.,notice is hereby given that the TechnicalAdvisory Committee to Develop aFederal Information ProcessingStandard for the Federal KeyManagement Infrastructure will hold ameeting on August 27–28, 1997. TheTechnical Advisory Committee toDevelop a Federal InformationProcessing Standard for the Federal KeyManagement Infractructure wasestablished by the Secretary ofCommece to provide industry advice tothe Department on encryption keyrecovery for use by federal governmentagencies. All sessions will be open tothe public.DATES: The meeting will be held onAugust 27–28, 1997 from 9:00 a.m. to6:00 p.m.ADDRESSES: The meeting will take placeat the DoubleTree Hotel, 205 StranderBlvd., Seattle, WA.FOR FURTHER INFORMATION CONTACT:Edward Roback, Committee Secretaryand Designated Federal Official,Computer Security Division, NationalInstitute of Standards and Technology,Building 820, Room 426, Gaithersburg,

Maryland, 20899; telephone 301–975–3696. Please do not call the conferencefacility regarding details of this meeting.

SUPPLEMENTARY INFORMATION:1. Agenda:

Opening RemarksChairperson’s RemarksNews updates (Members, Federal

Liaisons, Secretariat)Working Group (WG) ReportsIntellectual Property Issues (as

necessary)Public ParticipationPlans for Next MeetingClosing Remarks

Note: That the items in this agenda aretentative and subject to change due tologistics and speaker availability.

2. Public Participation: TheCommittee meeting will include aperiod of time, not to exceed thirtyminutes, for oral comments from thepublic. Each speaker will be limited tofive minutes. Members of the publicwho are interested in speaking are askedto contact the individual identified inthe ‘‘for further information’’ section. Inaddition, written statements are invitedand may be submitted to the Committeeat any time. Written comments shouldbe directed to the Technical AdvisoryCommittee to Develop a FederalInformation Processing Standard for theFederal Key Management Infrastructure,Building 820, Room 426, NationalInstitute of Standards and Technology,Gaithersburg, Maryland, 20899. It wouldbe appreciated if sixty copies could besubmitted for distribution to theCommittee and other meeting attendees.


3. Additional information regardingthe Committee is available at its worldwide web homepage at: http//csrc.nist.gov/tacdfipsfkmi/.

4. Should this meeting be canceled, anotice to that effect will be published inthe Federal Register and a similarnotice placed on the Committee’selectronic homepage.Mark Bohannon,Chief Counsel for Technology Administration.[FR Doc. 97–20245 Filed 7–30–97; 8:45 am]BILLING CODE 3510–CN–M

COMMITTEE FOR THEIMPLEMENTATION OF TEXTILEAGREEMENTS

Adjustment of Import Limits for CertainCotton and Man-Made Fiber Textilesand Textile Products Produced orManufactured in Indonesia

July 25, 1997.AGENCY: Committee for theImplementation of Textile Agreements(CITA).ACTION: Issuing a directive to theCommissioner of Customs adjustinglimits.

EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Janet Heinzen, International TradeSpecialist, Office of Textiles andApparel, U.S. Department of Commerce,(202) 482–4212. For information on thequota status of these limits, refer to theQuota Status Reports posted on thebulletin boards of each Customs port orcall (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 forcarryforward.

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 61 FR 66263,published on December 17, 1996). Alsosee 61 FR 64505, published onDecember 5, 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 Round

Agreement 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 TextileAgreementsJuly 25, 1997.

Commissioner of Customs,Department of the Treasury, Washington, DC

20229.Dear Commissioner: This directive

amends, but does not cancel, the directiveissued to you on November 29, 1996, by theChairman, Committee for the Implementationof Textile Agreements. That directiveconcerns imports of certain cotton, wool,man-made fiber, silk blend and othervegetable fiber textiles and textile products,produced or manufactured in Indonesia andexported during the twelve-month periodwhich began on January 1, 1997 and extendsthrough December 31, 1997.

Effective on July 31, 1997, you are directedto adjust the limits for the followingcategories, as provided for under the UruguayRound Agreements Act and the UruguayRound Agreement on Textiles and Clothing:

Category Adjusted twelve-monthlimit 1

338/339 .................... 1,165,007 dozen347/348 .................... 1,651,693 dozen359–C/659–C 2 ........ 1,363,001 kilograms611–0 3 ..................... 4,520,000 Square me-

ters619/620 .................... 9,079,933 Square me-

ters

1 The limits have not been adjusted to ac-count for any imports exported after December31, 1996.

2 359–C: only HTS numbers 6103.42.2025,6103.49.8034, 6104.62.1020, 6104.69.8010,6114.20.0048, 6114.20.0052, 6203.42.2010,6203.42.2090, 6204.62.2010, 6211.32.0010,6211.32.0025, and 6211.42.0010; 659–C: onlyHTS numbers 6103.23.0055, 6103.43.2020,6103.43.2025, 6103.49.2000, 6103.49.8038,6104.63.1020, 6104.63.1030, 6104.69.1000,6104.69.8014, 6114.30.3044, 6114.30.3054,6203.43.2010, 6203.43.2090, 6203.49.1010,6203.49.1090, 6204.63.1510, 6204.69.1010,6210.10.9010, 6211.33.0010, 6211.33.0017,and 6211.43.0010

3 Category 611–O: all HTS numbers except5516.14.0005, 5516.14.0025, 5516.14.0085

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. 97–20142 Filed 7-30-97; 8:45 am]

BILLING CODE 3510–DR–F


Adjustment of Import Limits for CertainCotton and Man-Made Fiber TextileProducts Produced or Manufactured inMauritius

July 25, 1997.AGENCY: Committee for theImplementation of Textile Agreements(CITA).ACTION: Issuing a directive to theCommissioner of Customs adjustinglimits.

EFFECTIVE DATE: August 1, 1997.FOR FURTHER INFORMATION CONTACT:Janet Heinzen, International TradeSpecialist, Office of Textiles andApparel, U.S. Department of Commerce,(202) 482–4212. For information on thequota status of these limits, refer to theQuota Status Reports posted on thebulletin boards of each Customs port orcall (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 limit for Categories 338/339 is being increased for shift andspecial shift, reducing the limits forCategories 336 and 638/639 to accountfor the increase.

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 61 FR 66263,published on December 17, 1996). Alsosee 61 FR 56522, published onNovember 1, 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 TextileAgreementsJuly 25, 1997.Commissioner of Customs,Department of the Treasury, Washington, DC

20229.


Dear Commissioner: This directiveamends, but does not cancel, the directiveissued to you on October 28, 1996, by theChairman, Committee for the Implementationof Textile Agreements. That directiveconcerns imports of certain cotton, wool,man-made fiber, silk blend and othervegetable fiber textiles and textile products,produced or manufactured in Mauritius andexported during the twelve-month periodwhich began on January 1, 1997 and extendsthrough December 31, 1997.

Effective on August 1, 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:

Category Adjusted twelve-monthlevel 1

336 ........................... 95,664 dozen.338/339 .................... 508,964 dozen.638/639 .................... 423,767 dozen.


The Committee for the Implementation ofTextile Agreements has determined thatthese actions fall within the foreign affairsexception to the rulemaking provisions of 5U.S.C. 553(a)(1).

Sincerely,Troy H. Cribb,Chairman, Committee for the Implementationof Textile Agreements.[FR Doc. 97–20141 Filed 7-30-97; 8:45 am]BILLING CODE 3510–DR–F


Adjustment of Import Limits for CertainCotton, Wool, and Man-Made FiberTextiles and Textile ProductsProduced or Manufactured in Turkey

July 25, 1997.

AGENCY: Committee for theImplementation of Textile Agreements(CITA).ACTION: Issuing a directive to theCommissioner of Customs adjustinglimits.

EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Naomi Freeman, International TradeSpecialist, Office of Textiles andApparel, U.S. Department of Commerce,(202) 482–4212. For information on thequota status of these limits, refer to theQuota Status Reports posted on thebulletin boards of each Customs port orcall (202) 927–5850. For information onembargoes and quota re-openings, call(202) 482–3715.


Authority: Executive Order 11651 of March3, 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 carryover, carryforward, recreditingunused carryforward, swing and specialshift.

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 61 FR 66263,published on December 17, 1996). Alsosee 61 FR 54988, published on October23, 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 TextileAgreementsJuly 25, 1997.

Commissioner of Customs,Department of the Treasury, Washington, DC

20229.Dear Commissioner: This directive

amends, but does not cancel, the directiveissued to you on October 16, 1996, by theChairman, Committee for the Implementationof Textile Agreements. That directiveconcerns imports of certain cotton, wool, andman-made fiber textiles and textile products,produced or manufactured in Turkey andexported during the twelve-month periodwhich began on January 1, 1997 and extendsthrough December 31, 1997.

Effective on July 31, 1997 you are directedto adjust the limits for the followingcategories, as provided for under the UruguayRound Agreements Act and the UruguayRound Agreement on Textiles and Clothing:


Fabric Group219, 313, 314, 315,

317, 326, 617,625/626/627/628/

629, as a group..162,385,149 square

meters, of which notmore than41,034,835 squaremeters shall be incategory 219; notmore than50,153,686 squaremeters shall be incategory 313; notmore than29,180,327 squaremeters shall be incategory 314; notmore than39,211,066 squaremeters shall be incategory 315; notmore than41,034,835 squaremeters shall be incategory 317; notmore than 4,559,425square meters shallbe in category 326;and not more than27,356,558 shall bein category 617.

Sublevel in FabricGroup,

625/626/627/628/629 18,472,517 squaremeters, of which notmore than 7,854,980square meters shallbe in category 625;not more than7,389,007 squaremeters shall be incategory 626; notmore than 7,389,007square meters shallbe in category 627;not more than7,389,007 squaremeters shall be incategory 628; andnot more than7,389,007 squaremeters shall be incategory 629.

Limits not in a group200 ........................... 1,731,418 kilograms.300/301 .................... 8,430,153 kilograms.335 ........................... 303,770 dozen.336/636 .................... 857,394 dozen.338/339/638/639 ...... 5,434,683 dozen of

which not more than3,873,670 dozenshall be in 338–S/339–S/638–S/639–S 2.

340/640 .................... 1,645,183 dozen ofwhich not more than467,912 dozen shallbe in Categories340–Y/640–Y 3.



341/641 .................... 1,624,696 dozen ofwhich not more than568,643 dozen shallbe in Categories341–Y/641–Y 4.

342/642 .................... 954,458 dozen.347/348 .................... 5,520,377 dozen of

which not more than1,920,227 dozenshall be in Cat-egories 347–T/348–T 5.

350 ........................... 599,846 dozen.351/651 .................... 837,339 dozen.352/652 .................... 2,743,831 dozen.361 ........................... 1,934,713 numbers.369–S 6 .................... 2,000,124 kilograms.410/624 .................... 1,283,728 square me-

ters of which notmore than 795,450square meters shallbe in Category 410.

448 ........................... 41,436 dozen.604 ........................... 2,171,772 kilograms.611 ........................... 57,757,206 square

meters.


2 Category 338–S: only HTS numbers6103.22.0050, 6105.10.0010, 6105.10.0030,6105.90.8010, 6109.10.0027, 6110.20.1025,6110.20.2040, 6110.20.2065, 6110.90.9068,6112.11.0030 and 6114.20.0005; Category339–S: only HTS numbers 6104.22.0060,6104.29.2049, 6106.10.0010, 6106.10.0030,6106.90.2510, 6106.90.3010, 6109.10.0070,6110.20.1030, 6110.20.2045, 6110.20.2075,6110.90.9070, 6112.11.0040, 6114.20.0010and 6117.90.9020; Category 638–S: all HTSnumbers except 6109.90.1007, 6109.90.1009,6109.90.1013 and 6109.90.1025; Category639–S: all HTS numbers except6109.90.1050, 6109.90.1060, 6109.90.1065and 6109.90.1070.

3 Category 340–Y: only HTS numbers6205.20.2015, 6205.20.2020, 6205.20.2046,6205.20.2050 and 6205.20.2060; Category640–Y: only HTS numbers 6205.30.2010,6205.30.2020, 6205.30.2050 and6205.30.2060.

4 Category 341–Y: only HTS numbers6204.22.3060, 6206.30.3010, 6206.30.3030and 6211.42.0054; Category 641–Y: only HTSnumbers 6204.23.0050, 6204.29.2030,6206.40.3010 and 6206.40.3025.

5 Category 347–T: only HTS numbers6103.19.2015, 6103.19.9020, 6103.22.0030,6103.42.1020, 6103.42.1040, 6103.49.8010,6112.11.0050, 6113.00.9038, 6203.19.1020,6203.19.9020, 6203.22.3020, 6203.42.4005,6203.42.4010, 6203.42.4015, 6203.42.4025,6203.42.4035, 6203.42.4045, 6203.49.8020,6210.40.9033, 6211.20.1520, 6211.20.3810and 6211.32.0040; Category 348–T: only HTSnumbers 6104.12.0030, 6104.19.8030,6104.22.0040, 6104.29.2034, 6104.62.2006,6104.62.2011, 6104.62.2026, 6104.62.2028,6104.69.8022, 6112.11.0060, 6113.00.9042,6117.90.9060, 6204.12.0030, 6204.19.8030,6204.22.3040, 6204.29.4034, 6204.62.3000,6204.62.4005, 6204.62.4010, 6204.62.4020,6204.62.4030, 6204.62.4040, 6204.62.4050,6204.69.6010, 6304.69.9010. 6210.50.9060,6211.20.1550, 6211.20.6810, 6211.42.0030and 6217.90.9050.

6 Category 369–S: only HTS number6307.10.2005.

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. 97–20143 Filed 7-30-97; 8:45 am]BILLING CODE 3510–DR–F


Textile and Apparel Categories Withthe Harmonized Tariff Schedule of theUnited States; Changes to the 1997Correlation

July 25, 1997.AGENCY: Committee for theImplementation of Textile Agreements(CITA).ACTION: Changes to the 1997 Correlation

FOR FURTHER INFORMATION CONTACT: LoriE. Mennitt, International TradeSpecialist, Office of Textiles andApparel, U.S. Department of Commerce,(202) 482–3400.

SUPPLEMENTARY INFORMATION:The Correlation: Textile and Apparel

Categories based on the HarmonizedTariff Schedule of the United States(1997) presents the harmonized tariffnumbers under each of the cotton, wool,man-made fiber, silk blend and othervegetable fiber categories used by theUnited States in monitoring imports ofthese textile products and in theadministration of the textile program.The Correlation should be amended toinclude the following changes inCategory 301, effective on June 23, 1997:

Changes to the 1997 Correlation

Delete 5205.21.0000.Add 5205.21.0020—Cotton Yarn, not sewing

thread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, exceeding14 nm, ring spun.

Add 5205.21.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, exceeding14 nm but not exceeding 43 nm, otherthan ring spun.


thread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, exceeding14 nm but not exceeding 43 nm, ring spun.



Delete 5205.23.0000.

Add 5205.23.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, exceeding43 nm but not exceeding 52 nm, ring spun.


Delete 5205.24.0000.

Add 5205.24.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, exceeding52 nm but not exceeding 80 nm, ring spun.


Delete 5205.26.0000.

Add 5205.26.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not up for retail sale, sin-gle yarn, of combed fibers, measuring lessthan 125 decitex but not less than 106.38decitex (exceeding 80 metric number butnot exceeding 94 metric number), ringspun.

Add 5205.26.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not up for retail sale, sin-gle yarn, of combed fibers, measuring lessthan 125 decitex but not less than 106.38decitex (exceeding 80 metric number butnot exceeding 94 metric number), otherthan ring spun.

Delete 5205.27.0000.

Add 5205.27.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, measuringless than 106.38 decitex but not less than83.33 decitex (exceeding 94 metric numberbut not exceeding 120 metric number), ringspun.

Add 5205.27.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, measuringless than 106.38 decitex but not less than83.33 decitex (exceeding 94 metric numberbut not exceeding 120 metric number),other than ring spun.

Delete 5205.28.0000.



Add 5205.28.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, measuringless than 83.33 decitex (exceeding 120metric number), ring spun.

Add 5205.28.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,single yarn, of combed fibers, measuringless than 83.33 decitex (exceeding 120metric number), other than ring spun.


thread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, not exceeding 14 nm per singleyarn, ring spun.

Add 5205.41.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, not exceeding 14 nm per singleyarn, other than ring spun.


thread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, exceeding 14 nm but not exceeding43 nm per single yarn, ring spun.

Add 5205.42.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, exceeding 14 nm but not exceeding43 nm per single yarn, other than ringspun.







Delete 5205.46.0000.


Add 5205.46.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than125 decitex but not less than 106.38decitex (exceeding 80 metric number butnot exceeding 94 metric number), ringspun.

Add 5205.46.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than125 decitex but not less than 106.38decitex (exceeding 80 metric number butnot exceeding 94 metric number), otherthan ring spun.

Delete 5205.47.0000.

Add 5205.47.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than106.38 decitex but not less than 83.33decitex (exceeding 94 metric number butnot exceeding 120 metric number), ringspun.

Add 5205.47.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than106.38 decitex but not less than 83.33decitex (exceeding 94 metric number butnot exceeding 120 metric number), otherthan ring spun.

Delete 5205.48.0000.

Add 5205.48.0020—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than83.33 decitex (exceeding 120 metric num-ber), ring spun.

Add 5205.48.0090—Cotton Yarn, not sewingthread, containing 85 percent or more byweight of cotton, not put up for retail sale,multiple (folded) or cabled yarn, of combedfibers, measuring per single yarn less than83.33 decitex (exceeding 120 metric num-ber), other than ring spun.

Troy H. Cribb,Chairman, Committee for the Implementationof Textile Agreements.[FR Doc.97–20144 Filed 7-30-97; 8:45 am]

BILLING CODE 3510–DR–F

DEPARTMENT OF DEFENSE

Defense Logistics Agency

Privacy Act of 1974; ComputerMatching Program Between the Officeof Personnel Management and theDepartment of Defense

AGENCY: Defense Manpower DataCenter, Defense Logistics Agency,Department of DefenseACTION: Notice of a computer matchingprogram between the Office ofPersonnel Management (OPM) and theDepartment of Defense (DoD) for publiccomment.

SUMMARY: The DoD, as the matchingagency under the Privacy Act of 1974,as amended, (5 U.S.C. 552a), is herebygiving constructive notice in lieu ofdirect notice to the record subjects of acomputer matching program betweenOPM and DoD that their records arebeing matched by computer. The recordsubjects are civil service annuitants whoare reemployed in the Federalgovernment. By comparing the datareceived through this computermatching program on a recurring basis,OPM and DoD will be able to maketimely and accurate adjustments insalary and benefits. This program willprevent or correct overpayment, fraudand abuse, thus insuring proper benefitpayments.DATES: This proposed action willbecome effective September 2, 1997,and the computer matching willproceed accordingly without furthernotice, unless comments are receivedwhich would result in a contrarydetermination or if the Office ofManagement and Budget or Congressobjects thereto. Any public commentmust be received before the effectivedate.ADDRESSES: Any interested party maysubmit written comments to theDirector, Defense Privacy Office, CrystalMall 4, Room 920, 1941 Jefferson DavisHighway, Arlington, VA 22202–4502.Telephone (703) 607–2943.FOR FURTHER INFORMATION CONTACT: Mr.Aurelio Nepa, Jr., at (703) 607–2943.SUPPLEMENTARY INFORMATION: Pursuantto subsection (o) of the Privacy Act of1974, as amended, (5 U.S.C, 552a), DoDand OPM have concluded an agreementto conduct a computer matchingprogram between the agencies. Thepurpose of the match is to identify civilservice annuitants (including disabilityannuitants under age 60) who arereemployed by DoD. This match willinsure that (1) annuities of DoDreemployed annuitants are terminatedwhere applicable, and (2) salaries are


correctly offset where applicable. A costbenefit analysis, based on data collectedfrom prior matches, shows that OPMwill save approximately $222,500 over a12-month period by performing thismatch.

DoD does not expect to realize anymonetary savings from this matchingprogram, but does benefit by having amechanism to assist in correcting itscivilian personnel data bases. Computermatching appeared to be the mostefficient and effective manner toaccomplish this task with the leastamount of intrusion of personal privacyof the individuals concerned. It wastherefore concluded and agreed uponthat computer matching would be thebest and least obtrusive manner andchoice for accomplishing thisrequirement.

A copy of the computer matchingagreement between OPM and DoD isavailable upon request to the public.Requests should be submitted to theaddress above or to the Chief, QualityAssurance Division, Retirement andInsurance Group, Office of PersonnelManagement, Washington, DC 20415.

Set forth below is a notice of theestablishment of a computer matchingprogram required by paragraph 6.c. ofthe Office of Management and BudgetGuidelines on computer matchingpublished in the Federal Register at 54FR 25818 on June 19, 1989.

The matching agreement, as requiredby 5 U.S.C. 552a(r) of the Privacy Act,and an advance copy of this notice wassubmitted on July 10, 1997, to theCommittee on Government Reform andOversight of the House ofRepresentatives, the Committee onGovernmental Affairs of the Senate, andthe Administrator of the Office ofInformation and Regulatory Affairs,Office of Management and Budget,pursuant to paragraph 4b of AppendixI to OMB Circular No. A-130, ’FederalAgency Responsibilities for MaintainingRecords about Individuals,’ datedFebruary 8, 1996 (61 FR 6435, February20, 1996). The matching program issubject to review by OMB and Congressand shall not become effective until thatreview period has elapsed.


L. M. Bynum,Alternate OSD Federal Register LiaisonOfficer Department of Defense.

COMPUTER MATCHING PROGRAMBETWEEN THE OFFICE OFPERSONNEL MANAGEMENT AND THEDEPARTMENT OF DEFENSE ONREEMPLOYED ANNUITANTS

A. Participating Agencies:Participants in this computer matchingprogram are the Quality AssuranceDivision, Retirement and InsuranceGroup, Office of Personnel Management(OPM), Washington, DC 20415 and theDefense Manpower Data Center (DMDC)of the Department of Defense (DoD). TheOPM is the source agency, i.e., theagency disclosing the records for thepurpose of the match. The DMDC is thespecific recipient agency or matchingagency, i.e., the agency that actuallyperforms the computer matching.

B. Purpose of the Match: The purposeof the computer matching program is toidentify civil service annuitants(including disability annuitants underage 60) who are reemployed by DoD.This match will help insure that (1)annuities of DoD reemployed annuitantsare terminated where applicable and, (2)salaries are correctly offset whereapplicable.

C. Authority of the Match: Both OPMand DoD have responsibilities tomonitor and adjust retirement benefitsunder Title 5 U.S.C. Section 8331(CSRA), (especially 5 U.S.C. 8344) andTitle 5 U.S.C. Section 8401 (FERSA) etseq. (especially 5 U.S.C. 8468).

D. Records to be matched: The matchwill involve the OPM system of recordspublished as OPM Central-1, CivilService Retirement and InsuranceRecords, 60 FR 63081, December 8, 1995and the DoD system of records lastpublished as Defense Manpower DataCenter Data Base, S322.10 DMDC, 61 FR6355, February 20, 1996.

Appropriate routine uses have beenpublished by both agencies to permitdisclosures needed to conduct thismatch. They are respectively identifiedand accentuated in the attached recordsystem notices of the parties.

E. Description of Computer MatchingProgram: DMDC will match OPM datawith DoD employee data for the samedates to make an initial determination.DMDC will share the matchedinformation with appropriate DoDoffices. DoD will screen the initial dataappropriate to rule out matchedindividuals who are not valid matchesaccording to information available tothem at the time. DoD will take

appropriate adjustment action for eachmatched individual includingnotification to OPM of individualssuspected of receiving retirementbenefits to which they are not entitled.

Each individual identified asreceiving prohibited retirement benefitswill be notified of the match findingsand will be afforded due process byOPM and given the opportunity tocontest the findings and any actions thatmay ensue as a result of the match. Eachindividual identified as havingimproper salary will be notified by DoDand will be given an opportunity tocontest the findings.

DMDC will provide OPM with anannual report summarizing the resultsof the matches.

The OPM file will contain theinformation on approximately 1.5million CSRA and FERSA retirees. TheDoD file contains approximately 800thousand DoD civilian employeerecords.

The tape extract provided by OPMwill contain the names, addresses,social security numbers, payment andservice data of individuals receivingbenefits from OPM.

F. Inclusive Dates of the MatchingPrgram: This computer matchingprogram is subject to review by theOffice of Management and Budget andCongress. If no objections are raised byeither, and the mandatory 30 day publicnotice period for comment has expiredfor this Federal Register notice with nosignificant adverse public comments inreceipt resulting in a contrarydetermination, then this computermatching program becomes effectiveand the respective agencies may beginthe exchange of data 30 days after thedate of this published notice at amutually agreeable time and will berepeated on a quarterly basis. Under nocircumstances shall the matchingprogram be implemented before the 30day public notice period for commenthas elapsed as this time period cannotbe waived. By agreement between OPMand DoD, the matching program will bein effect and continue for 18 monthswith an option to renew for 12additional months unless one of theparties to the agreement advises theother by written request to terminate ormodify the agreement.

G. Address for Receipt of PublicComments or Inquiries: Director,Defense Privacy Office, Crystal Mall 4,Room 920, 1941 Jefferson DavisHighway, Arlington, VA 22202–4502.Telephone (703) 607–2943.[FR Doc. 97–19990 Filed 7–30–97; 8:45 am]BILLING CODE 5000–04–F


DEPARTMENT OF DEFENSE

Department of the Navy

Withdrawal of Surplus Land at MilitaryInstallations Designated forRealignment: Naval Air Station, KeyWest, Florida

SUMMARY: This Notice providesinformation on withdrawal of surplusproperty at the Naval Air Station, KeyWest, Florida.

SUPPLEMENTARY INFORMATION: In 1995,the Naval Air Station, Key West, Floridawas designated for realignmentpursuant to the Defense Base Closureand Realignment Act of 1990, PublicLaw 101–510, as amended. Pursuant tothis designation, in April of 1996,approximately 168.14 acres of land andrelated facilities at this installation weredeclared surplus to the federalgovernment and available for use by (a)non-federal public agencies pursuant tovarious statutes which authorizeconveyance of property for publicprojects, and (b) homeless providergroups pursuant to the Stewart B.McKinney Homeless Assistance Act (42U.S.C. 11411), as amended.Approximately 35 acres of landimproved with 10 buildings have beenrequested for transfer by other federalagencies and was not included withinthe 168.14 acres. On July 3, 1997, asecond determination was made towithdraw land and facilities previouslyreported as surplus that are nowrequired by the federal government.

Notice of Surplus Property

Pursuant to paragraph (7)(B) ofsection 2905(b) of the Defense BaseClosure and Realignment Act of l990, asamended by the Base ClosureCommunity Redevelopment andHomeless Assistance Act of 1994, thefollowing information regarding thewithdrawal of previously reportedsurplus property at the Naval AirStation, Key West, FL is published inthe Federal Register:

Description of Withdrawn Property

The following is a description of landand facilities at the Naval Air Station,Key West that are withdrawn fromsurplus by the federal government.

Land

Approximately 16 acres of improvedand unimproved fee simple land at theNaval Air Station, Key West, FL knownas the Trumbo Point Annex Tank Farm.

BuildingsThe following is a summary of the

facilities located on the above describedland. Electrical distribution substationsand the fuel farm maintenance facilityconsisting of 10 buildings.FOR FURTHER INFORMATION CONTACT: JohnJ. Kane, Director, Department of theNavy, Real Estate Operations, NavalFacilities Engineering Command, 200Stovall Street, Alexandria, VA 22332–2300, telephone (703) 428–0436, or E.R.Nelson, Jr., Director, Real EstateDivision, Southern Division, NavalFacilities Engineering Command, P.O.Box 190010, 2155 Eagle Drive, NorthCharleston, SC 29419–9010, telephone(803) 820–7494.

Dated: July 21, 1997.M.D. Sutton,LCDR, JAGC, USN, Federal Register LiaisonOfficer.[FR Doc. 97–20086 Filed 7–30–97; 8:45 am]BILLING CODE 3810–FF–P

DEPARTMENT OF EDUCATION

Recognition of Accrediting Agencies,State agencies for Approval of PublicPostsecondary Vocational Education

AGENCY: Department of Education.ACTION: Request for Comments onAgency applying to the Secretary forRenewal of Recognition.

FOR FURTHER INFORMATION CONTACT:Karen W. Kershenstein, Director,Accredition and EligibilityDetermination Division, U.S.Department of Education, 600Independence Avenue, SW., Room 3915ROB–3, Washington, DC 20202–5244,telephone: (202) 708–7417. Individualswho use a telecommunications devicefor the deaf (TDD) may call the FederalInformation Relay Service at 1–800–877–8339 between 8 a.m. and 7 p.m.,Eastern time, Monday through Friday.SUBMISSION OF THIRD-PARTY COMMENTS:The Secretary of Education recognizes,as reliable authorities as to the qualityof education offered by institutions orprograms within their scope, accreditingagencies and State approval agencies forpublic postsecondary vocationaleducation and nurse education thatmeet certain criteria for recognition. Anotice published in the Federal Registeron July 2, 1997 (Volume 62, page 35791)invited interested third parties topresent written comments on agenciesscheduled for review at the November1997 meeting of the National AdvisoryCommittee on Institutional Quality andIntegrity. The purpose of this notice isto correct the information provided in

the July 2, 1997 notice regarding therequest for an expansion of scopesubmitted by the Accrediting Bureau ofHealth Education Schools. The correctinformation is included a that end ofthis notice. This notice also extends thedeadline for interested third of scopefrom August 18, 1997 to September 2,1997. All other provisions of the July 2,1997 Federal Register notice remain ineffect.

Request for an Expansion of Scope

1. Accrediting Bureau of HealthEducation Schools (Current scope ofrecognition; the accreditation of private,postsecondary allied health educationinstitutions, private medical assistantprograms, public and private medicallaboratory technician programs, andallied health programs leading to theAssociate of Applied Science and theAssociate of Occupational Sciencedegree. Requested expansion of scope:the accredition of institutions offeringpredominantly allied health educationprograms. ‘‘Predominantly’’ is definedby the agency as follows: at least 70percent of the number of activeprograms offered are in the allied healtharea, and the number of studentsenrolled in those programs exceeds 50percent of the institution’s full-timeequivalent (FTE) students, or at least 70percent of the FTE students enrolled atthe institution are in allied healthprograms.)

Dated: July 28, 1997.David A. Longanecker,Assistant Secretary for PostsecondaryEducation.[FR Doc. 97–20200 Filed 7–30–97; 8:45 am]BILLING CODE 4000–01–M


Floodplain Statement of Findings forthe Southeast Drainage at the WeldonSpring Site

AGENCY: Office of EnvironmentalManagement, DOE.ACTION: Floodplain Statement ofFindings.

SUMMARY: This is a FloodplainStatement of Findings for the SoutheastDrainage at the Weldon Spring Site,prepared in accordance with 10 CFRpart 1022. The U.S. Department ofEnergy (DOE) proposes to removecontaminated sediment from theSoutheast Drainage, an intermittentstream located in St. Charles County,Missouri (Fig.1). The lower portion ofthe drainage occurs within the 100-yearfloodplain of the Missouri River. DOE


prepared a floodplain and wetlandsassessment describing the effects,alternatives, and measures designed toavoid or minimize potential harm to orwithin the affected floodplain. The DOEwill allow 15 days of public review afterpublication of the statement of findingsbefore implementing the proposedaction.FOR FURTHER INFORMATION CONTACT: Mr.Steve McCracken, U.S. Department ofEnergy, Weldon Spring Site RemedialAction Project, 7295 Highway 94 South,St. Charles, MO 63304, (314) 441–8978FOR FURTHER INFORMATION ON GENERALDOE FLOODPLAIN/WETLANDSENVIRONMENTAL REVIEW REQUIREMENTS,CONTACT: Carol M. Borgstrom, DirectorOffice of NEPA Policy and Assistance,EH–42, U.S. Department of Energy, 1000Independence Avenue, SW.,Washington, DC 20585, (202) 586–4600or (800) 472–2756.SUPPLEMENTARY INFORMATION: ThisFloodplain Statement of Findings forthe Southeast Drainage at the WeldonSpring Site was prepared in accordancewith 10 CFR Part 1022. A Notice ofFloodplain and Wetlands Involvementwas published in the Federal Registeron Wednesday, April 16, 1997, FR Doc.97–9805, and a floodplain and wetlandsassessment was prepared. DOE isproposing to remove contaminatedsediment from selected locations withinthe Southeast Drainage, an intermittenttributary of the Missouri River. Removalalternatives evaluated include:

• No Action.• Conventional excavation of

sediments at selected locations withinthe drainage using existing right-of-wayroutes.

• Conventional excavation ofsediments at all targeted locationswithin the drainage using new off-roadaccess and a haul route through thedrainage.

The proposed action would utilizeconventional excavation technologiesand existing disturbed areas for right-of-way routes. The objective of theproposed action is to reduce the levelsof contamination thereby reducinghealth risk. The 100-year floodplain ofthe Missouri River extends into theSoutheast Drainage approximately 1,200feet. The action is proposed to belocated in the floodplain because thecontaminated sediment to be removedoccurs in scattered locations throughoutthe Southeast Drainage, including thatportion which lies within the MissouriRiver 100-year floodplain. There are nopracticable alternatives to locating theaction in the floodplain.

The proposed action would conformto applicable federal, state, and localfloodplain protection standards. Goodengineering practices would beemployed to control sedimentation anderosion to downstream surface watersand adjacent floodplain areas. Waterquality within the channel would beprotected during excavation to theextent practicable by several measures.

Administrative controls would be usedto stop work during major storm events.When excavations would remainexposed overnight, erosion controlswould be installed to minimize thetransport of silt downstream bystormwater flows. Additionally, siltdams will be constructed within thedrainage in areas where the existingright-of-way route deviates significantlyfrom the defined channel. Restoration ofexcavated areas within the drainagewould include grading to avoid steep orvertical slopes, and to minimizeponding and backfilling. Areas ofexposed soil outside the stream channelwould be mulched and reseeded withan annual grass to minimize erosion andallow the natural seedbank toreestablish vegetative cover. Impacts tothe floodplain would be minimized bythe avoidance (to the extent practicable)of adjacent floodplain areas. No long-term impacts are anticipated to the 100-year floodplain of the Missouri River.The proposed removal action would notimpact floodplain storage capacity. Nopermanent structures would beconstructed as part of the proposedaction.

DOE will allow 15 days of publicreview after publication of the statementof findings prior to implementing theproposed action.James L. Elmore,

Alternate NEPA Compliance Officer.



[FR Doc. 97–20213 Filed 7–30–97; 8:45 am]BILLING CODE 6450–01–C



Office of Industrial Technologies (OIT);Notice of Solicitation for the ChemicalIndustry Initiative

AGENCY: (DOE).ACTION: Notice of SolicitationAvailability.

SUMMARY: The Department of Energy(DOE) Office of Industrial Technologies(OIT) announces its interest in receivingapplications for innovative research anddevelopment (R&D) to improve energyefficiency, and minimize the generationof wastes that supports the goals ofTechnical Vision 2020: The ChemicalIndustry. DOE and the chemicalindustry have entered into anmemorandum of understanding toidentify appropriate areas of jointresearch. The areas for collaborativeresearch contemplated by thissolicitation are catalysis, bioprocesses,and separation technologies.DATES AND ADDRESSES: The completesolicitation document will be availableon or about July 30, 1997 on the internetby accessing either the OIT grantprogram home page at (http://www.oit.doe.gov/ or the DOE ChicagoOperations Office Acquisition andAssistance Group home page at (http://www.ch.doe.gov/business/ACQ.htm)under the heading ‘‘Current AcquisitionActivities’’ Solicitation No. DE–SC02–97CH10885. Preapplications referencingDE–SC02–97CH10885 are due no laterthan 3:00 p.m. Central Daylight Time(CDT), 45 days after the issuance of thesolicitation, and full applications aredue no later than 3:00 p.m. (CDT),January 5, 1998. Awards are anticipatedby February 25, 1998.SUPPLEMENTARY INFORMATION:Completed applications referencingSolicitation Notice DE–SC02–97CH10885 must be submitted to: U.S.Department of Energy, ChicagoOperations Office, Attn.: EarletteRobinson, Bldg. 201, Rm. 3E–10, 9800South Cass Avenue, Argonne, IL 60439–4899.

DOE’s Office of IndustrialTechnologies supports industry effortsto increase energy efficiency, reducewaste, and increase productivity. OIT’sgoal is to accelerate research,development, demonstration andcommercialization of energy efficient,renewable and pollution-preventiontechnologies benefiting industry, theenvironment, and U.S. energy security.

The key objectives of this solicitationand the resulting projects areimprovements of the competitiveposition of, and employmentopportunities in, the U.S. chemical

industry. These objectives are intendedto be achieved through several avenues,such as the development of improvedtechnologies and better application ofexisting technologies. As a result of thissolicitation, DOE expects to award six(6) to twenty (20) cooperativeagreements with an anticipated $4million in total funding for FY 98. DOEwill consider projects ranging from one(1) to five (5) years.

The solicitation invites applicationsfrom any non-profit or for-profitorganization, university or otherinstitution of higher education or non-federal agency or entity. Nationallaboratories are not eligible for awardsas prime recipients. A minimum cost-sharing commitment of 30 percent of thetotal cost of the project will be requiredfrom chemical industry sources for R&Dprojects. For demonstration projects, theminimum cost-sharing commitment is50% of the total cost of the project.FOR FURTHER INFORMATION CONTACT:Earlette Robinson at (630) 252–2667,U.S. Department of Energy, 9800 SouthCass Avenue, Argonne, IL 60439–4899;by fax at (630) 252–5045; or by e-mailat [email protected].

Issued in Chicago, Illinois on July 24, 1997.John D. Greenwood,Acquisition and Assistance Group Manager.[FR Doc. 97–20212 Filed 7–30–97; 8:45 am]BILLING CODE 6450–01–P


Notice of Solicitation for FinancialAssistance Applications; Develop aRegional Market Transformation Guidefor Energy Efficiency

AGENCY: The Department of Energy(DOE)ACTION: Notice of Solicitation forFinancial Assistance Applications,Number DE–PS45–97R530361.

SUMMARY: The U. S. Department ofEnergy (DOE), Chicago RegionalSupport Office (CRSO), announces itsintention to issue a competitivesolicitation for applications for financialassistance to (1) Develop a RegionalMarket Transformation Guide for EnergyEfficiency and (2) Conduct a workshopfor governmental agencies and privateorganizations in the region to discussmarket transformation opportunitieswithin the region.

Availability of Funding in FY 1997With this publication, the Chicago

Regional Support Office is announcingthe availability of up to $60,000 for thisproject during fiscal year 1997, whichrepresents the first of what could be a

several stage project to exploredevelopment of new market institutionsin a restructured environment.Subsequent phases of this project, ifany, will be separately awarded. Theaward will be made through acompetitive process. The ChicagoRegional Support Office intends to makeonly one award. DOE reserves the rightto fund none of the applications.

Availability of the Solicitation

DOE expects to issue the solicitationon August 1, 1997. Requests for thesolicitation must be in writing anddirected to Lynda Keammerlen.Facsimiles and electronic mail areacceptable and can be transmitted to(312) 886–8561 [email protected] August 1, 1997, solicitationsmay also be obtained through theGolden Field Office Home Page at http://www.eren.doe.gov/golden/solicit.htm,followed, within ten days, by writtennotification of receipt to LyndaKeammerlen.

Issued in Golden, CO.Dated: July 17, 1997.

John W. Meeker,Chief, Procurement, GO.[FR Doc. 97–20210 Filed 7–30–97; 8:45 am]BILLING CODE 6450–01–P


Office of Energy Efficiency andRenewable Energy

[Case No. DH–012]

Energy Conservation Program forConsumer Products: Decision andOrder Granting a Waiver From theVented Home Heating Equipment TestProcedure to HEAT–N–GLO FireplaceProducts, Inc.

AGENCY: Office of Energy Efficiency andRenewable Energy, Department ofEnergy.ACTION: Decision and Order.

SUMMARY: Notice is given of theDecision and Order (Case No. DH–012)granting a Waiver to HEAT–N–GLOFireplace Products, Inc. (HEAT–N–GLO), from the existing Department ofEnergy (DOE or Department) testprocedure for vented home heatingequipment. The Department is grantingHEAT–N–GLO’s Petition for Waiverregarding the use of pilot light energyconsumption in calculating the AnnualFuel Utilization Efficiency (AFUE) forits models BAYFYRE–TRS and6000XLT vented heaters.


FOR FURTHER INFORMATION CONTACT:Bill Hui, U.S. Department of Energy,

Office of Energy Efficiency andRenewable Energy, Mail Station: EE–43, Forrestal Building, 1000Independence Avenue, SW.,Washington, DC 20585–0121,Telephone: (202) 586–9145,Facsimile: (202) 586–4617, E-mail:[email protected]

orEugene Margolis, Esquire, U.S.

Department of Energy, Office ofGeneral Counsel, Mail Station: GC–72,Forrestal Building, 1000Independence Avenue, SW.,Washington, DC 20585–0103,Telephone: (202) 586–9507,Facsimile: (202) 586–4116, E-mail:[email protected].

SUPPLEMENTARY INFORMATION: Inaccordance with Title 10 CFR 430.27(j),notice is hereby given of the issuance ofthe Decision and Order as set out below.In the Decision and Order, HEAT–N–GLO has been granted a Waiver for itsmodels BAYFYRE–TRS and 6000XLTvented heaters, permitting the companyto use an alternate test method indetermining AFUE.

Issued in Washington, DC, on July 25,1997.Joseph J. Romm,Acting Assistant Secretary, Energy Efficiencyand Renewable Energy.

BackgroundThe Energy Conservation Program for

Consumer Products (other thanautomobiles) was established pursuantto the Energy Policy and ConservationAct, Public Law 94–163, 89 Stat. 917, asamended (EPCA), which requires theDepartment to prescribe standardizedtest procedures to measure the energyconsumption of certain consumerproducts, including vented homeheating equipment. The intent of thetest procedures is to provide acomparable measure of energyconsumption that will assist consumersin making purchasing decisions, andwill determine whether a productcomplies with the applicable energyconservation standard. These testprocedures appear at Title 10 CFR Part430, Subpart B.

The Department amended theprescribed test procedures by addingTitle 10 CFR 430.27 to create a waiverprocess, 45 FR 64108 (September 26,1980). Thereafter, the Departmentfurther amended its appliance testprocedure waiver process to allow theAssistant Secretary for Energy Efficiencyand Renewable Energy (AssistantSecretary) to grant an Interim Waiverfrom test procedure requirements to

manufacturers that have petitioned theDepartment for a waiver of suchprescribed test procedures, 51 FR 42823(November 26, 1986).

The waiver process allows theAssistant Secretary to waive temporarilytest procedures for a particular basicmodel when a petitioner shows that thebasic model contains one or moredesign characteristics which preventtesting according to the prescribed testprocedures or when the prescribed testprocedures may evaluate the basicmodel in a manner so unrepresentativeof its true energy consumption as toprovide materially inaccuratecomparative data. Waivers generallyremain in effect until final testprocedure amendments becomeeffective, resolving the problem that isthe subject of the waiver.

HEAT–N–GLO Fireplace Products,Inc. (HEAT–N–GLO), filed a ‘‘Petitionfor Waiver,’’ dated April 10, 1997, inaccordance with section 430.27 of Title10 CFR Part 430. The Departmentpublished in the Federal Register onMay 21, 1997, HEAT–N–GLO’s Petitionand solicited comments, data, andinformation respecting the Petition, 62FR 27727 (May 21, 1997). HEAT–N–GLO also filed an ‘‘Application forInterim Waiver’’ under section430.27(b)(2), which the Departmentgranted on May 14, 1997, 62 FR 27727(May 21, 1997).

No comments were receivedconcerning either the ‘‘Petition forWaiver’’ or the ‘‘Interim Waiver.’’ TheDepartment consulted with the FederalTrade Commission (FTC) concerningHEAT–N–GLO’s Petition. The FTC doesnot have any objections to the issuanceof the waiver to HEAT–N–GLO.

On February 28, 1997, the Departmentissued the Final Rule on test proceduresfor furnaces/boilers, vented homeheating equipment, and pool heaters. 62FR 26140, (May 12, 1997). This FinalRule incorporates test procedurewaivers granted to differentmanufacturers regarding the use of pilotlight energy consumption in calculatingthe Annual Fuel Utilization Efficiency(AFUE). This Waiver granted to HEAT-N-GLO expires on November 10, 1997,the date when the final test procedurerule becomes effective, resolving theissue necessitating this Waiver.

Assertions and DeterminationsHEAT-N-GLO’s Petition seeks a

waiver from the Department’s testprovisions regarding the use of pilotlight energy consumption in calculatingthe AFUE. The Department’s testprovisions in section 3.5 of Title 10 CFRPart 430, Subpart B, Appendix O,require measurement of energy input

rate to the pilot light (Qp) with an errorno greater than 3 percent for ventedheaters, and use of this data in section4.2.6 for the calculation of AFUE usingthe formula: AFUE = [4400ηssηuQin-max]/[4400ηssQin-max + 2.5(4600)ηuQp]. HEAT–N–GLO requests that it be allowed todelete Qp and accordingly, the[2.5(4600)ηuQp] term in the calculationof AFUE. HEAT-N-GLO states that itsmodels BAYFYRE-TRS and 6000XLTvented heaters are designed with atransient pilot which is to be turned offby the user when the heater is not inuse.

The control knob on the combinationgas control in these heaters has threepositions: ‘‘OFF,’’ ‘‘PILOT,’’ and ‘‘ON.’’Gas flow to the pilot is obtained byrotating the control knob from ‘‘OFF’’ to‘‘PILOT,’’ depressing the knob, holdingin, pressing the piezo igniter. When thepilot heats a thermocouple element,sufficient voltage is supplied to thecombination gas control for the pilot toremain lit when the knob is releasedand turned to the ‘‘ON’’ position. Themain burner can then be ignited bymoving an ON/OFF switch to the ‘‘ON’’position. Instructions to users to turnthe gas control knob to the ‘‘OFF’’position when the heater is not in use,which automatically turns off the pilot,are provided in the User’s InstructionManual and on a label adjacent to thegas control valve. If the manufacturer’sinstructions are observed by the user,the pilot light will not be left on. Sincethe current Departmental test proceduredoes not address this issue, and sinceothers have received the same waiverunder the same circumstances, HEAT-N-GLO asks that the Waiver be granted.

Previous Petitions for Waiver underthe same circumstances have beengranted by the Department toAppalachian Stove and Fabricators, Inc.,56 FR 51711 (October 15, 1991); ValorInc., 56 FR 51714 (October 15, 1991);CFM International Inc., 61 FR 17287(April 19, 1996); Vermont Castings, Inc.,61 FR 17290 (April 19, 1996); SuperiorFireplace Company, 61 FR 17885 (April23, 1996); Vermont Castings, Inc., 61 FR57857 (November 8, 1996); EAT-N-GLOFireplace Products, Inc., 61 FR 64519(December 5, 1996); CFM Majestic Inc.,62 FR 10547 (March 7, 1997); HunterEnergy and Technology Inc., 62 FR14408 (March 26, 1997); Wolf Steel Ltd.,62 FR 14409 (March 26, 1997); andFireplace Manufacturers Incorporated,62 FR 34443 (June 26, 1997).

Based on the Department’s review ofhow HEAT-N-GLO’s models BAYFYRE-TRS and 6000XLT vented heatersoperate and the fact that if themanufacturer’s instructions arefollowed, the pilot light will not be left


1 Pending rehearing, the May 6th Order requiresAlgonquin LNG to state its rates in several parts.

2 Algonquin LNG has filed, and the Commissionhas acted upon, tariff sheets in compliance withGISB for its ongoing operations in Docket No.RP97–90, et al., see letter order of July 3, 1997.

on, the Department grants HEAT-N-GLOits Petition for Waiver to exclude thepilot light energy input in thecalculation of AFUE.

This decision is subject to thecondition that the heaters shall have aneasily read label near the gas controlknob instructing the user to turn thevalve to the off-position when theheaters are not in use.

It is, therefore, ordered that:(1) The ‘‘Petition for Waiver’’ filed by

HEAT-N-GLO Fireplace Products, Inc.(Case No. DH–012), is hereby granted asset forth in paragraph (2) below, subjectto the provisions of paragraphs (3), (4),and (5).

(2) Notwithstanding any contraryprovisions of Appendix O of Title 10CFR Part 430, Subpart B, HEAT-N-GLOFireplace Products, Inc., shall bepermitted to test its models BAYFYRE-TRS and 6000XLT vented heaters on thebasis of the test procedure specified inTitle 10 CFR Part 430, withmodifications set forth below:

(i) Delete paragraph 3.5 of AppendixO.

(ii) Delete paragraph 4.2.6 ofAppendix O and replace with thefollowing paragraph:

4.2.6 Annual Fuel UtilizationEfficiency. For manually controlledvented heaters, calculate the AnnualFuel Utilization Efficiency (AFUE) as apercent and defined as:AFUE = §u

where §u is defined in section 4.2.5 ofthis appendix.

(iii) With the exception of themodification set forth above, HEAT-N-GLO Fireplace Products, Inc., shallcomply in all respects with the testprocedures specified in Appendix O ofTitle 10 CFR Part 430, Subpart B.

(3) The Waiver shall remain in effectfrom the date of issuance of this Orderuntil November 10, 1997, the date whenthe Department’s final test procedureappropriate to models BAYFYRE-TRSand 6000XLT vented heatersmanufactured by HEAT-N-GLOFireplace Products, Inc., becomeseffective.

(4) This Waiver is based upon thepresumed validity of statements,allegations, and documentary materialssubmitted by the petitioner. This Waivermay be revoked or modified at any timeupon a determination that a factualbasis underlying the Petition isincorrect.

(5) Effective July 25, 1997, this Waiversupersedes the Interim Waiver grantedHEAT-N-GLO Fireplace Products, Inc.,on May 14, 1997, 62 FR 27727 (May 21,1997). (Case No. DH–012).

Issued in Washington, DC, on July 25,1997.Joseph J. Romm,Acting Assistant Secretary, Energy Efficiencyand Renewable Energy.[FR Doc. 97–20211 Filed 7–30–97; 8:45 am]BILLING CODE 6450–01–P



[Docket No. CP96–517–002]

Algonquin LNG, Inc.; Notice ofCompliance Filings

July 25, 1997.Take notice that Algonquin LNG, Inc.

(Algonquin LNG), 1284 Soldiers FieldRoad, Boston, Massachusetts, 02135,filed three non-environmentalcompliance filings in Docket No. CP96–517–002, (see items filed June 4, 1997,July 8, 1997, and July 11, 1997). Thesefilings are related to its certificate ofpublic convenience and necessity underSection 7(c) of the Natural Gas Act(NGA) and its abandonment authorityfor services and facilities under Section7(b) of the NGA granted by theCommission’s Order of May 6, 1997 (79FERC 61,139). Algonquin LNG hascertificate (and abandonment)authorization for new services, and new,modified (and retired) facilities, suchthat it will have the enhanced flexibilityto receive from its customers natural gasto be liquefied and stored as liquefiednatural gas (LNG), and to withdraw anddeliver, as requested by its customer(s),such natural gas in liquid or gaseousform (LNG enhancement project). TheCommission’s May 6th Order requiredcertain non-environmental compliancefilings to be made within 60 days of thedate of the order.

On June 4, 1997, Algonquin LNG filedin Docket No. CP96–517–002, a letterwith the Commission explaining itsaccounting treatment for servicesrendered under the Allens AvenueOperational Coordinational Agreement(Allens Avenue Agreement). AlgonquinLNG said that no accounting entriesrelated to such services were neededbecause no revenues would be receivedand no variable costs would be incurredas a result of the Allens AvenueAgreement.

On July 8, 1997, Algonquin LNG filedin Docket No. CP96–517–002, certainrevised pro forma tariff sheets for itsSecond Revised Volume No. 1 (whichwill go into effect when the LNGenhancement project goes into service),revised certificate application ExhibitsN, O, and P, and revised pro forma

service agreements for the LNGenhancement project. Algonquin LNGsaid that pending rehearing, it has statedits pro forma LNG service rates for theLNG enhancement project in one part.1The revised pro forma tariff sheets arealso intended to be in compliance withOrder No. 587 (Standards for BusinessPractices of Interstate Natural GasPipelines (GISB)) for the LNGenhancement project.2 Further,Algonquin LNG seeks waiver of theGISB standard No. 1.3.10 relating tonominations, and waiver of GISBstandards related to electronic bulletinboards.

On July 11, 1997, Algonquin LNGfiled in Docket No. CP96–517–002, arevised abandonment applicationExhibit Y, relating to the accountingtreatment of abandoned equipment,structures and improvements, propertyto be removed and salvaged, and relateddeferred income tax accountingadjustments.

Any person desiring to be heard or tomake any protest with reference to thesethree compliance filings should on orbefore August 15, 1997, file with theFederal Energy Regulatory Commission,Washington, DC 20426, a motion tointervene or a protest in accordancewith the requirements of theCommission’s Rules of Practice andProcedure (18 CFR 385.214 or 385.211)and the Regulations under the NGA (18CFR 157.20). All protests filed with theCommission will be considered by it indetermining the appropriate action to betaken but will not serve to make theprotestants parties to the proceeding.Any person wishing to become a partyto the proceeding or to participate as aparty in any hearing therein must file amotion to intervene in accordance withthe Commission’s Rules. Any partywhich previously filed a motion tointervene in Docket No. CP96–517–000need not file such motion again, butmerely protest or comment upon thethree compliance filings.

Take further notice that, pursuant tothe authority contained in and subject tothe jurisdiction conferred upon theCommission by Sections 7 and 15 of theNGA and the Commission’s Rules ofPractice and Procedure, a hearing willbe held without further notice before theCommission or its designee on thesethree filings, or if the Commission on itsown motion believes that a formalhearing is required, further notice ofsuch hearing will be duly given. Under


the procedure herein provided for,unless otherwise advised, it will beunnecessary for Algonquin LNG toappear or be represented at the hearing.Lois D. Cashell,Secretary.[FR Doc. 97–20118 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–2414–000]

Lowell Congeneration CompanyLimited Partnership; Notice ofIssuance of Order

July 28, 1997.Lowell Cogeneration Company

Limited Partnership (Lowell) filed anapplication seeking Commissionauthorization to engage in the wholesalesale of electric energy and capacity atmarket-based rates, and for certainwaivers and authorizations. Inparticular, Lowell requested that theCommission grant blanket approvalunder 18 CFR Part 34 of all futureissuances of securities and assumptionsof liabilities by Lowell. On July 17,1997, the Commission issued an OrderAccepting For Filing Proposed Market-Based Rates (Order), in the above-docketed proceeding.

The Commission’s July 17, 1997Order granted the request for blanketapproval under Part 34, subject to theconditions found in OrderingParagraphs (D), (E), and (G):

(D) Within 30 days of the date ofissuance of this order, any persondesiring to be heard or to protest theCommission’s blanket approval ofissuances of securities or assumptions ofliabilities by Lowell should file amotion to intervene or protest with theFederal Energy Regulatory Commission,888 First Street, NE., Washington, DC20426, in accordance with Rules 211and 214 of the Commission’s Rules ofPractice and Procedure, 18 CFR 385.211and 385.214.

(E) Absent a request to be heardwithin the period set forth in OrderingParagraph (D) above, Lowell is herebyauthorized, pursuant to section 204 ofthe FPA, to issue securities and assumeobligations or liabilities as guarantor,endorser, surety, or otherwise in respectof any security of another person;provided that such issue or assumptionis for some lawful object within thecorporate purposes of Lowell,compatible with the public interest, andreasonably necessary or appropriate forsuch purpose.

(G) The Commission reserves the rightto modify this order to require a furthershowing that neither public nor privateinterests will be adversely affected bycontinued Commission approval ofLowell’s issuances of securities orassumptions of liabilities.* * *

Notice is hereby given that thedeadline for filing motions to interveneor protests, as set forth above, is August18, 1997.

Copies of the full text of the Order areavailable from the Commission’s PublicReference Branch, 888 First Street, NE.,Washington, DC 20426.Lois D. Cashell,Secretary.[FR Doc. 97–20145 Filed 7–30–97; 8:45 am]




[Docket No. RP97–73–007]

Mississippi River TransmissionCorporation; Notice of ProposedChanges in FERC Gas Tariff

July 25, 1997.

Take notice that on July 22, 1997,Mississippi River TransmissionCorporation (MRT) tendered for filing aspart of its FERC Gas Tariff, ThirdRevised Volume No. 1, the tariff sheetlisted below to be effective May 1, 1997.

Substitute First Revised Sheet No. 126.

MRT states that this tariff sheet isfiled to correct First Revised Sheet No.126 which due to an oversight, did notinclude Section 8.3(a) on the final tariffcopy. This section was included on thered-lined copy but was inadvertentlyleft off the final tariff sheet which wasfiled on October 31, 1996 in compliancewith Order No. 587.

Any person desiring to protest thisfiling should file a protest with theFederal Energy Regulatory Commission,888 First Street, NE., Washington, DC20426, in accordance with 18 CFR385.211 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 public

inspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–20125 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M




Nautilus Pipeline Company, LLC;Notice of Proposed Changes in FERCGas Tariff

July 25, 1997.

Take notice that on July 23, 1997,Nautilus Pipeline Company, LLC(Nautilus) tendered for filing as part ofits FERC Gas Tariff, Original VolumeNo. 1, the tariff sheets listed inAppendix A to the filing, to becomeeffective October 1, 1997.

Nautilus states that the purpose ofthis filing is to comply with order Nos.582 & 582–A, issued September 28,1995 in Docket No. RM95–3, in whichthe Commission revised, reorganizedand updated its regulations governingthe form composition, and filing of ratesand tariffs for interstate pipelinecompanies. Specifically Nautilusindicates the tendered tariff sheetsrevise its tariff to:

(1) Expand the table of contents toinclude the sections of the general termsand conditions in accordance withSection 154.104;

(2) Add a statement to Nautilus’general terms and conditions forperiodic reports in accordance withSection 154.502; and

(3) Change the rates to reflect athermal unit in accordance with Section154.107(b).

Any person desiring to be heard or toprotest this filing should file a motionto intervene or protest with the FederalEnergy Regulatory Commission, 888First Street, NE., Washington DC 20426,in accordance with 18 CFR 385.211 and385.214 of the Commission’s Rules andRegulations. All such motions andprotests must be filed in accordancewith 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 public


inspection in the Public ReferenceRoom.Lois D. Cashell,Secretary.[FR Doc. 97–20127 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M




Paiute Pipeline Company; Notice ofProposed Changes in FERC Gas Tariff

July 25, 1997.Take notice that on July 22, 1997,

Paiute Pipeline Company (Paiute)tendered for filing to become part of itsFERC Gas Tariff, Second RevisedVolume No. 1–A, Sixth Revised SheetNo. 10. Paiute requests that the tenderedtariff sheet be accepted for filing tobecome effective August 1, 1997.

Paiute states that the purpose of itsfiling is to place into effect an interimannual rate reduction of $3,423,656while the Commission considers asettlement offer filed by Paiute on July1, 1997 in this general rate proceeding.Paiute indicates that as a result of itsoriginal rate change filing in thisproceeding, Paiute is presentlycollecting motion rates, subject torefund, pending the outcome of ahearing. Paiute states, however, that itssettlement offer would resolve all issuesin this proceeding, and that it believesthat the settlement offer is uncontested.Paiute proposes in the instant filing toreduce its rates to the settlement ratelevels, on an interim basis, pending theCommission’s decision on thesettlement offer.

In the event that the settlement offeris not approved or made effectivepursuant to its terms, Paiute requeststhe right to terminate the interim ratereduction on thirty days’ notice andresume collection of its motion ratesduring the pendency of this proceeding.Paiute states that it will not seekpermission to recover from itscustomers the difference between themotion rats and the interim reducedrates for the period that the interimreduced rates are in effect.

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 considered

by 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. 97–20124 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–2875–000]

Penobscot Bay Energy Company,L.L.C.; Notice of Issuance of Order

July 28, 1997.Penobscot Bay Energy Company,

L.L.C. (PBEC) submitted for filing a rateschedule under which PBEC will engagein wholesale electric power and energytransactions as a marketer. PBEC alsorequested waiver of various Commissionregulations. In particular, PBECrequested that the Commission grantblanket approval under 18 CFR Part 34of all future issuances of securities andassumptions of liability by PBEC.

On July 21, 1997, pursuant todelegated authority, the Director,Division of Applications, Office ofElectric Power Regulation, grantedrequests for blanket approval under Part34, subject to the following:

Within thirty days of the date of theorder, any person desiring to be heardor to protest the blanket approval ofissuances of securities or assumptions ofliability by PBEC should file a motionto intervene protest with the FederalEnergy Regulatory Commission, 888First Street, NE., Washington, DC 20426,in accordance with Rules 211 and 214of the Commission’s Rules of Practiceand Procedure (18 CFR 385.211 and385.214).

Absent a request for hearing withinthis period, PBEC is authorized to issuesecurities and assume obligations orliabilities as a guarantor, endorser,surety, or otherwise in respect of anysecurity of another person; providedthat such issuance or assumption is forsome lawful object within the corporatepurposes of the applicant, andcompatible with the public interest, andis reasonably necessary or appropriatefor such purposes.

The Commission reserves the right torequire a further showing that neitherpublic nor private interests will beadversely affected by continued

approval of PBEC’s issuances ofsecurities or assumptions of liability.

Notice is hereby given that thedeadline for filing motions, to interveneor protests, as set forth above, is August20, 1997. Copies of the full text of theorder are available from theCommission’s Public Reference Branch,888 First Street, NE. Washington, DC20426.Lois D. Cashell,Secretary.[FR Doc. 97–20147 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. CP97–655–000]

Texas Gas Transmission Corporation;Notice of Request Under BlanketAuthority


Texas Gas Transmission Corporation(Texas Gas), 3800 Frederica Street,Owensboro, Kentucky 42301, filed inDocket No. CP97–614–000 a requestpursuant to Sections 157.205 and157.211 of the Commission’sRegulations under the Natural Gas Act(18 CFR 157.205, 157.211) forauthorization to add an interconnectwith Badger Oil Company (Badger),located in Terrebonne Parish, Louisiana,under Texas Gas’ certificate issued inDocket No. CP82–407–000, pursuant toSection 7(c) of the Natural Gas Act, allas more fully set forth in the request thatis on file with the Commission and opento public inspection.

Texas Gas proposes to modify anexisting receipt point, which consists ofa dual 2-inch meter run and electronicmeasurement equipment, to providebidirectional measurement capability inorder to provide gas lift servicerequested by Badger. Texas Gas statesthis existing point is located on theirBay Junop-Bay Round 8-Inch Line, atPass Wilson platform, Ship Shoal Block41, Offshore Louisiana.

Texas Gas states that Badger willreimburse them in full for the cost of thefacilities to be installed by Texas Gas,which cost is estimated to be $11,000.

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) a


protest 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. 97–20119 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–3665–000]

Union Electric Company; Notice ofFiling


Union Electric Company (UE) filed withthe Federal Energy RegulatoryCommission an application for authorityto charge market based rates and forcertain waivers and authorizations. UErequested waiver of notice to permit itsproposed rate schedule to becomeeffective on July 9, 1997, one day afterthe date of filing.[FR Doc. 97–20121 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–3663–000]

Union Electric DevelopmentCorporation; Notice of Filing


Union Electric DevelopmentCorporation (UEDC) filed with theFederal Energy Regulatory Commissionan application for authority to chargemarket based rates and for certainwaivers and authorizations. UEDCrequested waiver of notice to permit itsproposed rate schedule to becomeeffective on July 9, 1997, one day afterthe date of filing.

Any person desiring to be heard or toprotect 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 and 214of the Commission’s Rules of Practice

and Procedure (18 CFR 385.211 and 18CFR 385.214). All such motions orprotests should be filed on or beforeAugust 6, 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. 97–20120 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–3306–000]

UTIL Power Marketing, Inc.; Notice ofIssuance of Order

July 28, 1997.UTIL Power Marketing, Inc. (UTIL)

submitted for filing a rate scheduleunder which UTIL will engage inwholesale electric power and energytransactions as a marketer. UTIL alsorequested waiver of various Commissionregulations. In particular, UTILrequested that the Commission grantblanket approval under 18 CFR Part 34of all future issuances of securities andassumptions of liability by UTIL.

On July 22, 1997, pursuant todelegated authority, the Director,Division of Applications, Office ofElectric Power Regulation, grantedrequests for blanket approval under Part34, subject to the following:

Within thirty days of the date of theorder, any person desiring to be heardor to protest the blanket approval ofissuances of securities or assumptions ofliability by UTIL should file a motion tointervene or protest with the FederalEnergy Regulatory Commission, 888First Street NE., Washington, DC 20426,in accordance with Rules 211 and 214of the Commission’s Rules of Practiceand Procedure (18 CFR 385.211 and385.214).

Absent a request for hearing withinthis period, UTIL is authorized to issuesecurities and assume obligations orliabilities as a guarantor, endorser,surety, or otherwise in respect of anysecurity of another person; providedthat such issuance or assumption is forsome lawful object within the corporatepurposes of the applicant, andcompatible with the public interest, and

is reasonably necessary or appropriatefor such purposes.

The Commission reserves the right torequire a further showing that neitherpublic nor private interests will beadversely affected by continuedapproval of UTIL’s issuances ofsecurities or assumptions of liability.

Notice is hereby given that thedeadline for filing motions to interveneor protests, as set forth above, is August21, 1997. Copies of the full text of theorder are available from theCommission’s Public Reference Branch,888 First Street NE, Washington, DC20426.Lois D. Cashell,Secretary.[FR Doc. 97–20148 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M




Williams Natural Gas Company; Noticeof Proposed Changes in FERC GasTariff


Williams Natural Gas Company (WNG)tendered for filing as part of its FERCGas Tariff, Second Revised Volume No.1, First Revised Sheet No. 452, tobecome effective August 20, 1997.

WNG states that the purpose for theinstant filing is to amend Exhibit A tothe Form of Storage Service AgreementUnder Rate Schedule FSS. Serviceunder Rate Schedule FSS is available toparties who have an effective ITS, FTS,or SFT Service Agreement. When WNGfiled its Form of Service Agreement forFSS, it inadvertently omitted fromExhibit A the line for referencing theassociated transportation agreement(s).WNG is making this filing to correct thisomission.

WNG states that a copy of its filingwas served on all jurisdictionalcustomers and interested statecommissions.

Any person desiring to be heard or toprotest this filing should file a motionto intervene or a protest with theFederal Energy Regulatory Commission,888 First Street, NE., Washington, DC20426, in accordance with §§ 385.214and 385.211 of the Commission’s Rulesand Regulations. All such motions orprotests must be filed as provided insection 154.210 of the Commission’sRegulations. Protests will be consideredby the Commission in determining theappropriate action to be taken, but will


not serve to make protestants parties tothe proceedings. Any person wishing tobecome a party must file a motion tointervene. Copies of this filing are onfile with the Commission and areavailable for public inspection in thePublic Reference Room.Lois D. Cashell,Secretary.[FR Doc. 97–20126 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. ER97–2532–000 and ER97–2904–000]

Zond Development Corporation andZond Minnesota DevelopmentCorporation II; Notice of Issuance ofOrder

July 28, 1997.Zond Development Corporation

(Zond) and Zond MinnesotaDevelopment Corporation II (ZondMinnesota) are subsidiaries of EnronCorporation and are now affiliated withPortland General Electric Company.Zond and Zond Minnesota have filedapplications requesting that theCommission authorize them to engagein wholesale power sales at market-based rates, and for certain waivers andauthorizations. In particular, Zond andZond Minnesota requested that theCommission grant blanket approvalunder 18 CFR Part 34 of all futureissuances of securities and assumptionsof liabilities by Zond and ZondMinnesota. On July 17, 1997, theCommission issued an OrderConditionally Accepting For FilingProposed Market-Based Rates (Order), inthe above-docketed proceedings.

The Commission’s July 17, 1997Order granted the request for blanketapproval under Part 34, subject to theconditions found in OrderingParagraphs (F), (G), and (I):

(F) Within 30 days of the date ofissuance of this order, any persondesiring to be heard or to protest theCommission’s blanket approval ofissuances of securities or assumptions ofliabilities by Zond and Zond Minnesotashould file a motion to intervene orprotest with the Federal EnergyRegulatory Commission, 888 FirstStreet, NE., Washington, DC 20426, inaccordance with Rules 211 and 214 ofthe Commission’s Rules of Practice andProcedure, 18 CFR 385.211 and 385.214.

(G) Absent a request to be heardwithin the period set forth in OrderingParagraph (F) above, Zond and Zond

Minnesota are hereby authorized,pursuant to section 204 of the FPA, toissue securities and assume obligationsor liabilities as guarantor, endorser,surety, or otherwise in respect of anysecurity of another person; providedthat such issue or assumption is forsome lawful object within the corporatepurposes of Zond and Zond Minnesota,compatible with the public interest, andreasonably necessary or appropriate forsuch purposes.

(I) The Commission reserves the rightto modify this order to require a furthershowing that neither public nor privateinterests will be adversely affected bycontinued Commission approval ofZond’s and Zond Minnesota’s issuancesof securities or assumptions of liabilities* * *.

Notice is hereby given that thedeadline for filing motions to interveneor protests, as set forth above, is August18, 1997.

Copies of the full text of the Order areavailable from the Commission’s PublicReference Branch, 888 First Street, NE.,Washington, DC 20426.Lois D. Cashell,Secretary.[FR Doc. 97–20146 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M



[Docket No. EG97–80–000, et al.]

CEA Bhilai Energy Company Ltd., etal.; Electric Rate and CorporateRegulation Filings

July 22, 1997.Take notice that the following filings

have been made with the Commission:

1. CEA Bhilai Energy Company Ltd.

[Docket No. EG97–80–000]On July 15, 1997, CEA Bhilai Energy

Company Ltd. (CBEC), with its principaloffice at 608 St. James Court, St. DenisStreet, Port Louis, Mauritius filed withthe Federal Energy RegulatoryCommission an application fordetermination of exempt wholesalegenerator status pursuant to Part 365 ofthe Commission’s Regulations.

CBEC is a company organized underthe laws of Mauritius. CBEC will beengaged, directly or indirectly throughan Affiliate as defined in Section2(a)(11)(B) of the Public Utility HoldingCompany Act of 1935, exclusively inowning, or both owning and operatinga coal-fired generating facilityconstituting of two electric generating

units, each with a nameplate rating ofapproximately 287 megawatts andincidental facilities located in MadhyaPradesh, India and to engage in projectdevelopment activities with respectthereto.

Comment date: August 8, 1997, inaccordance with Standard Paragraph Eat the end of this notice. TheCommission will limit its considerationof comments to those that concern theadequacy or accuracy of the application.

2. Cincinnati Gas & Electric Companyand PSI Energy, Inc.

[Docket No. EC93–6–004]Take notice that on July 10, 1997, the

Cincinnati Gas & Electric Company(CG&E) and PSI Energy, Inc. (PSI)tendered for filing a motion requestingauthority to defer for 24 months the dateby which a new 345 kV transmissionline must be constructed pursuant to acondition of the Commission’s approvalof the merger of PSI and CG&E.

Comment date: August 5, 1997, inaccordance with Standard Paragraph Eat the end of this notice.

3. ROXDEL

[Docket No. ER97–3556–000]Take notice that on July 1, 1997,

ROXDEL, tendered for filing with theFederal Energy Regulatory Commission(Commission) an application for orderaccepting rate schedule for power salesat market-based rates. ROXDEL requestswaiver of the 60-day filing requirementsand requests that its FERC Electric RateSchedule No. 1 be accepted as of July2, 1997.

A copy of this filing has been servedon the New York State Public ServiceCommission.


4. Illinois Power Company


Illinois Power Company (IP), tenderedfor filing a Service Agreement andNetwork Operating Agreement underwhich it will provide NetworkIntegration Service to The CincinnatiGas & Electric Company (CG&E), anOhio Corporation, PSI Energy, Inc. (PSI),an Indiana corporation, (collectivelyCinergy Operating Companies) andCinergy Services, Inc. (CinergyServices), a Delaware Corporation, asagent for and on behalf of the CinergyOperating Companies (Cinergy). Servicewill be provided in accordance to IP’sOpen Access Transmission Tariff on filewith the Commission. Illinois Powerand Cinergy are requesting an effectivedate as of 6/1/97.



5. Niagara Mohawk Power Corporation

[Docket No. ER97–3559–000]

Take notice that on July 1, 1997,Niagara Mohawk Power Corporation(NMPC), tendered for filing with theFederal Energy Regulatory Commissionexecuted form Service Agreementsbetween NMPC and multiple parties(Purchasers). The Service Agreementsspecify that the Purchasers have signedon to and have agreed to the terms andconditions of NMPC’s Power SalesTariff designated as NMPC’s FERCElectric Tariff, Original Volume No. 2.This Tariff, approved by FERC on April15, 1994, and which has an effectivedate of March 13, 1993, will allowNMPC and the Purchasers to enter intoseparately scheduled transactions underwhich NMPC will sell to the Purchaserscapacity and/or energy as the partiesmay mutually agree.

In its filing letter, NMPC alsoincluded a Certificate of Concurrencefor each Purchaser.

NMPC is : (a) Generally requesting aneffective date of July 1, 1997, for theagreements, and (b) requesting waiver ofthe Commission’s notice requirementsfor good cause shown.

NMPC has served copies of the filingupon the New York State Public ServiceCommission, and the companiesincluded in a Service List enclosed withthe filing.


6. Southern Company Services, Inc.

[Docket No. ER97–3560–000]

Take notice that on July 1, 1997,Southern Company Services, Inc. (SCS),acting on behalf of Alabama PowerCompany, Georgia Power Company,Gulf Power Company, MississippiPower Company and Savannah Electricand Power Company (collectivelyreferred to as Southern Companies) fileda Letter Agreement extending, throughAugust 31, 1997, certain transmissionservice agreements between theTennessee Valley Authority andAlabama Power Company.


7. Virginia Electric and PowerCompany

[Docket No. ER97–3561–000]

Take notice that on July 1, 1997,Virginia Electric and Power Company(Virginia Power), tendered for filing

amendments to its Power Sales Tariffdated June 24, 1994, as amended, formsof Service Agreement and ServiceSpecifications, and an amendment tothe Standards of Conduct filed onJanuary 3, 1997 in Docket No. OA97–439–000. The amendments provide forthe sale of energy and capacity at marketrates, and for the resale of transmissionrights. Virginia Power requests waiver ofany regulations that may be required topermit these amendments to becomeeffective on August 31, 1997, sixty (60)days from today.

Comment date: Agusut 5, 1997, inaccordance with Standard Paragraph Eat the end of this notice.

8. Entergy Services, Inc.

[Docket No. ER97–3562–000]

Take notice that on July 1, 1997,Entergy Services, Inc. (EntergyServices), on behalf of EntergyArkansas, Inc., Entergy Gulf States, Inc.,Entergy Louisiana, Inc., EntergyMississippi, Inc., and Entergy NewOrleans, Inc. (collectively, the EntergyOperating Companies), tendered forfiling a Non-Firm Point-To-PointTransmission Service Agreementbetween Entergy Services, as agent forthe Entergy Operating Companies, andCMS Marketing, Services and TradingCompany.



[Docket No. ER97–3563–000]

Take notice that on July 1, 1997,Entergy Services, Inc. (EntergyServices), on behalf of EntergyArkansas, Inc., Entergy Gulf States, Inc.,Entergy Louisiana, Inc., EntergyMississippi, Inc., and Entergy NewOrleans, Inc. (collectively, the EntergyOperating Companies), tendered forfiling a Non-Firm Point-To-PointTransmission Service Agreementbetween Entergy Services, as agent forthe Entergy Operating Companies, andCajun Electric Power Cooperative, Inc.



[Docket No. ER97–3564–000]

Take notice that on July 1, 1997,Entergy Services, Inc. (EntergyServices), on behalf of EntergyArkansas, Inc., Entergy Gulf States, Inc.,Entergy Louisiana, Inc., EntergyMississippi, Inc., and Entergy NewOrleans, Inc. (collectively, the EntergyOperating Companies), tendered forfiling a Short-Term Market Rate Sales

Agreement between Entergy Services, asagent for the Entergy OperatingCompanies, and the City of Osceola,Arkansas for the sale of power underEntergy Services’ Rate Schedule SP.


11. Central Power and Light Company;West Texas Utilities Company; PublicService Company of Oklahoma;Southwestern Electric Power Company


Central Power and Light Company, WestTexas Utilities Company, Public ServiceCompany of Oklahoma andSouthwestern Electric Power Company(collectively, the ‘‘CSW OperatingCompanies’’) submitted for filing serviceagreements under which the CSWOperating Companies will providetransmission and ancillary services toElectric Clearinghouse, Inc. (ECI),Equitable Power Services Company(Equitable) and Cinergy Services, Inc.(Cinergy), PSI Energy, Inc. (PSI) and TheCincinnati Gas & Electric Company(CG&E) in accordance with the CSWOperating Companies’ open accesstransmission service tariff.

The CSW Operating Companies statethat a copy of this filing has been servedon ECI, Equitable, Cinergy, PSI andCG&E.


12. Minnesota Power & Light Company


Minnesota Power & Light Company(MP), tendered for filing signed ServiceAgreements with Madison Gas &Electric Company, PacifiCorp PowerMarketing, Inc., Williams EnergyServices Company, and WPS EnergyServices, Inc., under MP’s market-basedWholesale Coordination Sales Tariff(WCS–2) to satisfy its filingrequirements under this tariff.


13. Cinergy Services, Inc.


Cinergy Services, Inc. (Cinergy),tendered for filing a service agreementunder Cinergy’s Open AccessTransmission Service Tariff (the Tariff)entered into between Cinergy andMidCon Power Services Corp.(MidCon).

Cinergy and MidCon are requesting aneffective date of June 30, 1997.



14. Central Illinois Light Company

[Docket No. ER97–3568–000]

Take notice that on July 1, 1997,Central Illinois Light Company (CILCO),300 Liberty Street, Peoria, Illinois61602, tendered for filing with theCommission a substitute Index of Point-To-Point Transmission ServiceCustomers under its Open AccessTransmission Tariff and a serviceagreement for one new customer.

CILCO requested an effective date ofJune 1, 1997.

Copies of the filing were served on theaffected customer and the IllinoisCommerce Commission.


15. Kentucky Utilities Company

[Docket No. ER97–3569–000]

Take notice that on July 1, 1997,Kentucky Utilities Company (KU),tendered for filing service agreementsbetween KU and East Kentucky PowerCooperative, CMS Marketing, Servicesand Trading and The Utility-TradeCorporation under its TransmissionServices (TS) Tariff and with TheUtility-Trade Corporation under itsPower Services (PS) Tariff.


16. The Washington Water PowerCompany

[Docket No. ER97–3570–000]

Take notice that on June 30, 1997, TheWashington Water Power Company,tendered for filing a 120-day InterimExtension Agreement to the Mid-Columbia Hourly CoordinationAgreement dated July 1, 1987.

A copy of this filing has been mailedto each of the parties to the Mid-Columbia Hourly CoordinationAgreement.


17. Northern States Power Company(Minnesota Company)

[Docket No. ER97–3571–000]

Take notice that on June 30, 1997,Northern States Power Company(Minnesota) (NSP), tendered for filingan Agreement dated June 10, 1997,between NSP and the City of Shakopee(City). In a previous agreement datedMarch 26, 1997, between the twoparties, City agreed to continue paying

NSP the current wholesale distributionsubstation rate of $0.47/kW-month untilJune 30, 1997. Since the March 26,1997, agreement has terminated, thisnew Agreement has been executed tocontinue the current wholesaledistribution substation rate of $0.47/kW-month until June 30, 1998.

NSP request the Agreement beaccepted for filing effective July 1, 1997,and requests waiver of theCommission’s notice requirements inorder for the Agreement to be acceptedfor filing on the date requested.


18. Washington Water Power

[Docket No. ER97–3572–000]Take notice that on June 30, 1997,

Washington Water Power, tendered forfiling with the Federal EnergyRegulatory Commission pursuant to 18CFR 35.13, executed ServiceAgreements under WWP’s FERC ElectricTariff Original Volume No. 9. WWPrequests waiver of the prior noticerequirement and requests an effectivedate of June 1, 1997.


19. Additional Signatories to PJMInterconnection, L.L.C. OperatingAgreement

[Docket No. ER97–3573–000]Take notice that on June 30, 1997, the

PJM Interconnection, L.L.C. (PJM) filed,on behalf of the Members of the LLC,membership applications of AYPEnergy, Inc., Enron Power Marketing,Inc., and Northeast Utilities ServiceCompany. PJM requests an effective dateof June 28, 1997.


20. Boston Edison Company

[Docket No. ER97–3575–000]Take notice that on June 30, 1997, and

amended on July 9, 1997, Boston EdisonCompany of Boston, Massachusettstendered a rate schedule for the sale ofcapacity from its entitlements in thegenerating units respectively owned byOcean State Power and Ocean StatePower II to the New England Power Poolparticipants. Boston Edison asks for aJuly 1, 1997, effective date.

Boston Edison states that it has servedcopies of its filing on the affectedcustomer and the MassachusettsDepartment of Public Utilities.


21. Southwestern Public ServiceCompany

[Docket No. ER97–3576–000]

Take notice that on June 30, 1997,Southwestern Public Service Company(Southwestern) submitted a RateSchedule for Sale, Assignment, orTransfer of Transmission Rights (RateSchedule). The Rate Schedule willallow Southwestern to reselltransmission rights in accordance withOrder Nos. 888 and 888–A.


22. Pennsylvania Power & Light Co.

[Docket No. ER97–3577–000]

Take Notice that on June 30, 1997,Pennsylvania Power & Light Company(PP&L), tendered for filing anapplication for membership in theWestern System Power Pool.


23. East Texas Electric Cooperative, Inc.

[Docket No. ER97–3578–000]

Take notice that on June 30, 1997,East Texas Electric Cooperative, Inc.(ETEC), tendered for filing a proposedamendment to the Wholesale PowerContract dated June 24, 1993 betweenETEC and Northeast Texas ElectricCooperative, Inc. (NTEC). The proposedamendment reflects the assignment byNTEC to ETEC of NTEC’s rights andobligations under the Unit Power SalesAgreement between NTEC and EntergyPower, Inc., dated January 22, 1992.

Copies of the filing were served on thepublic utility’s customers, and thePublic Utility Commission of Texas.


24. Minnesota Power & Light Company

[Docket No. ER97–3579–000]

Take notice that on July 1, 1997,Minnesota Power & Light Company(MP), tendered for filing signed ServiceAgreements with Madison Gas &Electric Company and Williams EnergyServices Company under MP’s cost-based Wholesale Coordination SalesTariff WCS–1 to satisfy its filingrequirements under this tariff.


25. New England Power Company

[Docket No. ER97–3582–000]

Take notice that on July 2, 1997, NewEngland Power Company filed:


(i) An agreement between Ocean StatePower (OSP) and the corporate entitiesthat are participants in the New EnglandPower Pool (NEPOOL);

(ii) An agreement between OceanState Power II (OSP II) and the corporateentities that are participants inNEPOOL;

(iii) An agency agreement among OSPand the Ocean State Unit I purchasers;and

(iv) An agency agreement among OSPII and the Ocean State Unit IIpurchasers.


26. GS Electric Generating Coop., Inc.

[Docket No. ER97–3583–000]

Take notice that on July 2, 1997, GSElectric Generating Cooperative, Inc.(GSE), tendered for filing an initial rateschedule and request for certain waiversand authorizations pursuant to 35.12 ofthe Commissions’s regulations. Theinitial rate schedule provides for thesale of the output of GSE’s ownershipshare of the Mustang Station, ageneration unit to be located nearDenver City, Texas, to Golden SpreadElectric Cooperative, Inc. (GoldenSpread). GSE requests the Commissionto set an effective date for the rateschedule on the date of commercialoperation of the Mustang Station whichis estimated to be the fourth quarter of1998.

Copies of the filing were served uponGSE’s jurisdictional customer, GoldenSpread, and Golden Spread’s elevenmember distribution cooperatives. Acopy of the filing was also served uponthe Public Utility Commission of Texas.


27. Southern California EdisonCompany

[Docket No. ER97–3584–000]

Take notice that on July 2, 1997,Southern California Edison Company(Edison), tendered for filing an executedumbrella Service Agreement (ServiceAgreement) with the City of Vernon, forShort-Term Firm Point-To-PointTransmission Service under Edison’sOpen Access Transmission Tariff(Tariff).

Edison filed the executed ServiceAgreements with the Commission incompliance with applicableCommission regulations. Edison alsosubmitted revised Sheet Nos. 165 and166 (Attachment E) to the Tariff, whichis an updated list of all currentsubscribers. Edison requests waiver of

the Commission’s notice requirement topermit an effective date of July 3, 1997for Attachment E, and to allow theService Agreement to become effectiveaccording to its terms.

Copies of this filing were served uponthe Public Utilities Commission of theState of California and all interestedparties.


28. Montaup Electric Company

[Docket No. ER97–3600–000]

Take Notice that on July 3, 1997,Montaup Electric Company (Montaup)tendered for filing the followingdocuments:

1. An agreement between Ocean StatePower (OSP), as agent for Montaup,Boston Edison Company (BECO) andNew England Power Company (NEP)and the Participants in the New EnglandPower Pool (NEPOOL).

2. An agreement between Ocean StatePower II (OSPII), as agent for Montaup,BECO and NEP and the Participants inNEPOOL.

3. An agency agreement between OSP,on the one hand, and Montaup, BECOand NEP, on the other hand.

4. An agency agreement betweenOSPII, on the one hand, and Montaup,BECO and NEP, on the other hand.

According to Montaup, the purpose ofthe agreements is to allow the sale ofincremental power to be produced bythe two Ocean State Power units toNEPOOL Participants in order to enableNEPOOL to avoid a capacity shortageduring the summer season of 1997.Montaup has asked the Commission fora waiver to permit the agreements totake effect on July 1, 1997.


29. Pacific Gas and Electric Company

[Docket No. OA97–619–000]

Take notice that on July 11, 1997,Pacific Gas and Electric Company(PG&E) tendered for filing a RevisedOpen Access Transmission Tariff incompliance with FERC Order No. 888–A. PG&E proposes that this Tariff, asmay be subject to refund or otherwise,become effective on July 11, 1997. PG&Eis requesting any necessary waivers.

Copies of this filing have been servedupon the California Public UtilitiesCommission and all other parties listedin the official Service List complied bythe Federal Energy RegulatoryCommission (Commission) in DocketNo. OA96–28–000.


30. Carolina Power & Light Company


Take notice that on July 10, 1997,Carolina Power & Light Company(CP&L) tendered for filing compliancerevisions to its Open AccessTransmission Tariff as required byOrder No. 888–A.

Copies of the filing were served uponthe North Carolina Utilities Commissionand the South Carolina Public ServiceCommission.


31. New England Power Company


Take notice that on July 11, 1997,New England Power Company (NEP)tendered for filing a compliance tariff,pursuant to Commission Order No. 888–A. NEP made the filing on behalf ofitself and its four retail affiliates.


32. Northwestern Public ServiceCompany


Take notice that Northwestern PublicService Company (NWPS) on July 10,1997, tendered for filing NWPS’s FERCOpen Acess Transmission Tariff asrequired by Order No. 888–A.

Copies of the filing were served uponNWPS’s wholesale electric customers,interested public bodies, and all partiespreviously requesting copies.


33. Concord Electric Company


Take notice that on July 10, 1997,Concord Electric Company filed originaland revised tariff sheets to its openaccess transmission tariff to complywith FERC Order No. 888–A. ConcordElectric Company states that it hasserved copies of its filing on the NewHampshire Public Utilities Commissionand all parties listed on the officialservice list in Concord ElectricCompany’s original open accesstransmission tariff proceeding, DocketNo. OA97–5–000. In addition, ConcordElectric Company states that as of thedate of its filing, it had no transmissioncustomers under its open accesstransmission tariff.



34. Northeast Utilities Service Company

[Docket No. OA97–630–000]Take notice that on July 11, 1997,

Northeast Utilities Service Company(NUSCO) on behalf of the NortheastUtilities (NU) System Companies,tendered for filing revised standards ofconduct to satisfy the requirements ofthe Commission’s Order No. 889–A.


35. Puget Sound Energy, Inc.

[Docket No. OA97–631–000]Take notice that on July 10, 1997,

Puget Sound Energy, Inc. tendered forfiling Second Revision Sheets to itsOpen Access Transmission Tariff, FERCElectric, Original Vol. 7.


36. Exeter & Hampton Electric Co.


Take notice that on July 11, 1997,Exeter & Hampton Electric Companyfiled original and revised tariff sheets toits open access transmission tariff tocomply with FERC Order No. 888–A.Exeter & Hampton Electric Companystates that it has served copies of itsfiling on the New Hampshire PublicUtilities Commission and all partieslisted on the official service list inExeter & Hampton Electric Company’soriginal open access transmission tariffproceeding, Docket No. OA97–4–000. Inaddition, Exeter & Hampton ElectricCompany states that as of the date of itsfiling, it had no transmission customersunder its open access transmissiontariff.

Exeter & Hampton requests aneffective date of July 11, 1997, for theproposed tariff sheets.


37. The United Illuminating Company


Take notice that on July 11, 1997, TheUnited Illuminating Company (UI)tendered for filing proposed changes toits Open Access Transmission Tariff,FERC Electric Tariff, Original VolumeNo. 4 (Tariff) to comply with theCommission’s changes to the pro formatariff contained in Order No. 888–A, 62Fed. Reg. 12,274 (March 4, 1997), FERCStats. & Regs. ¶31,048 (1997),reh’glpending. In this filing, UI also

proposes changes to update the index inthe Tariff of point-to-point transmissionservices customers.

UI served a copy of this filing uponall persons listed on the official servicelist compiled by the Secretary in DocketNo. OA96–171–000, upon the currentcustomers under the Tariff, and uponthe Connecticut Department of PublicUtility Control and McCallumEnterprises I Limited Partnership.


38. Tampa Electric Company


Take notice that on July 14, 1997,Tampa Electric Company (TampaElectric) filed a revised open accesstransmission tariff in compliance withOrder No. 888–A, the Commission’sOrder on Rehearing in Docket Nos.RM95–8–000 and RM94–7–001. TampaElectric included in the revised tariffcertain changes to the AvailableTransmission Capability provisionsdirected by the Commission in itsomnibus order of January 29, 1997 inAmerican Electric Power Service Corp.,Docket No. OA96–183–000, et al., andprovisions intended to conform TampaElectric’s scheduling procedures withregional/historical practices.

Tampa Electric proposes that therevised tariff be made effective on May3, 1997, and, to the extent necessary,requests waiver of the Commission’snotice requirement.

Copies of the filing have been servedon the customers under TampaElectric’s preexisting open accesstransmission tariff and the intervenorsin Docket No. OA96–116–000, TampaElectric’s prior open access tariff docket,as well as the Florida Public ServiceCommission.




Take notice that on July 14, 1997Virginia Electric and Power Companytendered for filing a Compliance Tariffpursuant to Order No. 888–A.


40. Consolidated Edison Company


Take notice that on July 14, 1997,Consolidated Edison Company of NewYork, Inc. (Con Edison) tendered forfiling its revised open access

transmission tariff (the Tariff) incompliance with the Commission’sOrder No. 888A.

Con Edison states that a copy of thisfiling has been served by mail to allparties included on the service list inthe above docket and the New YorkState Public Service Commission.


Standard ParagraphE. Any person desiring to be heard or

to protest said filing should file amotion to intervene or protest with theFederal Energy Regulatory Commission,888 First Street, NE, Washington, DC20426, 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 beforethe comment date. 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. 97–20027 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–P



[Docket No. EL97–45–000, et al.]

Southwestern Electric PowerCompany, et al.; Electric Rate andCorporate Regulation Filings

July 25, 1997.Take notice that the following filings

have been made with the Commission:

1. Southwestern Electric PowerCompany

[Docket No. EL97–45–000]Take notice that on July 7, 1997,

Southwestern Electric Power Companytendered for filing a Petition for Waiverof Fuel Clause Regulations.




Virginia Electric and Power Company


(Virginia Power), tendered for filing anamendment in the above-referenceddocket.


3. Interstate Power Company


Interstate Power Company (IPW)tendered for filing Revised Exhibit C ofthe Transmission Utilization Agreementbetween IPW and Cooperative PowerAssociation (CPA) (FERC Rate ScheduleNo. 131). Exhibit C contains theinterconnection points between IPWand CPA.


4. The Toledo Edison Company

[Docket No. ER97–3587–000]Take notice that on July 2, 1997, The

Toledo Edison Company (TE) filed anElectric Power Service Agreementbetween TE and Virginia Electric &Power Company.


5. New England Power Pool

[Docket No. ER97–3599–000]Take notice that on July 3, 1997, the

New England Power Pool ExecutiveCommittee filed a signature page to theNEPOOL Agreement dated September 1,1971, as amended, signed by IndeckMaine Energy, L.L.C. (Indeck Maine).The New England Power PoolAgreement, as amended, has beendesignated NEPOOL FPC No. 2.

The Executive Committee states thatacceptance of the signature page wouldpermit Indeck Maine to join the over120 Participants that already participatein the Pool. NEPOOL further states thatthe filed signature page does not changethe NEPOOL Agreement in any manner,other than to make Indeck Maine aParticipant in the Pool. NEPOOLrequests an effective date on or beforeAugust 1, 1997, or as soon as possiblethereafter for commencement ofparticipation in the Pool by IndeckMaine.


6. Sierra Pacific Power Company


Sierra Pacific Power Company, tenderedfor filing a refund report in compliancewith the directive of the May 28, 1997order in the above-captioned docket thatapproved a settlement that establishedrates for services Sierra renders underits open-access transmission tariff.


7. Arizona Public Service Company


Arizona Public Service Company (APS),tendered for filing Service Agreement toprovide Non-Firm Point-to-PointTransmission Service under APS’ OpenAccess Transmission Tariff with PublicService of New Mexico (PNM).

A copy of this filing has been servedon PNM, the New Mexico PublicService Commission and the ArizonaCorporation Commission.


8. Duquesne Light Company


Duquesne Light Company (DLC), filed aService Agreement dated June 24, 1997with PECO Energy Company underDLC’s Open Access Transmission Tariff(Tariff). The Service Agreement addsPECO Energy Company as a customerunder the Tariff. DLC requests aneffective date of June 24, 1997 for theService Agreement.


9. Cinergy Services, Inc.


Cinergy Services, Inc. (Cinergy),tendered for filing a service agreementunder Cinergy’s Open AccessTransmission Service Tariff (the Tariff)

entered into between Cinergy andSouthern Energy Trading andMarketing, Inc. (Southern Energy).

Cinergy and Southern Energy arerequesting an effective date of July 1,1997.


10. Bangor Hydro-Electric Company

[Docket No. ER97–3605–000]

Take notice that on July 3, 1997,Bangor Hydro-Electric Company filed anunexecuted service agreement for non-firm point-to-point transmission servicewith the NEPOOL Participants.


11. Florida Power & Light Company

[Docket No. ER97–3606–000]

Take notice that on July 3, 1997,Florida Power & Light Company filedexecuted Service Agreements withEnergy Services, Inc. and NP Energy Inc.for service pursuant to Tariff No. 1 forSales of Power and Energy by FloridaPower & Light. FPL requests that eachService Agreement be made effective onJune 16, 1997.


12. Pacific Gas and Electric Company

[Docket No. ER97–3607–000]

Take notice that on July 3, 1997,Pacific Gas and Electric Company(PG&E), tendered for filing; (1) anagreement dated as of June 17, 1997, byand between PG&E and PacifiCorpentitled Service Agreement for FirmPoint-to-Point Transmission Service(Service Agreement); and (2) a requestfor termination of this ServiceAgreement.

The Service Agreement was enteredinto for the purpose of firm point-to-point transmission service for 80 MW ofpower delivered to PacifiCorp at PG&E’sMidway Substation. The effective dateof termination is either the requesteddate shown below or such other date theCommission deems appropriate fortermination.

Service agreement TermRequested effec-tive date for termi-

nation

Service Agreement No. ll under FERC Electric Tariff, Original Volume No. 3 June 3, 1997 through June 30, 1997 .... June 30, 1997.


Copies of this filing have been servedupon the California Public UtilitiesCommission and PacifiCorp.


13. South Carolina Electric & GasCompany

[Docket No. ER97–3608–000]

Take notice that on July 3, 1997,South Carolina Electric & Gas Company(SCE&G) submitted a service agreementestablishing NorAm Energy Services,Inc. (NORAM) as a customer under theterms of SCE&G’s Negotiated MarketSales Tariff.

SCE&G requests an effective date ofone day subsequent to the filing of theservice agreement. Accordingly, SCE&Grequests waiver of the Commission’snotice requirements. Copies of thisfiling were served upon NORAM andthe South Carolina Public ServiceCommission.


14. Central Illinois Public ServiceCompany

[Docket No. ER97–3609–000]

Take notice that on July 3, 1997,Central Illinois Public Service Company(CIPS), submitted a Service Agreement,dated June 25, 1997, establishing NPEnergy Inc. as a customer under theterms of CIPS’ Coordination Sales TariffCST–1 (CST–1 Tariff).

CIPS requests an effective date of June25, 1997 for the service agreement andthe revised Index of Customers.Accordingly, CIPS requests waiver ofthe Commission’s notice requirements.Copies of this filing were served uponNP Energy Inc. and the IllinoisCommerce Commission.



[Docket No. ER97–3610–000]

Take notice that on July 3, 1997,Northeast Utilities Service Company(NUSCO), tendered for filing, a ServiceAgreement to provide Non-Firm Point-to-Point Transmission Service to theNew England Power Pool under the NUSystem Companies’ Open AccessTransmission Service Tariff No. 9.

NUSCO states that a copy of this filinghas been mailed to the New EnglandPower Pool.

NUSCO requests that the ServiceAgreement become effective June 15,1997.


16. Puget Sound Energy, Inc.

[Docket No. ER97–3611–000]Take notice that on June 16, 1997,

Puget Sound Energy, Inc., asTransmission Provider, tendered forfiling an Amended Service Agreementfor Firm Point-To-Point TransmissionService (Service Agreement) with MPEnergy as Transmission Customer. Acopy of the filing was served upon MPEnergy.

The Amended Service Agreement isfor firm point-to-point transmissionservice.




Northeast Utilities Service Company(NUSCO), tendered for filing, a ServiceAgreement with Orange and Rockland,Inc., under the NU System Companies’System Power Sales/Exchange Tariff No.6.

NUSCO states that a copy of this filinghas been mailed to the Orange andRockland, Inc.

NUSCO requests that the ServiceAgreement become effective July 3,1997.




Northeast Utilities Service Company(NUSCO), tendered for filing, a ServiceAgreement with Orange and Rockland,Inc., under the NU System Companies’Sale for Resale, Tariff No. 7.

NUSCO states that a copy of this filinghas been mailed to Orange andRockland, Inc.

NUSCO requests that the ServiceAgreement become effective July 3,1997.


19. Houston Lighting & Power Company


Houston Lighting & Power Company(HL&P), tendered for filing an executedtransmission service agreement (TSA)

with Williams Energy ServicesCompany (Williams) for Non-FirmTransmission Service under HL&P’sFERC Electric Tariff, Second RevisedVolume No. 1, for Transmission ServiceTo, From and Over Certain HVDCInterconnections. HL&P has requestedan effective date of July 7, 1997.

Copies of the filing were served onWilliams and the Public UtilityCommission of Texas.



[Docket No. ER97–3617–000]

Take notice that on July 7, 1997,Northeast Utilities Service Company(NUSCO), tendered for filing, a ServiceAgreement with the ProMark Energy,under the NU System Companies’ Salefor Resale, Tariff No. 7.

NUSCO states that a copy of this filinghas been mailed to the ProMark Energy.

NUSCO requests that the ServiceAgreement become effective June 3,1997.


21. Kansas City Power & LightCompany

[Docket No. ER97–3620–000]

Take notice that on July 7, 1997,Kansas City Power & Light Company(KCPL), tendered for filing a ServiceAgreement dated June 12, 1997,between KCPL and Western FarmersElectric Cooperative. KCPL proposes aneffective date of June 21, 1997, andrequests waiver of the Commission’snotice requirement. This Agreementprovides for the rates and charges forNon-Firm Transmission Service.

In its filing, KCPL states that the ratesincluded in the above-mentionedService Agreement are KCPL’s rates andcharges in the compliance filing toFERC Order No. 888 in Docket No.OA96–4–000.


22. Kansas City Power & LightCompany

[Docket No. ER97–3621–000]

Take notice that on July 7, 1997,Kansas City Power & Light Company(KCPL), tendered for filing a ServiceAgreement dated June 10, 1997,between KCPL and CMS Marketing,Services and Trading. KCPL proposes aneffective date of June 21, 1997, andrequests waiver of the Commission’snotice requirement. This Agreement


provides for the rates and charges forNon-Firm Transmission Service.

In its filing, KCPL states that the ratesincluded in the above-mentionedService Agreement are KCPL’s rates andcharges in the compliance filing toFERC Order No. 888 in Docket No.OA96–4-000.


23. Southern Company Services, Inc.


Southern Company Services, Inc. (SCS),acting on behalf of Alabama PowerCompany, Georgia Power Company,Gulf Power Company, MississippiPower Company, and Savannah Electricand Power Company (collectivelyreferred to as Southern Companies) fileda service agreement for networkintegration transmission servicebetween SCS, as agent for SouthernCompanies, and Southern WholesaleEnergy, a Department of SCS, as agentfor Mississippi Power Company, underPart III of the Open AccessTransmission Tariff of SouthernCompanies.


24. Houston Lighting & Power Company


Houston Lighting & Power Company(HL&P), tendered for filing an executedtransmission service agreement (TSA)with NGTS Energy Services (NGTS) forNon-Firm Transmission Service underHL&P’s FERC Electric Tariff, SecondRevised Volume No. 1, for TransmissionService To, From and Over CertainHVDC Interconnections. HL&P hasrequested an effective date of July 7,1997.

Copies of the filing were served onNGTS and the Public UtilityCommission of Texas.


Standard ParagraphE. Any person desiring to be heard or

to protest said filing should file amotion to intervene or protest with theFederal Energy Regulatory Commission,888 First Street, NE, Washington, DC20426, 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 beforethe comment date. Protests will beconsidered by the Commission in

determining 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. 97–20241 Filed 7–30–97; 8:45 am]




[Project No. 1494–133]

Grand River Dam Authority; Notice ofAvailability of Final EnvironmentalAssessment

July 25, 1997.

In accordance with the NationalEnvironmental Policy Act of 1969 andthe Federal Energy RegulatoryCommission’s regulations, 18 CFR Part380 (Order No. 486, 52 FR 47910), theOffice of Hydropower Licensing (OHL)has prepared a final environmentalassessment (FEA) for an application forapproval of a marina expansion. GrandRiver Dam Authority proposes to permitMr. Terry Frost, d/b/a Cherokee YachtClub, to expand an existing marina onGrand Lake’s Duck Creek. CherokeeYacht Club requests permission to addtwo covered docks containing 53 boatslips to an existing marina consisting of134 slips and 2 gas docks. The proposalwould bring the total number of slips to187. In the FEA, staff concludes thatapproval of the licensee’s proposalwould not constitute a major Federalaction significantly affecting the qualityof the human environment. ThePensacola Project is on the Grand River,in Craig, Delaware, Mayes, and Ottawacounties, Oklahoma.

The FEA was written by staff in theOffice of Hydropower Licensing,Federal Energy Regulatory Commission.Copies of the EA are available for reviewat the Commission’s Reference andInformation Center, Room 2–A, 888First Street, NE, Washington, DC 20426.Additional informational can beobtained by calling the project manager,John Estep, at (202) 219–2654.Lois D. Cashell,Secretary.[FR Doc. 97–20122 Filed 7–30–97; 8:45 am]




Notice of Non-Project Use of ProjectLands and Waters

July 25, 1997.Take notice that the following

hydroelectric application has been filedwith the Commission and is availablefor public inspection:

a. Type of Application: Non-ProjectUse of Project Lands and Waters.

b. Project Name and No: Catawba-Wateree Project, FERC Project No. 2232–331.

c. Date Filed: August 9, 1996, andsupplemented on May 29, 1997.

d. Applicant: Duke Power Company.e. Location: Mecklenburg, North

Carolina Overlook Subdivision onMountain Island Lake near Charlotte.

f. Filed pursuant to: Federal PowerAct, 16 U.S.C. 791(a)–825(r).

g. Applicant Contact: Mr. E.M.Oakley, Duke Power Company, P.O. Box1006 (EC12Y), Charlotte, NC 28201–1006, (704) 382–5778.

h. FERC Contact: Brian Romanek,(202) 219–3076.

i. Comment Date: September 18, 1997.j. Description of the filing: Duke

Power Company proposes to grant aneasement of 5 acres of project land toOverlook Properties, Inc. to construct aprivate residential marina consisting of180 boat slips. The proposed marinawould provide access to the reservoirfor residents of the OverlookSubdivision. The proposed marinafacility would consist of an access rampand floating slips. The slips would beanchored by using self-driving piles. Inaddition, an area 0.86 acre in size wouldbe excavated to improve the water depthfor boat access. About 8,800 cubic yardsof material would be removed.

k. This notice also consists of thefollowing standard paragraphs: B, C1,D2.

B. Comments, Protests, or Motions toIntervene—Anyone may submitcomments, a protest, or a motion tointervene in accordance with therequirements of Rules of Practice andProcedure, 18 CFR 385.210, 385.211,385.214. In determining the appropriateaction to take, the Commission willconsider all protests or other commentsfiled, but only those who file a motionto intervene in accordance with theCommission’s Rules may become aparty to the proceeding. Any comments,protests, or motions to intervene mustbe received on or before the specifiedcomment date for the particularapplication.


C1. Filing and Service of ResponsiveDocuments—Any filings must bear inall capital letters the title‘‘COMMENTS’’,‘‘RECOMMENDATIONS FOR TERMSAND CONDITIONS’’, ‘‘PROTEST’’, OR‘‘MOTION TO INTERVENE’’, asapplicable, and the Project Number ofthe particular application to which thefiling refers. Any of the above-nameddocuments must be filed by providingthe original and the number of copiesprovided by the Commission’sregulations to: The Secretary, FederalEnergy Regulatory Commission, 888First Street, NE., Washington, DC 20426.A copy of any motion to intervene mustalso be served upon each representativeof the Applicant specified in theparticular application.

D2. Agency Comments—Federal,State, and local agencies are invited tofile comments on the describedapplication. A copy of the applicationmay be obtained by agencies directlyfrom the Applicant. If an agency doesnot file comments within the timespecified for filing comments, it will bepresumed to have no comments. Onecopy of an agency’s comments must alsobe sent to the Applicant’srepresentatives.Lois D. Cashell,Secretary.[FR Doc. 97–20123 Filed 7–30–97; 8:45 am]BILLING CODE 6717–01–M


[FRL–5866–4]

Agency Information CollectionActivities: Submission for OMBReview; Comment Request for thePrevention of Significant Deterioration(PSD) and Nonattainment New SourceReview (NSR) Programs

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice.

SUMMARY: In compliance with thePaperwork Reduction Act (44 U.S.C.3501 et seq.), this notice announces thatthe following continuing InformationCollection Request (ICR) has beenforwarded to the Office of Managementand Budget (OMB) for review andapproval: Information CollectionRequest for 40 CFR part 51 and 52Prevention of Significant Deteriorationand Nonattainment New Source Review:OMB No. 2060–0003, Exp. September30, 1997. The ICR describes the natureof the information collection and itsexpected burden and cost.

DATES: Comments must be submitted onor before September 2, 1997.FOR FURTHER INFORMATION OR A COPYCALL: Sandy Farmer at EPA, (202) 260-2740, and refer to EPA ICR No.1230.09.

SUPPLEMENTARY INFORMATION:Affected entities: Entities potentially

affected by this action are those whichmust submit an application for a permitto construct a new source or to modifyan existing source of air pollution,permitting agencies which review thepermit applications, and members of thepublic who are due the opportunity tocomment on permitting actions.

Title: Information Collection Requestfor 40 CFR parts 51 and 52 Preventionof Significant Deterioration andNonattainment New Source Review:OMB No. 2060–0003, Exp. September30, 1997. This is a request for extensionof a currently approved collection.

Abstract: Part C of the Clean Air Act(Act)—‘‘Prevention of SignificantDeterioration,’’ and Part D—‘‘PlanRequirements for NonattainmentAreas,’’ require all States to adoptpreconstruction review programs fornew or modified stationary sources ofair pollution. Implementing regulationsfor State adoption of these two NewSource Review (NSR) programs into aState Implementation Plan (SIP) arepromulgated at 40 CFR 51.160 through51.166 and appendix S to part 51.Federal permitting regulations arepromulgated at 40 CFR 52.21 for PSDareas that are not covered by a SIPprogram.

In order to receive a constructionpermit for a major new source or majormodification, the applicant mustconduct the necessary research, performthe appropriate analyses and preparethe permit application withdocumentation to demonstrate that theirproject meets all applicable statutoryand regulatory NSR requirements.Specific activities and requirements arelisted and described in the SupportingStatement for the ICR.

Permitting agencies, either State, localor Federal, review the permitapplication to affirm the proposedsource or modification will comply withthe Act and applicable regulations. Thepermitting Agency then provides forpublic review of the proposed projectand issues the permit based on itsconsideration of all technical factorsand public input. The EPA, morebroadly, reviews a fraction of the totalapplications and audits the State andlocal programs for their effectiveness.Consequently, information prepared andsubmitted by the source is essential forthe source to receive a permit, and forFederal, State and local environmental

agencies to adequately review thepermit application and thereby properlyadminister and manage the NSRprograms.

To facilitate adequate publicparticipation, information that issubmitted by sources as a part of theirpermit application, should generally bea matter of public record. See sections165(a)(2) and 110(a)(2) (C), (D), and (F)of the Act. Notwithstanding, to theextent that the information required forthe completeness of a permit isproprietary, confidential, or of a naturethat it could impair the ability of thesource to compete in the marketplace,that information is collected andhandled according to EPA’s policies setforth in title 40, chapter 1, part 2,subpart B—Confidentiality of BusinessInformation (see 40 CFR part 2). See alsosection 114(c) of the Act.

An agency may not conduct orsponsor, and a person is not required torespond to, a collection of informationunless it displays a currently valid OMBcontrol number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR part 9 and 48 CFR Chapter15. The Federal Register Noticerequired under 5 CFR 1320.8(d),soliciting comments on this collectionof information was published onDecember 31, 1996 (61 FR 69090). Thecomments received are summarized inAppendix H to the SupportingStatement for the ICR, and areresponded to in the appropriate sectionsof the Supporting Statement for the ICR.The Agency also notes that, in order torespond effectively to the commentsreceived, the original expiration date forthe existing ICR was extended fromMarch 31, 1997 to September 30, 1997.

Burden Statement: The annual publicreporting and recordkeeping burden forthis collection of information is brokendown as follows:

Type of permitaction

MajorPSD

Majorpart D Minor

Number ofsources .......... 320 590 56,500

Burden Hoursper Response:

Industry ...... 839 577 40Permitting

agency .... 272 109 30

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 and


1 Letter dated January 16, 1997 from Frank C.Lenski, President, RFG Survey Association, toCharles Freed, Director, Fuels and Energy Division,EPA.

2 Letter dated January 31, 1997 from CharlesFreed, EPA, to Frank Lenski, RFG SurveyAssociation. Also see Memorandum dated April 29,1997 from Stuart Romanow, Mechanical Engineer,Fuels and Energy Division to Charles Freed.

maintaining 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.

Respondents/Affected Entities:Industrial plants, State and Localpermitting agencies.

Estimated Number of Respondents:(114,820).

Frequency of Response: (1 perrespondent).

Estimated Total Annual Hour Burden:(4,715, 260) hours.

Estimated Total Annualized CostBurden: $(0).

Send comments on the Agency’s needfor this information, the accuracy of theprovided burden estimates, and anysuggested methods for minimizingrespondent burden, including throughthe use of automated collectiontechniques to the following addresses.

Please refer to EPA ICR No.1230.09and OMB Control No. 2060–0003 in anycorrespondence.Ms. Sandy Farmer, U.S. Environmental

Protection Agency, OPPE RegulatoryInformation Division (2137), 401 MStreet, SW., Washington, DC 20460

andOffice of Information and Regulatory

Affairs, Office of Management andBudget, Attention: Desk Officer forEPA, 725 17th Street, NW.,Washington, DC 20503Dated: July 25, 1997.

Joseph Retzer, Director,Regulatory Information Division.[FR Doc. 97–20176 Filed 7–30–97; 8:45 am]BILLING CODE: 6560–50–P


[FRL–5867–1]

Change in Minimum Oxygen ContentRequirement for ReformulatedGasoline

AGENCY: Environmental ProtectionAgency.ACTION: Notice.

SUMMARY: EPA’s reformulated gasoline(RFG) program contains variousstandards for RFG, including an oxygencontent standard. The current per-gallonminimum standard for oxygen contentin RFG is 1.5% by weight. Pursuant tothe RFG regulations, EPA is increasingthis standard to 1.6% by weight for

several of the RFG covered areas,because those areas failed a series ofcompliance surveys for oxygen contentin 1996. This notice announces theincreased standard, and describes thecovered areas and parties that aresubject to the increased standard. Theincreased standard will help ensure thatall covered areas receive the full benefitof the oxygen content requirement inthe RFG program.FOR FURTHER INFORMATION CONTACT:Stuart Romanow, Fuels and EnergyDivision, Office of Mobile Sources,Environmental Protection Agency,Washington DC (6406J) 202–233–9296.


I. Regulatory EntitiesRegulatory categories and entities

potentially affected by this actioninclude:

Category Examples of affectedentities

Industry ...................... Refiners, importers,oxygenate blendersof reformulatedgasoline.

This table is not intended to beexhaustive, but rather provides a guidefor readers regarding entities likely to beaffected by this action. This table liststhe types of entities that EPA is nowaware could be potentially affected bythis action. Other types of entities notlisted in the table could also be affected.To determine whether your entity isaffected by this action, you shouldcarefully examine the existingprovisions at 40 CFR 80.41. If you havequestions regarding the applicability ofthis action to a particular entity, consultthe person listed in the preceding FORFURTHER INFORMATION CONTACT section.

II. BackgroundSection 211(k) of the Clean Air Act

requires that EPA establish standards forreformulated gasoline ( RFG) to be usedin specified ozone nonattainment areas(covered areas). The RFG requirementscontain performance standards forreductions of emissions from motorvehicles of ozone forming volatileorganic compounds and toxicpollutants.

Standards for RFG are contained in 40CFR 80.41. Refiners and other partiessubject to the standards can choose tocomply on either a per-gallon basis or tocomply on average. The standards forcompliance on average (‘‘averagedstandards’’) are numerically morestringent than the per-gallon standards.The averaged standards for RFG thatapply in 1996 are contained in

§ 80.41(b). These averaged standardsinclude a per-gallon minimumrequirement of 1.5 weight percentoxygen. This per-gallon minimumrequirement is in addition to therequirement for 2.1 weight percentoxygen, on average. The averagestandard for oxygen must be met by arefiner or oxygenate blender for all ofthe RFG it produced at a refinery orblending facility, or for RFG importedby an importer, but these parties are notrequired to meet this standard for theRFG supplied to each covered areaseparately.

Any refiner, importer or oxygenateblender has the option of meeting theRFG standards on average or per gallon.If a party is subject to the averagedstandards, then the requirement toconduct surveys, as specified in § 80.68,must be satisfied. In these surveys, RFGsamples are collected at retail gasolinestations within covered areas andanalyzed to determine if the RFGsupplied to each covered area meetscertain survey pass/fail criteria specifiedin § 80.68. An oxygen survey seriesfailure occurs in a covered area if theannual average oxygen content for all ofthe samples is less than 2.00 weightpercent. The purpose of the surveys andthe tightened standards which result ifa survey is failed is to ensure thataveraging over a refiner’s entireproduction as compared to separateaveraging for each covered area does notlead to the reduced quality of RFG inany covered area.

Since the implementation of the RFGprogram in 1995, these surveys havebeen conducted by the RFG SurveyAssociation, a not-for-profit associationof refiners, importers and blenders,using an EPA-approved survey designplan as required in the regulations. Byletter dated January 16, 1997, the RFGSurvey Association reported to EPA theresults of its surveys for 1996, indicatingthat several survey areas failed to meetthe annual average requirements of2.00% oxygen by weight.1 Afterreviewing the data EPA determined that8 areas did fail the survey series foroxygen content.2

The following covered areas failed theoxygen survey series:1. Philadelphia-Wilmington-Trenton

area [§ 80.70(e)]2. Baltimore, MD area [§ 80.70(g)]


3. Houston-Galveston-Brazoria, TX area[§ 80.70(h)]

4. The Atlantic City, NJ area comprisedof [§ 80.70(j)(9):]

Atlantic CountyCape May County

5. The Dallas-Fort Worth, TX areacomprised of [§ 80.70(j)(13):]

Collin CountyDallas CountyDenton CountyTarrant County

6. Norfolk-Virginia Beach-NewportNews (Hampton Roads), VA areacomprised of [§ 80.70(j)(14):]

ChesapeakeHamptonJames City CountyNewport NewsNorfolkPoquosonPortsmouthSuffolkVirginia BeachWilliamsburgYork County

7. Richmond, VA area comprised of[§ 80.70(j)(14):]

Charles City CountyChesterfield CountyColonial HeightsHanover CountyHenrico CountyHopewellRichmond

8. Washington D.C. area comprised of[§ 80.70(j)(2),(j)(6),(j)(14):]

The District of ColumbiaCalvert County, MDCharles County, MDFrederick County, MDMontgomery County, MDPrince Georges County, MDAlexandria, VAArlington County, VAFairfax, VAFairfax County, VAFalls Church, VALoudon County, VAManassas, VAManassas Park, VAPrince William County, VAStafford County, VAThe boundaries of the covered areas

are described in detail in § 80.70.Under § 80.41(o), when a covered area

fails an oxygen content survey series,the minimum oxygen contentrequirement for that covered area ismade more stringent by increasing theper gallon minimum oxygen contentstandard for affected RFG subject to theaveraging standard by 0.1% . This morestringent requirement applies beginningthe year following the year of thefailure. Therefore, in this case, theminimum per gallon oxygen contentrequirement for the above covered areas

is increased from 1.5% to 1.6% byweight.

The criteria identifying the refineries,importers and oxygenate blenderssubject to adjusted standards are statedin § 80.41(q). In general, adjustedstandards apply to RFG that is subjectto an averaging standard (‘‘averagedRFG’’) that is produced at a refinery oroxygenate blending facility if anyaveraged RFG from that refinery orfacility supplied a failed covered areaduring 1996, or supplies the coveredarea during any year that the morestringent standards are in effect. Theregulation provides for an exceptionbased on certain volume limits [see 40CFR § 80.41(q)(1)(iii).]

Thus, if a refiner has elected for arefinery to be subject to the averageoxygen standard, and if even a smallportion of the RFG produced at therefinery is used in an area subject to anoxygen ratchet, the entire volume ofRFG produced at the refinery is subjectto the more stringent oxygen standardregardless of which area receives theRFG. This result is true regardless ofwhether the refinery’s gasoline wassupplied to the city in question during1996 or during a year when the morestringent oxygen standard applies.

Under § 80.41(q)(2), the applicabilityof adjusted standards to importedaveraged RFG is specified by thePetroleum Administration for DefenseDistrict (PADD) in which the coveredarea is located and the PADD where thegasoline is imported. The covered areasthat had oxygen survey series failuresare located in PADDs I and III.Therefore, all RFG imported at facilitieslocated in PADDs I, II, III or IV is subjectto the adjusted oxygen standard. Thestates included in each PADD areidentified in § 80.41(r). In addition, ifany RFG imported into any other PADDsupplies any of the covered areas withoxygen survey failures, the adjustedstandard applies to that RFG, as well.

Under § 80.41(q)(3), any gasoline thatis transported in a fungible manner bya pipeline, barge or vessel is consideredto have supplied each covered area thatis supplied with any gasoline by thatpipeline, barge or vessel shipmentunless the refiner or importer is able toestablish that the gasoline it producedor imported was supplied only to asmaller number of covered areas.

Consider, for example, gasolinetransported on the Colonial Pipeline,which supplies RFG to several citiesthat failed the oxygen survey in 1996. Ifa refinery’s RFG was transported by theColonial Pipeline any time during 1996,or any time during any year when themore stringent oxygen standard applies,the more stringent oxygen standard

applies to all RFG produced at therefinery regardless of the market. Inaddition, there is a presumption that,due to fungible mixing, each refinery’sRFG that is transported by the ColonialPipeline is in part supplied to each citysupplied by the Colonial Pipeline. Thispresumption is rebuttable, but therebuttal normally would require arefiner to have transported its RFG in anon-fungible manner. Thus, the morestringent standard applies to a refinerywhose gasoline is transported on theColonial Pipeline regardless of whetherthe refiner takes delivery of RFG in thespecific cities that failed the oxygensurvey.

The adjusted oxygen standard appliesto all averaged RFG produced by arefinery or imported by an importeridentified in § 80.41(q). In accordancewith § 80.41(p), the effective date of thischange is October 29, 1997.

Thus, under § 80.41(p) the morestringent oxygen standard applies at allpoints of the distribution systembeginning on October 29, 1997,including terminals supplying theaffected covered areas and retail outletsin the covered areas. If a downstreamfacility fails to meet the new standardby October 29, 1997, the party whooperates the facility would be inviolation, as well as each upstreamparty who supplied that facility. Anupstream party who failed to supplyRFG meeting the new oxygen standardsufficiently in advance of October 29,1997 will have caused the violation.

As a result, EPA believes that refiners,importers and oxygenate blenders mustbegin producing or importing RFGmeeting the new oxygen standardsufficiently in advance of October 29,1997 to ensure all downstream partieshave time to transition storage tanks tomeet the new standard.

However, EPA believes it may bedifficult for all regulated parties totransition to the new oxygen standardby October 29, 1997. As a result, EPAintends to enforce the new oxygenstandard in a manner that gives partiesadditional time. Refiners, importers, andoxygenate blenders will be required tomeet the new oxygen standardbeginning September 29, 1997. EPAbelieves this revised date for refinery-level compliance reflects a later datethan would be necessary if all partieshad to comply by October 29, 1997. Inthe case of parties other than refiners,importers, oxygenate blenders, retailersand wholesale purchaser-consumers,(e.g., pipelines and terminals supplyinggasoline to affected covered areas) EPAwill enforce the new oxygen standard


3 This supersedes the downstream enforcementtiming discussed in ‘‘RFG/Anti-Dumping Questionsand Answers, November 12, 1996’’.

beginning November 28, 19973. In thecase of retail outlets and wholesalepurchaser-consumer facilities located inthe affected covered areas EPA willenforce the new oxygen standardbeginning December 29, 1997. EPAintends to initiate a rulemaking to revise§ 80.41(p) to reflect the need foradditional downstream transition timewhen a standard is changed.Mary D. Nichols,Assistant Administrator for Air andRadiation.Sylvia K. Lowrance,Assistant Administrator for Enforcement andCompliance Assurance.[FR Doc. 97–20220 Filed 7–30–97; 8:45 am]BILLING CODE 6560–50–P


[FRL–5866–5]

Safe Drinking Water Act State PrimaryEnforcement Program RevisionApproval: New York State

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of final action.

SUMMARY: This Notice announces EPA’sapproval of a state primary enforcementprogram revision application from NewYork State to include the Surface WaterTreatment Rule.DATES: EPA’s approval is effective June3, 1997, except as noted below.FOR FURTHER INFORMATION CONTACT:Copies of EPA’s final determination andresponse to comments are available forpublic distribution by writing to USEPARegion II, Division of EnvironmentalPlanning and Protection, 290 Broadway,28th Floor, New York, New York,10007–1866, ATTN: NYC WatershedTeam or by calling (212) 637–3519.SUPPLEMENTARY INFORMATION: On June29, 1989, EPA promulgated the SurfaceWater Treatment Rule (SWTR), 40 CFRpart 141, subpart H under authority ofthe Safe Drinking Water Act. Asprescribed under 40 CFR 142.12,Revision of State Program, states withprimary enforcement responsibility(primacy) for the Safe Drinking WaterAct (SDWA) must adopt all new andrevised national primary drinking waterregulations (NPDWRs). States mustsubmit primacy program revisionapplication packages to EPA regions forapproval of the program revision. Thepackage must sufficiently demonstrate

that the state’s revised regulations areno less stringent than the federalregulations and that they are enforceableby the state. If the application meets therequirements of 40 CFR 142.12, it is tobe approved by EPA.

On March 11, 1992, the New YorkState Department of Health (NYSDOH)promulgated its own surface watertreatment regulations as part of the StateSanitary Code and, thereafter, applied toEPA for primacy program revision toinclude these regulations. EPA reviewedthe NYSDOH’s request to revise itsPublic Water System SupervisionPrimacy Program regulations. Based onthis review EPA found that theregulations, when compared to thefederal SWTR regulations (40 CFR part141, subpart H), met the standards forapproval of primacy program revisionset out in 40 CFR part 142, subpart B.The NYSDOH was notified of EPA’sinitial determination to approve itsapplication in a letter dated July 22,1993.

In accordance with 40 CFR 142.13 anotice of EPA’s initial decision toapprove NYSDOH’s application waspublished in the Federal Register onJuly 30, 1993 and in several newspapersof general circulation throughout theState shortly thereafter. The Noticesincluded an opportunity to request apublic hearing. A public hearing wasrequested by The Coalition ofWatershed Towns and Putnam Countywithin the allowed 30 day requestperiod. Accordingly, EPA held a publichearing on December 7, 1993. EPAreceived written and oral comments atthe hearing and thereafter. Subsequentto the public hearing, EPA must eitheraffirm or rescind its initialdetermination by order pursuant to 40CFR 142.13(f).

A final decision was delayed due tochallenges to New York City’s proposedpromulgation of revised watershedregulations and critical watershedprotection programs set forth in EPA’s1993 Filtration AvoidanceDetermination (FAD) for New YorkCity’s Catskill/Delaware water supplysystem. This led to negotiations betweenEPA, New York City, New York State,the Coalition of Watershed Towns,several counties and environmentalgroups over the next two years, causingfurther delays. The negotiations resultedin the New York City WatershedMemorandum of Agreement (MOA),executed January 21, 1997.

As part of the New York CityWatershed Memorandum of Agreement(MOA) signed on January 21, 1997, theState and EPA agreed that EPA willretain SWTR primacy for New YorkCity’s Catskill/Delaware water supply

system until May 15, 2007. Therefore,EPA’s approval of the State’sapplication for SWTR primacy withrespect to this system will becomeeffective on May 15, 2007. The reasonfor EPA retaining primacy during thisperiod is to provide the appropriateoversight of New York City’simplementation of the conditions of aFiltration Avoidance Determinationwhich EPA issued on May 6, 1997. Thisperiod will allow EPA to continue itswork with the City to ensure the Citymeets the conditions of EPA’s FiltrationAvoidance Determination. It will alsoallow time for NYSDOH to strengthenits oversight program for New YorkCity’s Catskill/Delaware system. Asprovided in the Watershed MOA, duringthis period of EPA retained primacy,EPA and the NYSDOH will work jointlyand cooperatively with respect todecisions concerning enforcement of theSWTR as it applies to the Catskill/Delaware system.


Jeanne M. Fox,Regional Administrator.[FR Doc. 97–20175 Filed 7–30–97; 8:45 am]



[FEMA–1181–DR]

Michigan; Amendment to Notice of aMajor Disaster Declaration

AGENCY: Federal EmergencyManagement Agency (FEMA).

ACTION: Notice.

SUMMARY: This notice amends the noticeof a major disaster for the State ofMichigan, (FEMA–1181-DR), dated July11, 1997, and related determinations.

EFFECTIVE DATE: July 22, 1997.

FOR FURTHER INFORMATION CONTACT:Magda Ruiz, Response and RecoveryDirectorate, Federal EmergencyManagement Agency, Washington, DC20472, (202) 646–3260.

SUPPLEMENTARY INFORMATION: The noticeof a major disaster for the State ofMichigan, is hereby amended to includethe following areas among those areasdetermined to have been adverselyaffected by the catastrophe declared amajor disaster by the President in hisdeclaration of July 11, 1997:

Genesee County for Individual Assistance.


(Catalog of Federal Domestic Assistance No.83.516, Disaster Assistance)Lacy E. Suiter,Executive Associate Director, Response andRecovery Directorate.[FR Doc. 97–20231 Filed 7–30–97; 8:45 am]BILLING CODE 6718–02–P


[FEMA–1179–DR]

Texas; Amendment to Notice of aMajor Disaster Declaration

AGENCY: Federal EmergencyManagement Agency (FEMA).ACTION: Notice.

SUMMARY: This notice amends the noticeof a major disaster for the State of Texas,(FEMA–1179–DR), dated July 7, 1997,and related determinations.EFFECTIVE DATE: July 18, 1997.FOR FURTHER INFORMATION CONTACT:Magda Ruiz, Response and RecoveryDirectorate, Federal EmergencyManagement Agency, Washington, DC20472, (202) 646–3260.SUPPLEMENTARY INFORMATION: The noticeof a major disaster for the State of Texas,is hereby amended to include thefollowing areas among those areasdetermined to have been adverselyaffected by the catastrophe declared amajor disaster by the President in hisdeclaration of July 7, 1997:

Blanco and Hays Counties for IndividualAssistance.(Catalog of Federal Domestic Assistance No.83.516, Disaster Assistance)Catherine H. Light,Deputy Associate Director, Response andRecovery Directorate.[FR Doc. 97–20232 Filed 7–30–97; 8:45 am]BILLING CODE 6718–02–P


[FEMA–1180–DR]

Wisconsin; Amendment to Notice of aMajor Disaster Declaration

AGENCY: Federal EmergencyManagement Agency (FEMA).ACTION: Notice.

SUMMARY: This notice amends the noticeof a major disaster for the State ofWisconsin (FEMA–1180–DR), dated July7, 1997, and related determinations.EFFECTIVE DATE: July 15, 1997.FOR FURTHER INFORMATION CONTACT:Madge Dale, Response and RecoveryDirectorate, Federal Emergency

Management Agency, Washington, DC20472, (202) 646–3260.SUPPLEMENTARY INFORMATION: Notice ishereby given that, effective this date andpursuant to the authority vested in theDirector of the Federal EmergencyManagement Agency under ExecutiveOrder 12148, I hereby appoint SteveAdukaitis of the Federal EmergencyManagement Agency to act as theFederal Coordinating Officer for thisdeclared disaster.

This action terminates myappointment of Gary Pierson as FederalCoordinating Officer for this disaster.(Catalog of Federal Domestic Assistance No.83.516, Disaster Assistance)James L. Witt,Director.[FR Doc. 97–20234 Filed 7–30–97; 8:45 am]BILLING CODE 6718–02–P

FEDERAL MARITIME COMMISSION

Notice of Agreement(s) Filed

The Commission hereby gives noticeof the filing of the followingagreement(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, NW., 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.: 224–200043–002Title: Long Beach/Forest Terminals

Corporation Terminal AgreementParties:

City of Long BeachForest Terminals Corporation (‘‘Forest

Terminals’’)Synopsis: The amendment covers

relinquishment of a portion of theassigned premises and renegotiationof the compensation paid by ForestTerminals.

Agreement No.: 224–201030Title: Port of New Orleans/Gateway

Terminal Services and I.T.O. Corp.Parties:

Board of Commissioners of the Port ofNew Orleans (‘‘Port’’)

Gateway Terminal Services, L.L.C.(‘‘Gateway’’)

I.T.O. Corporation (‘‘I.T.O.’’)Synopsis: The Agreement would

authorize Gateway and I.T.O. tojointly lease from the Port 22 acresplus improvements at its Milan Streetand Napoleon Ave. ‘‘C’’ Wharves foruse as a public maritime cargoterminal until June 30, 2000.

Dated: July 25, 1997.By Order of the Federal Maritime

Commission.Joseph C. Polking,Secretary.[FR Doc. 97–20084 Filed 7–30–97; 8:45 am]BILLING CODE 6730–01–M


Ocean Freight Forwarder License;Applicants

Notice is hereby given that thefollowing applicants have filed with theFederal Maritime Commissionapplications for licenses as ocean freightforwarders pursuant to section 19 of theShipping Act of 1984 (46 U.S.C. app.1718 and 46 CFR part 510).

Persons knowing of any reason whyany of the following applicants shouldnot receive a license are requested tocontact the Office of Freight Forwarders,Federal Maritime Commission,Washington, DC 20573.Asian Pacific Logistics, 23202 Audrey

Avenue, Torrance, CA 90505, PaulYoon, Sole Proprietor

Monfrieght, 425 Medford Street,Charlestown, MA 02129, Officers:Peter E. Awezec, President, FrankLidano, Vice President

Unlimited Express Corporation, 149–15177th Street, 2nd Floor, Jamaica, NY11434, Officer: Danny Chi-Shiung YinDated: July 25, 1997.

Joseph C. Polking,Secretary.[FR Doc. 97–20113 Filed 7–30–97; 8:45 am]BILLING CODE 6730–01–M


[Docket No. 97–14]

Notice of Filing of Petition forDeclaration Order

In the matter of Surety Bond coverage ofnon-vessel operating common carrieractivities.

Notice is given that a petition fordeclaratory order has been filed byIntercargo Insurance Company, Inc.,seeking that the Federal MaritimeCommission terminate a controversyand remove any uncertainty which mayexist with respect to: (a) Whether a non-vessel-operating common carrier(‘‘NVOCC’’) surety bond covers claimsfor unpaid freight charges on a shipmentwhen the NVOCC principal to anNVOCC bond acts as a forwarding agenton behalf of a disclosed shipper, and nota as a shipper or common carrier, and(b) whether a surety is entitled to review


a default judgment—or any judgmentnot defended by the NVOCC or itssurety—to determine whether a claim iswithin the scope of the bond.

Interested persons may inspect andobtain a copy of the petition at theOffice of the Secretary, Room 1046,Federal Maritime Commission, 800North Capital Street, NW., Washington,DC 20573–0001. Interested persons mayreply to the petition by submitting anoriginal and 15 copies of the reply to theSecretary, at the above address, on orbefore August 25, 1997. A copy of thereply also shall be served on petitioner’sattorney, Henry P. Gonzalez, Esq.,Carlos Rodriguez & Associates, 1710Rhode Island Ave., NW., Tenth Floor,Washington, DC 20036, and on counselfor Wilhelmsen Lines A/S, AlanNakazawa, Esq., Williams WooleyCogswell Nakazawa & Russell, 111 WestOcean Boulevard, Suite 2000, LongBeach, California 90802–4614. Repliesshall contain the complete factual andlegal presentation of the replying partyas to the desired resolution of thepetition (See 46 CFR 502.68(d)).Joseph C. Polking,Secretary.[FR Doc. 97–20112 Filed 7–30–97; 8:45 am]BILLING CODE 6730–01–M

FEDERAL RESERVE SYSTEM

Change in Bank Control Notices;Acquisitions of Shares of Banks orBank Holding Companies

Editorial Note.—FR document 97–19206was originally published beginning on page39242, in the issue of Tuesday, July 22, 1997,it was inadvertently published with incorrecttext. The correct text appears below.

The notificants listed below haveapplied under the Change in BankControl Act (12 U.S.C. 1817(j)) and §225.41 of the Board’s Regulation Y (12CFR 225.41) to acquire a bank or bankholding company. The factors that areconsidered in acting on the notices areset forth in paragraph 7 of the Act (12U.S.C. 1817(j)(7)).

The notices are available forimmediate inspection at the FederalReserve Bank indicated. The noticesalso will be available for inspection atthe offices of the Board of Governors.Interested persons may express theirviews in writing to the Reserve Bankindicated for that notice or to the officesof the Board of Governors. Commentsmust be received not later than August6, 1997.

A. Federal Reserve Bank of SanFrancisco (Pat Marshall, Manager ofAnalytical Support, Consumer

Regulation Group) 101 Market Street,San Francisco, California 94105-1579:

1. Richard A. Lagomarsino, andRobert J. Lagomarsino, both of Ventura,California, and Catherine S. Wood,Carpinteria, California; acting in concertto acquire an additional .05 percent, fora total of 19.06 percent, of the votingshares of Americorp, Ventura,California, and thereby indirectlyacquire American Commercial Bank,Ventura, California.

Board of Governors of the Federal ReserveSystem, July 17, 1997.

Jennifer J. Johnson,Deputy Secretary of the Board.[FR Doc. 97–19206 Filed 7-30-97; 8:45 am]

BILLING CODE 1505-01-F

FEDERAL RETIREMENT THRIFTINVESTMENT BOARD

Sunshine Act Meeting

TIME AND DATE: 10:00 a.m. (EDT) August11, 1997.

PLACE: 4th Floor, Conference Room4506, 1250 H Street, NW., WashingtonDC.

STATUS: Open.

MATTERS TO BE CONSIDERED:1. Approval of the minutes of the July

14, 1997, Board member meeting.2. Thrift Savings Plan activity report

by the Executive Director.3. Review of investment policy.4. Review of Arthur Andersen

semiannual financial review.5. Review of KPMG Peat Marwick

audit report: ‘‘Pension and WelfareBenefits Administration Review of theThrift Savings Plan Withdrawal andInactive Accounts Operations at theUnited States Department ofAgriculture, National Finance Center.’’

CONTACT PERSON FOR MORE INFORMATION:Thomas J. Trabucco, Director, Office ofExternal Affairs, (202) 942–1640.Roger W. Mehle,Executive Director, Federal Retirement ThriftInvestment Board.[FR Doc. 97–20354 Filed 7–29–97; 12:20 pm]



Centers for Disease Control andPrevention

[Program Announcement 761]

Replication and Dissemination ofEffective Breast and Cervical CancerHealth Education Interventions

AmendmentA notice announcing the availability

of fiscal year (FY) 1997 funds forcooperative agreements for theReplication and Dissemination ofEffective Breast and Cervical CancerHealth Education Interventions waspublished in the Federal Register onJuly 8, 1997, (62 FR 36522). The noticeis amended as follows:

On page 36523, first column, underthe heading ‘‘Availability of Funds,’’ thefirst two sentences are changed to read:‘‘Approximately $4.5 million will beavailable in FY 1997 to fundapproximately 10 awards. It is expectedthat the average award will beapproximately $350,000, ranging from$350,000 to $500,000.’’

On page 36528, first column, underthe heading ‘‘Application Submissionand Deadline,’’ the date on lines nineand ten is changed to read ‘‘on or beforeAugust 20, 1997.’’

All other information andrequirements of the July 8, 1997,Federal Register notice remain thesame.

Dated: July 25, 1997.Joseph R. Carter,Acting Associate Director for Managementand Operations, Centers for Disease Controland Prevention (CDC).[FR Doc. 97–20137 Filed 7–30–97; 8:45 am]BILLING CODE 4163–18–P


Centers for Disease Control andPrevention

[Announcement Number 789]

Research and DemonstrationPrograms in Surveillance, Prevention,and Control of Healthcare-AssociatedInfections and Antimicrobial ResistantInfections

AmendmentA notice announcing the availability

of fiscal year (FY) 1997 funds forcooperative agreements for Researchand Demonstration Programs inSurveillance, Prevention, and Control ofHealthcare-Associated Infections and


Antimicrobial Resistant Infections waspublished in the Federal Register onJuly 8, 1997, (62 FR 36541). The noticeis amended as follows:

On page 36543, under the heading‘‘Specific Instructions,’’ second column,4. Objectives and Technical Approach,lines three and four have been changedand should read: ‘‘Recipient Activities(A.1.a., A.1.b., A.2., A.3., andA.4.). . . .’’

On page 36544, second column, thirdparagraph, c., line six should read‘‘Activities A.4.). . . .’’

All other information andrequirements of the July 8, 1997,Federal Register notice remain thesame.

Dated: July 25, 1997.Joseph R. Carter,Acting Associate Director for Managementand Operations, Centers for Disease Controland Prevention (CDC).[FR Doc. 97–20136 Filed 7–30–97; 8:45 am]BILLING CODE 4163–18–P



Request for Nominations for Memberson Public Advisory Committees; BloodProducts Advisory Committee

AGENCY: Food and Drug Administration,HHS.ACTION: Notice.

SUMMARY: The Food and DrugAdministration (FDA) is requestingnominations to fill upcoming vacancieson the Blood Products AdvisoryCommittee.

FDA has a special interest in ensuringthat women, minority groups, andindividuals with disabilities areadequately represented on advisorycommittees and, therefore, extendsparticular encouragement tonominations for appropriately qualifiedfemale, minority, or disabledcandidates.DATES: Nominations should be receivedon or before August 15, 1997.ADDRESSES: All nominations formembership should be sent to theappropriate contact person (addressbelow).FOR FURTHER INFORMATION CONTACT:

All nominations and curricula vitaeexcept for consumer representativesshould be submitted in writing toLinda A. Smallwood, Office ofBlood Research and Review (HFM–350), Center for BiologicsEvaluation and Research, Food andDrug Administration, 1401Rockville Pike, Rockville, MD

20852–1448, 301–827–3514.All nominations and curricula vitae

for consumer representativesshould be submitted in writing toAnnette J. Funn, Office ofConsumer Affairs (HFE–88), Foodand Drug Administration, 5600Fishers Lane, Rockville, MD 20857,301–827–5006.

SUPPLEMENTARY INFORMATION: FDA isrequesting nominations to fill upcomingvacancies on the Blood ProductsAdvisory Committee. The function ofthe committee is to review and evaluateavailable data concerning the safety,effectiveness, appropriate use of bloodproducts derived from blood and serumor biotechnology which are intended foruse in the diagnosis, prevention, ortreatment of human diseases, and, asrequired, any other product for whichFDA has regulatory responsibility.Persons nominated for membershipshould be among authoritiesknowledgeable in the fields of clinicaland administrative medicine, infectiousdisease, hematology, immunology,transfusion medicine, surgery, internalmedicine, biochemistry, biostatistics,epidemiology, biological and physicalsciences, biotechnology, computertechnology, sociology/ethics, and otherrelated professions. The membershipwill also include representatives ofconsumer organizations, productrecipients, and health care providers.The committee will function at times asa medical device panel under theFederal Food, Drug, and Cosmetic ActMedical Device Amendments of 1976.

Nonvoting Consumer and IndustryRepresentation

Section 520(f)(3) of the Federal Food,Drug, and Cosmetic Act (the act) (21U.S.C. 360j(f)(3)), as amended by theMedical Device Amendments of 1976,provides that each medical device panelinclude as members one nonvotingrepresentative of consumer interests andone nonvoting representative ofinterests of the manufacturing industry.

Nomination ProceduresInterested persons may nominate one

or more qualified persons formembership on the committee. Selfnominations are also accepted. Acurrent curriculum vitae of eachnominee should accompany the letter ofnomination and include the followinginformation: Full name and title,business address and phone number,home address and phone number, dateand place of birth. Nominations shallstate that the nominee is willing to serveas a member of the committee andappears to have no conflict of interestthat would preclude advisory committeemembership. The Commissioner of

Food and Drugs will ask the potentialcandidates to provide detailedinformation concerning such matters asfinancial holdings, consultancies, andresearch grants or contracts to permitevaluation of possible sources ofconflict of interest. The term of officemay not exceed 4 years, depending onthe appointment date.

The nomination procedures for thenonvoting consumer representative andindustry representative are the same asstated previously with the followingexceptions:

Consumer Representatives

To be eligible for selection, theapplicant’s experience and/or educationwill be evaluated against Federal civilservice criteria for the position to whichthe person will be appointed. The termof office is up to 4 years.

Industry Representatives

Any organization representingindustry interests wishing to participatein the selection of representatives maynominate one or more qualified personsto represent industry interests. Personswho nominate themselves as industryrepresentatives will not participate inthe selection process. It is, therefore,recommended that all nominations bemade by someone with an organization,trade association, or firm who is willingto participate in the selection process.Nominees shall be full-time employeesof firms that manufacture products thatwould come before the committee, orconsulting firms that representmanufacturers. The term of office is upto 4 years.

Selection Procedures

Consumer Representatives

Selection of members representingconsumers interests is conductedthrough procedures which include useof a consortium of consumerorganizations which has theresponsibility for recommendingcandidates for the agency’s selection.Candidates should possess appropriatequalifications to understand andcontribute to the committee’s work.

Industry Representatives

Regarding nominations for membersrepresenting the interests of industry, aletter will be sent to each person thathas made a nomination, and to thoseorganizations indicating an interest inparticipating in the selection process,together with a complete list of all suchorganizations and the nominees. Thisletter will state that it is theresponsibility of each nominator or


organization indicating an interest inparticipating in the selection process toconsult with the others in selecting asingle member representing industryinterests for the committee within 60days after receipt of the letter. If noindividual is selected within 60 days,the agency will select the nonvotingmember representing industry interests.

This notice is issued under theFederal Advisory Committee Act (5U.S.C. app. 2), relating to advisorycommittees.

Dated: July 24, 1997.Michael A. Friedman,Deputy Commissioner for Operations.[FR Doc. 97–20080 Filed 7-30-97; 8:45 am]BILLING CODE 4160–01–F



Request for Nominations for Memberson Public Advisory Committees;Science Board to the Food and DrugAdministration


SUMMARY: The Food and DrugAdministration (FDA) is requestingnominations for members to serve onthe Science Board to the Food and DrugAdministration (the board) administeredfrom FDA’s Office of Science.Nominations will be accepted forupcoming vacancies that may or willoccur on the board during the next 24months.

FDA has a special interest in ensuringthat women, minority groups, andindividuals with disabilities areadequately represented on advisorycommittees, and therefore, extendsparticular encouragement tonominations for appropriately qualifiedfemale, minority, or physically disabledcandidates. Final selections from amongqualified candidates for each vacancywill be determined by the expertiserequired to meet specific agency needsand in a manner to ensure appropriatebalance of membership.DATES: All nominations must bereceived by September 2, 1997.ADDRESSES: All nominations formembership and curricula vitae fromacademia, industry, and government,except for general public representatives(consumer-nominated members), shouldbe sent to Susan K. Meadows (addressbelow). All nominations for generalpublic representatives (consumer-nominated members) should be sent toAnnette J. Funn (address below).

FOR FURTHER INFORMATION CONTACT:Regarding all nominations for

membership, except for generalpublic representatives: Susan K.Meadows, Office of Science (HF–32), Food and Drug Administration,5600 Fishers Lane, Rockville, MD20857, 301–827–4591.

Regarding all nominations for generalpublic representatives: Annette J.Funn, Office of Consumer Affairs(HFE–88), Food and DrugAdministration, 5600 Fishers Lane,Rockville, MD 20857, 301–827–5006.

SUPPLEMENTARY INFORMATION: FDA isrequesting nominations for members toserve on the board for upcomingvacancies that may or will occur on theboard during the next 24 months.

FunctionThe function of the board is to

provide advice primarily to the agency’sSenior Science Advisor and, as needed,to the Commissioner of Food and Drugsand other appropriate officials onspecific complex and technical issues aswell as emerging issues within thescientific community in academia andindustry. Additionally, the boardprovides advice to the agency onkeeping pace with technical andscientific evolutions in the field ofregulatory science, on formulating anappropriate research agenda and onupgrading its scientific and researchfacilities to keep pace with thesechanges. The board also provides themeans for critical review of agency-sponsored intramural and extramuralscientific research programs.

Criteria for MembersPersons nominated for membership

shall have exceptional accomplishmentsand expertise in science, or executivelevel experience in scientificprogrammatic or laboratory managementinvolving scientific endeavorsappropriate to the work of the board andthe interests of FDA. Disciplines orexpertise of particular interest includebiomedical technology with applicationto medical devices, biologics andvaccine development and research, andgenetics. The term of office is 4 years.

General Public Representatives(Consumer-nominated Members)

FDA currently attempts to placemembers on advisory committees whoare nominated by consumerorganizations. These members arerecommended by a consortium of 12consumer organizations that has theresponsibility for screening,interviewing, and recommendingconsumer-nominated candidates withappropriate scientific credentials.

Candidates are sought who are aware ofthe consumer impact of committeeissues, but who also possess enoughtechnical background to understand andcontribute to the committee’s work. Theagency notes, however, that for someadvisory committees, it may requiresuch nominees to meet the sametechnical qualifications and specializedtraining required of other expertmembers of the committee. The term ofoffice for these members is up to 4years, depending on the appointmentdate. Nominations are invited forconsideration for membership asopenings become available.

Nomination Procedures

Any interested person may nominateone or more qualified persons formembership on the board. Nominationsshall state that the nominee is aware ofthe nomination, is willing to serve as amember of the board, and appears tohave no conflict of interest that wouldpreclude board membership. Potentialcandidates will be asked by FDA toprovide detailed information concerningsuch matters as financial holdings,consultancies, and research grants orcontracts in order to permit evaluationof possible sources of conflict ofinterest.

This notice is issued under theFederal Advisory Committee Act (5U.S.C. app. 2) and 21 CFR part 14,relating to advisory committees.

Dated: July 24, 1997.Michael A. Friedman,Deputy Commissioner for Operations.[FR Doc. 97–20082 Filed 7-30-97; 8:45 am]BILLING CODE 4160–01–F



[Docket No. 97F-0305]

Goldschmidt Chemical Corp.; Filing ofFood Additive Petition


SUMMARY: The Food and DrugAdministration (FDA) is announcingthat Goldschmidt Chemical Corp. hasfiled a petition proposing that the foodadditive regulations be amended toprovide for the expanded safe use ofsiloxanes and silicones; cetylmethyl,dimethyl, methyl 11-methoxy-11-oxoundecyl as a pigment dispersant inall pigmented polymers intended for usein contact with food.


DATES: Written comments on thepetitioner’s environmental assessmentby September 2, 1997.ADDRESSES: Submit written commentsto the Dockets Management Branch(HFA-305), Food and DrugAdministration, 12420 Parklawn Dr.,rm. 1-23, Rockville, MD 20857.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 7B4550) has been filed byGoldschmidt Chemical Corp., c/o Kellerand Heckman, 1001 G St., NW., suite500 West, Washington, DC 20001. Thepetition proposes to amend the foodadditive regulations in § 178.3725Pigment dispersants (21 CFR 178.3725)to provide for the expanded safe use ofsiloxanes and silicones; cetylmethyl,dimethyl, methyl 11-methoxy-11-oxoundecyl as a pigment dispersant inall pigmented polymers intended for usein contact with food.

The potential environmental impactof this action is being reviewed. Toencourage public participationconsistent with regulations promulgatedunder the National EnvironmentalPolicy Act (40 CFR 1501.4(b)), theagency is placing the environmentalassessment submitted with the petitionthat is the subject of this notice onpublic display at the DocketsManagement Branch (address above) forpublic review and comment. Interestedpersons may, on or before September 2,1997, submit to the DocketsManagement Branch (address above)written comments. Two copies of anycomments are to be submitted, exceptthat individuals may submit one copy.Comments are to be identified with thedocket number found in brackets in theheading of this document. Receivedcomments may be seen in the officeabove between 9 a.m. and 4 p.m.,Monday through Friday. FDA will alsoplace on public display anyamendments to, or comments on, thepetitioner’s environmental assessmentwithout further announcement in theFederal Register. If, based on its review,the agency finds that an environmentalimpact statement is not required andthis petition results in a regulation, thenotice of availability of the agency’sfinding of no significant impact and theevidence supporting that finding will bepublished with the regulation in theFederal Register in accordance with 21CFR 25.40(c).

Dated: July 11, 1997.Laura M. Tarantino,Acting Director, Office of PremarketApproval, Center for Food Safety and AppliedNutrition.[FR Doc. 97–20079 Filed 7-30-97; 8:45 am]BILLING CODE 4160–01–F



[Docket No. 97D–0299]

International Conference onHarmonisation; Draft Guideline onEthnic Factors in the Acceptability ofForeign Clinical Data; Availability


SUMMARY: The Food and DrugAdministration (FDA) is publishing adraft guideline entitled ‘‘Ethnic Factorsin the Acceptability of Foreign ClinicalData.’’ The draft guideline was preparedunder the auspices of the InternationalConference on Harmonisation ofTechnical Requirements for Registrationof Pharmaceuticals for Human Use(ICH). The draft guideline providesguidance on regulatory anddevelopment strategies to permitclinical data collected in one region tobe used for the support of drug andbiologic registrations in another regionwhile allowing for the influence ofethnic factors.DATES: Written comments by October29, 1997.ADDRESSES: Submit written commentson the draft guideline to the DocketsManagement Branch (HFA–305), Foodand Drug Administration, 12420Parklawn Dr., rm. 1–23, Rockville, MD20857. Copies of the draft guideline areavailable from the Drug InformationBranch (HFD–210), Center for DrugEvaluation and Research, Food andDrug Administration, 5600 FishersLane, Rockville, MD 20857, 301–827–4573. Single copies of the guideline maybe obtained by mail from the Office ofCommunication, Training andManufacturers Assistance (HFM–40),Center for Biologics Evaluation andResearch (CBER), 1401 Rockville Pike,Rockville, MD 20852–1448, or by callingthe CBER Voice Information System at1–800–835–4709 or 301–827–1800.Copies may be obtained from CBER’sFAX Information System at 1–888–CBER–FAX or 301–827–3844.FOR FURTHER INFORMATION CONTACT:

Regarding the guideline: Barbara G.

Matthews, Center for BiologicsEvaluation and Research (HFM–570), Food and DrugAdministration, 1401 RockvillePike, Rockville, MD 20852, 301–827–5094.

Regarding the ICH: Janet J. Showalter,Office of Health Affairs (HFY–20),Food and Drug Administration,5600 Fishers Lane, Rockville, MD20857, 301–827–0864.

SUPPLEMENTARY INFORMATION: In recentyears, many important initiatives havebeen undertaken by regulatoryauthorities and industry associations topromote international harmonization ofregulatory requirements. FDA hasparticipated in many meetings designedto enhance harmonization and iscommitted to seeking scientificallybased harmonized technical proceduresfor pharmaceutical development. One ofthe goals of harmonization is to identifyand then reduce differences in technicalrequirements for drug developmentamong regulatory agencies.

ICH was organized to provide anopportunity for tripartite harmonizationinitiatives to be developed with inputfrom both regulatory and industryrepresentatives. FDA also seeks inputfrom consumer representatives andothers. ICH is concerned withharmonization of technicalrequirements for the registration ofpharmaceutical products among threeregions: The European Union, Japan,and the United States. The six ICHsponsors are the European Commission,the European Federation ofPharmaceutical Industries Associations,the Japanese Ministry of Health andWelfare, the Japanese PharmaceuticalManufacturers Association, the Centersfor Drug Evaluation and Research andBiologics Evaluation and Research,FDA, and the Pharmaceutical Researchand Manufacturers of America. The ICHSecretariat, which coordinates thepreparation of documentation, isprovided by the InternationalFederation of PharmaceuticalManufacturers Associations (IFPMA).

The ICH Steering Committee includesrepresentatives from each of the ICHsponsors and the IFPMA, as well asobservers from the World HealthOrganization, the Canadian HealthProtection Branch, and the EuropeanFree Trade Area.

In March 1997, the ICH SteeringCommittee agreed that a draft guidelineentitled ‘‘Ethnic Factors in theAcceptability of Foreign Clinical Data’’should be made available for publiccomment. The draft guideline is theproduct of the Efficacy Expert WorkingGroup of the ICH. Comments about this


draft will be considered by FDA and theEfficacy Expert Working Group.

The draft guideline is intended tofacilitate the registration of drugs andbiologics among the ICH regions byrecommending a framework forevaluating the impact of ethnic factorson a drug’s effect, i.e., its efficacy andsafety at a particular dosage and doseregimen. The draft guideline providesguidance on regulatory anddevelopment strategies that will permitadequate evaluation of the influence ofethnic factors while minimizingduplication of clinical studies, andexpediting the drug approval process.

This draft guideline represents theagency’s current thinking on ethnicfactors in the acceptability of foreignclinical data for approval of both drugsand biologics. It does not create orconfer any rights for or on any personand does not operate to bind FDA or thepublic. An alternative approach may beused if such approach satisfies therequirements of the applicable statute,regulations, or both.

Interested persons may, on or beforeOcotber 29, 1997, submit to the DocketsManagement Branch (address above)written comments on the draftguideline. Two copies of any commentsare to be submitted, except thatindividuals may submit one copy.Comments are to be identified with thedocket number found in brackets in theheading of this document. The draftguideline and received comments maybe seen in the office above between 9a.m. and 4 p.m., Monday throughFriday. An electronic version of thisguideline is available via Internet usingthe World Wide Web (WWW) at ‘‘http://www.fda.gov/cder/guidance.htm’’. Toconnect to CBER’s WWW site, type‘‘http://www.fda.gov/cber/cberftp.html’’.

The text of the draft guideline follows:

Ethnic Factors in the Acceptability ofForeign Clinical Data1.0 Introduction

1.1 Objectives1.2 Background1.3 Scope

2.0 Assessment of the Clinical Data PackageIncluding Foreign Clinical Data for ItsFulfillment of Regulatory Requirements inthe New Region

2.1 Additional Studies to Meet the NewRegion’s Regulatory Requirements3.0 Assessment of the Foreign Clinical DataPackage for Extrapolation to the New Region

3.1 Characterization of the Drug’sSensitivity to Ethnic Factors

3.2 Bridging Data Package3.2.1 Definition of Bridging Study and

Bridging Data Package3.2.2 Nature and Extent of the Bridging

Study3.2.3 Bridging Studies for Efficacy

3.2.4 Bridging Studies for Safety4.0 Developmental Strategies for GlobalDevelopment5.0 Summary

Glossary

Appendix A: Classification of Intrinsic andExtrinsic Ethnic Factors

Appendix B: Assessment of the Clinical DataPackage (CDP) for Acceptability

Appendix C: Pharmacokinetic,Pharmacodynamic, and Dose-ResponseConsiderations

Appendix D: A Drug’s Sensitivity to EthnicFactors

(Italicized words and terms in the text of theguideline are defined or explained in theglossary.)

1.0 Introduction

The purpose of this guidance is to facilitatethe registration of medicines among ICHregions by recommending a framework forevaluating the impact of ethnic factors on adrug’s effect, i.e., its efficacy and safety at aparticular dosage and dose regimen. Itprovides guidance with respect to regulatoryand development strategies that will permitadequate evaluation of the influence ofethnic factors while minimizing duplicationof clinical studies and supplying medicinesexpeditiously to patients for their benefit. Forthe purposes of this document, ethnic factorsare defined as those factors relating to thegenetic and physiologic (intrinsic) and thecultural and environmental (extrinsic)characteristics of a population (Appendix A).

1.1 Objectives

• To describe the characteristics offoreign clinical data that will facilitate theirextrapolation to different populations andsupport their acceptance as a basis for drugregistration in a new region.

• To describe regulatory strategies thatminimize duplication of clinical data andfacilitate acceptance of foreign clinical datain the new region.

• To describe the use of bridging studies,when necessary, to allow extrapolation offoreign clinical data to a new region.

• To describe development strategiescapable of characterizing ethnic factorinfluences on safety, efficacy, dosage, anddose regimen.

1.2 Background

All regions acknowledge the desirability ofutilizing foreign clinical data that meet theregulatory standards and clinical trialpractices acceptable to the region consideringthe application for registration.

However, concern that ethnic differencesmay affect the medication’s safety, efficacy,dosage, and dose regimen in the new regionhas limited the willingness to rely on foreignclinical data. Historically, therefore, this hasbeen one of the reasons the regulatoryauthority in the new region has oftenrequested that all, or much, of the foreignclinical data in support of registration beduplicated in the new region. Althoughethnic differences among populations maycause differences in a drug’s safety, efficacy,dosage, or dose regimen, many drugs have

comparable characteristics and effects acrossregions. Requirements for extensiveduplication of clinical evaluation for everycompound can delay the availability of newtherapies and unnecessarily waste valuabledrug development resources.

1.3 Scope

This guidance is based on the premise thatit is not necessary to repeat the entire clinicaldrug development program in the new regionand is intended to recommend strategies foraccepting foreign clinical data as full orpartial support for approval of an applicationin a new region. It is critical to appreciatethat this guidance is not intended to alter thedata requirements in the new region; it doesseek to recommend when these datarequirements may be satisfied with foreignclinical data. All data in the clinical datapackage, including foreign data, should meetthe standards of the new region with respectto its study design and conduct, and theavailable data should be complete to thesatisfaction of the new region. Additionalstudies conducted in any region may berequired by the new region to complete theclinical data package.

Once a clinical data package is complete inits fulfillment of the regulatory requirementsof the new region, the only remaining issuewith respect to the acceptance of the foreignclinical data is its ability to be extrapolatedto the population of the new region. Whenthe regulatory authority or the sponsor isconcerned that differences in ethnic factorscould alter the efficacy or safety of the drugin the population in the new region, thesponsor may need to generate a limitedamount of clinical data in the new region inorder to extrapolate or ‘‘bridge’’ the clinicaldata between the two regions.

If a sponsor needs to obtain additionalclinical data to fulfill the regulatoryrequirements of the new region, it is possiblethat these clinical trials can be designed toalso serve as the bridging studies. Thus, thesponsor and the regional regulatory authorityof the new region would assess anapplication for:

(1) Completeness with respect to theregulatory requirements of the new region,and

(2) The ability to extrapolate to the newregion those parts of the application (whichcould be most or all of the application) basedon studies from the foreign region (AppendixB).

2.0 Assessment of the Clinical Data PackageIncluding Foreign Clinical Data for ItsFulfillment of Regulatory Requirements inthe New Region

The regional regulatory authority wouldassess the clinical data package, includingthe foreign data, as to whether or not it meetsall of the regulatory standards regarding thenature and quality of the data, irrespective ofits geographic origin. A data package thatmeets all of these regional regulatoryrequirements would be considered completefor submission and potential approval. Theacceptability of the foreign clinical datacomponent of the complete data packagedepends then upon whether it can beextrapolated to the population of the newregion.


Before extrapolation can be considered, theclinical data package, including foreignclinical data, submitted to the new regionshould contain:

• Adequate characterization ofpharmacokinetics, pharmacodynamics, doseresponse, efficacy, and safety in thepopulation of the foreign region(s).

• Characterization of pharmacokinetics,and where possible, pharmacodynamics anddose response for pharmacodynamicendpoints in a population relevant to thenew region of interest. This characterizationneed not be performed in the new region butcould be performed in the foreign region ina population representative of the newregion.

• Clinical trials establishing doseresponse, efficacy and safety. These trialsshould:

—Be designed and conducted according toregulatory standards in the new region, e.g.,choice of controls, and should be conductedaccording to good clinical practice (GCP),

—Be adequate and well-controlled,—Utilize endpoints that are considered

appropriate for assessment of treatment,—Evaluate clinical disorders using medical

and diagnostic definitions that are acceptableto the new region.

Several ICH guidelines address aspectswith respect to: GCP’s (E6), evaluation ofdose response (E4), adequacy of safety data(E1 and E2), conduct of studies in the elderly(E7), reporting of study results (E3), generalconsiderations for clinical trials (E8), andstatistical considerations (E9). A guideline onthe clinical study design question of choiceof control group (E10) is under development.

2.1 Additional Studies to Meet the NewRegion’s Regulatory Requirements

When the foreign clinical data do not meetthe new region’s regulatory requirements, theregulatory authority may require additionalclinical trials, such as:

• Clinical trials in different subsets of thepopulation,

• Clinical trials using differentcomparators at the new region’s approveddosage and dose regimen,

• Drug-drug interaction studies,• Pharmacokinetic studies in a

population representative of the new region.

3.0 Assessment of the Foreign Clinical DataPackage for Extrapolation to the New Region

3.1 Characterization of the Drug’s Sensitivityto Ethnic Factors

To assess a drug’s sensitivity to ethnicfactors, it is important that there beknowledge of its pharmacokinetic andpharmacodynamic properties and thetranslation of those properties to clinicaleffectiveness and safety. A reasonableevaluation is described in Appendix C. Someproperties of a drug (chemical class,metabolic pathway, pharmacologic class)make it more or less likely to be affected byethnic factors (Appendix D). Characterizationof a drug as ‘‘ethnically insensitive,’’ i.e.,unlikely to behave differently in differentpopulations, usually would make it easier toextrapolate data from one region to anotherand need less bridging data.

Factors that make a drug ethnicallysensitive or insensitive will become better

understood and documented as effects indifferent regions are compared. It is clear atpresent, however, that such characteristics asclearance by an enzyme showing geneticpolymorphism and a steep dose-responsecurve will make ethnic differences morelikely. Conversely, a lack of metabolism oractive excretion, a wide therapeutic doserange, and a flat dose-response curve willmake ethnic differences less likely. Theclinical experience with other members ofthe drug class in the new region will alsocontribute to the assessment of the drug’ssensitivity to ethnic factors. It may be easierto conclude that the pharmacodynamic andclinical behavior of a drug will be similar inthe foreign and new regions if other membersof the pharmacologic class have been studiedand approved in the new region with dosingregimens similar to those used in the foreignregion.

3.2 Bridging Data Package

3.2.1 Definition of Bridging Study andBridging Data Package

A bridging study is defined as a studyperformed in the new region to providepharmacodynamic or clinical data onefficacy, safety, dosage, and dose regimen inthe new region that will allow extrapolationof the foreign clinical data package to thepopulation in the new region. Such studiescould include further pharmacokineticinformation.

A bridging data package consists of: (1)Information from the foreign clinical datapackage that is relevant to the population ofthe new region, including pharmacokineticdata, and any preliminary pharmacodynamicand dose-response data and, if needed, (2) abridging study to extrapolate the foreignefficacy data and/or safety data to the newregion.3.2.2 Nature and Extent of the Bridging Study

This guidance proposes that when theregulatory authority of the new region ispresented with a clinical data package thatfulfills its regulatory requirements, theauthority should request only thoseadditional data necessary to assess the abilityto extrapolate data from the package to thenew region. The sensitivity of the medicineto ethnic factors will help determine theamount of such data. In most cases, a singletrial that successfully provides these data inthe new region and confirms the ability toextrapolate data from the original regionshould suffice and should not need furtherreplication. Note that even though a singlestudy should be sufficient to ‘‘bridge’’efficacy data, a sponsor may find it practicalto obtain the necessary data by conductingmore than one study. For example, a singleclinical endpoint, fixed dose, dose-responsestudy may be the only one needed to bridgethe foreign data, but a short-termpharmacologic endpoint study might helpchoose the doses for the large study.

When the regulatory authority requests, orthe sponsor decides to conduct, a bridgingstudy, discussion between the regionalregulatory authority and sponsor isencouraged, when possible, to determinewhat kind of bridging study will be needed.The relative ethnic sensitivity will helpdetermine the need for and the nature of thebridging study. For regions with little

experience with registration based on foreignclinical data, the regulatory authorities maystill request a bridging study for approval,even for compounds insensitive to ethnicfactors. As experience with interregionalacceptance increases, there will be a betterunderstanding of situations in whichbridging studies are needed. It is hoped thatwith experience, the need for bridging datawill lessen.

The following is general guidance aboutthe ability to extrapolate data generated froma bridging study:

• If the bridging study shows that doseresponse, safety, and efficacy in the newregion are similar, the study is readilyinterpreted as capable of ‘‘bridging’’ theforeign data.

• If a bridging study, properly executed,indicates that a different dose in the newregion results in a safety and efficacy profilethat is not substantially different from thatderived in the foreign region, it will often bepossible to extrapolate the foreign data to thenew region, with appropriate doseadjustment, if this can be adequately justified(e.g., by pharmacokinetic and/orpharmacodynamic data).

• If the bridging study designed toextrapolate the foreign data is not ofsufficient size to confirm adequately theextrapolation of the adverse event profile tothe new population, additional safety datamay be necessary (section 3.2.4).

• If the bridging study fails to verifysafety and efficacy, additional clinical data(e.g., confirmatory clinical trials) would benecessary.3.2.3 Bridging Studies for Efficacy

Generally, for drugs characterized asinsensitive to ethnic factors, the type ofbridging study needed (if needed) willdepend upon the likelihood that extrinsicethnic factors (including design and conductof clinical trials) could affect the drug’ssafety, efficacy, and dose response and uponexperience with the drug class. For drugs thatare ethnically sensitive, a bridging study mayoften be needed if the patient populations inthe two regions are different. The followingexamples illustrate types of bridging studiesfor consideration in different situations:

• No bridging studyIn some situations, extrapolation of clinical

data may be feasible without a bridgingstudy:

(1) If the drug is ethnically insensitive andextrinsic factors such as medical practice andconduct of clinical trials in the two regionsare generally similar.

(2) If the drug is ethnically sensitive butthe two regions are ethnically similar andthere is sufficient clinical experience withpharmacologically related compounds toprovide reassurance that the class behavessimilarly in patients in the two regions withrespect to efficacy, safety, dosage, and doseregimen. This might be the case for well-established classes of drugs known to beadministered similarly, but not necessarilyidentically, in the two regions.

• Bridging studies using pharmacologicendpoints

If the regions are ethnically dissimilar andthe drug is ethnically sensitive but extrinsicfactors are generally similar (e.g., medical


practice, design and conduct of clinicaltrials) and the drug class is a familiar one inthe new region, a controlledpharmacodynamic study in the new region,using a pharmacologic endpoint that isthought to reflect relevant drug activity(which could be a well-established surrogateendpoint) could provide assurance that theefficacy, safety, dose, and dose regimen datadeveloped in the foreign region areapplicable to the new region. Simultaneouspharmacokinetic (i.e., blood concentration)measurements may make such studies moreinterpretable.

• Controlled clinical trialsIt will usually be necessary to carry out a

controlled clinical trial, often a randomized,fixed dose, dose-response study, in the newregion when:

(1) There are doubts about the choice ofdose,

(2) There is little or no experience withacceptance of controlled clinical trialscarried out in the foreign region,

(3) Medical practice (e.g., use ofconcomitant medications and design and/orconduct of clinical trials) are different, or

(4) The drug class is not a familiar one inthe new region.

Depending on the situation, the trial couldreplicate the foreign study or could utilize astandard clinical endpoint in a study ofshorter duration than the foreign studies orutilize a validated surrogate endpoint, e.g.,blood pressure or cholesterol (longer studiesand other endpoints may have been used inthe foreign phase III clinical trials).

If pharmacodynamic data suggest that thereare interregional differences in response, itwill generally be necessary to carry out acontrolled trial with clinical endpoints in thenew region. Pharmacokinetic differences maynot always create that necessity, as dosageadjustments in some cases might be madewithout new trials. However, any substantialdifference in metabolic pattern may oftenindicate a need for a controlled clinical trial.

When the practice of medicine differssignificantly in the use of concomitantmedications, or adjunct therapy could alterthe drug’s efficacy or safety, the bridgingstudy should be a controlled clinical trial.3.2.4 Bridging Studies for Safety

Even though the foreign clinical datapackage demonstrates efficacy and safety inthe foreign region, there may occasionallyremain a safety concern in the new region.Safety concerns could include the accuratedetermination of the rates of relativelycommon adverse events in the new regionand the detection of serious adverse events(in the 1 percent range and generally needingabout 300 patients to assess). Dependingupon the nature of the safety concern, safetydata could be obtained in the followingsituations:

• A bridging study to assess efficacy, suchas a dose-response study, could be poweredto address the rates of common adverseevents and could also allow identification ofserious adverse events that occur morecommonly in the new region. Closemonitoring of such a trial would allowrecognition of such serious events before anunnecessarily large number of patients in thenew region is exposed. Alternatively, a small

safety study could precede the bridging studyto provide assurance that serious adverseeffects were not occurring at a high rate.

• If there is no efficacy bridging studyneeded or if the efficacy bridging study is toosmall or of insufficient duration to provideadequate safety information, a separate safetystudy may be needed. This could occurwhere there is:

—A known index case of a serious adverseevent in a foreign clinical data package,

—A concern about differences in reportingadverse events in the foreign region,

—Only limited safety data in the newregion arising from an efficacy bridgingstudy, inadequate to extrapolate importantaspects of the safety profile, such as rates ofcommon adverse events or of more seriousadverse events.

4.0 Developmental Strategies for GlobalDevelopment

Definition of not only pharmacokineticsbut also of pharmacodynamics and doseresponse early in the development programmay facilitate the determination of the needfor, and nature of, any requisite bridgingdata. Any candidate drug for globaldevelopment should be characterized asethnically sensitive or insensitive (AppendixD). Ideally, this characterization should beconducted during the early clinical phases ofdrug development, i.e., human pharmacologyand therapeutic exploratory studies. Forglobal development, studies should includepopulations representative of the regionswhere the drug is to be registered and shouldbe conducted according to ICH guidelines.

A sponsor may wish to leave theassessment of pharmacokinetics,pharmacodynamics, dosage, and doseregimens in populations relevant to the newregion until later in the drug developmentprogram. Pharmacokinetic assessment couldbe accomplished by formal pharmacokineticstudies or a pharmacokinetic screenconducted either in a population relevant tothe new region or in the new region.

5.0 Summary

This guidance describes how a sponsordeveloping a drug for a new region can dealwith the possibility that ethnic factors couldinfluence the effects (safety and efficacy) ofdrugs and the risk/benefit assessment indifferent populations. Results from theforeign clinical trials could comprise most, orin some cases, all of the clinical data packagefor approval in the new region, so long asthey are carried out according to therequirements of the new region. Acceptancein the new region of such a foreign clinicaldata package may be achieved by generating‘‘bridging’’ data to link the safety andeffectiveness data in the foreign region(s) tothe population in the new region.

Glossary

Bridging data package: Information fromthe foreign clinical data package that isrelevant to the population of the new region,including pharmacokinetic data, and anypreliminary pharmacodynamic and dose-response data and, if needed, supplementaldata obtained in the new region that willallow extrapolation of the safety and efficacy

data in the foreign clinical data package tothe population of the new region.

Bridging study: A bridging study is definedas a supplemental study performed in thenew region to provide pharmacodynamic orclinical data on efficacy, safety, dosage, anddose regimen in the new region that willallow extrapolation of the foreign clinicaldata package to the new region. Such studiescould include further pharmacokineticinformation.

Complete clinical data package: A clinicaldata package intended for registrationcontaining clinical data that fulfill theregulatory requirements of the new region.

Compound insensitive to ethnic factors: Acompound whose characteristics suggestminimal potential for clinically significantimpact by ethnic factors on safety, efficacy,or dose response.

Compound sensitive to ethnic factors: Acompound whose pharmacokinetic,pharmacodynamic, or other characteristicssuggest the potential for clinically significantimpact by intrinsic and/or extrinsic ethnicfactors on safety, efficacy, or dose response.

Dosage: The quantity of a medicine givenper administration, or per day.

Dose regimen: The route, frequency, andduration of administration of the dose of amedicine over a period of time.

Ethnic factors: The word ethnicity isderived from the Greek word ‘‘ethnos,’’meaning nation or people. Ethnic factors arefactors relating to races or large groups ofpeople classed according to common traitsand customs. Note that this definition givesethnicity, by virtue of its cultural as well asgenetic implications, a broader meaning thanracial. Ethnic factors may be classified aseither intrinsic or extrinsic.

• Extrinsic ethnic factors: Extrinsic ethnicfactors are factors associated with theenvironment and culture in which thepatient resides. Extrinsic factors tend to beless genetically and more culturally andbehaviorally determined. Examples ofextrinsic factors include the social andcultural aspects of a region, such as medicalpractice, diet, use of tobacco, use of alcohol,exposure to pollution and sunshine,socioeconomic status, compliance withprescribed medications, and, particularlyimportant to the reliance on studies in a newregion, practices in clinical trial design andconduct.

• Intrinsic ethnic factors: Intrinsic ethnicfactors are characteristics associated with thedrug recipient. These are factors that help todefine and identify a subpopulation and mayinfluence the ability to extrapolate clinicaldata between regions. Examples of intrinsicfactors include genetic polymorphism, age,gender, height, weight, lean body mass, bodycomposition, and organ dysfunction.

Extrapolation of foreign clinical data: Theability to apply the safety, efficacy, and dose-response data from the foreign clinical datapackage to the population of the new region.

Foreign clinical data: Foreign clinical datais defined as clinical data generated outsidethe new region (i.e., in the foreign region).

ICH regions: The European Union, Japan,the United States of America.

New region: The region where productregistration is sought.


Pharmacokinetic screen: Apharmacokinetic screen is a population-based evaluation of measurements ofsystemic drug concentrations, usually two ormore per patient under steady stateconditions, from all, or a defined subset of,patients who participate in clinical trials. Inorder for these data to be useful in theevaluation of the relationships betweenpharmacokinetics and intrinsic ethnic andother factors, it is important that there be aprospective protocol for the collection ofsamples for drug concentrationmeasurements and that the timing of samplesrelative to dosing be known precisely. Whilethese analyses may be less precise than thosefrom formal pharmacokinetic studies, thenumbers of patients studied is greater and amuch greater variety of factors that couldinfluence pharmacokinetics, includingunexpected influences, can be evaluated.Moreover, small variations which might be

missed in the clinical setting are likelyunimportant. Large differences detected bythe screen may be definitive or may suggestthe need for further evaluation for safety andefficacy in the new population.

Pharmacokinetic study: A study of how adrug is handled by the body, usuallyinvolving measurement of bloodconcentrations (sometimes concentrations inurine or tissues) over time of the drug andits metabolism. Pharmacokinetic studies areused to characterize absorption, distribution,metabolism, and excretion of a drug, eitherin blood or in other pertinent locations.When combined with pharmacodynamicmeasures (a PK/PD study), it can characterizethe relation of blood concentrations to theextent and timing of pharmacodynamiceffects.

Pharmacodynamic study: A study of aneffect of the drug on individuals. The effectmeasured can be any pharmacologic or

clinical effect of the drug and it is usual toseek to describe the relation of the effect todose or drug concentration. Apharmacodynamic effect can be a potentiallyadverse effect (anticholinergic effect with atricyclic); a measure of activity thoughtrelated to clinical benefit (various measuresof beta-blockade, effect on ECG(electrocardiogram) intervals, inhibition ofACE (angiotensin converting enzyme) or ofangiotensin I or II response); a short-termdesired effect, often a surrogate endpoint(blood pressure, cholesterol); or the ultimateintended clinical benefit (effects on pain,depression, sudden death).

Therapeutic dose range: The differencebetween the lowest useful dose and thehighest dose that gives further benefit.

BILLING CODE 4160–01–F


BILLING CODE 4160–01–C


Appendix C: Pharmacokinetic,Pharmacodynamic, and Dose-ResponseConsiderations

Evaluation of the pharmacokinetics andpharmacodynamics, and their comparability,in the three major racial groups (Asian,Black, and Caucasian) is critical to theregistration of drugs in the ICH regions. Basicpharmacokinetic evaluation shouldcharacterize absorption, distribution,metabolism, excretion (ADME), and whereappropriate, food-drug and drug-druginteractions.

A sound pharmacokinetic comparison inthe foreign and new regions allows rationalconsideration of what kinds of furtherpharmacodynamic and clinical studies(bridging studies) are needed in the newregion. In contrast to a medicine’spharmacokinetics, where differences betweenpopulations may be attributed primarily tointrinsic ethnic factors and are readilyidentified, a medicine’s pharmacodynamicresponse (clinical effectiveness, safety, anddose response) may be influenced by bothintrinsic and extrinsic ethnic factors and thismay be difficult to identify except byconducting clinical studies in the newregion.

The ICH E4 guideline describes variousapproaches to dose-response evaluation. Ingeneral, dose response (or concentrationresponse) should be evaluated for bothpharmacologic effect (where one isconsidered pertinent) and clinical endpointsin the foreign region. The pharmacologiceffect, including dose response, may also beevaluated in the foreign region in apopulation representative of the new region.Depending on the situation, data on clinicalefficacy and dose response in the new regionmay or may not be needed, e.g., if the drugclass is familiar and the pharmacologic effectis closely linked to clinical effectiveness anddose response, these foreignpharmacodynamic data may be a sufficientbasis for approval and clinical endpoint anddose-response data may not be needed in thenew region. The pharmacodynamicevaluation, and possible clinical evaluation(including dose response) is importantbecause of the possibility that the responsecurve may be shifted in a new population.Examples of this are well-documented, e.g.,the decreased response in blood pressure ofblacks to angiotensin-converting enzymeinhibitors.

Appendix D: A Drug’s Sensitivity to EthnicFactors

Characterization of a drug according to thepotential impact of ethnic factors upon itspharmacokinetics, pharmacodynamics, andtherapeutic effects may be useful indetermining what sort of bridging study isneeded in the new region. The impact ofethnic factors upon a drug’s effect will varydepending upon the drug’s pharmacologicclass and indication and the age and genderof the patient. No one property of the drugis predictive of the compound’s relativesensitivity to ethnic factors. The type ofbridging study needed is ultimately a matterof judgment, but assessment of sensitivity toethnic factors may help in that judgment.

The following properties of a compoundmake it less likely to be sensitive to ethnicfactors:

• Linear pharmacokinetics (PK).• A flat pharmacodynamic (PD) (effect-

concentration) curve for both efficacy andsafety in the range of the recommendeddosage and dose regimen (this may mean thatthe drug is well-tolerated).

• A wide therapeutic dose range (again,possibly an indicator of good tolerability).

• Minimal metabolism or metabolismdistributed among multiple pathways.

• High bioavailability, thus lesssusceptibility to dietary absorption effects.

• Low potential for protein binding.• Little potential for drug-drug, drug-diet,

and drug-disease interactions.• Nonsystemic mode of action.• Little potential for abuse.The following properties of a compound

make it more likely to be sensitive to ethnicfactors:

• Nonlinear pharmacokinetics.• A steep pharmacodynamic curve for

both efficacy and safety (a small change indose results in a large change in effect) in therange of the recommended dosage and doseregimen.

• A narrow therapeutic dose range.• Highly metabolized, especially through

a single pathway, thereby increasing thepotential for drug-drug interaction.

• Metabolism by enzymes known to showgenetic polymorphism.

• Administration as a prodrug, with thepotential for ethnically variable enzymaticconversion.

• High intersubject variation inbioavailability.

• Low bioavailability, thus moresusceptible to dietary absorption effects.

• High likelihood of use in a setting ofmultiple co-medications.

• High potential for abuse.

Dated: July 25, 1997.William K. Hubbard,Associate Commissioner for PolicyCoordination.[FR Doc. 97–20246 Filed 7–30–97; 8:45 am]BILLING CODE 4160–01–F


Food and Drug Administration[Docket No. 97N–0289]

Content and Format of Labeling forHuman Prescription Drugs; PregnancyLabeling; Public Hearing

AGENCY: Food and Drug Administration,HHS.ACTION: Notice of public hearing; requestfor comments.

SUMMARY: The Food and DrugAdministration (FDA) is announcing apublic hearing regarding requirementsfor the content and format of thepregnancy subsection of labeling forhuman prescription drugs. The publichearing will focus on the requirementthat each drug product be classified inone of five pregnancy categories

intended to aid clinicians and patientswith decisions about drug therapy.Public comments and FDA’spreliminary review of the pregnancycategory designations for marketeddrugs suggest that the categories may bemisleading and confusing, may notaccurately reflect reproductive anddevelopmental risk, and may be usedinappropriately by clinicians in makingdecisions about drug therapy inpregnant women and women ofchildbearing potential and also inmaking decisions about how to respondto inadvertent fetal exposure. Thehearing is intended to elicit commentson the practical utility, effects, andlimitations of the current pregnancylabeling categories in order to help theagency identify the range of problemsassociated with the categories and toidentify and evaluate options that mightaddress identified problems, and to hearthe views of groups most affected.

DATES: The public hearing will be heldon Friday, September 12, 1997, from 9a.m. to 5 p.m. Submit written notices ofparticipation and comments forconsideration at the hearing by August28, 1997. Written comments will beaccepted after the hearing untilNovember 12, 1997.

ADDRESSES: The hearing will be held atthe Holiday Inn Bethesda, 8120Wisconsin Ave.,Versailles I and II,Bethesda, MD 20814. Submit writtennotices of participation and commentsto the Advisors and Consultants Staff,Center for Drug Evaluation and Research(HFD–21), ATTN: Pregnancy LabelingHearing—Robin M. Spencer or KimberlyL. Topper, Food and DrugAdministration, 5600 Fishers Lane,Rockville, MD 20857, FAX 301–443–0699. Federal Express deliveries need touse the following street address: 1901Chapman Ave., rm. 200, Rockville, MD20852.

Transcripts of the hearing will beavailable from the Freedom ofInformation Office (HFI–35), Food andDrug Administration, 5600 FishersLane, Rockville, MD 20857, FAX 301–443–1726, approximately 15 businessdays after the hearing at a cost of 10cents per page. Requests can also bemade for microfiche or computer diskcopies in place of paper copies.

FOR FURTHER INFORMATION CONTACT: RoseE. Cunningham, Center for DrugEvaluation and Research (HFD–6), Foodand Drug Administration, 5600 FishersLane, Rockville, MD 20857, 301–594–6779, or FAX 301–594–5493; orKimberly L. Topper, Advisors and


Consultants Staff (address above), 301–443–5455, or FAX 301–443–0699.SUPPLEMENTARY INFORMATION:

I. Background

Under the Federal Food, Drug, andCosmetic Act (the act), FDA hasresponsibility for ensuring thatprescription drug and biologicalproducts are accompanied by labeling(prescribing information) thatsummarizes essential scientificinformation needed for their safe andeffective use. Unless a drug is notabsorbed systemically and is not knownto have a potential for indirect harm toa fetus, its labeling must include a‘‘Pregnancy subsection’’ containingnarrative information on the drug’steratogenic effects and other effects onreproduction and pregnancy, and, whenrelevant, effects on later growth,development, and functional maturationof the child (21 CFR 201.57(f)(6)). Theregulation also requires that eachproduct be classified under one of fivepregnancy categories (A, B, C, D, or X)on the basis of risk of reproductive anddevelopmental adverse effects or, forcertain categories, on the basis of suchrisk weighed against potential benefit. Adrug’s pregnancy category is identifiedat the beginning of its pregnancylabeling subsection.

Clinicians who treat pregnant womenand women of childbearing potential,academic and specialty medicalorganizations, women’s healthorganizations and others have expressedto FDA concern that the informationcontained in the typical pregnancylabeling subsection, and the manner inwhich such information is presented,are not sufficient to adequately informdecisions about drug therapy inpregnant women and women ofchildbearing potential, or decisionsabout how to respond to inadvertentfetal drug exposure.

In response to these concerns andFDA’s growing awareness of thelimitations of the pregnancy subsectionof the labeling, FDA is currentlyengaged in a comprehensive evaluationof the way the agency assessesreproductive and developmentaltoxicities associated with human drugsand biologics, and the way the agencycommunicates this information toclinicians and patients. This evaluationis focused on assessing the adequacy ofanimal and human exposure datacurrently developed or maintained,developing consistency in interpretationof reproductive and developmental riskfrom animal and human exposure data,and identifying means to optimizecommunication of this risk information.

FDA has created a multidisciplinarytask force to explore these issues. Thisgroup intends to develop, for use byFDA reviewers and industry, a guidancedocument on interpretation ofreproductive and developmentaltoxicity data from animals and aguidance document on interpretation ofhuman exposure data. The task forcewill also consider other possible actionsthat may be necessary to makepregnancy labeling content moreconsistent, informative, and accessibleincluding: (1) Changing, or creatingalternatives to, the pregnancy labelingcategories; (2) clearly distinguishing inlabeling between information thataddresses whether to prescribe atherapeutic option during pregnancy,whether to prescribe a therapeuticoption in a woman of childbearingpotential, and the potentialconsequences of inadvertent fetalexposure; and (3) attempting to betterdelineate the different types ofreproductive and developmental risksassociated with a product. This hearingis intended to gather information toinform future task forcerecommendations.

II. The Pregnancy CategoriesFDA’s information gathering and

evaluation to date have identified thepregnancy categories as a source ofconcern for those who use or areaffected by pregnancy labeling. Thecategories have been criticized for beingconfusing and misleading because theyconvey the impression that there is agradation of reproductive risk from drugexposure across categories (i.e., that riskincreases from A to B to C to D to X)and that there is similar risk within anygiven category, but the criteria fordesignating drugs in particularcategories are not consistent with theseimpressions.

The confusion concerning gradationof risk across categories is believed to bedue, in part, to the fact that the criteriafor inclusion in categories A, B, and toa certain extent C, are based primarilyon risk with risk increasing from A toC, while criteria for inclusion incategories D, X, and to a certain extentC, are based on risk weighed againstpotential benefit. Thus, while it isintended that there be gradation of riskfor categories A through C, drugsdesignated D, X, and in some cases C,may pose a very similar risk, but becategorized differently on the basis ofpotential benefit.

The impression that there is similarrisk for drugs within the same categoryis undercut by inclusion criteria thatpermit a broad range of risk withincertain categories. For example, category

C (the largest category) is intended toinclude both drugs with demonstratedadverse reproductive effects in animalsand drugs for which there are no animalstudies at all, situations that may bequite different in terms of risk. For thecategory C drugs that were tested inanimals, moreover, there is a wide rangeof severity of adverse effects and oftenno distinction between teratogenic andother toxic effects.

The confusion inherent in the currentcategory designations may beexacerbated by inconsistent applicationof category classifications in certaininstances, such that drugs with similarrisk, or with similar risk-benefitassessments, may be found in differentcategories.

Some who expressed concern to theagency about pregnancy labeling arguethat failure of the category designationsto accurately reflect reproductive anddevelopmental risk, either acrosscategories or within a category, presentspotentially serious public healthconsequences. They maintain that manyclinicians assume the categories reflectgradation of risk from category Athrough X, that any given category ishomogenous in terms of risk, and basedon those assumptions make decisionsbased largely or entirely on categorydesignation rather than on carefulevaluation of the available data. Theyalso argue that, in addition to thepotential for category designations to bemisleading, the mere presence ofcategory designations affords an overlysimplistic evaluation of a complexproblem that can deter the clinicianfrom seeking additional information thatcould lead to a better informed decision.They maintain that clinicians makingdecisions based on category designationalone are more likely to overestimaterisk, with potentially profoundconsequences. For example, decisionsbased on an overestimation ofteratogenic risk may result inunnecessary withholding of beneficialtherapy or in termination of wantedpregnancies.

III. Scope of the HearingBecause of the breadth and

complexity of issues involved inassessing, interpreting, andcommunicating information that bearson therapeutic use and exposure todrugs in pregnancy and in women ofchildbearing potential, this part 15 (21CFR part 15) hearing will focus on thepregnancy categories. To guide its futuredecision making, the agency is seekingpublic comment and data on thepractical utility and effects of thepregnancy categories, problemsassociated with the categories, and the


means to address problems associatedwith the categories, including possiblealternatives to the categories forcommunicating information onreproductive and developmentaltoxicity. The agency is specificallyseeking comment and data on thefollowing:

(1) The extent to which the categorydesignations are relied upon in makingdecisions about drug therapy inpregnant women and women ofchildbearing potential and decisionsabout inadvertent fetal exposure, theextent to which such reliance may bemisplaced, and the extent to which suchreliance may have untoward publichealth consequences;

(2) The extent to which currentpregnancy labeling (categorydesignation and accompanying narrativetext) is effective in communicating riskof reproductive and developmentaltoxicity;

(3) The extent to which currentpregnancy labeling may not adequatelyaddress the range of issues that maybear on decisions about drug therapy inpregnant women and women ofchildbearing potential and decisionsabout inadvertent fetal exposure (e.g.,indication-specific concerns, pregnancystatus, magnitude of exposure,incidental exposure, chronic exposure,timing of exposure);

(4) Additional information (data orinterpretation of data) that could beincluded in pregnancy labeling to betteraddress the range of issues that bear ondecisions about drug therapy inpregnant women and women ofchildbearing potential and decisionsabout inadvertent fetal exposure; and

(5) Options to improvecommunication of reproductive anddevelopmental risk in labeling, whichcould include alternatives to thecategories (both content and formatoptions) or efforts to make the currentcategory scheme and accompanyingnarrative text more consistent andinformative.

The agency encourages individuals,industry, consumer groups, health careprofessionals, and researchers withparticular expertise in this area, as wellas other interested persons, to respondto this notice. The agency stronglyencourages persons who cannot attendthe hearing to send information relevantto the topics and questions listed aboveto the Dockets Management Branch(HFA–305), Food and DrugAdministration, 12420 Parklawn Dr., rm1–23, Rockville, MD 20857. Two copiesof any comments are to be submitted,except that individuals may submit onecopy. Comments are to be identifiedwith Docket No. 97N–0289. Received

comments may be seen in the officeabove between 9 a.m. and 4 p.m.,Monday through Friday.

IV. Notice Of Hearing Under Part 15The Commissioner of Food and Drugs

(the Commissioner) is announcing thatthe public hearing will be held inaccordance with part 15. The presidingofficer will be the Commissioner or hisdesignee. The presiding officer will beaccompanied by a panel of PublicHealth Service employees with relevantexpertise.

Persons who wish to participate in thepart 15 hearing must file a written orfacsimile notice of participation withthe Advisors and Consultants Staff byAugust 28, 1997. To ensure timelyhandling, the outer envelope orfacsimile cover sheet should be clearlymarked with Docket No. 97N–0289 andthe statement ‘‘Pregnancy LabelingHearing.’’ Groups should submit twocopies. The notice of participationshould contain the speaker’s name,address, telephone number, FAXnumber, title, business affiliation, if any,a brief summary of the presentation, andapproximate amount of time requestedfor the presentation.

The agency requests that persons orgroups having similar interestsconsolidate their presentations andpresent them through a singlerepresentative. FDA will allocate thetime available for the hearing among thepersons who properly file notices ofparticipation. If time permits, FDA mayallow participation at the conclusion ofthe hearing from interested personsattending the hearing who did notsubmit a written notice of participation.

After reviewing the notices ofparticipation and accompanyinginformation, FDA will schedule eachappearance and notify each participantby mail, telephone, or FAX, of the timeallotted to the person and theapproximate time the person’spresentation is scheduled to begin. Thehearing schedule will be available at thehearing. After the hearing the schedulewill be placed on file in the DocketsManagement Branch (address above)under Docket Number 97N–0289.

Under § 15.30(f), the hearing isinformal and the rules of evidence donot apply. The presiding officer and anypanel members may question anyperson during or at the conclusion oftheir presentation. No other personattending the hearing may question aperson making a presentation orinterrupt the presentation of aparticipant.

Public hearings under part 15 aresubject to FDA’s guideline (part 10,subpart C (21 CFR part 10, subpart C))

concerning the policy and proceduresfor electronic media coverage of FDA’spublic administrative proceedings.Under § 10.205, representatives of theelectronic media may be permitted,subject, to certain limitations, tovideotape, film, or otherwise recordFDA’s public administrativeproceedings, including presentations byparticipants. Representatives of theelectronic media are urged to provideadvance notice of their plannedattendance, to the identified contactperson for the hearing, so that theirneeds for space and technical assistancecan be anticipated and accommodated.The hearing will be transcribed asrequired in § 15.30(b). Orders for copiesof the transcript can be placed throughthe Dockets Management Branch(address above).

Any disabled persons requiringspecial accommodations in order toattend the hearing should direct thoseneeds to the contact person listed above.

To the extent that the conditions forthe hearing, as described in this notice,conflict with any provisions set out inpart 15, this notice acts as a waiver ofthose provisions as specified in§ 15.30(h).

To permit time for all interestedpersons to submit data, information, orviews on this subject, the administrativerecord will remain open following thehearing until November 12, 1997.

Dated: July 23, 1997.William K. Hubbard,Associate Commissioner for PolicyCoordination.[FR Doc. 97–20247 Filed 7-30-97; 8:45 am]BILLING CODE 4160–01–F


Health Care Financing Administration

[Form #HCFA–R–200]

Emergency Clearance: PublicInformation Collection RequirementsSubmitted to the Office of Managementand Budget (OMB)

In compliance with the requirementof section 3506(c)(2)(A) of thePaperwork Reduction Act of 1995, theHealth Care Financing Administration(HCFA), Department of Health andHuman Services (DHHS), has submittedto the Office of Management and Budget(OMB) the following request forEmergency review. We are requesting anemergency review because thecollection of this information is neededprior to the expiration of the normaltime limits under OMB’s regulations at


5 CFR Part 1320. The collection ofHEDIS 3.0 performance measures,including the Health of Seniors andConsumer Assessment of Health PlansStudy surveys is necessary for HCFA toobtain the information necessary for theproper oversight and administration ofthe Medicare Managed Care Program.The Agency cannot reasonably complywith the normal clearance proceduresbecause public harm is likely to resultdue to the delay in reporting of healthcare quality measures. If emergencyclearance is not provided HCFA will beforced to postpone the collection of thisdata due to the timing of contracts andtheir respective cycles.

HCFA is requesting OMB review andapproval of this collection by 08/15/97,with a 180-day approval period. Duringthis 180-day period HCFA will publisha separate Federal Register noticeannouncing the initiation of anextensive 60-day agency review andpublic comment period on theserequirements. Then HCFA will submitthe requirements for OMB review andan extension of this emergencyapproval.

Type of Information Request: Revisionof a currently approved collection; Titleof Information Collection: HEDIS 3.0(Health Plan Data and Information Set),including the Health of Seniors andConsumer Assessment of Health PlansStudy (CAHPS) surveys and supportingregulations 42 CFR 417.470, and 42 CFR417.126; Form Number: HCFA-R–200(OMB #0938–0701); Use: HEDIS and

CAHPS will be used for 3 purposes: (1)to provide summary comparative data tothe Medicare beneficiary to assist themin choosing among health plans; (2) toprovide information to health plans forinternal quality improvement activity;and (3) to provide HCFA, as purchaser,information useful for monitoringquality of and access to care providedby the plans; Frequency: Annually;Affected Public: Individuals orHouseholds, non-profit and for profitHMOs which contract with HCFA toprovide managed health care toMedicare beneficiaries; Number ofRespondents: 293,834; Total AnnualResponses: 293,834, Total AnnualHours Requested: 181,520. To requestcopies of the proposed paperworkcollections referenced above, call theReports Clearance Office on (410) 786–1324. Written comments andrecommendations for the proposedinformation collections should be sentby 08/11/97 directly to the OMB DeskOfficer designated at the followingaddress: OMB Human Resources andHousing Branch, Attention: AllisonEydt, New Executive Office Building,Room 10235, Washington, DC 20503.


John P. Burke III,HCFA Reports Clearance Officer, HCFA Officeof Information Services, InformationTechnology Investment Management Group,Division of HCFA Enterprise Standards.[FR Doc. 97–20089 Filed 7–30–97; 8:45 am]



Office of Inspector General

Program Exclusions: June 1997

AGENCY: Office of Inspector General,HHS.

ACTION: Notice of program exclusions.

During the month of June 1997, theHHS Office of Inspector Generalimposed exclusions in the cases setforth below. When an exclusion isimposed, no program payment is madeto anyone for any items or services(other than an emergency item orservice not provided in a hospitalemergency room) furnished, ordered orprescribed by an excluded party underthe Medicare, Medicaid, Maternal andChild Health Services Block Grant andBlock Grants to States for SocialServices programs. In addition, noprogram payment is made to anybusiness or facility, e.g., a hospital, thatsubmits bills for payment for items orservices provided by an excluded party.Program beneficiaries remain free todecide for themselves whether they willcontinue to use the services of anexcluded party even though no programpayments will be made for items andservices provided by that excludedparty. The exclusions have nationaleffect and also apply to all ExecutiveBranch procurement and non-procurement programs and activities.

Subject, city, state Effectivedate

Program-Related Convictions

ABRAMS, GARY, LA MIRADA, CA ......................................................................................................................................................... 07/07/97ALCARE RESPIRATORY SERVICES, TAPPAN, NY ............................................................................................................................. 07/08/97AMICO, MICHAEL A, STATEN ISLAND, NY .......................................................................................................................................... 07/08/97ARNDT, SOU KWEI, GREENSBURG, PA .............................................................................................................................................. 07/10/97BAILEY, ROBYN KAMILYAH, MAGNOLIA, AR ...................................................................................................................................... 07/06/97BATES, ROBERT E, SILVER SPRING, MD ........................................................................................................................................... 07/07/97BIXBY, ANGELA M, DOUGLASVILLE, GA ............................................................................................................................................. 07/10/97BIXBY, HOWARD A, DOUGLASVILLE, GA ........................................................................................................................................... 07/10/97CAMPBELL, JAMES A, VALLEY, AL ...................................................................................................................................................... 07/03/97CARTER, STEPHEN, DALLAS, TX ........................................................................................................................................................ 07/06/97CHATMAN, SABRINA D, LITHONIA, GA ............................................................................................................................................... 07/07/97CHERRY-HAMMOND, CAPPRECCIA Y, ATLANTA, GA ....................................................................................................................... 07/02/97COLLINS, STACEY BERNARD, TEXARKANA, TX ................................................................................................................................ 07/02/97DAHDAH, CHARLES J, MIAMI, FL ......................................................................................................................................................... 07/02/97DECIUTIIS, CHARLES E, BRONX, NY .................................................................................................................................................. 07/10/97DIAZ, GEORGE, MIAMI, FL .................................................................................................................................................................... 07/01/97DISMOND, MICHAEL L, ALBUQUERQUE, NM ..................................................................................................................................... 06/25/97DODD, JUDY L, DAINGERFIELD, TX .................................................................................................................................................... 07/03/97DOMINY, HERBERT K, JESUP, GA ....................................................................................................................................................... 07/10/97DUHON, LESHIA A, LAFAYETTE, LA .................................................................................................................................................... 07/07/97ELIKWU, PATRICK NGOZI, AUSTELL, GA ........................................................................................................................................... 07/01/97ETIENNE, JEAN JOSEPH, RIVIERA BEACH, FL .................................................................................................................................. 07/10/97FALEK, ALEXIS BROWN, PITTSBURGH, PA ........................................................................................................................................ 07/10/97FRANKEL, STUART M, N MIAMI BEACH, FL ....................................................................................................................................... 07/10/97GALES, BERNARD, ATLANTA, GA ........................................................................................................................................................ 07/10/97GELIN, GUERRIER, LANTANA, FL ........................................................................................................................................................ 07/08/97GENE KUTSCH, D.M.D., P.C., ALBANY, OR ........................................................................................................................................ 06/26/97



GETZ, EILEEN R, HUNTERS, WA ......................................................................................................................................................... 07/03/97GUINN, SHANNON LEE, THORNTON, CO ........................................................................................................................................... 06/30/97HAND, JANET DOROTHY, COSTA MESA, CA ..................................................................................................................................... 07/07/97JEWELL, KENNETH, MCALLEN, TX ...................................................................................................................................................... 07/06/97JEWELL, DONALD, SAN ANTONIO, TX ................................................................................................................................................ 07/02/97JOSEPH, ASHLAND JR, RACELAND, KY ............................................................................................................................................. 07/10/97JOSEPH, HARRY DAYTON, RACELAND, KY ....................................................................................................................................... 07/10/97LEWIS, PATRICIA, TAPPAN, NY ........................................................................................................................................................... 07/08/97MASSARO, LORNA, NORTH SALEM, NY ............................................................................................................................................. 07/08/97MCDANIEL, DONNIE EARL, SAVANNAH, TN ....................................................................................................................................... 07/03/97MEDI–KARE AMBULANCE SERVICE, RACELAND, KY ....................................................................................................................... 07/10/97MESADIEU, MARC CHARLES, CAROL CITY, FL ................................................................................................................................. 07/08/97MOORE, JERRY JAN, JACKSON, GA ................................................................................................................................................... 07/01/97MUNOZ, RAFAEL A, JACKSON HEIGHTS, NY ..................................................................................................................................... 07/08/97OGANESIAN, NOUNE, GLENDALE, CA ................................................................................................................................................ 07/07/97OPA LOCKA DRUGSTORE, N MIAMI BEACH, FL ................................................................................................................................ 07/10/97PENA, HELEN FLOYD, DADE CITY, FL ................................................................................................................................................ 07/01/97PERRY, BRADLEY, EAST MEADOW, NY ............................................................................................................................................. 07/08/97PICKERING, BRYANT I, PHOENIX, AZ ................................................................................................................................................. 07/03/97PICKETT, WALLACE JAMES III, EGLIN AFB, FL .................................................................................................................................. 07/03/97PRINGLEY, ANTONIO J, AMERICUS, GA ............................................................................................................................................. 07/07/97PROSKUROVSKY, BORIS, NEWARK, NJ ............................................................................................................................................. 06/26/97RENSHAW, ROGER DEAN, GORDONVILLE, VA ................................................................................................................................. 07/01/97RISINGER, CAROL, MESQUITE, TX ..................................................................................................................................................... 07/06/97


SCHMIDT, WANDA FISHER, RIVER RIDGE, LA .................................................................................................................................. 07/02/97SENAPE, SAVERIO JOSEPH, NEW YORK, NY .................................................................................................................................... 07/08/97SHELTON, DEBORAH ADAMS, BROWNWOOD, TX ............................................................................................................................ 07/02/97SOU KWEI WONG, INC., GREENBERG, PA ......................................................................................................................................... 07/10/97STEVENS, MARILYN, LULING, TX ........................................................................................................................................................ 07/02/97TITUS, ALLENE COSTELLO, HIGH POINT, NC .................................................................................................................................... 07/02/97TRASK, DONALD F, KENNER, LA ......................................................................................................................................................... 07/06/97WATSON, TODD EDWARD, COOPER CITY, FL .................................................................................................................................. 07/02/97WILLETTE, ANTHONY LON, N LITTLE ROCK, AR ............................................................................................................................... 06/25/97WOLF, WALTER, COLLINS, NY ............................................................................................................................................................. 06/26/97YOUNG, KAREN, BUCHANAN, NY ........................................................................................................................................................ 06/26/97

Patient Abuse/Neglect Convictions

ALAM, JASON PAUL, CHELSEA, OK .................................................................................................................................................... 07/03/97ANTRIM, RUTHIE DOREEN, BLACKWELL, OK .................................................................................................................................... 07/03/97BAIRD, CORAL N, OKLAHOMA CITY, OK ............................................................................................................................................ 07/03/97BENDER, ANGELA, ELLISVILLE, MS .................................................................................................................................................... 07/03/97BRADLEY, LULTISSUE, MARSHALL, TX .............................................................................................................................................. 07/03/97CAMPBELL, GAINIE, WYANDANCH, NY ............................................................................................................................................... 07/07/97COLLINS, MARGIE R, LEWISVILLE, AR ............................................................................................................................................... 07/03/97DUNCAN, DYNA LYNN, LAKE ARTHUR, LA ......................................................................................................................................... 06/25/97ELLIS, PATRICIA, UNION, SC ................................................................................................................................................................ 07/03/97FERNANDEZ, DOMINGA GUTIERREZ, SAN ANTONIO, TX ................................................................................................................ 07/06/97FINE, ANNIE S, LAHOMA, OK ............................................................................................................................................................... 07/02/97GIBSON, GALENA RENEE, FORT SMITH, AR ..................................................................................................................................... 07/06/97HANCOCK, DINENE, BATAVIA, NY ....................................................................................................................................................... 07/07/97HARRIS, GEORGIA M, ST FRANCISVILLE, LA .................................................................................................................................... 06/25/97HAWKINS, RICHARD I, FORT WORTH, TX .......................................................................................................................................... 06/25/97HOLLINS, DENISE, GRANTTOWN, WV ................................................................................................................................................ 07/01/97HOWARD, LESLIE ANN, DETROIT, MI ................................................................................................................................................. 06/30/97JAMES, JOHNNY LEE, PORTER, OK .................................................................................................................................................... 06/25/97JARRETT, MARY E, TYRONZA, AR ...................................................................................................................................................... 06/25/97JOHNSON, TAMMY JO, FAIRLAND, OK ............................................................................................................................................... 07/06/97KETNER, KEVIN LOUIS, MOORE, OK .................................................................................................................................................. 07/06/97KIGHT, KAREN M, CORNING, AR ......................................................................................................................................................... 07/06/97KLEPPER, ROGER K, MOGADORE, OH .............................................................................................................................................. 06/30/97LEWIS, MILDRED C, EUSTIS, FL .......................................................................................................................................................... 07/01/97MANDUJANO, MONOLO, ANADARKO, OK .......................................................................................................................................... 06/25/97MCGEE, JIMMY C JR, LAUREL, MS ..................................................................................................................................................... 07/06/97MILLER, NANCY NELDA (NIOLA), COLUMBUS, TX ............................................................................................................................ 07/02/97MILLSAP, VICTOR, LAUREL, MS .......................................................................................................................................................... 07/06/97PEOPLES, BARBARA, SYRACUSE, MO ............................................................................................................................................... 06/30/97RICO, LAURA FRANCIS, CLIFTON, TX ................................................................................................................................................. 07/06/97ROE, JEAN K, BROOKSVILLE, FL ......................................................................................................................................................... 07/03/97WAUDDY, DELSIREE ANN, SPENCER, OK ......................................................................................................................................... 07/06/97WESPISER, KENDRA ELLEN, VENICE, FL .......................................................................................................................................... 07/01/97



WILLIAMS, HERTA ANN, ALEXANDRIA, LA ......................................................................................................................................... 07/06/97WILLIAMS, BRENDA KAYE, ARKADELPHIA, AR ................................................................................................................................. 07/07/97WRIGHT, BENJI, IUKA, MS .................................................................................................................................................................... 07/02/97

Conviction for Health Care Fraud

AUGUSTINE, DAVID, MUSCATINE, IA .................................................................................................................................................. 07/08/97FITTER, RICHARD J, MIAMI, FL ............................................................................................................................................................ 07/03/97FITZGERALD, BARBARA M, BENSALEM, PA ...................................................................................................................................... 06/30/97GROSSMAN, STEVE C, DALLAS, TX .................................................................................................................................................... 07/07/97


HERNANDEZ, JIMMIE, DENVER, CO .................................................................................................................................................... 07/03/97JOYNER, ELEANOR BRENDA, AUGUSTA, GA .................................................................................................................................... 07/02/97LIPTON, SONIA, PHILADELPHIA, PA .................................................................................................................................................... 07/01/97LOPEZ, PATRICIA BELEN, ANAHEIM, CA ............................................................................................................................................ 07/03/97MALABANAN, BEN CARPIO, TEXARKANA, TX .................................................................................................................................... 07/06/97NELSON, THEODORE, HARVEY, LA .................................................................................................................................................... 06/25/97NELSON, JIMMIE M, HARVEY, LA ........................................................................................................................................................ 06/25/97ROBY, WILLIE MARIE, WEST POINT, MS ............................................................................................................................................ 07/02/97STEVENS, AUDLEY, CONNEAUTVILLE, PA ......................................................................................................................................... 06/26/97

License Revocation/Suspension/Surrender

ACAMPORA, GREGORY, MIDDLETOWN, CT ...................................................................................................................................... 07/03/97ALEXIS, GREGG, HASTINGS, NY ......................................................................................................................................................... 06/26/97ASPINWALL, CHARLES, DERBY, CT .................................................................................................................................................... 07/03/97BEZAR, SHAFI, SCARSDALE, NY ......................................................................................................................................................... 07/07/97CAKNIPE, JOHN WILLIAM, JACKSON, MI ............................................................................................................................................ 07/02/97CAPOTE, WILLIAM, BRONX, NY ........................................................................................................................................................... 07/07/97COLBY, CHERYL, LYNN, MA ................................................................................................................................................................. 06/26/97CUCCO, LUIGI, STANDISH, ME ............................................................................................................................................................ 06/26/97DAVIS, CYNTHIA G, SIDNEY, ME ......................................................................................................................................................... 06/26/97DEMARINIS, J WILLIAM, YONKERS, NY .............................................................................................................................................. 07/08/97DOSS, ANTHONY, BRISTOL, TN ........................................................................................................................................................... 07/02/97DOUST, ROBIN FARR, VIRGINIA BEACH, VA ..................................................................................................................................... 07/01/97FRANIESCONI, RITA A, PHILADELPHIA, PA ........................................................................................................................................ 06/30/97GITZY, JOHN A, CEDAR RAPIDS, IA .................................................................................................................................................... 07/06/97GRIGSBY, MICHAEL VERNE, LITTLETON, CO .................................................................................................................................... 07/08/97HAHN, CHEUN, OZONE PARK, NY ....................................................................................................................................................... 06/26/97HALL, HEIDE, PORTSMOUTH, NH ........................................................................................................................................................ 06/26/97HAMILTON, TIMOTHY JOHN, CENTRAL ISLIP, NY ............................................................................................................................. 07/08/97HANSCOMB-KNAPP, HOLLY, WETHERSFIELD, CT ............................................................................................................................ 06/26/97HART, THOMAS JAY, WATERVILLE, ME ............................................................................................................................................. 06/26/97HAYES, SHEILA, RAYMOND, NH .......................................................................................................................................................... 06/26/97HEMMANN, LANAE MAXFIELD, YORK, PA .......................................................................................................................................... 06/26/97HYSLOP, MARY P, FORT FAIRFIELD, ME ........................................................................................................................................... 06/26/97ITARO, GABRIEL O, STONE MOUNTAIN, GA ...................................................................................................................................... 07/03/97JIHAYEL, AYAD K, WAYNE, NJ ............................................................................................................................................................. 07/08/97JOHNSTON, LAURA E, PORTSMOUTH, NH ........................................................................................................................................ 06/26/97KANEGAWA, JON M, READING, PA ..................................................................................................................................................... 06/26/97KENNEDY, ELAINE, WINCHESTER, TN ............................................................................................................................................... 07/01/97KEPPLER, JOHN PAUL, GRIFFIN, GA .................................................................................................................................................. 07/03/97LYE, ELLEN, HAMDEN, CT .................................................................................................................................................................... 07/03/97LYNCH, BRIAN, OLD SAYBROOK, CT .................................................................................................................................................. 06/26/97MACCALL, AMY E, PALMYRA, VA ........................................................................................................................................................ 07/01/97MARCOUX, JAMES P, MINOT, ME ........................................................................................................................................................ 06/26/97MARQUEZ, MANUEL S, MT LAUREL, NJ ............................................................................................................................................. 07/10/97MIDDLETON, DAVID H, ANN ARBOR, MI ............................................................................................................................................. 07/01/97MILLS, MYRA B, SPRINGFIELD, IL ....................................................................................................................................................... 07/01/97MILNER, JACQUELINE, CHICAGO, IL ................................................................................................................................................... 07/01/97MIRILASHVILLI, MOSHE, SYOSSET, NY .............................................................................................................................................. 07/07/97NEEL, JUANITA HOPE, KEGLEY, WV ................................................................................................................................................... 06/30/97PELLICANO, PAUL J, MILLBURN, NJ ................................................................................................................................................... 07/07/97REILLY, PHILOMENA, OXFORD, CT ..................................................................................................................................................... 06/26/97RITCH, JUDITH K, LAPEER, MI ............................................................................................................................................................. 07/06/97ROBERTSON, DOUGLAS C, LAWRENCEBURG, TN ........................................................................................................................... 07/01/97ROKAS, CYNTHIA, NAUGATUCK, CT ................................................................................................................................................... 07/03/97


SAWYERS, CHRISTINA WOODALL, BANDY, VA ................................................................................................................................. 07/01/97SCOTT, CRAIG H, ARCATA, CA ............................................................................................................................................................ 06/30/97SINGH, LOKENDRA K, SCHENECTADY, NY ........................................................................................................................................ 07/07/97



SNIDE, JOSEPH EDWARD, YORKTOWN, VA ...................................................................................................................................... 06/30/97STEINER, JEROME, NEW YORK, NY ................................................................................................................................................... 07/08/97STUDYVIN, BOBBIE, WINDSOR, VA ..................................................................................................................................................... 07/01/97TALSKY, RICHARD J, CHICAGO, IL ...................................................................................................................................................... 07/06/97VAN ORDEN, TERESA M, GREENE, IA ................................................................................................................................................ 06/26/97WELLS, DARRELL K, HENDERSONVILLE, TN ..................................................................................................................................... 07/02/97WESTON, DON L, AUGUSTA, ME ......................................................................................................................................................... 06/26/97YOON, TOL UNG, BRIDGETON, NJ ...................................................................................................................................................... 07/10/97YOUNGER, DAVID L, CHARLESTON, SC ............................................................................................................................................. 07/01/97

Federal/State Exclusion/Suspension

BELGRAVE, CLAUDE, HAMPTON, VA .................................................................................................................................................. 07/03/97CHAM, WILLIAM C, CHESTER TOWNSHIP, NJ ................................................................................................................................... 07/08/97RADIATION ONCOLOGY GROUP, DENVILLE, NJ ............................................................................................................................... 07/08/97

Owned/Controlled by Convicted Excluded

A-BELL TRANSPORTATION, ATLANTA, GA ......................................................................................................................................... 07/02/97ACTION NON-EMERGENCY TRANS. CO, DOUGLASVILLE, GA ........................................................................................................ 07/10/97ATLANTIC TAXI, CAROL CITY, FL ........................................................................................................................................................ 07/08/97CENTRAL FLORIDA RADIOLOGY, EGLIN AFB, FL ............................................................................................................................. 07/03/97COLORADO REGISTERED NURSES INC., DENVER, CO ................................................................................................................... 07/08/97CUSTOM SHOE SERVICE, NEWARK, NJ ............................................................................................................................................. 06/26/97PAS RADIOLOGY ASSOCIATES, EGLIN AFB, FL ................................................................................................................................ 07/03/97PRESTIGE TAXI, LANTANA, FL ............................................................................................................................................................. 07/08/97SANFORD DIAGNOSTICS ASSOC, EGLIN AFB, FL ............................................................................................................................ 07/03/97SOUTH FLORIDA ULTRASOUND, INC., COOPER CITY, FL ............................................................................................................... 07/02/97THREE STAR TAXI, RIVIERA BEACH, FL ............................................................................................................................................ 07/10/97

Default on Heal Loan

ANDRONICO, KENNETH CHARLES, FORT MYERS, FL ..................................................................................................................... 07/10/97BECK, MARK L, WASHINGTON, DC ..................................................................................................................................................... 06/30/97BIRT, CAROL M, SOUTH FORT MYERS, FL ........................................................................................................................................ 07/02/97BOWERS-PHILLIPS, DONNA M, SAVANNAH, GA ............................................................................................................................... 07/03/97BROWN, PAUL W, PHILADELPHIA, PA ................................................................................................................................................ 07/07/97CAMPBELL, LARRY WALLACE, MUSCLE SHOALS, AL ...................................................................................................................... 07/02/97CARTHEN, MICHAEL, BROOKLYN, NY ................................................................................................................................................ 06/26/97COZOLINO, CLIFFORD J, PELHAM, NY ............................................................................................................................................... 07/07/97D’AMICO, JAMES M, NEW PORT RICHEY, FL ..................................................................................................................................... 07/07/97DAYANZADEH, MEHARAN, FLUSHING, NY ......................................................................................................................................... 07/08/97GUERRIERO, LU ANN M, MORGANVILLE, NJ ..................................................................................................................................... 07/08/97HOGAN, DENNIS P, MANASSAS, VA ................................................................................................................................................... 06/26/97HOLLANDER-WEESE, ROXANNE, SANDPOINT, ID ............................................................................................................................ 07/03/97JACOBS, VIRGINIA L, SILVER SPRING, MD ........................................................................................................................................ 07/07/97JONES, EDWARD O JR., ROANOKE, VA ............................................................................................................................................. 06/30/97KUSTICH, SUSAN K, NEW YORK, NY .................................................................................................................................................. 07/10/97LEE, GEORGE W, BROOKLYN, NY ...................................................................................................................................................... 06/26/97LIMA, RUTH O, NASHVILLE, TN ............................................................................................................................................................ 07/07/97MANCINI, JAMES D, MCKEES ROCKS, PA .......................................................................................................................................... 07/10/97MCALLISTER, AMAZAIR, WASHINGTON, DC ...................................................................................................................................... 07/10/97MILES, ETHEL M, CHARLOTTESVILLE, VA ......................................................................................................................................... 06/30/97PAVEZA, GREGORY J, TAMPA, FL ...................................................................................................................................................... 07/03/97PFAB, MARY, ATLANTA, GA ................................................................................................................................................................. 07/08/97PORTER, JACQUELINE R, BROOKLYN, NY ........................................................................................................................................ 06/26/97RICHARDSON, NEIL J, CEDAR SPRINGS, MI ..................................................................................................................................... 07/06/97SINGH, RAVINDRA, ALLENTOWN, PA ................................................................................................................................................. 06/30/97


William M. Libercci,Director, Health Care AdministrativeSanctions, Office of Enforcement andCompliance.[FR Doc. 97–20088 Filed 7–30–97; 8:45 am]


NATIONAL INSTITUTES OF HEALTH

National Cancer Institute

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 Cancer Institute SpecialEmphasis Panel (SEP) meetings:

Name of SEP: Review of R25 (EducationGrants) Applications.

Date: August 14, 1997.Time: 2:00 to Adjournment.Place: Teleconference, National Cancer

Institute, Executive Plaza North, Room 611A,6130 Executive Boulevard, Bethesda, MD20892.

Contact Person: Mary Bell, Ph.D., ScientificReview Administrator, National CancerInstitute, NIH, Executive Plaza North, Room611A, 6130 Executive Boulevard, MSC 7410,


Bethesda, MD 20892–7410, Telephone: 301/496–7978.

Purpose/Agenda: To evaluate and reviewresponses to 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.

Name of SEP: Preclinical Evaluation ofIntermediate Endpoints and their Modulationby Chemopreventive Agents.

Date: September 11–12, 1997.Time: 9:00 p.m. to 5:00 p.m.Place: Ramada Inn-Rockville, 1775

Rockville Pike, Rockville, MD 20852.Contact Person: Lalita Palekar, Ph.D.,

Scientific Review Administrator, NationalCancer Institute, NIH, Executive Plaza North,Room 622, 6130 Executive Boulevard, MSC7410, Bethesda, MD 20892–7410, Telephone:301/496–7575.

Purpose/Agenda: To evaluate and reviewresponses to request for proposal.

The meetings will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552(c)(6), Title 5 U.S.C.Applications and the discussions couldreveal confidential trade secrets orcommercial property such as patentablematerial and personal informationconcerning individuals associated with theapplications, 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: July 24, 1997.LaVerne Y. Stringfield,Committee Management Officer, NIH.[FR Doc. 97–20160 Filed 7–30–97; 8:45 am]BILLING CODE 4140–01–M


National Institutes of Health

National Institute on Deafness andOther Communication Disorders;Notice of Meeting

Notice is hereby given of the NIDCDWorking Group on Early Identificationof Hearing Impairment’s Workshop onUniversal Newborn Hearing Screeningon September 4–5, 1997 at the HolidayInn Chevy Chase, 5520 WisconsinAvenue, Chevy Chase MD 20815. Themeeting is being held to identifyacceptable protocols for newbornhearing screening and will be held from8 am to 5 pm on September 4, and from8 am to 12 pm on September 5.

The entire meeting is open to thepublic. Individuals who plan to attendand need special assistance, such as

sign language interpretation or otherreasonable accommodations, shouldcontact Lynn Huerta, Ph.D., Division ofHuman Communication, NIDCD, EPSRoom 400C, Bethesda MD 20892, 301–402–3458 in advance of the meeting.




National Institute of General MedicalServices, Notice of Meeting of theNational Advisory General MedicalSciences Council

Pursuant to Pub. L. 92–463, notice ishereby given of the meeting of theNational Advisory General MedicalSciences Council, National Institute ofGeneral Medical Services, NationalInstitutes of Health, on September 11–12, 1997, Natcher Building 45,Conference Rooms E1 and E2, Bethesda,Maryland.

This meeting will be open to thepublic from 11 a.m. to 6 p.m. onSeptember 11, for the discussion ofprogram policies and issues, openingremarks, report of the Director, NIGMS,and other business of Council.Attendance by the public will be limitedto space available.

In accordance with provisions setforth in secs. 552b(c)(4) and 552b(c)(6),Title 5, U.S.C. and sec. 10(d) of Pub. L.92–463, the meeting will be closed tothe public on September 11, from 8:30a.m. to 11:00 a.m., and also closed onSeptember 12, (8:30 a.m. toadjournment), for the review,discussion, and evaluation of individualgrant applications. Applications and thediscussions could reveal confidentialtrade secrets or commercial propertysuch as patentable material, andpersonal information concerningindividuals associated with theapplications, disclosure of which wouldconstitute a clearly unwarrantedinvasion of personal privacy.

Mrs. Ann Dieffenbach, PublicInformation Officer, National Institute ofGeneral Medical Services, NationalInstitutes of Health, Natcher Building,Room 3AS–43H, Bethesda, Maryland20892, telephone: 301–496–7301, fax301–402–0224, will provide a summaryof the meeting, and a roster of Councilmembers. Individuals who plan toattend and need special assistance, suchas sign language interpretation or other

reasonable accommodations, shouldcontact Mrs. Dieffenbach in advance ofthe meeting. Dr. W. Sue Shafer,Executive Secretary, NAGMS Council,National Institutes of Health, NatcherBuilding, Room 2AN–32C, Bethesda,Maryland 20892, telephone: 301–594–4499 will provide substantive programinformation upon request.

(Catalog of Federal Domestic AssistanceProgram Nos. 93.821, Biophysics andPhysiological Sciences; 93.859,Pharmacological Sciences; 93.862, GeneticsResearch; 93.863, Cellular and MolecularBasis of Disease Research; 93.880, MinorityAccess Research Careers [MARC]; and93.375, Minority Biomedical ResearchSupport [MBRS]; Special Programs, 93.960)




National Institute of Child Health andHuman Development; Notice of ClosedMeeting

Pursuant to Section 10(d) of theFederal Advisory Committee Act, asamended (5 United States CodeAppendix 2), notice is hereby given ofthe following National Institute of ChildHealth and Human DevelopmentSpecial Emphasis Panel (SEP) meeting:

Name of SEP: NICHD Small Grant andConference Grant Review (Teleconference).

Date: August 18, 1997.Time: 10 a.m.–adjournment.Place: 6100 Executive Boulevard, 6100

Building—Room 5E01, Rockville, Maryland20852.

Contact Person: Edgar E. Hanna, Ph.D.,Scientific Review Administrator, NICHD,6100 Executive Boulevard, 6100 Building-Room 5E01, Rockville, Maryland 20852,Telephone: 301–496–1696.

Purpose/Agenda: To evaluate and reviewgrant applications.

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. Thediscussions of the applications 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 Nos. [93.864, Population Researchand No. 93.865, Research Mothers andChildren], National Institutes of Health)



LaVerne Y. Stringfield,Committee Management Officer, NIH.[FR Doc. 97–20154 Filed 7–30–97; 8:45 am]




National Institute of Child Health andHuman Development, Notice of ClosedMeeting

Pursuant to section 10(d) of theFederal Advisory Committee Act, asamended (5 United States CodeAppendix 2), notice is hereby given ofthe following National Institute of ChildHealth and Human DevelopmentSpecial Emphasis Panel (SEP) meeting:

Name of SEP: Family Decision Making andDemographic Change.

Date: July 31–August 1, 1997.Time: July 31—7:00 p.m.–10:00 p.m.;

August 1—9:30 a.m.–adjournment.Place: Natcher Conference Center, Building

45/NIH Campus, 9000 Rockville Pike,Bethesda, Maryland 20892.

Contact Person: Edgar E. Hanna, Ph.D.,Scientific Review Administrator, NICHD,6100 Executive Boulevard, 6100 Building—Room 5E01, Rockville, Maryland 20852,Telephone: 301–496–1696.

Purpose/Agenda: To evaluate and review agrant application.

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. Thediscussions of this application could revealconfidential trade secrets or commercialproperty such as patentable material andpersonal information concerning individualsassociated with the application, thedisclosure of which would constitute aclearly unwarranted invasion of personalprivacy.

This notice is published less than 15 daysprior to the meeting due to the urgent needto meeting timing limitations imposed by thereview and funding cycle.

(Catalog of Federal Domestic AssistanceProgram Nos. [93.864, Population Researchand No. 93.865, Research Mothers andChildren], National Institutes of Health)


LaVerne Y. Stringfield,Committee Management Officer, NIH.[FR Doc. 97–20155 Filed 7–30–97; 8:45 am]




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–C–03–S.Date: August 20, 1997.Time: 2:00 p.m.Place: Room 6as-37E, Natcher Building,

NIH, (Telephone Conference Call).Contact Person: Dan E. Matsumoto, Ph.D.,

Scientific Review Administrator, ReviewBranch, NIDDK, Natcher Building, Room 6as-37E, National Institutes of Health, Bethesda,Maryland 20892–6600, Phone: (301) 594–8894.

Purpose/Agenda: To review and evaluategrant applications.

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 AssistanceProgram No. 93–847–849, Diabetes,Endocrine and Metabolic Diseases; DigestiveDiseases and Nutrition; and Kidney Diseases,Urology and Hematology Research, NationalInstitutes of Health)





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–GRB5–02S.Date: August 19, 1997.Time: 10:00 a.m.

Place: Room 6as–37E, Natcher Building,NIH, (Telephone Conference Call).

Contact Person: Francisco O. Calvo, Ph.D.,Scientific Review Administrator, ReviewBranch, NIDDK, Natcher Building, Room6as–37E, National Institutes of Health,Bethesda, Maryland 20892–6600, Phone:(301) 594–8897.


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 AssistanceProgram No. 93.847–849, Diabetes, Endocrineand Metabolic Diseases; Digestive Diseasesand Nutrition; and Kidney Diseases, Urologyand Hematology Research, National Institutesof Health)





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: ZDKI–GRB8–03S.Date: August 6, 1997.Time: 2:00 p.m.Place: Room 6as–25N, Natcher Building,

NIH, (Telephone Conference Call).Contact Person: Roberta Haber, Ph.D.,

Scientific Review Administrator, ReviewBranch, NIDDK, Natcher Building, Room6as–25N, National Institutes of Health,Bethesda, Maryland 20892–6600, Phone:(301) 594–8898.


This notice is being published less than 15days prior to the above meeting due to theurgent need to meet timing limitationsimposed by the review and funding cycle.

This meeting will be closed in accordancewith the provisions set forth in secs.552b(c)(4) and 552(b(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 information


concerning individuals associated with theapplications and/or proposals, the disclosureof which would constitute a clearlyunwarranted invasion of personal privacy.(Catalog of Federal Domestic AssistanceProgram No. 93.847–849, Diabetes, Endocrineand Metabolic Diseases; Digestive Diseasesand Nutrition; and Kidney Diseases, Urologyand Hematology Research, National Institutesof Health)




National Institute of Mental Health;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 followingmeetings of the National Institute ofMental Health Special Emphasis Panel:

Agenda/Purpose: To review and evaluategrant applications.

Committee Name: National Institute ofMental Health Special Emphasis Panel.

Date: August 8, 1997.Time: 8:30 a.m.Place: Bethesda Marriott Hotel, 5151 Pooks

Hill Road, Bethesda, MD 20814.Contact Person: Michael D. Hirsch,

Parklawn, Room 9–101, 5600 Fishers Lane,Rockville, MD 20857, Telephone: 301, 443–3936.

Committee Name: National Institute ofMental Health Special Emphasis Panel.

Date: August 11, 1997.Time: 9 a.m.Place: Georgetown Holiday Inn, 2101

Wisconsin Avenue, NW., Washington, DC20007.

Contact Person: Donna Ricketts, Parklawn,Room 9–101, 5600 Fishers Lane, Rockville,MD 20857, Telephone: 301, 443–3936.

The meetings 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.

This notice is being published less thanfifteen days prior to the meetings due to theurgent need to meet timing limitationsimposed by the review and funding cycle.(Catalog of Federal Domestic AssistanceProgram Numbers 93.242, 93.281, 93.282)


DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT

[Docket No. FR–4228–C–02]

Notice of Funding Availability forHOPE VI Public Housing Demolition forFiscal Year 1997; Correction

AGENCY: Office of the AssistantSecretary for Public and IndianHousing, HUD.ACTION: Notice of funding availability;correction.

SUMMARY: This notice corrects andclarifies information that was providedin the notice of funding availability(NOFA) for fiscal year (FY) 1997 forPublic Housing Agencies (PHAs) underthe HOPE VI funding for the demolitionof obsolete Public Housing unitswithout revitalization, where thedemolition would otherwise not occurdue to lack of available resources.Specifically, this notice (1) clarifies themeaning of the phrase ‘‘capital reserves’’and removes reference to the operatingreserves in the description of thethreshold factor III. C., Need forDemolition Funding, and in the ratingfactor IV. A., Extent of PHA Need forFunding for the Demolition; (2) correctsthe references to the modernizationindicator in the PHMAP regulation andthe rating for factor IV. D., Extent ofPHA’s Capability and Readiness toPerform the Demolition; and (3) clarifiesthat there are two 10 point elements inrating factor IV.B., Extent of Impact ofDemolition of Building on PHA andSurrounding Neighborhood.DATES: This notice does not affect thedeadline date provided in the June 3,1997 NOFA. Applications must still bereceived in Headquarters on or beforeAugust 4, 1997, by 4 p.m. eastern time.Applicants that have already submittedapplications before the publication ofthis notice may, however, submitchanges to the amount used for ‘‘capitalreserves’’ in factors III C and IV A (now‘‘leftover CIAP funds’’) to respond to theclarification provided in this notice,within 14 days of the publication of thisnotice.FOR FURTHER INFORMATION CONTACT: Mr.Milan Ozdinec, Director, Office ofUrban Revitalization, Department ofHousing and Urban Development, 451Seventh Street, SW, Room 4142,Washington, DC 20410; telephone (202)

401–8812 (this is not a toll free number).Hearing- or speech-impaired individualsmay access this number via TTY bycalling the Federal Information RelayService at 1–800–877–TDDY, which is atoll-free number. The NOFA and thiscorrection are also available on the HUDHome Page, at the World Wide Web athttp://www.hud.gov. HUD also willpost frequently-asked questions andanswers on the Home Page throughoutthe application preparation period.SUPPLEMENTARY INFORMATION: On June 3,1997, (62 FR 30402), HUD published inthe Federal Register the Notice ofFunding Availability for Fiscal Year1997 for HOPE VI funding for thedemolition of obsolete public housingunits. The NOFA announced theavailability of up to $30 million inHOPE VI for funding the demolitiononly. This notice amends the June 3,1997 NOFA for the following reasons:

(1) The Department wants to clarifywhat was intended by the term ‘‘capitalreserves’’, which was used in thedescription of the threshold and ratingfactors, since it is not a defined termused in either the regulations orhandbooks for the ComprehensiveImprovement Assistance Program(CIAP) or the Comprehensive Grantprogram (CGP). This correction uses adifferent term—‘‘leftover CIAP funds’’—which it defines.

(2) The chart published in the NOFAfor factor IV. D., Extent of PHA’sCapability and Readiness to Perform theDemolition, on how the Departmentwould rate the PHMAP score fortimeliness of modernization, asubindicator of the modernizationindicator, was ambiguous. In PHMAP,the subindicator timeliness ofmodernization can only be rated A forpass, or F for fail. However, the chartpublished in the NOFA assigned pointsbased on range of ratings—A, B, C or D.Subsequently, the Department hasdecided to use the complete PHMAPindicator for modernization, whichmore accurately measures all aspects ofa PHA’s capability to manage itsmodernization program. In PHMAP, themodernization indicator can be scoredA, B, C, D, E or F. This wider range ofratings will provide a larger number ofPHAs the opportunity to receive pointsfor the factor in the NOFA and willcorrespond to the range of ratingspublished in the NOFA chart. (For thepurposes of this NOFA, only PHAs withscores of A, B, C, or D will be givenpoints.)

In addition, we have eliminatedreferences to rating the PHA’smanagement of its public housingdevelopment funds. The chart


published in the NOFA for this factoronly referenced the PHMAP indicatorfor modernization; it did not includeany measurement of a PHA’sdevelopment capability. Furthermore,many PHAs no longer have publichousing development funds and itwould be necessary to forgo measuringdevelopment capability in some PHAsand while measuring it in others.Therefore, it has been determined thatthe Department will use a PHA’sdemonstrated capability inmodernization alone to score this factor.

(3) Factor IV.B., Extent of Impact ofDemolition of Building on PHA andSurrounding Neighborhood, wasspecific with respect to 10 points of a20 point factor, but the NOFA needed tobe explicit about the remaining 10points being awarded for impact on thePHA.

Accordingly, FR Doc. 97–14384, theNotice of Funding Availability for HOPEVI Public Housing Demolition—FiscalYear 1997, published in the FederalRegister on June 3, 1997 (62 FR 30402),is amended as follows:

1. On page 30404, first column, underSection III, paragraph C., Need forDemolition Funding, the secondparagraph is removed and the followingparagraph is added in its place, to readas follows:

‘‘A non-CGP PHA must demonstratethat it does not have adequate leftoverCIAP funds (for the purpose of thisNOFA, the phrase leftover CIAP fundsmeans funds remaining from previousmodernization programs that are subjectto reprogramming after completion of allapproved work items in the program) toperform the demolition withoutaffecting current emergency or criticalneeds that it currently has. The PHAmust enumerate any current leftoverCIAP funds and then describe theamount of these funds that it anticipateswill be used for emergency and/orcritical needs in FY 1997. A PHA mustprovide the specific dollar amount ofthe leftover CIAP funds, an itemized listof the emergency and/or critical needswork items, and the individual and totalcost of these work items accompaniedby a narrative demonstrating the gravityof the critical needs that it is going touse its funds to correct.’’

2. On Page 30404, third column,Section IV, paragraph A., Extent of PHANeed for Funding for the Demolition, isamended by removing the third, fourthand fifth paragraphs and adding, in theirplace, the following:

‘‘Element 1. CGP PHAs will be rateddepending on the amount of CGP fundsremaining after taking intoconsideration grant funds used foremergency and/or critical needs. A non-

CGP PHA will be rated depending onthe amount of leftover CIAP fundsremaining after taking intoconsideration leftover CIAP funds usedfor emergency and/or critical needs.

A CGP PHA must provide acomparison of the total cost ofdemolition of the targeted development,with the amount remaining in the FY1997 annual comprehensive grant awardafter funding emergency and/or criticalneeds for FY 1997. Even though thePHA has work items approved in theannual statement, the Departmentexpects a PHA to expend any dollarsremaining in the CGP grant after it fundsany emergency and/or critical needs topartially or fully fund the proposeddemolition before undertaking othernon-emergency or non-critical needswork items.

A CIAP PHA is to use the amount ofleftover CIAP funds at the time of theHOPE VI application as the basis of thecomputation for this element. That is, aCIAP PHA is to compare the total costof demolition of the targeteddevelopment with the amount ofleftover CIAP funds remaining afterfunding emergency and/or critical needsfor FY 1997 as described previously.

A CGP PHA that cannot fund the totalcost of the demolition with theremaining CGP funds and a non-CGPPHA that cannot fund the total cost ofthe demolition with its leftover CIAPfunds or those PHAs that can only funda small percentage (i.e., 0 percent to 25percent) of the cost of demolition willreceive between 16–25 points.’’

Percent of proposed demolitioncost able to be funded with CGP

funds or lefover CIAP funds

Pointsawarded

76–100 .......................................... 0–551–75 ............................................ 6–1026–50 ............................................ 11–1525–0 .............................................. 16–25

3. On Page 30405, first column,Section IV, paragraph B., Extent ofImpact of Demolition of Building onPHA and Surrounding Neighborhood, isamended by adding the followingsentence after the heading:

‘‘This is a two part rating factor:extent of impact of demolition on thedevelopment and/or the PHA; and theextent of impact of the demolition onthe surrounding neighborhood. Each ofthe elements will receive a score of 10points.’’

4. On Page 30405, third column,Section IV, paragraph D., Extent ofPHA’s Capability and Readiness toPerform the Demolition, is amended byremoving the entire paragraph andadding a new paragraph D, to read asfollows:

‘‘D. Extent of PHA’s Capability andReadiness to Perform the Demolition.[10 points]

Based on the latest HUD records(including the PHA’s PHMAPmodernization score) the PHA will bescored on the extent of the PHA’s abilityto begin immediately after approval andto effectively carry out the proposeddemolition (e.g., the PHA has a requestfor proposal (RFP) prepared and readyto issue).

This criterion is divided into twofactors—capability, which has amaximum of 8 points, and readiness toperform the demolition, which has amaximum of 2 points.

HUD will consider the extent towhich the PHA with any active capitalfunding under CIAP or CGP programshas shown its capability to adequatelymanage the program. The PHA’scapability will be judged by theimmediate past performance in theexpenditure and obligation of funds,contract administration, quality ofphysical work and budget controls forthe modernization (CIAP or CGP)program. For this criterion thecapability of the PHA will be measuredby the latest PHMAP score for themodernization indicator, as follows:

Pointsawarded Capability

8 ........... Latest Modernization PHMAPscore of A.

6 ........... Latest Modernization PHMAPscore of B.

4 ........... Latest Modernization PHMAPscore of C.

2 ........... Latest Modernization PHMAPscore of D.

The readiness of the PHA will bedetermined by whether the PHA has adraft RFP that is in compliance with§ 85.36 for the demolition contractprepared at the time of its response tothis NOFA. The PHA must haveincluded in its application a copy of thedraft RFP to document its contention. APHA with a draft RFP will receive themaximum score for this element, 2points. A PHA without a draft RFP willreceive 0 points. The PHA’s score onreadiness is to be combined with itsscore on modernization capability togive the total score on the rating factor.’’


Kevin Emanuel Marchman,Acting, Assistant Secretary for Public andIndian Housing.[FR Doc. 97–20317 Filed 7–30–97; 8:45 am]





Notice of Receipt of Applications forPermit

The following applicants haveapplied for a permit to conduct certainactivities with endangered species. Thisnotice is provided pursuant to Section10(c) of the Endangered Species Act of1973, as amended (16 U.S.C. 1531, etseq.):PRT–832333

Applicant: Zoological Society of San Diego,CA.

The applicant requests a permit toimport four captive-born Black-footedcats (Felis nigripes) from John Visser,Durbanville, Republic of South Africafor the purpose of enhancement of thespecies through captive propagation.PRT–832495

Applicant: Larry Reynolds, Arlington, TX.

The applicant requests a permit toimport the sport-hunted trophy of onemale bontebok (Damaliscus pygargusdorcas) culled from a captive herd

maintained under the managementprogram of the Republic of South Africa,for the purpose of enhancement of thesurvival of the species.

Written data or comments should besubmitted to the Director, U.S. Fish andWildlife Service, Office of ManagementAuthority, 4401 North Fairfax Drive,Room 430, Arlington, Virginia 22203and must be received by the Directorwithin 30 days of the date of thispublication.

The public is invited to comment onthe following application(s) for permitsto conduct certain activities with marinemammals. The application(s) was/weresubmitted to satisfy requirements of theMarine Mammal Protection Act of 1972,as amended (16 U.S.C. 1361 et seq.) andthe regulations governing marinemammals (50 CFR part 18).PRT–831644

Applicant: Lisbon Aquarium, Lisbon,Portugal.

Type of Permit: Take for publicdisplay.

Name and Number of Animals:Northern sea otters (Enhydra lutrislutris), up to 24.

Summary of Activity To BeAuthorized: The applicant has requesteda permit to collect and export 4 ottersfor the purpose of public display at theLisbon Aquarium. Up to 24 otters maybe captured in the course of collectionactivities in order to obtain the 4 mostsuitable otters for export and publicdisplay. Any otter not selected forexport and public display will beimmediately released.

Source of Marine Mammals for PublicDisplay: Kodiak Islands, AK.

Period of Activity: Five years fromissuance date of the permit, if issued.

Concurrent with the publication ofthis notice in the Federal Register, theOffice of Management Authority isforwarding copies of this application tothe Marine Mammal Commission andthe Committee of Scientific Advisors fortheir review.

The following applicants have eachrequested a permit to import a sport-hunted polar bear (Ursus maritimus)from the Northwest Territories, Canadafor personal use.

Applicant/address Population PRT

Robert Keeler, Douglas, WY .......................................................................................................... Gulf of Boothia ............................ 832324Bruce Shoenweis, Alton, IL ............................................................................................................ McClintock Channel .................... 831928Harry Nicholson, Corsicana, TX .................................................................................................... Lancaster Sound ......................... 832095

Written data or comments, requestsfor copies of the complete applications,or requests for a public hearing on anyof these applications for marinemammal permits should be sent to theU.S. Fish and Wildlife Service, Office ofManagement Authority, 4401 N. FairfaxDrive, Room 430, Arlington, Virginia22203, telephone 703/358–2104 or fax703/358–2281 and must be receivedwithin 30 days of the date of publicationof this notice. Anyone requesting ahearing should give specific reasonswhy a hearing would be appropriate.The holding of such hearing is at thediscretion of the Director.

Documents and other informationsubmitted with all of the applicationslisted in this notice are available forreview, subject to the requirements ofthe Privacy Act and Freedom ofInformation Act, by any party whosubmits a written request for a copy ofsuch documents within 30 days of thedate of publication of this notice at theabove address.

Dated: July 25, 1997.Karen Anderson,Acting Chief, Branch of Permits, Office ofManagement Authority.[FR Doc. 97–20134 Filed 7–30–97; 8:45 am]BILLING CODE 4310–55–P



Issuance of Permits for MarineMammals

On March 26, 1997, a notice waspublished in the Federal Register, Vol.62, No. 58, Page 14438, that anapplication had been filed with the Fishand Wildlife Service by the followingindividual for a permit to import asport-hunted polar bear (Ursusmaritimus) from Canada for personaluse.

Applicant/address Population PRT-

Lee Adam, Ham-burg, PA.

LancasterSound

826757

On April 9, 1997, a notice waspublished in the Federal Register, Vol.

62, No. 68, Page 17200, that anapplication had been filed with the Fishand Wildlife Service by the followingindividual for a permit to import asport-hunted polar bear (Ursusmaritimus) from Canada for personaluse.


David Anaman,Hemlock, MI.

NorthernBeaufort

826910

On April 30, 1997, a notice waspublished in the Federal Register, Vol.62, No. 83, Page 23478, that anapplication had been filed with the Fishand Wildlife Service by the followingindividual for a permit to import asport-hunted polar bear (Ursusmaritimus) from Canada for personaluse.


Robert Zingula,Central City, IA.

NorthernBeaufort.

828355

On May 23, 1997, a notice waspublished in the Federal Register, Vol.62, No. 100, Page 28493, that anapplication had been filed with the Fish


and Wildlife Service by the followingindividuals for a permit to import asport-hunted polar bear (Ursusmaritimus) from Canada for personaluse.


Jerome Eckrich, Ab-erdeen, SD.

LancasterSound

828883

Roger L. Baber, Jr.,Churchville, VA.

Northern ..Beaufort

829415

On June 5, 1997, a notice waspublished in the Federal Register, Vol.62, No. 108, Page 28493, that anapplication had been filed with the Fishand Wildlife Service by the followingindividuals for a permit to import asport-hunted polar bear (Ursusmaritimus) from Canada for personaluse.


Daniel Peyerk, Shel-by Township, MI.

Northern ..Beaufort

829283

Tom Winn, CorpusChristi, TX.

Northern ..Beaufort

829418

Stewart Shaft,Northfield, MN.

McClintockChannel

829932

Greg Bond, Irving,TX.

McClintockChannel

829684

Loubert Suddaby,Orchard Park, NY.

Southern ..Beaufort

829687

Jan Bax, Appleton,WI.

McClintockChannel

829887

Notice is hereby given that betweenJuly 7 through 21, 1997, as authorizedby the provisions of the MarineMammal Protection Act of 1972, asamended (16 U.S.C. 1361 et seq.) theFish and Wildlife Service authorized therequested permits subject to certainconditions set forth therein.

On June 13, 1997, a notice waspublished in the Federal Register, Vol.62, No. 114, Page 32364, that anapplication had been filed with the Fishand Wildlife Service by the AlaskaScience Center, Anchorage, AK foramendment of the permit (PRT–801652)for the purposes of scientific research ofwalrus (Odobenus rosmarus).

Notice is hereby given that on July 17,1997, as authorized by the provisions ofthe Marine Mammal Protection Act of1972, as amended (16 U.S.C. 1361 etseq.) the Fish and Wildlife Serviceauthorized the requested permit subjectto certain conditions set forth therein.

Documents and other informationsubmitted for these applications areavailable for review by any party whosubmits a written request to the U.S.Fish and Wildlife Service, Office ofManagement Authority, 4401 NorthFairfax Drive, Rm 430, Arlington,Virginia 22203. Phone (703) 358–2104or Fax (703) 358–2281.

Dated: July 25, 1997.Karen Anderson,Acting Chief, Branch of Permits, Office ofManagement Authority.[FR Doc. 97–20135 Filed 7–30–97; 8:45 am]BILLING CODE 4310–55–P


Geological Survey

Request for Public Comments onExisting Information CollectionSubmitted to OMB for Review Underthe Paperwork Reduction Act

The existing information collectiondescribed below has been submitted tothe Office of Management and Budgetfor emergency approval under theprovisions of the Paperwork ReductionAct of 1995 (44 U.S.C. 3506(c)(2)).Copies of the proposed collection maybe obtained by contacting the Bureau’sclearance officer at the phone numberlisted below. Public comments on theproposal should be made within 15 daysdirectly to: Desk Officer for the InteriorDepartment, Office of Information andRegulatory Affairs, Office ofManagement and Budget, Washington,DC 20503; and the Bureau ClearanceOfficer, U.S. Geological Survey, 807National Center, Reston, VA 20192.

As required by OMB regulations at 5CFR 1320.8(d)(1), the U.S. GeologicalSurvey solicits specific publiccomments as to:

1. Whether the collection ofinformation is necessary for the properperformance of the functions on thebureaus, including whether theinformation will have practical utility;

2. The accuracy of the bureau’sestimate of the burden of the collectionof information, including the validity ofthe methodology and assumptions used:

3. The quality, utility, and clarity ofthe information to be collected; and

4. How to minimize the burden of thecollection of information on those whoare to respond, including the use ofappropriate automated, electronic,mechanical, or other forms ofinformation technology.

Title: North American ReportingCenter for Amphibian Malformations.

Summary: The collection ofinformation referred herein applies to aWorld-Wide Web site that permitsindividuals who observed malformedamphibians or who inspect substantialnumbers of normal or malformedamphibians to report those observationsand related information. The Web site istermed the North American ReportingCenter for Amphibian Malformations.Information will be used by scientists

and federal, state, and local agencies toidentify areas where malformedamphibians occur and the rates ofoccurrence.

Estimated Completion Time: 20minutes.

Estimated Annual Number ofRespondents: 900.

Frequency: Once.Estimated Annual Burden Hours: 300

hours.Affected Public: Primarily U.S. and

Canadian residents.Emergency Approval Requested by:

Fifteen days from publication of thisnotice.

For Further Information Contact: Toobtain copies of the survey, contact theBureau’s clearance officer, U.S.Geological Survey, 807 National Center,12201 Sunrise Valley Drive, Reston,Virginia 20192, telephone (703) 648–7313, or go to the Website (http://www.npsc.nbs.gov./narcam).

Dated: July 14, 1997.Don Minnich,Acting Chief Biologist.[FR Doc. 97–20083 Filed 7–30–97; 8:45 am]BILLING CODE 4310–31–M


Bureau of Land Management

[ID–054–1210–00]

Closure of Public Lands to MotorizedVehicles, Shoshone Resource Area

AGENCY: Bureau of Land Management,InteriorACTION: Closure of public land tomotorized vehicles.

SUMMARY: Notice is given that a way andsurrounding adjacent public land in theLittle City of Rocks Wilderness StudyArea (WSA) (ID–54–5, Shoshone/SunValley Environmental Impact Statement,1986), in Gooding County, Idaho isclosed to motorized use year round. Theclosed area includes all public land inTownship 3 South, Range 15 East,Section 33 except for a signed parkingarea south of the historic stone andearthen dam in the Little City of RocksWSA. Motorized cross country travelhas caused significant surfacedisturbance in the described area. Thepurpose of the closure is to preventunacceptable impacts to soils andvegetation in compliance with theInterim Management Policy Guidancefor WSAs. All public land administeredby the Bureau of Land Managementwithin the above described area isclosed to motorized vehicle useindefinitely from the date of this notice.


Exemptions from this closure may beapproved by the Authorized Officer.Exemptions may be approved forfederal, state, and local governmentpersonnel on official duty, emergencyservice personnel including medical,search and rescue, and other licensed orpermitted individuals.

The authority for this closure is 43CFR 8364–1.FOR MORE INFORMATION CONTACT: PaulaPerletti, Outdoor Recreation Planner,Shoshone Resource Area, P.O. Box 2–B,Shoshone Idaho 83352, telephone (208)886–2206.

Dated: July 7, 1997.Bill A. Baker,Area Manager.[FR Doc. 97–20087 Filed 7–30–97; 8:45 am]BILLING CODE 4310–GG–P



[UT–030–1020]

Notice of Public Involvement andScoping Opportunities for the GrandStaircase-Escalante NationalMonument Management Plan andAssociated Environmental ImpactStatement

AGENCY: Bureau of Land Management,Interior.ACTION: The Utah Bureau of LandManagement, Grand Staircase-EscalanteNational Monument (GSENM) is seekingpublic, agency and tribal involvement inthe preparation of the GSENMManagement Plan, through a series ofpublic planning workshops/scopingmeetings.

SUMMARY: Pursuant to the Federal LandManagement Act (FLMPA), NationalEnvironmental Policy Act, PresidentialProclamation 6920 and Part 43, Section1600 of Code of Federal Regulations, theBureau of Land Management GrandStaircase-Escalante National Monumentis seeking public involvement throughvarious means including the hosting ofa series of planning workshops in orderto inform the public of Monumentvalues and to understand public views,concerns and ideas regardingpossibilities for management and thefuture of the GSENM.ADDRESSES: Questions or concernsregarding the planning workshops/scoping meetings and schedules shouldbe addressed to Pete Wilkins, PlanningCoordinator, Grand Staircase-EscalanteNational Monument Planning Office,Bureau of Land Management, 337 South

Main Street, Suite 010, Cedar City, Utah84720.FOR FURTHER INFORMATION CONTACT: PeteWilkins, Planning Coordinator at theabove address or by phone at (801) 865–5100, E-Mail at [email protected].,or fax to (801) 865–5170.SUPPLEMENTARY INFORMATION: The GrandStaircase-Escalante National Monumentwas established on September 18, 1996by Presidential Proclamation 6920. Asstated in the Proclamation, amanagement plan would be preparedpursuant to existing authorities, mainlyFLPMA and the National EnvironmentalPolicy Act. In accordance with theseauthorities, the Bureau of LandManagement is seeking the comments,concerns and views of all individuals,groups, organizations, agencies andAmerican Indian Tribal Governmentsthat may have an interest in theGSENM. As such, the GSENM, isannouncing a series of planningworkshops/scoping meetings throughout Utah and other western states aswell as in Washington D.C.

The purpose of these meetings is toinform the public of some of theimportant values within the Monumentas well as some of directives andguidelines that were established withinProclamation 6920. These workshopsare also designed to gather ideas,concerns and opportunities regardingpossible management of the GSENM.Additionally, these workshops will helpthe monument staff identify appropriateissues and alternatives to be addressedwithin the associated GSENMManagement Plan/EnvironmentalImpact Statement.

The schedule and location of theseWorkshop Events is as follows:All workshops will begin at 7:00 p.m.Big Water, UT, Big Water Town Hall,

August 12, 1997Escalante, UT, Community Center,

August 14, 1997Orderville, UT, Valley High School

Little Theater, August 19, 1997Kanab, UT, Kanab High School, August

21, 1997Cedar City, UT, SUU Sharwan Smith

Center, August 26, 1997Tropic, UT, Bryce Valley High School

Auditorium, August 27, 1997Panguitch, UT, Panguitch High School,

August 28, 1997Salt Lake City, UT, Division of Natural

Resources Auditorium, 1594 W.North Temple, September 2, 1997

Las Vegas, NV, Cashman Field Center,850 Las Vegas Blvd. N. @Washington Ave., September 4,1997

Flagstaff, AZ, Woodlands Plaza Hotel,1175 W. Route 66, September 16,1997

Lakewood, CO, Sheraton West, 360Union Blvd., September 30, 1997

Santa Fe, NM, Santa Fe CommunityCollege, 6401 South Richards Ave,October 2, 1997

San Francisco, CA, San FranciscoMarriott, 55 Fourth Street, October9, 1997

Moab, UT, Moab Valley Inn, 711 S.Main, October 14, 1997

Washington, D.C., Location to beannounced, October 16, 1997

Dated: July 7, 1997.A. J. Meredith,Monument Manager.[FR Doc. 97–20228 Filed 7–30–97; 8:45 am]BILLING CODE 4310–DQ–U



Amended Notice

SUMMARY: Notice is hereby given thatthe Bureau of Land Management (BLM)and the County of Kem, State ofCalifornia have extended the commentperiod for the Draft EnvironmentalImpact Statement/EnvironmentalImpact Report for the Soledad MountainProject, a proposed gold miningoperation on public and private lands inKem County, California.DATES: Comments on the DraftEnvironmental Impact Report/Environmental Impact Statement mustbe postmarked no later than August 11,1997.ADDRESSES: Written comments shouldbe addressed to Bureau of LandManagement, Ridgecrest Resource Area,300 S. Richmond Road, Ridgecrest,California, 93555, Attention: AhmedMohsen, EIS Coordinator.FOR FURTHER INFORMATION CONTACT:Ahmed Mohsen—EIS Coordinator (760)384–5421.PUBLIC MEETINGS: Public meetings wereheld on: Tues. June 24, 1997 and Wed.June 25, 1997.SUPPLEMENTARY INFORMATION: Thepurpose of the Draft EIR/EIS is topresent BLM and Kem County’scomparative analysis of the impacts ofthe Proposed Action and Alternativeson the physical, biological, social andeconomic resources of the area. TheProposed Action is a mining proposal toextract minerals from the subsurface,process the ore using chemical leachingmethods and place the waste rockadjacent to the processing and miningareas. Alternatives to the ProposedAction include variations on theduration of operations and placement ofwaste rock. After careful consideration


of the impacts of the Proposed Actionand all the alternatives, BLM hasidentified a Preferred Action inresponse to regulatory requirements,issues raised, resources present, impactanalysis results and the effectiveness ofmitigation and reclamation measures.

A public scoping process wasinitiated by the BLM and Kem Countyto identify issues and concerns relatingto the proposed mining operation andassist the lead agencies in formulatingalternatives to the Proposed Action. Thescoping process was designed toprovide an opportunity for receipt ofverbal and written comments from thepublic, organizations and governmentagencies. This was achieved throughtwo public meetings, newspaperpublications, Federal Register noticeand notice of preparation of an EIR/EIS.Project description, resource inventoriesand public meeting proceedings weremade available on the world wide web.Site can be reached with the followingaddress: htt:www.ca.blm.gov/GoldenQueen.

The project area includesapproximately 1,690 acres of which1,219 acres are privately owned landand 471 acres are unpatented miningclaims on public lands administered bythe BLM. The proposed surfacedisturbance is 930 acres of which 735acres are on private land and 195 acresare on public land

A Federal Register notice waspublished on June 2, 1997 (Volume 62,Number 105) Page 29736 to announcethe public meeting dates and commentperiod schedules.

Dated: July 25, 1997.Lee Delaney,Area Manager.[FR Doc. 97–20139 Filed 7–30–97; 8:45 am]BILLING CODE 1990–01–M



Soledad Mountain Project, CA

ACTION: Notice.

SUMMARY: Notice is hereby given thatthe Bureau of Land Management (BLM)and the County of Kern, State ofCalifornia are extending the commentperiod for the Draft EnvironmentalImpact Statement/EnvironmentalImpact Report for the Soledad MountainProject, a proposed gold miningoperation on public and private lands inKern County, California.DATES: Comments on the DraftEnvironmental Impact Report/Environmental Impact Statement must

be postmarked no later than August 4,1997.ADDRESSES: Written comments shouldbe addressed to Bureau of LandManagement, Ridgecrest Resource Area,300 S. Richmond Road, Ridgecrest,California, 93555, Attention: AhmedMohsen—EIS Coordinator.FOR FURTHER INFORMATION CONTACT:Ahmed Mohsen-EIS Coordinator (760)385–5421.PUBLIC MEETINGS: Public meetings wereheld on: June 24 and June 25 atRosamond and Mojave, California.SUPPLEMENTARY INFORMATION: Thepurpose of the Draft EIR/EIS is topresent BLM and Kern County’scomparative analysis of the impacts ofthe Proposed Action and Alternativeson the physical, biological, social andeconomic resources of the area. TheProposed Action is a mining proposal toextract minerals from the subsurface,process the ore using chemical leachingmethods and place the waste rockadjacent to the processing and miningareas. Alternatives to the ProposedAction include variations on theduration of operations and placement ofwaste rock. After careful considerationof the impacts of the Proposed Actionand all the alternatives, BLM hasidentified a Preferred Action inresponse to regulatory requirements,issued raised, resources present, impactanalysis results and the effectiveness ofmitigation and reclamation measures.

A public scoping process wasinitiated by the BLM and Kern Countyto identify issues and concerns relatingto the proposed mining operation andassist the lead agencies in formulatingalternatives to the Proposed Action. Thescoping process was designed toprovide an opportunity for receipt ofverbal and written comments from thepublic, organizations and governmentagencies. This was achieved throughtwo public meetings, newspaperpublications, federal register notice andnotice of preparation of an EIR/EIS.Project description, resource inventoriesand public meeting proceedings weremade available on the world wide web.Site can be reached with the followingaddress: http:www.ca.blm.gov/GoldenQueen.

The project area includesapproximately 1,690 acres of which1,219 acres are privately owned landand 471 acres are unpatented miningclaims on public lands administered bythe BLM. The proposed surfacedisturbance is 930 acres of which 735acres are on private land and 195 acresare on public land.

Five alternatives to the ProposedAction are analyzed in detail: (1) No

Action, (2) Increased Mining andProcessing Rate, (3) Decreased Miningand Processing Rate, (4) Reduced ProjectSize, and (5) Partial Backfilling.

Five alternatives to the ProposedAction are analyzed in detail: (1) NoAction, (2) Increased Mining andProcessing Rate, (3) Decreased Miningand Processing Rate, (4) Reduced ProjectSize, and (5) Partial Backfilling.

A Federal Register notice waspublished on June 2, 1997 (Volume 62,Number 105) Page 29736 to announcethe public meeting dates and commentperiod schedules.Lee Delaney,Resource Area Manager.[FR Doc. 97–20201 Filed 7–30–97; 8:45 am]BILLING CODE 1990–01–M



[CA–010–1220–00]

Meeting of the Bakersfield ResourceAdvisory Council

AGENCY: Bureau of Land Management,Department of the Interior.ACTION: Meeting of the BakersfieldResource Advisory Council.

SUMMARY: Pursuant to the authorities inthe Federal Advisory Committee Act(Public Law 92–463) and the FederalLand Policy and Management Act of1976 (sec. 309), the Bureau of LandManagement Resource AdvisoryCouncil for the Bakersfield District willmeet in Bridgeport, California.DATES: August 15–16, 1997.ADDRESSES: Bridgeport ElementarySchool, 205 Kingsley Street.SUPPLEMENTARY INFORMATION: The 12member Bakersfield Resource AdvisoryCouncil is appointed by the Secretary ofthe Interior to advise the Bureau of LandManagement on public land issues. TheCouncil will meet on Friday andSaturday, August 15–16, 1997,beginning at 8:00 a.m. both days.Agenda items include election ofofficers, a plan to set priorities for theexpenditure of range improvementfunds, an update on the proposal totrade federal oil leases for theHeadwaters forest, a discussion of RS–2477 rights of way, reports on the roleof fire in native plant and deer herdmanagement, an update on the draftEnvironmental Impact Statement for theHealthy Rangelands initiative, and anupdate on the status of proposedrecreation fees for BLM lands. Therewill be a field trip Friday afternoon toBodie State Historic Park. A public


comment period begins at 1 p.m.,Saturday, August 16, at which time thepublic may discuss any public landissue. Written comments will beaccepted during the meeting or at theaddress below. The entire meeting isopen to the pubic. Anyone wishing totake part in the field trip must providetheir own transportation.FOR FURTHER INFORMATION CONTACT:Larry Mercer, Public Affairs Officer,Bureau of Land Management, 3801Pegasus Drive, Bakersfield, CA 93308,telephone 805–391–6010.

Dated: July 23, 1997.John Skibinski,Acting District Manager.[FR Doc. 97–20204 Filed 7–30–97; 8:45 am]BILLING CODE 4310–400–M



[CO–956–97–1420–00]

Colorado: Filing of Plats of Survey

July 22, 1997.The plats of survey of the following

described land, will be officially filed inthe Colorado State Office, Bureau ofLand Management, Lakewood,Colorado, effective 10:00 am., July 22,1997. All inquiries should be sent to theColorado State Office, Bureau of LandManagement, 2850 Youngfield Street,Lakewood, Colorado 80215.

The plat (in 11 sheets) representingthe dependent resurvey of certainmineral claims in section 3 and thesurvey of a portion of the HayesBuilding Lot, and the Metes-and-Boundssurvey of Irregular Lot Lines in section3, T. 4 S., R. 73 W., Sixth PrincipalMeridian, Group 690, Colorado, wasaccepted June 25, 1997.

The plat (in 10 sheets) representingthe dependent resurvey of certainmineral surveys, or portions there of, insections 17, 21, 22, 27, 28, and 29, T. 36N., R. 11 W., New Mexico PrincipalMeridian, Group 862, Colorado, wasaccepted July 10, 1997.

These surveys were requested by theForest Service for administrativepurposes.

The plat representing the remeanderof a portion of the Sangre De CristoGrant boundary, the dependent resurveyof a portion of the Eighth StandardParallel North (north boundary), and aportion of the subdivisional lines, themetes and bounds survey of the upperrim of the right bank of the Rio GrandeRiver, and the subdivision of fractionalsection 4, Township 32 N., R. 11 E.,New Mexico Principal Meridian, Group

1106, Colorado, was accepted June 24,1997.

The plat representing the entirerecord of the investigative retracementand metes-and-bounds survey in section15, T. 49 N., R. 2 W., New MexicoPrincipal Meridian, Group 1157,Colorado, was accepted July 16, 1997.

The plat representing the entiresurvey record of the dependent resurveyof Mineral Survey Number 5303, NewFisherman Placer, and the metes-and-bounds survey of a parcel of land withinthe boundaries of M.S. 5303, NewFisherman Placer, described as ParcelA., New Mexico Principal Meridian,Group 1165, Colorado, was acceptedJuly 14, 1997.

The supplemental plat, correcting theacreage of Tract 48, which excludes thatportion of H.E.S. 117, contained in theright-of-way of U.S. Highway No. 40, inunsurveyed T. 2 S., R. 75 W., SixthPrincipal Meridian, Colorado, wasaccepted June 25, 1997.

These surveys were requested by BLMfor administrative purposes.Darryl A. Wilson,Chief Cadastral Surveyor for Colorado.[FR Doc. 97–20203 Filed 7–30–97; 8:45 am]BILLING CODE 4310–JB–P



[WY–921–1430–01; WYW 141567]

Notice of Proposed Withdrawal andOpportunity for Public Meeting;Wyoming

AGENCY: Bureau of Land Management,Interior.ACTION: Notice.

SUMMARY: The Bureau of LandManagement (BLM), proposes towithdraw 1,430.92 acres of public landin Fremont County, to protect andpreserve capital investments associatedwith critical bighorn sheep winter rangewhich have been acquired by exchangeor are in the process of being acquiredthrough exchange. The winter range islocated in northwestern Wyoming. Thisnotice closes the land for up to 2 yearsfrom surface entry and mining. The landwill remain open to mineral leasing.DATES: Comments and requests for ameeting should be received on or beforeOctober 29, 1997.ADDRESSEES: Comments and meetingrequests should be sent to the WyomingState Director, BLM, P.O. Box 1828,Cheyenne, Wyoming 82003–1828.FOR FURTHER INFORMATION CONTACT:Tamara Gertsch, BLM Wyoming State

Office, 307–775–6115, or Bill Bartlett,Lander Resource Area, 307–332-8402.SUPPLEMENTARY INFORMATION: On July 2,1997, a petition was approved allowingthe BLM to file an application towithdraw the following describedpublic land from settlement, sale,location, or entry (except for disposal byexchange), under the general land laws,including the mining laws, subject tovalid existing rights:

Sixth Principal Meridian, WyomingT. 40 N., R. 105 W.,Sec. 17, NE1⁄4NE1⁄4, S1⁄2N1⁄2, NE1⁄4SW1⁄4,

SE1⁄4;Sec. 18, NE1⁄4NE1⁄4;Sec. 20, E1⁄2NE1⁄4;Sec. 21, NW1⁄4NW1⁄4, S1⁄2NW1⁄4, N1⁄2SW1⁄4,

SE1⁄4SW1⁄4.T. 41 N., R. 106 W.,Sec. 17, NW1⁄4SW1⁄4, S1⁄2SW1⁄4, S1⁄2S1⁄2SE1⁄4;Sec. 18, NE1⁄4NE1⁄4 (except for 8.88 acres),W1⁄2NE1⁄4, SE1⁄4NW1⁄4, NE1⁄4SW1⁄4, SE1⁄4;Sec. 19, lot 1, N1⁄2NE1⁄4, NE1⁄4NW1⁄4.

The area described contains 1,430.92 acresin Fremont County.

The purpose of the proposedwithdrawal is to protect and preservesignificant capital investmentsassociated with the Whiskey Mountainbighorn sheep winter range that havebeen acquired through exchange, or arein the process of being acquired throughexchange, pending further study anddevelopment of appropriate, andpossibly longer-term, actions to protectand manage the resources.

For a period of 90 days from the dateof publication of this notice, all personswho wish to submit comments,suggestions, or objections in connectionwith the proposed withdrawal maypresent their views in writing to theundersigned officer of the BLM.

Notice is hereby given that anopportunity for a public meeting isafforded in connection with theproposed withdrawal. All interestedpersons who desire a public meeting forthe purpose of being heard on theproposed withdrawal must submit awritten request to the Wyoming StateDirector within 90 days from the date ofpublication of this notice. Upondetermination by the authorized officerthat a public meeting will be held, anotice of the time and place will bepublished in the Federal Register atleast 30 days before the scheduled dateof the meeting.

The application will be processed inaccordance with the regulations setforth in 43 CFR 2300.

For a period of 2 years from the dateof publication of this notice in theFederal Register, the land will besegregated as specified above unless theapplication is denied or cancelled or thewithdrawal is approved prior to that


date. Licenses, permits, cooperativeagreements, or discretionary land useauthorizations of a temporary naturewhich would not impact the bighornsheep winter range or impair theexisting values of the area may beallowed with the approval of anauthorized officer of the BLM during thesegregative period.

Dated: July 25, 1997.Alan R. Pierson,State Director.[FR Doc. 97–20138 Filed 7–30–97; 8:45 am]BILLING CODE 4310–22–P

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent DecreePursuant to the ComprehensiveEnvironmental Response,Compensation, and Liability Act of1998, as Amended

In accordance with Departmentalpolicy, 28 CFR 50.7 and pursuant tosection 122 of the ComprehensiveEnvironmental Response, Compensationand Liability Act (‘‘CERCLA’’), 42 U.S.C.9622, notice is hereby given that aproposed Consent Decree in UnitedStates v. Akzo Nobel Coatings Inc., etal., Civil Action No. 97–1564–CIV–T–99A, was lodged on June 20, 1997, withthe United States District Court for theMiddle District of Florida, TampaDivision.

This case concerns the Peak Oil andBay Drums Superfund Sites, located innorth central Hillsborough County, onState Road 574, in Tampa, Florida (the‘‘Site’’). In 1986, the Peak Oil and BayDrums Superfund Sites were jointlyplaced on the National Priorities List asa result of the release or threatenedrelease of hazardous substances.Pursuant to Sections 106 and 107 of theComprehensive EnvironmentalResponse, Compensation and LiabilityAct (‘‘CERCLA’’), 42 U.S.C. 9606 and9607, the Complaint in this action seeksrecovery of past and future costsincurred and to be incurred by theUnited States at the Site, and injunctiverelief with respect to the Site, namely,implementation of remedies selected byEPA in Records of Decision (‘‘ROD’’) forthe Peak Oil/Bay Drums Operable Unit(‘‘OU’’) Two, dated August 9, 1993,which addresses the area-wide groundwater in the Southern Surficial andFloridian Aquifers underlying the Site,and OU Four, dated June 28, 1994,which requires monitoring andsampling of the North Wetland. TheSettling Defendants and the SettlingFederal Agencies have agreed in theproposed Consent Decree to implement

the remedies selected by EPA for OUsTwo and Four.

The Consent Decree includes acovenant not to sue by the United Statesunder Sections 106 and 107 of CERCLAand under section 7003 of the ResourceConservation and Recovery Act(‘‘RCRA’’), 42 U.S.C. 6973.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedConsent Decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, D.C. 20530, andshould refer to United States v. AkzoNobel Coatings, Inc., et al., DOJ Ref.#90–11–2–897(H). Commenters mayrequest an opportunity for a publicmeeting in the affected area, inaccordance with section 7003(d) ofRCRA.

The proposed Consent Decree may beexamined at the office of the UnitedStates Attorney, Middle District ofFlorida, 500 Zack St. Room 410, Tampa,Florida 33602; the Office of the UnitedStates Environmental ProtectionAgency, Region 4, 61 Forsyth Street,S.W., Atlanta, Georgia, 30303; and at theConsent Decree Library, 1120 G Street,NW., 4th Floor, Washington, DC 20005,(202) 624–0892. A copy of the proposedConsent Decree may be obtained inperson or by mail from the ConsentDecree Library, 1120 G Street, NW., 4thFloor, Washington, DC 20005. Inrequesting a copy, please refer to thereferenced case and enclose a check inthe amount of $84.00 (25 cents per pagereproduction costs), payable to theConsent Decree Library for a copy of theConsent Decree with attachments or acheck in the amount of $54.75, for acopy of the proposed Consent Decreewithout those attachments.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–20198 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M



In accordance with Departmentalpolicy, 28 CFR 50.7 and pursuant tosection 122 of the ComprehensiveEnvironmental Response, Compensationand Liability Act (‘‘CERCLA’’), 42 U.S.C.9622, notice is hereby given that a

proposed Consent Decree in UnitedStates v. Akzo Nobel Coatings, Inc., etal, Civil Action No. 97–1565–CIV–T–24E, was lodged on June 20, 1997, withthe United States District Court for theMiddle District of Florida, TampaDivision.

This case concerns the Bay DrumsSuperfund Site, located in north centralHillsborough County, on State Road574, in Tampa, Florida (the ‘‘Site’’). In1986, the Peak Oil and Bay DrumsSuperfund Sites were jointly placed onthe national Priorities List as a result ofthe release or threatened release ofhazardous substances. Pursuant toSections 106 and 107 of theComprehensive EnvironmentalResponse, Compensation and LiabilityAct (‘‘CERCLA’’), 42 U.S.C. 9606 and9607, the Complaint in this action seeksrecovery of past and future costsincurred and to be incurred by theUnited States with respect to the Site,and injunctive relief for the Site,namely, implementation of the sourcecontrol remedy selected by EPA inRecord of Decision (‘‘ROD’’) for the PeakOil/Bay Drums Operable Unit (‘‘OU’’)Three, dated March 31, 1993. The RODprovides for excavation ofapproximately 16,500 cubic yards ofcontaminated soils and sediments at theSite, backfilling of those excavated areaswith clean fill, solidification andstabilization of contaminated soils andsediments, disposal of the solidifiedmaterial above the water table,installation of a low permeability capover the solidified material, disposal ofshingle debris. The Settling Defendantsand Settling Federal Agencies haveagreed in the proposed Consent Decreeto perform the remedy selected by EPAfor OU Three. Settling Defendants havealso agreed to pay the United States$3,275,522.02 for past response costsincurred with respect to the Site, and toreimburse future costs associated withimplementation of the Consent Decree.

The Consent Decree includes acovenant not to sue by the United Statesunder sections 106 and 107 of CERCLAand under Section 7003 of the ResourceConservation and Recovery Act(‘‘RCRA’’), 42 U.S.C. 6973.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedConsent Decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, DC 20530, andshould refer to United States v. AkzoNobel Coatings, Inc, et al., DOJ Ref. #90–11–2–897(D). Commenters may requestan opportunity for a public meeting in


the affected area, in accordance withSection 7003(d) RCRA.

The proposed Consent Decree may beexamined at the office of the UnitedStates Attorney, Middle District ofFlorida, 500 Zack St. Room 410, Tampa,Florida 33602; the Office of the UnitedStates Environmental ProtectionAgency, Region 4, 100 Alabama Street,S.W., Atlanta, Georgia, 30303; and at theConsent Decree Library, 1120 G Street,NW., 4th Floor, Washington, DC 20005,(202) 624–0892. A copy of the proposedConsent Decree may be obtained inperson or by mail from the ConsentDecree Library, 1120 G Street, NW., 4thFloor, Washington, DC 20005. Inrequesting a copy, please refer to thereferenced case and enclose a check inthe amount of $57.75 (25 cents per pagereproduction costs), payable to theConsent Decree Library for a copy of theConsent Decree with attachments or acheck in the amount of $43.00, for acopy of the proposed Consent Decreewithout those attachments.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–20197 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M



In accordance with Departmentalpolicy, 28 CFR 50.7 and pursuant tosection 122 of the ComprehensiveEnvironmental Response, Compensationand Liability Act (‘‘CERCLA’’), 42 U.S.C.9622, notice is hereby given that aproposed Consent Decree in UnitedStates versus Bill Currie Ford, Inc., et al,Civil Action No. 97–1566–CIV–T–23C,was lodged on June 20, 1997, with theUnited States District Court for theMiddle District of Florida, TampaDivision.

This case concerns the Peak OilSuperfund Site, located in north centralHillsborough County, on State Road574, in Tampa, Florida (the ‘‘Site’’). In1986, the Peak Oil and Bay DrumsSuperfund Sites were jointly placed onthe National Priorities List as a result ofthe release or threatened release ofhazardous substances. Pursuant toSections 106 and 107 of theComprehensive EnvironmentalResponse, Compensation and LiabilityAct (‘‘CERCLA’’), 42 U.S.C. 9606 and9607, the Complaint in this action seeksrecovery of past and future response

costs incurred and to be incurred by theUnited States with respect to the Site,and injunctive relief for the Site,namely, implementation of the sourcecontrol remedy selected by EPA inRecord of Decision (‘‘ROD’’) for the PeakOil/Bay Drums Operable Unit (‘‘OU’’)One, dated June 21, 1993. The RODprovides for the installation of a slurrywall around the Site, excavation,solidification and stabilization and on-site disposal of lead-impacted soils/sediments, solidification andstabilization and on-site disposal of anash pile, dewatering of the surficialaquifer, treatment of surficialgroundwater, in-situ soil flushing/bioremediation, capping of the Site, andinstitutional controls. The SettlingDefendants and Settling FederalAgencies have agreed in the proposedConsent Decree to perform the remedyselected by EPA for OU One. SettlingDefendants have also agreed toreimburse the United States for certainresponse costs with respect to the Site.

The Consent Decree includes acovenant not to sue by the United Statesunder sections 106 and 107 of CERCLAand under section 7003 of the ResourceConservation and Recovery Act(‘‘RCRA’’), 42 U.S.C. 6973.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedConsent Decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, D.C. 20530, andshould refer to United States versus BillCurrie Ford, Inc., et al., DOJ Ref. #90–11–2–897. Commenters may request anopportunity for a public meeting in theaffected area, in accordance with section7003(d) of RCRA.

The proposed Consent Decree may beexamined at the office of the UnitedStates Attorney, Middle District ofFlorida, 500 Zack St. Room 410, Tampa,Florida 33602; the Office of the UnitedStates Environmental ProtectionAgency, Region 4, 100 Alabama Street,S.W., Atlanta, Georgia, 30303; and at theConsent Decree Library, 1120 G Street,NW., 4th Floor, Washington, DC 20005,(202) 624–0892. A copy of the proposedConsent Decree may be obtained inperson or by mail from the ConsentDecree Library, 1120 G Street, NW., 4thFloor, Washington, DC 20005. Inrequesting a copy, please refer to thereferenced case and enclose a check inthe amount of $56.25 (25 cents per pagereproduction costs), payable to theConsent Decree Library for a copy of theConsent Decree with attachments or acheck in the amount of $33.25, for a

copy of the proposed Consent Decreewithout those attachments.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–20199 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M


Notice of Lodging of Consent DecreePursuant to the ComprehensiveEnvironmental Response,Compensation, and Recovery Act(‘‘CERCLA’’)

In accordance with Departmentalpolicy, 28 CFR 50.7, and section122(d)(2) of CERCLA, 42 U.S.C.9622(d)(2), notice is hereby given that aproposed Consent Decree in UnitedStates versus Cosmo Iacavazzi, et al.,Civil Action No. CV–89–0164(M.D. PA),was lodged on July 8, 1997 with theUnited States District Court for theMiddle District of Pennsylvania. ThisConsent Decree resolves a cost recoveryaction brought by the United Statesagainst Celotex Corporation, pursuant toSection 107(a), 42 U.S.C. 9607(a). Thesettling defendant arranged for thedisposal of hazardous substances at theLackawanna Refuse Site (‘‘the Site’’)located in Old Forge, Pennsylvania. TheConsent Decree provides that Celotexwill pay $300,000 to the HazardousSubstance Superfund for response costsincurred by the United States at the Site.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedConsent Decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, D.C. 20530, andshould refer to United States versusCosmo Iacavazzi, et al., and In reCelotex Corporation, DOJ #90–5–1–1–3712.

The proposed Consent Decree may beexamined at the office of the UnitedStates Attorney, Suite 309, FederalBuilding, Washington and LindenStreet, Scranton, PA 18501; the RegionIII office of the EnvironmentalProtection Agency, 841 Chestnut Street,Philadelphia, PA 19107; and at theConsent Decree Library, 1120 G Street,NW., 4th Floor, Washington, DC 20005,(202) 624–0892. A copy of the proposedConsent Decree may be obtained inperson or by mail from the ConsentDecree Library, 1120 G Street, NW., 4thFloor, Washington, DC 20005. Inrequesting a copy please refer to thereferenced case and enclose a check in


1 Effective July 1, 1997, IRCA was amended by thePersonal Responsibility and Work OpportunityReconciliation Act (PRWORA), Pub. L. 104–193,110 Stat. 2168 (1996). The PRWORA amends IRCAby replacing the reference to ‘‘Aid to Families withDependent Children’’ (AFDC), with a reference toits successor program, ‘‘Temporary Assistance forNeedy Families’’ (TANF). As was the case withAFDC, states are required to verify through SAVEthat an applicant or recipient is in an eligible alienstatus for TANF benefits. In addition, Section 840of the PRWORA makes verification for eligibilityunder the Food Stamps Program voluntary on thepart of the State agency rather than mandatory.

the amount of $5.25 (25 cents per pagereproduction costs), payable to theConsent Decree Library.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–20208 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M


Notice of Lodging of Consent DecreePursuant to the ComprehensiveEnvironmental Response,Compensation and Liability Act

In accordance with Departmentalpolicy, 28 CFR 50.7, notice is herebygiven that on July 21, 1997, a proposedConsent Decree in United States v. NewHampshire Ball Bearings, Inc., Civil No.97–357 JD (D.N.H.), was lodged with theUnited States District Court for theDistrict of New Hampshire. Theproposed Consent Decree concerns theresponse to the existence of hazardoussubstances at the South MunicipalWater Supply Well Superfund Site(‘‘Site’’) located in Peterborough, NewHampshire pursuant to theComprehensive EnvironmentalResponse, Compensation and LiabilityAct.

Under the terms of the ConsentDecree, New Hampshire Ball Bearings,Inc. (‘‘NHBB’’), the owner and operatorof a portion of the Site, will reimbursethe United States $1,125,000, plusinterest, for costs incurred and to beincurred in connection with the Site. Inaddition, NHBB will pay $93,000 fornatural resource damages for resourcesunder the trusteeship of the UnitedStates Department of the Interior. NHBBhas been performing the remedial actionfor the Site pursuant to a UnilateralAdministrative Order.

The Department of Justice will receivefor a period of thirty (30) days from thedate of this publication commentsrelating to the proposed Consent Decree.Comments should be addressed to theAssistant Attorney General of theEnvironment and Natural ResourcesDivision, Department of Justice, P.O.Box 7611, Ben Franklin Station,Washington, D.C. 20044, and shouldrefer to United States v. New HampshireBall Bearings, Inc. (D.N.H.), D.J. Ref. 90–11–2–551A.

The proposed Consent Decree may beexamined at the Office of the UnitedStates Attorney, 55 Pleasant St., Rm.312, Concord, New Hampshire, and theRegion 1 Office of the EnvironmentalProtection Agency, One Congress Street,Boston, Massachusetts. Copies of theConsent Decree also may be examined at

the Consent Decree Library, 1120 GStreet, NW., 4th Floor, Washington, DC20005, (202) 624–0892. A copy of theproposed Consent Decree may beobtained in person or by mail from theConsent Decree Library. In requesting acopy, please refer to the referenced caseand enclose a check in the amount of$11.50 (46 pages at 25 cents per pagereproduction cost) made payable toConsent Decree Library.Joel M. Gross,Section Chief, Environmental EnforcementDivision.[FR Doc. 97–20207 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M


Notice of Lodging of Consent DecreeUnder the Clean Water Act

Under 28 CFR 50.7, notice is herebygiven that on July 24, 1997, a proposedconsent decree in United States versusCity of Palmetto, Florida, et al., CivilAction No. 96–613–CIV–T–25E, waslodged with the United States DistrictCourt for the Middle District of Florida,Tampa Division.

In this action, the United Statessought civil penalties and injunctiverelief under sections 301(a) and 309 (b)and (d) of the Clean Water Act (the‘‘Act’’), 33 U.S.C. 1311(a) and 1319 (b)and (d), for violations of effluent limitsset forth in the NPDES permit issued tothe City of Palmetto, Florida, and forunpermitted discharges from the City’swastewater treatment plant to Terra CeiaBay. Under the proposed consentdecree, the City will implement asewage collection system maintenanceprogram to prevent future violations ofthe Act and will pay a civil penalty of$65,000. In addition, the City willperform a Supplemental EnvironmentalProject (‘‘SEP’’) valued at approximately$535,000, which consists of theexpansion and acceleration of a projectthat will divert treated wastewater tobeneficial reuse.

The Department of Justice willreceive, for a period of thirty (30) daysfrom the date of this publication,comments relating to the proposedconsent decree. Comments should beaddressed to the Assistant AttorneyGeneral for the Environment andNatural Resources Division, Departmentof Justice, Washington, DC 20530, andshould refer to United States versus Cityof Palmetto, Florida, et al., D.J. Ref. No.90–5–1–1–4210.

The proposed consent decree may beexamined at the Office of the UnitedStates Attorney, Middle District ofFlorida, Robert Timberlake Bldg., 500

Zack Street, Room 400, Tampa, Florida33602; the Region IV Office of theEnvironmental Protection Agency,Atlanta Federal Center, 61 Forsythe St.,S.W. Atlanta, Georgia 30303–3104; andat the Consent Decree Library, 1120 GStreet, NW., 4th Floor, Washington, DC20005, (202) 624–0892. A copy of theproposed consent decree may beobtained in person or by mail from theConsent Decree Library, 1120 G Street,NW., 4th Floor, Washington, DC 20005.In requesting a copy of the proposeddecree and attachments, please refer tothe referenced case and enclose a checkin the amount of $8.50 (25 cents perpage reproduction costs) payable to theConsent Decree Library.Joel M. Gross,Chief, Environmental Enforcement Section,Environment and Natural Resources Division.[FR Doc. 97–20196 Filed 7–30–97; 8:45 am]BILLING CODE 4410–15–M


[AAG/A Order No. 140–97]

Prvacy Act of 1974, As Amended byThe Computer Matching and PrivacyProtection Act of 1988

This notice is published in theFederal Register in accordance with therequirements of the Privacy Act, asamended by the Computer Matchingand Privacy Protection Act of 1988(CMPPA) (5 U.S.C. 552a(e)(12)). TheImmigration and Naturalization Service(INS), Department of Justice (the sourceagency), is participating in computermatching programs with the District ofColumbia and agencies of five states (alldesignated as recipient agencies). Thesematching activities will permit therecipient agencies to confirm theimmigration status of alien applicantsfor, or recipients of, Federal benefitsassistance under the ‘‘Systematic AlienVerification for Entitlements (SAVE)’’program as required by the ImmigrationReform and Control Act (IRCA) of 1986(Pub. L. 99–603).1

Specifically, the matching activitieswill permit the following eligibilitydeterminations:


2 Identified in previous computer matchingnotices as the Colorado Department of SocialServices.

(1) The District of ColumbiaDepartment of Employment Services,the New York Department of Labor, theNew Jersey Department of Labor, andthe Texas Workforce Commission willbe able to determine eligibility forunemployment compensation;

(2) The California State Department ofSocial Services will be able to determineeligibility status for the TANF programand the Food Stamps program;

(3) The California State Department ofHealth Services will be able todetermine eligibility status for theMedicaid Program; and

(4) The Colorado Department ofHuman Services 2 will be able todetermine the eligibility status for theMedicaid, TANF, and Food StampsPrograms.

Section 121(c) of IRCA amendsSection 1137 of the Social Security andother statutes to require agencies whichadminister the Federal Benefitsprograms designated within IRCA to usethe INS verification system to determineeligibility. Accordingly, through the useof user identification codes andpasswords, authorized persons fromthese agencies may electronically accessthe database of an INS system of recordsentitled ‘‘Alien Status VerificationIndex, Justice/INS–009.’’ From itsautomated records system, any agency(named above) participating in thesematching programs may enterelectronically into the INS database thealien registration number of theapplicant or recipient. This action willinitiate a search of the INS database fora corresponding alien registrationnumber. Where such number is located,the agency will receive electronicallyfrom the INS database the followingdata upon which to determineeligibility: alien registration number,last name, first name, date of birth,country of birth, social security number(if available), date of entry, immigrationstatus data, and employment eligibilitydata. In accordance with 5 U.S.C.552a(p), such agencies will provide thealien applicant with 30 days notice andan opportunity to contest any adversefinding before final action is takenagainst that alien because of ineligibleimmigration status as establishedthrough the computer match.

The original effective date of thematching programs was January 19,1990, for which notice was published inthe Federal Register on December 28,1989 (54 FR 53382). The programs havecontinued to date under the authority ofa series of new approvals as required by

the CMPPA. The CMPPA provides thatbased upon approval by agency DataIntegrity Boards of a new computermatching agreement, computermatching activities may be conductedfor 18 months and, contingent uponspecific conditions, may be similarlyextended by the Board for an additionalyear without the necessity of a newagreement. The most recent one-yearextension for those programs listed initems (1) through (4) above will expireon August 27, 1997. Therefore, with theexception of the California Departmentof Social Services matching program forwhich approval for the full 18-monthperiod is contingent upon a favorablecost-benefit showing within 6 monthsfrom the effective date of the newagreement, the Department’s DataIntegrity Board has approved newagreements to permit the above-namedcomputer matching programs tocontinue for another 18-month periodfrom the effective date (describedbelow).

Matching activities under the newagreements will be effective 30 daysafter publication of this computermatching notice in the Federal Register,or 40 days after a report concerning thecomputer matching program has beentransmitted to the Office of Managementand Budget, and transmitted to Congressalong with a copy of the agreements,whichever is later. Except as notedabove, the agreements (and matchingactivities) will continue for a period of18 months from the effective date—unless, within 3 months prior to theexpiration of the agreement, the DataIntegrity Board approves a one-yearextension pursuant to 5 U.S.C.552a(o)(2)(D).

In accordance with 5 U.S.C.552a(o)(2)(A) and (r), the required reportis being provided to the Office ofManagement and Budget, and to theCongress together with a copy of theagreements. Inquiries may be addressedto Patricia E. Neely, Program Analyst,Information Resources Management,Justice Management Division,Information Management and SecurityStaff, Department of Justice,Washington, DC. 20530.


Stephen R. Colgate,Assistant Attorney General forAdministration.[FR Doc. 97–20063 Filed 7–30–97; 8:45 am]



Immigration and Naturalization Service

Agency Information CollectionActivities: Extension of ExistingCollection; Comment Request

ACTION: Notice of information collectionunder review; arrival record.

Office of Management and Budget(OMB) approval is being sought for theinformation collection listed below.This proposed information collectionwas previously published in the FederalRegister on March 21, 1997 at 62 FR13707, allowing for a 60-day publiccomment period. No comments werereceived by the Immigration andNaturalization Service. The purpose ofthis notice is to allow an additional 30days for public comments untilSeptember 2, 1997. This process isconducted in accordance with 5 CFR1320.10.

Written comments and/or suggestionsregarding the item(s) contained in thisnotice, especially regarding theestimated public burden and associatedresponse time, should be directed to theOffice of Management and Budget,Office of Information and RegulatoryAffairs, Attention: Ms. Debra Bond,202–395–7316, Department of JusticeDesk Officer, Room 10235, Office ofManagement and Budget, Washington,DC 20503. Additionally, comments maybe submitted to OMB via facsimile to202–395–7285.

If you have additional comments,suggestions, or need a copy of theproposed information collectioninstrument with instructions, oradditional information, please contactRichard A. Sloan 202–514–3291,Director, Policy Directives andInstructions Branch, Immigration andNaturalization Service, U.S. Departmentof Justice, Room 5307, 425 I Street, NW.,Washington, DC 20536.

Written comments and suggestionsfrom the public and affected agenciesconcerning the proposed collection ofinformation should address one or moreof the following four points:

(1) Evaluate whether the proposedcollection of information is necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

(2) Evaluate the accuracy of theagencies estimate of the burden of theproposed collection of information,including the validity of themethodology and assumptions used;

(3) Enhance the quality, utility, andclarity of the information to becollected; and


(4) Minimize the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submission ofresponses.

Overview of this informationcollection:

(1) Type of Information Collection:Extension of a currently approvedinformation collection.

(2) Title of the Form/Collection:Arrival Record.

(3) Agency form number, if any, andthe applicable component of theDepartment of Justice sponsoring thecollection: Form I–94A OT. Office ofInspections, Examinations Division,Immigration and Naturalization Service.

(4) Affected public who will be askedor required to respond, as well as a briefabstract: Primary: Individuals orHouseholds. The information collectionis captured electronically as part of apilot program established by the Servicein cooperation with U.S. Airways. Theinformation collected will be used bythe Service to document an alien’sarrival and departure to and from theUnited States and may be evidence ofregistration under certain provisions ofthe INA.

(5) An estimate of the total number ofrespondents and the amount of timeestimated for an average respondent torespond: 10,000 responses at threeminutes (0.05) per response.

(6) An estimate of the total publicburden (in hours) associated with thecollection: 500 annual burden hours.

If additional information is requiredcontact: Mr. Robert B. Briggs, ClearanceOfficer, United States Department ofJustice, Information Management andSecurity Staff, Justice ManagementDivision, Suite 850, Washington Center,1001 G Street, NW, Washington, DC20530. Additionally, comments may besubmitted to DOJ via facsimile to 202–514–1534.


Robert B. Briggs,Department Clearance Officer, United StatesDepartment of Justice.[FR Doc. 97–20252 Filed 7–30–97; 8:45 am]



Immigration and Naturalization Service

Agency Information CollectionActivities: Proposed Collection;Comment Request

ACTION: Extension of existing collection;application—checkpoint pre-enrolledaccess lane.

Office of Management and Budget(OMB) approval is being sought for theinformation collection listed below.This proposed information collectionwas previously published in the FederalRegister on May 2, 1997 at 62 FR 24131,allowing for a 60-day public commentperiod on this information collection.No comments were received by theImmigration and Naturalization Service.The purpose of this notice is to allow anadditional 30 days for public comments.Comments are encouraged and will beaccepted for ‘‘thirty days’’ untilSeptember 2, 1997. This process isconducted in accordance with 5 CFR1320.10.

Written comments and/or suggestionsregarding the item(s) contained in thisnotice, especially regarding theestimated public burden and associatedresponse time, should be directed to theOffice of Management and Budget,Office of Information and RegulatoryAffairs, Attn.: Ms. Debra Bond, 202–395–7316, Department of Justice DeskOfficer, Room 10235, Office ofManagement and Budget, Washington,DC 20503. Additionally, comments maybe submitted to OMB via facsimile to202–395–7285.

If you have additional comments,suggestions, nor need a copy of theproposed information collectioninstrument with instructions, oradditional information, please contactRichard A. Sloan, 202–514–3291,Director, Policy Directives andInstructions Branch, Immigration andNaturalization Service, U.S. Departmentof Justice, Room 5307, 425 I Street, NW.,Washington, DC 20536.

Written comments and suggestionsfrom the public and affected agenciesconcerning the proposed collection ofinformation should address one or moreof the following four points.

(1) Evaluate whether the proposedcollection of information is necessaryfor the proper performance of thefunctions of the agency, includingwhether the information will havepractical utility;

(2) Evaluate the accuracy of theagencies estimate of the burden of theproposed collection of information,including the validity of themethodology and assumptions used;

(3) Enhance the quality, utility, andclarity of the information to becollected; and

(4) Minimize the burden of thecollection of information on those whoare to respond, including through to useof appropriate automated, electronic,mechanical, or other technologicalcollection techniques or other forms ofinformation technology, e.g., permittingelectronic submission of responses.

Overview of this informationcollection:

(1) Type of Information Collection:Extension of a currently approvedcollection.

(2) Title of the Form/Collection:Application—Checkpoint Pre-enrolledAccess Lane.

(3) Agency form number, if any, andthe applicable component of theDepartment of Justice sponsoring thecollection: Form I–866. Border PatrolDivision, Immigration andNaturalization Service.

(4) Affected public who will be askedor required to respond, as well as a briefabstract: Primary: Individuals orHouseholds. The information collectionwill be used by the Service to determineeligibility for participation in theCheckpoint Pre-enrolled Access Lane(PAL) program for persons and vehiclesat immigration checkpoints within theUnited States.

(5) An estimate of the total number ofrespondents and the amount of timeestimated for an average respondent torespond: 12,500 respondents at 32minutes per response.

(6) An estimate of the total publicburden (in hours) associated with thecollection: 6,625 annual burden hours.

If additional information is requiredcontact: Mr. Robert B. Briggs, ClearanceOfficer, United States Department ofJustice, Information Management andSecurity Staff, Justice ManagementDivision, Suite 850, Washington Center,1001 G Street, NW., Washington, DC20530.

Dated: July 28, 1997.Robert B. Briggs,Department Clearance Officer, United StatesDepartment of Justice.[FR Doc. 97–20253 Filed 7–30–97; 8:45 am]BILLING CODE 4410–18–M

DEPARTMENT OF LABOR


Submission for OMB review; CommentRequest

July 25, 1997.The Department of Labor (DOL) has

submitted the following public


information collection request (ICR) tothe Office of Management and Budget(OMB) for review and approval inaccordance with the PaperworkReduction Act of 1995 (Pub. L. 104–13,44 U.S.C. Chapter 35). A copy of thisICR, with applicable supportingdocumentation, may be obtained bycalling the Department of Labor,Departmental Clearance Officer, TheresaM. O’Malley ({202} 219–5096 ext. 143)or by E-Mail to [email protected]. Individuals who use atelecommunications device for the deaf(TTY/TDD) may call {202} 219–4720between 1:00 p.m. and 4:00 p.m. Easterntime, Monday–Friday.

Comments should be sent to Office ofInformation and Regulatory Affairs,Attn: OMB Desk Officer for theOccupational Safety and HealthAdministration, Office of Managementand Budget, Room 10235, Washington,DC 20503 ({202} 395–7316), within 30days from the date of this publication inthe Federal Register. The OMB isparticularly 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 of information,including the validity of themethodology and assumptions used;

* Enhance the quality, utility, andclarity 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 othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submission ofresponses.

Agency: Occupational Safety andHealth Administration.

Title: Ionizing Radiation (1910.1096).OMB Number: 1218–0103 (extension).Frequency: On occasion.Affected Public: Business or other for-

profit; Federal Government; State, Localor Tribal Government.

Number of Respondents: 15,859.Estimated Time Per Respondent:

Ranges from 5 minutes to maintainrecords to 10 minutes to collect andmail badges.

Total Burden Hours: 42,491.Total Annualized Capital/startup

costs: 0.

Total annual costs (operating/maintaining systems or purchasingservice): $17,508.

Description: The purpose of thisstandard and its information collectionis designed to provide protection foremployees from the adverse healtheffects associated with occupationalexposure to ionizing radiation. Thestandard requires employers to notifythe Assistant Secretary for OccupationalSafety and Health of incidents ofoverexposure; to send written reports ofoverexposure in excess of the PEL(permissible exposure limit) to theAssistant Secretary for OccupationalSafety and Health and to the exposedemployee; to maintain records ofradiation exposure of all employees; tofurnish reports of exposure to theemployee at his/her request; and toprovide employees with a copy of thestandard and operating procedures.Theresa M. O’Malley,Departmental Clearance Officer.[FR Doc. 97–20239 Filed 7–30–97; 8:45 am]BILLING CODE 4510–26–M

DEPARTMENT OF LABOR


Advisory Council on Employee Welfareand Pension Benefit Plans;Announcement of Vacancies Requestfor Nominations

Section 512 of the EmployeeRetirement Income Security Act of 1974(ERISA), 88 Stat. 895, 29 U.S.C. 1142,provides for the establishment of an‘‘Advisory Council on EmployeeWelfare and Pension Benefit Plans’’ (theCouncil), which is to consist of 15members to be appointed by theSecretary of Labor (the Secretary) asfollows: Three representatives ofemployee organizations (at least one ofwhom shall be representative of anorganization whose members areparticipants in a multiemployer plan);three representatives of employers (atleast one of whom shall berepresentative of employers maintainingor contributing to multiemployer plans);one representative each from the fieldsof insurance, corporate trust, actuarialcounseling, investment counseling,investment management andaccounting; and three representativesfrom the general public (one of whomshall be a person representing thosereceiving benefits from a pension plan).No more than eight members of theCouncil shall be members of the samepolitical party.

Members shall be persons qualified toappraise the programs instituted under

ERISA. Appointments are for terms ofthree years. The prescribed duties of theCouncil are to advise the Secretary withrespect to the carrying out of his or herfunctions under ERISA, and to submit tothe Secretary, or his or her designee,recommendations with respect thereto.The Council will meet at least fourtimes each year, and recommendationsof the Council to the Secretary will beincluded in the Secretary’s annualreport to the Congress on ERISA.

The terms of five members of theCouncil expire Friday, November 14,1997. The groups or fields representedare as follows: employee organizations(multiemployer plans), investmentcounseling, actuarial counseling,employers and the general public(pensioners). In addition, this yearnominations also are being sought forindividuals interested in anappointment to fill one year of anunexpired three-year term of a councilmember who died while serving on theCouncil. That unexpired term calls fornaming an employee organization(multiemployer) representative.

Accordingly, notice is hereby giventhat any person or organization desiringto recommend one or more individualsfor appointment to the ERISA AdvisoryCouncil on Employee Welfare andPension Benefit Plans to represent anyof the groups or fields specified in thepreceding paragraph, may submitrecommendations to Sharon Morrissey,Executive Secretary, ERISA AdvisoryCouncil, Frances Perkins Building, U.S.Department of Labor, 200 ConstitutionAvenue, NW., Suite N–5677,Washington, DC 20210.Recommendations must be delivered ormailed on or before October 1, 1997.Recommendations may be in the form ofa letter, resolution or petition, signed bythe person making the recommendationor, in the case of a recommendation byan organization, by an authorizedrepresentative of the organization. Eachrecommendation should include a briefdescription of the candidate’squalifications, the group or field whichhe or she would represent for thepurposes of section 512 of ERISA, thecandidate’s political party affiliation,and whether the candidate is availableand would accept.

Signed at Washington, D.C., this 24th dayof July, 1977.

Olena Berg,Assistant Secretary of Labor, Pension andWelfare Benefits Administration.[FR Doc. 97–20238 Filed 7–30–97; 8:45 am]



DEPARTMENT OF LABOR

Employment and TrainingAdministration

Federal-State UnemploymentCompensation Program: Availability ofBenefit Accuracy Measurement AnnualReport Results

AGENCY: Employment and TrainingAdministration, Labor.ACTION: Notice of availability of theUnemployment Insurance BenefitAccuracy Measurement Annual Reportfor Calendar Year 1996.

SUMMARY: The purpose of this notice isto announce the availability of theUnemployment Insurance (UI) BenefitAccuracy Measurement (BAM) 1996Annual Report, which contains theresults of each State’s BAM program,and information on how copies may beobtained. The BAM Annual Report isone of three UI PERFORMS reports to beissued this year. UI PERFORMS is thename of the Department’s closed-loopmanagement system for promotingcontinuous improvement in UIperformance.DATES: The Report will be available afterJuly 31, 1997.ADDRESSES: Copies of the Report may beobtained by writing to Ms. Grace A.Kilbane, Director, UnemploymentInsurance Service, U.S. Department ofLabor, Employment and TrainingAdministration, 200 ConstitutionAvenue, NW., Room S–4231,Washington, DC 20210. The Report andthis notice contain a list of names andaddresses of persons in each State whowill provide additional information andclarifications regarding the individualState reports upon request.FOR FURTHER INFORMATION CONTACT:Burman Skrable, Division ofPerformance Review, Data Analysis andData Validation Team, 202–219–5223,extension 157. (This is not a toll freenumber.)SUPPLEMENTARY INFORMATION: Eachweek, staff in each State’s EmploymentSecurity Agency investigate randomsamples of UI benefit payments andrecord information based on interviewswith claimants, employers, and thirdparties to determine whether State law,policy, and procedure were followedcorrectly in processing the sampledpayment.

The Department of Labor ispublishing results from theinvestigations in a digest whichincludes information on the 52jurisdictions participating in the UIBAM program. Five items are reportedfor each State: the amount of UI benefits

paid to the population of claimants, thesize of the BAM samples, and thepercentages of proper payments,overpayments, and underpayments inthe population estimated from the BAMinvestigations. Ninety-five percentconfidence intervals are presented foreach of the three percentages as measureof the precision of the estimates. Stateshave been encouraged to providenarratives to further clarify the meaningof the data based on their specificsituations.

Since States’ laws, policies, andprocedures vary considerably, the datacannot be used to draw comparisonsamong States.

Effective with the release of calendaryear 1995 data, States were no longerrequired to publish their report data;however, persons wanting clarificationor additional information concerning aspecific State’s report are encouraged tocontact the individual identified in thefollowing mailing list.

Signed at Washington, D.C., on July 23,1997.Raymond J. Uhalde,Acting Assistant Secretary of Labor forEmployment and Training.

State Contacts for 1996 UnemploymentInsurance Benefit Accuracy MeasurementAnnual Report

Alabama

Bill Mauldin, QC Supervisor, Department ofIndustrial Relations, 649 Monroe Street,Room 321, Montgomery, AL 36131, (334)242–8130

Alaska

Karen Van Dusseldorp, Q.C. Data Analyst,Alaska Department of Labor, P.O. Box21149, Juneau, AK 99802–1149, (907) 465–3000

Arizona

Dave Berggren, Employment SecurityAdministration, Technical SupportSection, Department of Economic Security,P.O. Box 6123, Site 701B–4, Phoenix, AZ85005, (602) 542–3771

Arkansas

Hugh Havens, UI Administrator, (501) 682–3200, or

Norma Madden, BAM Supervisor, (501) 682–3087

both at:Arkansas Employment Security Dept., P.O.

Box 2981, Little Rock, AR 72203–2981,

California

Suzanne Schroeder, Office of ConstituentAffairs, Employment DevelopmentDepartment, P.O. Box 826880, Sacramento,CA 94280–0001,, (916) 654–9029

Colorado

Kay Gilbert, BQC Supervisor, ColoradoDivision Employment & Training, UIDivision, 251 E 12th Ave, Denver, CO80203, (303) 894–2272

Connecticut

Rie Roirier, Director of Marketing, State ofConnecticut, Department of labor, 200Folly Brook Boulevard, Wethersfield, CT06109, (860) 566–2479

Delaware

W. Thomas MacPherson, Director, Divisionof Unemployment Insurance, Departmentof Labor, P.O. Box 9950, Wilmington, DE19809, (302) 761–8350

District of Columbia

Roberta Bauer, Assistant Director,Compliance & Independent Monitoring, DCDepartment of Employment Services, 500 CStreet, N.W., Room 511, Washington, DC20001, (202) 724–7492

Florida

Kenneth E. Holmes, UC Director, FloridaDept., of Unemployment Compensation,Caldwell Building, Room 201, Tallahassee,FL 32399–0209, (904) 921–3889

Georgia

David Poythress, Commissioner, GeorgiaDepartment of Labor, 148 InternationalBlvd., NE, Suite 600, Atlanta, GA 30303,(404) 656–3011

Hawaii

Douglas Odo, UI Administrator, Departmentof Labor & Industrial Relations, 830Punchbowl Street, Honolulu, HI 96813,(808) 586–9069

Idaho

Jane Perez, QC Supervisory, IdahoDepartment of Employment , 317 MainStreet, Boise, ID 83735, (208) 334–6285

Illinois

Charlene McLaughlin, Quality ControlSupervisory, Illinois Department ofEmployment Security, 401 South StateStreet, Chicago, IL 60605, (312) 793–6231

Indiana

Sandy Jessee, QC Supervisor, Indiana Dept.of Workforce Development, 10 NorthSenate Avenue, Indianapolis, IN 46204,(317) 233–6676

Iowa

LeLoie Dutemple, Acting Supervisor, IowaWorkforce Development UnemploymentInsurance Services Divisin, 1000 EastGrand Avenue, Des Moines, IA 50319–0209, (515) 281–8386

Kansas

Joseph Ybarra, Department of HumanResources, 401 SW Topeka Bldg., Topeka,KS 66603, (913) 296–6313

Kentucky

Ron Holland, Director, Div. ofUnemployment Insurance, 275 East MainStreet, 2nd floor East, Frankfort, KY 40621,(502) 564–2900

Louisiana

Marianne Sullivan, Program ComplianceManager, Louisiana Department of Labor,P.O. Box 94094–9094, Baton Rouge, La70804, (504) 342–7103


Maine

Gail Thayer, UI Director, Bureau ofEmployment Security, 20 Union Street,Augusta, ME 04330, (207) 287–2316

Maryland

Thomas S. Wendel, Exec. Director,Unemployment Insurance Division, Dept.of Labor, Licensing and Regulation, 1100North Eutaw Street, Baltimore, MD 21201,(410) 767–2464

Massachusetts

Rena Kottcamp, Director of Research, Divisinof Employment Security, Charles F. HurleyES Building, Boston, MA 02114, (617) 626–6556

Michigan

Manuel Mejia, Deputy Director, Bureau ofAudits and Investigations, MichiganEmployment Security Agency, 7310Woodward Avenue, Detroit, MI48202,(313) 876–5906

Minnesota

Marti Hiras, QC Supervisor, MinnesotaDepartment of Economic Security, 390North Robert Street, St. Paul, MN 55101,(612) 296–5347

Mississippi

Merrill Merkle, Quality Control Unit, (601)961–7764, or

Don Ware, UI Technical Services, (601) 961–7752

both at:Mississippi Employment Security Comm.,

P.O. Box 1699, Jackson, MS 39205–1699

Missouri

Marilyn A. Hutcherson, Asst. Dir.,Unemployment Insurance, MissouriDivision of Employment Security, P.O. Box59, Jefferson City, MO 65104, (314) 751–3670

Montana

Rod Sager, Administrator, Dept. of Labor andIndustry Unemployment InsuranceDivision, P.O. Box 1728, Helena, MT59624, (406) 444–2723

Nebraska

Will Sheehan, Administrator, UI Benefits, orDon Gammill, Administrator, UI Program

Evaluationboth at:

P.O. Box 94600, Lincoln, NE 68509–4600,(402) 471–9000

Nevada

Karen Rhodes, Public Information Officer,Department of Employment, Training, andRehabilitation, 500 E. Third Street, CarsonCity, NV 897113, (702) 687–4620

New Hampshire

Carolyn Angle, QC Supervisor, QualityControl Unit, NH Department ofEmployment Security, 10 West Street,Concord, NH 03301, (603) 228–4073

New Jersey

Paulette Laubsch, Assistant Commissioner,New Jersey Department of Labor, CN 110,Trenton, NJ 08625–0110, (609) 984–5666

New Mexico

Betty Campbell, BQC Supervisor, QualityControl Section, New Mexico Departmentof Labor, 401 Broadway NE., P.O. Box1928, Albuquerque, NM 87103, (505) 841–8499

New York

Ina Lawson, QC Manager, Division of Audit& Compliance, New York State Departmentof Labor, State Campus—Building 12,Albany, NY 12240, (518) 457–3638

North Carolina

W. Howard Phillips, Supervisor, UITechnical Support, Employment SecurityCommission of NC, P.O. Box 25903,Raleigh, NC 27611, (919) 733–4893

North Dakota

Leo Jablonski, BAM Supervisor, Job ServiceNorth Dakota, P.O. Box 5507, Bismarck,ND 58506–5507, (701) 328–3355

Ohio

Carolyn Clayton, QC Chief, Ohio Bureau ofEmployment Services, 145 South FrontStreet, P.O. Box 1618, Columbus, OH43216, (614) 466–2681

Oklahoma

Terry W. McHale, QC Supervisor, OKEmployment Security Commission, WillRogers Memorial Office Bldg., 5th floor,Oklahoma City, OK 73105, (405) 557–7206

Oregon

James Mosley, QC Supervisor, OregonEmployment Department, 875 Union StreetN.E., Salem, OR 97311, (503) 373–7963

Pennsylvania

Pete Cope, Director, Bureau ofUnemployment Compensation, Benefitsand Allowances Division, Department ofLabor & Industry, 615 Labor and IndustryBuilding, Harrisburg, PA 17121, (717) 787–3547

Puerto Rico

Carmen O. McCulloch, Assistant Secretary,PR Dept. of Labor and Human Resources,505 Muñoz Rivera Avenue, Hato Rey, PR00918, (787) 754–2130

Rhode Island

Lawrence Fitch, Director, Department ofEmployment Security, 24 Mason Street,Providence, RI 02903, (401) 277–3648

South Carolina

William H. Griffin, Deputy Exec. Dir.Unemployment Insurance, SC EmploymentSecurity Commission, P.O. Box 995,Columbia, SC 29202, (803) 737–2400

South Dakota

Dennis Angerhofer, UnemploymentInsurance Division, Department of Labor,P.O. Box 4730, Aberdeen, SD 57402–4730,(605) 622–3089

Tennessee

Ann Ridings, BQC Supervisor, QualityControl Unit, TN Department ofEmployment Security, 10th Floor,Volunteer Plaza, 500 James RobertsonParkway, Nashville, TN 37245–0001, (615)741–3190

Texas

Gerald Smart, UI QC Supervisor, TexasWorkforce Commission, TWC Building,101 E. 15th Street, Austin, TX 78778–0001,(512) 475–1719

Utah

Robert Comfort, QC Supervisor, Dept. ofEmployment Security, P.O. Box 778, SaltLake City, UT 84110–0778, (801) 536–7605

Vermont

Robert Herbst, Quality Control Chief, Dept. ofEmployment & Training, P.O. Box 488,Montpelier, VT 05602, (802) 828–4382

Virginia

F.W. Tucker, IV; Chief of Benefits,Unemployment Insurance Services,Virginia Employment Commission, P.O.Box 1359, Richmond, VA 23211, (804)786–3032

Washington

Teresa Morris, Director, WA EmploymentSecurity Dept., Office of ManagementReview, P.O. Box 90465, Olympia, WA98507–9046, (206) 493–9511

West Virginia

Dennis D. Redden, Bureau of EmploynmentPrograms, 112 California Avenue,Charleston, WV 25305, (304) 558–2256

Wisconsin

Chet Frederick, QC Director, WI Dept. ofWorkforce Development, 201 EastWashington Avenue, P.O. Box 7905,Madison, WI 53707, (608) 266–8260

Wyoming

Beth Nelson, Administrator, U IAdministration, P.O. Box 2760, Casper,WY 82602, (307) 235–3254

[FR Doc. 97–20105 Filed 7–30–97; 8:45 am]BILLING CODE 4510–30–M

DEPARTMENT OF LABOR

Employment Standards Administration

Proposed Collection; CommentRequest

ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burden,conducts a preclearance consultationprogram to provide the general publicand Federal agencies with anopportunity to comment on proposedand/or continuing collections ofinformation in accordance with thePaperwork Reduction Act of 1995(PRA95) (44 U.S.C. 3506(c)(2)(A)). Thisprogram helps to ensure that requesteddata can be provided in the desiredformat, reporting burden (time andfinancial resources) is minimized,collection instruments are clearlyunderstood, and the impact of collectionrequirements on respondents can beproperly assessed. Currently, the


Employment Standards Administrationis soliciting comments concerning aproposed extension informationcollection, the Uniform HealthInsurance Claim Form.

Copies of the proposed informationcollection requests can be obtained bycontacting the office listed below in theaddressee section of this notice.DATES: Written comments must besubmitted to the office listed in theaddressee section below on or beforeSeptember 30, 1997. The Department ofLabor is particularly interested incomments which:

• 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 of information,including the validity of themethodology and assumptions used;

• Enhance the quality, utility andclarity 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 othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submissionsof responses.ADDRESSES: Ms. Margaret Sherrill, U.S.Department of Labor, 200 ConstitutionAve., NW., Room S–3201, Washington,DC 20210, telephone (202) 219–7601.(This is not a toll-free number.) Fax202–219–6592.


I. BackgroundThe Office of Workers’ Compensation

has responsibility for administering theFederal Employees’ Compensation Act(FECA—5 USC 8101 et. seq.) and theFederal Black Lung Benefits Act(FBLBA) provisions of the Federal MineSafety and Health Act (30 USC 901 et.seq.). These statutes provide forpayment to medical institutions forcertain medical treatment anddiagnostic services for employment-related injuries and illnesses. Todetermine appropriate payment ofmedical bills submitted by suchprovider(s), both FECA and FBLAprograms require the billinginstitution(s) to identify the claimant/beneficiary and to specify (1) the type ofinjury/illness being treated, (2) the needfor the medical services rendered, (3)the specific procedure(s) performed, and

(4) the relationship to the acceptedindustrial injury/illness for FECAclaimants and to coal mine workers’pneumoconiosis for Black Lungclaimants.

II. Current Actions

The Department of Labor (DOL) seeksextension of approval to collect thisinformation to carry out itsresponsibility to insure that providers ofmedical services to FECA and BLBAbeneficiaries receive appropriatepayment for injuries and illnessescovered under the Acts. Failure torequest this information will prohibitthe Department’s ability to fulfill thismandate.

Type of Review: Extension.Agency: Employment Standards

Administration.Title: Uniform Health Insurance Claim

Form.OMB Number: 1215–0176.Agency Numbers: UB–92.Affected Public: Individuals or

households, State or local governments,Businesses or other for profit, Federalagencies or employees, Not-for-profitinstitutions, Small businesses ororganizations.

Total Repondents: 138,382.Frequency: On occasion.Total Responses: 138,382.Average Time Per Response:

UB–92 FECA—17 minutesUB–92 FBLBA—7 minutesEOB FECA—7 minutes

Estimated Total Burden Hours:31,889.

Total Burden Cost (capital/startup):$0.

Total Burden Cost (operating/maintenance): $0.

Comments submitted in response tothis notice will be summarized and/orincluded in the request for Office ofManagement and Budget approval of theinformation collection requests; theywill also become a matter of publicrecord.


Margaret J. Sherrill,Management Analysis Officer, DivisionFinancial Management, Office ofManagement, Administration and Planning,Employment Standards Administration.[FR Doc. 97–20101 Filed 7–30–97; 8:45 am]


DEPARTMENT OF LABOR

Mine Safety and Health Administration

Proposed Information CollectionRequest Submitted for PublicComment and Recommendations;Gamma Radiation Exposure Records

ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burdenconducts a preclearance consultationprogram to provide the general publicand Federal agencies with anopportunity to comment on proposedand/or continuing collections ofinformation in accordance with thePaperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. Thisprogram helps to ensure that requesteddata can be provided in the desiredformat, reporting burden (time andfinancial resources) is minimized,collection instruments are clearlyunderstood, and the impact of collectionrequirements on respondents can beproperly assessed.

Currently, the Mine Safety and HealthAdministration (MSHA) is solicitingcomments concerning the proposednew/revision/extension/reinstatementof the information collection related toGamma Radiation Exposure Records(pertains to metal and nonmetalunderground mines). MSHA isparticularly interested in commentswhich:


• Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection of information,including the validity of themethodology and assumptions used;

• Enhance the quality, utility, andclarity 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 othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submissionsof responses.

A copy of the proposed informationcollection request can be obtained bycontacting the employee listed below inthe For Further Information Contactsection of this notice.DATES: Submit comments on or beforeSeptember 29, 1997.


ADDRESSES: Send comments to PatriciaW. Silvey, Director, Office of Standards,Regulations, and Variances, 4015Wilson Boulevard, Room 627,Arlington, VA 22203–1984. Commentersare encouraged to send their commentson a computer disk, or via E-mail [email protected], along with anoriginal printed copy. Ms. Silvey can bereached at (703) 235–1910 (voice) or(703) 235–5551 (facsimile).FOR FURTHER INFORMATION CONTACT:George M. Fesak, Director, Office ofProgram Evaluation and InformationResources, U.S. Department of Labor,Mine Safety and Health Administration,Room 715, 4015 Wilson Boulevard,Arlington, VA 22203–1984. Mr. Fesakcan be reached at [email protected](Internet E-mail), (703) 235–8378(voice), or (703) 235–1563 (facsimile).


I. BackgroundUnder section 103(c) of the Federal

Mine Safety and Health Act of 1977,MSHA is required to ‘‘* * * issueregulations requiring operators tomaintain accurate records of employeeexposures to potentially toxic materialsor harmful physical agents which arerequired to be monitored or measuredunder any applicable mandatory healthor safety standard promulgated underthis Act.’’

Gamma radiation occurs anywherethat radioactive materials are present,and has been associated with lungcancer and other debilitatingoccupational diseases. Gamma radiationhazards may be found near radiationsources at surface operations using X-ray machines, weightometers, nuclearand diffraction units.

II. Current ActionsAnnual gamma radiation surveys are

required to be conducted in allunderground mines where radioactiveores are mined. Where the averagegamma radiation measurements are inexcess of 2.0 milliroentgens per hour inthe working place, all persons are to beprovided with gamma radiationdosimeters and records of cumulativeindividual gamma radiation exposuresbeen kept.

Records of cumulative occupationalradiation exposures aid in theprotection of workers and in control ofsubsequent radiation exposure, and areused by MSHA in the evaluation of theeffectiveness of the protection programin demonstrating compliance withregulatory requirements.

Type of Review: Reinstatementwithout change.

Agency: Mine Safety and HealthAdministration.

Title: Gamma Radiation ExposureRecords.

OMB Number: 1219–0039.Affected Public: Business or other for-

profit institutions.Cite/Reference/Form/etc: 30 CFR

57.5047.Total Respondents: 2.Frequency: Annually.Total Responses: 2.Average Time per Response: 2 hours.Estimated Total Burden Hours: 2.Estimated Total Burden Cost: $73.Total Burden Cost (capital/startup):Total Burden Cost (operating/

maintaining):Comments submitted in response to

this notice will be summarized and/orincluded in the request for Office ofManagement and Budget approval of theinformation collection request; they willalso become a matter of public record.

Dated: July 24, 1997.George M. Fesak,Director, Program Evaluation and InformationResources.[FR Doc. 97–20106 Filed 7–30–97; 8:45 am]BILLING CODE 4510–43–M

DEPARTMENT OF LABOR

Pension and Welfare BenefitsAdministration

Proposed Information CollectionRequest Submitted for PublicComment and Recommendations;Prohibited Transaction ClassExemption 80–83

ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burden,provides the general public and Federalagencies with an opportunity tocomment on proposed and/orcontinuing collections of information inaccordance with the PaperworkReduction Act of 1995 (PRA 95) [44U.S.C. 3506(c)(2)(A)]. This programhelps to ensure that requested data canbe provided in the desired format,reporting burden (time and financialresources) is minimized, collectioninstruments are clearly understood, andthe impact of collection requirements onrespondents can be properly assessed.Currently, the Pension and WelfareBenefits Administration is solicitingcomments concerning the proposedextension of a currently approvedcollection of information, ProhibitedTransaction Class Exemption 80–83. Acopy of the proposed informationcollection request can be obtained bycontacting the employee listed below inthe contact section of this notice.

DATES: Written comments must besubmitted on or before September 29,1997. The Department of Labor isparticularly interested in commentswhich:


• Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection of information,including the number of respondentsand the validity of the methodology andassumptions used;


• Minimize the burden of thecollection of information on those whoare to respond, including through theuse of appropriate automated,electronic, mechanical, or othertechnological collection techniques orother forms of information technology,e.g., permitting electronic submissionsof responses.ADDRESSES: Gerald B. Lindrew,Department of Labor, Pension andWelfare Benefits Administration, 200Constitution Avenue, NW, Room N–5647, Washington, DC 20210.Telephone: 202–219–4782 (this is not atoll-free number). Fax: 202–219–4745.


I. Background

Prohibited Transaction ClassExemption 80–83 permits, under certainconditions, purchases of securities byemployee benefit plans when theproceeds from the sale of such securitiesmay be used by the issuer to reduce orretire indebtedness to persons who areparties in interest with respect to suchplans.

II. Current Actions

The Pension and Welfare BenefitsAdministration proposes to extend thecurrently approved informationcollection requirements of ProhibitedTransaction Class Exemption 80–83.The recordkeeping requirements of theexemption are intended to protect theinterests of plan participants andbeneficiaries. This class exemptionrequires the plan to maintain for sixyears from the date of the transactionthe records necessary to enableinterested parties including theDepartment of Labor to determinewhether the conditions of theexemption have been met. Theexemption also requires that thoserecords be make available to certain


persons on request. Without therecordkeeping requirement, theDepartment, which may only grant anexemption if it can find that participantsand beneficiaries are protected, wouldbe unable to effectively enforce theterms of the exemption and insure usercompliance.

Type of Review: Extension.Agency: Pension and Welfare Benefits

Administration.Title: Prohibited Transaction Class

Exemption 80–83.OMB Number: 1210–0064.Affected Public: Business or other for-

profit, Not-for-profit institutions,Individuals.

Frequency: On occasion.Estimated Total Burden Hours: 1.Respondents, proposed frequency of

response, and annual hour burden: Thenumber of respondents is estimated tobe 25. The exemption contains a sixyear recordkeeping requirement forinformation related to the affectedsecurities transactions. Most of therecords required to be maintained by theexemption are normally maintained forpurposes of completing the annualreport required by ERISA (Form 5500Series). Those records not maintainedfor purposes related to the annual reportare maintained as a standard businesspractice or for purposes of complyingwith the Internal Revenue Code. TheDepartment estimates one additionalhour of burden for this exemption.

Total Burden Cost (capital/start-up):$0.00.

Total Burden Cost (operating/maintenance): $0.00.

Comments submitted in response tothis notice will be summarized and/orincluded in the request for Office ofManagement and Budget approval of theinformation collection request; they willalso become a matter of public record.

Dated: July 25, 1997.Gerald B. Lindrew,Director, Pension and Welfare BenefitsAdministration, Office of Policy andLegislative Analysis.[FR Doc. 97–20102 Filed 7–30–97; 8:45 am]BILLING CODE 4510–29–P

DEPARTMENT OF LABOR



ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burden,provides the general public and Federalagencies with an opportunity tocomment on proposed and/orcontinuing collections of information inaccordance with the PaperworkReduction Act of 1995 (PRA 95) [44U.S.C. 3506(c)(2)(A)]. This programhelps to ensure that requested data canbe provided in the desired format,reporting burden (time and financialresources) is minimized, collectioninstruments are clearly understood, andthe impact of collection requirements onrespondents can be properly assessed.Currently, the Pension and WelfareBenefits Administration is solicitingcomments concerning the proposedextension of a currently approvedcollection of information, ProhibitedTransaction Class Exemption 75–1. Acopy of the proposed informationcollection request can be obtained bycontacting the employee listed below inthe contact section of this notice.DATES: Written comments must besubmitted on or before September 29,1997. The Department of Labor isparticularly interested in commentswhich:


• Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection of information,including the number of respondentsand the validity of the methodology andassumptions used;




I. BackgroundProhibited Transaction Class

Exemption 75–1 permits banks,

registered broker-dealers and reportingdealers in Government securities whoare parties in interest to engage incertain kinds of securities transactionswith plans. In the absence of thisexemption, these transactions might beprohibited by section 406 of theEmployee Retirement Income SecurityAct of 1974 (the Act).

II. Current ActionsThe Pension and Welfare Benefits

Administration proposes to extend thecurrently approved informationcollection requirements of ProhibitedTransaction Class Exemption 75–1. Therecordkeeping requirements of the classexemption are intended to protect theinterests of plan participants andbeneficiaries. The exemption has onebasic information collection condition.The plan is to maintain for a period ofsix years from the date of a coveredtransaction such records as arenecessary to enable the Department ofLabor, the Internal Revenue Service,plan participants and beneficiaries, anyemployer of plan participants andbeneficiaries, and any employeeorganization any of whose members arecovered by such plan to determinewhether the conditions of theexemption have been met.





Frequency: On occasion.Estimated Total Burden Hours: 1.Respondents, proposed frequency of

response, and annual hour burden: Thenumber of respondents is estimated tobe 750. The exemption contains a sixyear recordkeeping requirement forinformation related to the affectedsecurities transactions. This informationwould normally be maintained inconnection with required reporting forthe annual financial report (Form 5500and 5500–C). The Department estimatesthat the recordkeeping burden of thisclass exemption, in effect, has beenincorporated in the burden for Form5500 (and 5500–C). Since thisinformation has been approved for theForm 5500 (and 5500–C), we estimateone additional hour of burden for thisexemption.



Comments submitted in response tothis notice will be summarized and/or


included in the request for Office ofManagement and Budget approval of theinformation collection request; they willalso become a matter of public record.


DEPARTMENT OF LABOR



ACTION: Notice.

SUMMARY: The Department of Labor, aspart of its continuing effort to reducepaperwork and respondent burden,provides the general public and Federalagencies with an opportunity tocomment on proposed and/orcontinuing collections of information inaccordance with the PaperworkReduction Act of 1995 (PRA 95) [44U.S.C. 3506(c)(2)(A)]. This programhelps to ensure that requested data canbe provided in the desired format,reporting burden (time and financialresources) is minimized, collectioninstruments are clearly understood, andthe impact of collection requirements onrespondents can be properly assessed.Currently, the Pension and WelfareBenefits Administration is solicitingcomments concerning the proposedextension of a currently approvedcollection of information, ProhibitedTransaction Class Exemption 88–59. Acopy of the proposed informationcollection request can be obtained bycontacting the employee listed below inthe contact section of this notice.DATES: Written comments must besubmitted on or before September 29,1997.

The Department of Labor isparticularly interested in commentswhich:


• Evaluate the accuracy of theagency’s estimate of the burden of theproposed collection of information,including the number of respondents

and the validity of the methodology andassumptions used;




I. Background

Prohibited Transaction ClassExemption 88–59 exempts from certainprohibited transaction provisions ofERISA, certain transactions involvingresidential financing arrangements. Inthe absence of this exemption, thesetransactions might be prohibited bysection 406 of the Employee RetirementIncome Security Act of 1974 (the Act).

II. Current Actions

The Pension and Welfare BenefitsAdministration proposes to extend thecurrently approved informationcollection requirements of ProhibitedTransaction Class Exemption 88–59.The recordkeeping requirements of theclass exemption are intended to protectthe interests of plan participants andbeneficiaries. The exemption has onebasic information collection condition.The plan is to maintain for a period ofsix years from the date of a coveredtransaction such records as arenecessary to enable the Department ofLabor, the Internal Revenue Service,plan participants and beneficiaries, anyemployer of plan participants andbeneficiaries, and any employeeorganization any of whose members arecovered by such plan to determinewhether the conditions of theexemption have been met.





Frequency: On occasion.Estimated Total Burden Hours: 1.

Respondents, proposed frequency ofresponse, and annual hour burden: Thenumber of respondents is estimated tobe 185. The exemption contains a sixyear recordkeeping requirement forinformation related to the affectedsecurities transactions. Most of therecords required to be maintained by theexemption are normally maintained forpurposes of completing the annualreport required by ERISA (Form 5500Series). Those records not maintainedfor purposes related to the annual reportare maintained as a standard businesspractice or for purposes of complyingwith the Internal Revenue Code. Weestimate one additional hour of burdenfor this exemption.



Comments submitted in response tothis notice will be summarized and/orincluded in the request for Office ofManagement and Budget approval of theinformation collection request; they willalso become a matter of public record.


DEPARTMENT OF LABOR


[Prohibited Transaction Exemption 97–35; Exemption Application No. D–10192, et al.]

Grant of Individual Exemptions;ILGWU National Retirement Fund

AGENCY: Pension and Welfare BenefitsAdministration, Labor.ACTION: Grant of individual exemptions.

SUMMARY: This document containsexemptions issued by the Department ofLabor (the Department) from certain ofthe prohibited transaction restrictions ofthe Employee Retirement IncomeSecurity Act of 1974 (the Act) and/orthe Internal Revenue Code of 1986 (theCode).

Notices were published in the FederalRegister of the pendency before theDepartment of proposals to grant suchexemptions. The notices set forth asummary of facts and representationscontained in each application forexemption and referred interestedpersons to the respective applications


for a complete statement of the facts andrepresentations. The applications havebeen available for public inspection atthe Department in Washington, D.C. Thenotices also invited interested personsto submit comments on the requestedexemptions to the Department. Inaddition the notices stated that anyinterested person might submit awritten request that a public hearing beheld (where appropriate). Theapplicants have represented that theyhave complied with the requirements ofthe notification to interested persons.No public comments and no requests fora hearing, unless otherwise stated, werereceived by the Department.

The notices of proposed exemptionwere issued and the exemptions arebeing granted solely by the Departmentbecause, effective December 31, 1978,section 102 of Reorganization Plan No.4 of 1978 (43 FR 47713, October 17,1978) transferred the authority of theSecretary of the Treasury to issueexemptions of the type proposed to theSecretary of Labor.

Statutory Findings

In accordance with section 408(a) ofthe Act and/or section 4975(c)(2) of theCode and the procedures set forth in 29CFR Part 2570, Subpart B (55 FR 32836,32847, August 10, 1990) and based uponthe entire record, the Department makesthe following findings:

(a) The exemptions areadministratively feasible;

(b) They are in the interests of theplans and their participants andbeneficiaries; and

(c) They are protective of the rights ofthe participants and beneficiaries of theplans.ILGWU National Retirement Fund, et al.(collectively, the Plans), Located in NewYork, New York

[Prohibited Transaction Exemption 97–35;Exemption Application Nos. D–10192, L–10193 through L–10196]

Exemption

Section I—Transactions

The restrictions of sections 406(a),406 (b)(1) and (b)(2) of the Act and thesanctions resulting from the applicationof section 4975 of the Code, by reasonof section 4975(c)(1) (A) through (E) ofthe Code, shall not apply, effective July1, 1995, to—

(A) the provision of banking services(Banking Services, as defined in sectionIV(C)) by the Amalgamated Bank of NewYork (the Bank) to certain employeebenefit plans (the Plans, as defined insection IV(E)), which are maintained onbehalf of members of the InternationalLadies Garment Workers Union;

(B) the purchase by the Plans ofcertificates of deposit (CDs) issued bythe Bank; and

(C) the deposit of Plans’ assets inmoney market or other deposit accountsestablished by the Bank;provided that the applicable conditionsof Section II and Section III are met:

Section II—Conditions(A) The terms under which the

Banking Services are provided by theBank to the Plans, and those underwhich the Plans purchase CDs from theBank or maintain deposit accounts withthe Bank, are at least as favorable to thePlans as those which the Plans couldobtain in arm’s-length transactions withunrelated parties.

(B) The interests of each of the Planswith respect to the Bank’s provision ofBanking Services to the Plans, thepurchase of CDs from the Bank by anyof the Plans, and the deposit of Planassets in deposit accounts establishedby the Bank, are represented by anIndependent Fiduciary (as defined insection IV(D)).

(C) On a periodic basis, not lessfrequently than annually, anAuthorizing Plan Fiduciary (as definedbelow in section IV(A)) with respect toeach Plan authorizes the representationof the Plan’s interests by theIndependent Fiduciary and determinesthat the Banking Services and any CDsand depository accounts utilized by thePlan are necessary and appropriate forthe establishment or operation of thePlan;

(D) With respect to the purchase byany of the Plans of certificates of deposit(CDs) issued by the Bank or the depositof Plan assets in a money marketaccount or other deposit accountestablished at the Bank,: (1) Suchtransaction complies with theconditions of section 408(b)(4) of theAct; (2) Any CD offered to the Plans bythe Bank is also offered by the Bank inthe ordinary course of its business withunrelated customers; and (3) Each CDpurchased from the Bank by a Plan paysthe maximum rate of interest for CDs ofthe same size and maturity being offeredby the Bank to unrelated customers atthe time of the transaction;

(E) The compensation received by theBank for the provision of BankingServices to the Plan is not in excess ofreasonable compensation within themeaning of section 408(b)(2) of the Act.

(F) Following the merger of theInternational Ladies Garment WorkersUnion with UNITE, the IndependentFiduciary made an initial writtendetermination that (1) the Bank’sprovision of Banking Services to thePlans, (2) the deposit of Plan assets in

depository accounts maintained by theBank, and (3) the purchase by the Plansof CDs from the Bank, are in the bestinterests and protective of theparticipants and beneficiaries of each ofthe Plans.

(G) On a periodic basis, not lessfrequently than quarterly, the Bankprovides the Independent Fiduciarywith a written report (the PeriodicReport) which includes the followingitems with respect to the period sincethe previous Periodic Report: (1) Alisting of Banking Services provided to,all outstanding CDs purchased by, anddeposit accounts maintained for eachPlan; (2) a listing of all fees paid by thePlans to the Bank for the BankingServices, (3) the performance of theBank with respect to all investmentmanagement services, (4) a descriptionof any changes in the Banking Services,(5) an explanation of any problemsexperienced by the Bank in providingthe Banking Services, (6) a descriptionof any material adverse events affectingthe Bank, and (7) any additionalinformation requested by theIndependent Fiduciary in the dischargeof its obligations under this exemption.

(H) On a periodic basis, not lessfrequently than annually, theIndependent Fiduciary reviews theBanking Services provided to each Planby the Bank, the compensation receivedby the Bank for such services, anypurchases by the Plan of CDs from theBank, and any deposits of assets indeposit accounts maintained by theBank, and makes the following writtendeterminations:

(1) The continuation of the Bank’sprovision of Banking Services to the Plan forcompensation is in the best interests andprotective of the participants andbeneficiaries of the Plan;

(2) The Bank is a solvent financialinstitution and has the capability to performthe services;

(3) The fees charged by the Bank arereasonable and appropriate;

(4) The services, the depository accounts,and the CDs are offered to the Plan on thesame terms under which the Bank offers theservices to unrelated Bank customers in theordinary course of business; and

(5) Where the Banking Services include aninvestment management service, that the rateof return is not less favorable to the Plan thanthe rates on comparable investmentsinvolving unrelated parties.

(I) Copies of the Bank’s periodicreports to the Independent Fiduciary arefurnished to the Authorizing PlanFiduciaries on a periodic basis, not lessfrequently than annually and not laterthan 90 days after the period to whichthey apply.

(J) The Independent Fiduciary isauthorized to continue, amend, or


terminate, without any penalty to anyPlan (other than the payment ofpenalties required under federal or statebanking regulations upon prematureredemption of a CD), any arrangementinvolving: (1) The provision of BankingServices by the Bank to any of the Plans,(2) the deposit of Plan assets in adeposit account maintained by theBank, or (3) any purchases by a Plan ofCDs from the Bank;

(K) The Authorizing Plan Fiduciarymay terminate, without penalty to thePlan (other than the payment ofpenalties required under federal or statebanking regulations upon prematureredemption of a CD), the Plan’sparticipation in any arrangementinvolving: (1) The representation of thePlan’s interests by the IndependentFiduciary, (2) the provision of BankingServices by the Bank to the Plan, (3) thedeposit of Plan assets in a depositaccount maintained by the Bank, or (4)the purchase by the Plan of CDs fromthe Bank.

Section III—Recordkeeping(A) For a period of six years, the Bank

and the Independent Fiduciary willmaintain or cause to be maintained allwritten reports and other memorandaevidencing analyses and determinationsmade in satisfaction of conditions ofthis exemption, except that: (a) Aprohibited transaction will not beconsidered to have occurred if, due tocircumstances beyond the control of theIndependent Fiduciary and the Bank therecords are lost or destroyed before theend of the six-year period; and (b) noparty in interest other than the Bank andthe Independent Fiduciary shall besubject to the civil penalty that may beassessed under section 502(i) of the Act,or to the taxes imposed by section4975(a) and (b) of the Code, if therecords are not maintained, or are notavailable for examination as required byparagraph (2) below;

(B)(1) Except as provided in section(2) of this paragraph (B) andnotwithstanding any provisions ofsubsections (a)(2) and (b) of section 504of the Act, the records referred to inparagraph (A) of this Section III shall beunconditionally available at theircustomary location during normalbusiness hours for inspection by: (a)Any duly authorized employee orrepresentative of the U.S. Department ofLabor or the Internal Revenue Service,(b) any employer participating in thePlans or any duly authorized employeeor representative of such employer, and(c) any participant or beneficiary of thePlans or any duly authorizedrepresentative of such participant orbeneficiary.

(2) None of the persons described insubsections (b) and (c) of subsection (1)above shall be authorized to examinetrade secrets of the IndependentFiduciary or the Bank, or any of theiraffiliates, or any commercial, financial,or other information that is privileged orconfidential.

Section IV—Definitions

(A) Authorizing Plan Fiduciarymeans, with respect to each Plan, theboard of trustees of the Plan or otherappropriate plan fiduciary withdiscretionary authority to makedecisions with respect to the investmentof Plan assets;

(B) Bank means the AmalgamatedBank of New York;

(C) Banking Services means (1)custodial, safekeeping, checkingaccount, trustee services, and (2)investment management servicesinvolving (a) fixed income securities(either directly or through a collectiveinvestment fund maintained by theBank), (b) the LongView Fundmaintained by the Bank, and, (c)effective January 3, 1998, the LEI Fundmaintained by the Bank.

(D) Independent Fiduciary means aperson, within the meaning of section3(9) of the Act, who (1) is not an affiliateof the Union of Needletrades, Industrial& Textile Employees (UNITE) and anysuccessor organization thereto bymerger, consolidation or otherwise, (2)is not an officer, director, employee orpartner of UNITE, (3) is not an entity inwhich UNITE has an ownershipinterest, (4) has no relationship with theBank other than as IndependentFiduciary under this exemption, and (5)has acknowledged in writing that it isacting as a fiduciary under the Act. Noperson may serve as an IndependentFiduciary for the Plans for any fiscalyear in which the gross income (otherthan fixed, non-discretionary retirementincome) received by such person (or anypartnership or corporation of whichsuch person is an officer, director, or tenpercent or more partner or shareholder)from UNITE and the Plans for that fiscalyear exceed five percent of suchperson’s annual gross income from allsources for the prior fiscal year. Anaffiliate of a person is any persondirectly or indirectly, through one ormore intermediaries, controlling,controlled by, or under common controlwith the person. The term ‘‘control’’means the power to exercise acontrolling influence over themanagement or policies of a personother than an individual. Initially, theIndependent Fiduciary is U.S. TrustCompany of California, N.A.

(E) Plans means any of the followingemployee benefit plans, and theirsuccessors by reason of merger, spin-offor otherwise:International Ladies Garment Workers Union

Nation Retirement Fund;International Ladies Garment Workers Union

Death Benefit Fund;Health Fund of New York Coat, Suit, Dress,

Rainwear & Allied Workers Union,ILGWU;

Health & Vacation Fund, AmalgamatedLadies Garment Cutters Union, Local 10;

ILGWU Eastern States Health & WelfareFund;

ILGWU Office, Clerical & Misc. EmployeeRetirement Fund;

ILGWU Retirement Fund, Local 102;Union Health Center Staff Retirement Fund;Unity House 134 HREBIU Plan Fund;Puerto Rican Health & Welfare Fund;Health & Welfare Fund of Local 99, ILGWU;Local 99 Exquisite Form Industries, Inc.

Severance Fund;Local 99 K-Mart Severance Fund;Local 99 Kenwin Severance Fund;Local 99 Lechters Severance Fund;Local 99 Eleanor Shops Severance Fund;Local 99 Monette Severance Fund;Local 99 Moray, Inc. Severance Fund;Local 99 Petri Stores, Inc. Severance Fund;Local 99 Netco, Inc. Severance Fund;Local 99 Misty Valley, Inc. Severance Fund;

andLocal 99 Norstan Apparel Shops, Inc.

Severance Fund.

(F) UNITE means the Union ofNeedletrades, Industrial & TextileEmployees and any successororganization thereto by merger,consolidation or otherwise.EFFECTIVE DATE: This exemption iseffective as of July 1, 1995, except forPlan investments in the LEI Fund, forwhich the effective date is January 3,1998.

Written Comments: The Departmentreceived no requests for a hearing andone written comment submitted by theAmalgamated Bank of New York (theBank). The Bank’s comment, and theDepartment’s response thereto, issummarized as follows:

(1) The Bank notes that sectionII(H)(1) of the proposed exemptionwould require the IndependentFiduciary, U.S. Trust, to make aperiodic determination with respect toeach Plan that the Banking Services,CDs and depository accounts involvingthe Plan are necessary and appropriatefor the establishment or operation of thePlan. The Bank maintains that thisperiodic determination is moreappropriately made by the AuthorizingPlan Fiduciary with respect to eachPlan, as the parties have agreed underthe terms of the appointment of theIndependent Fiduciary. The Bankrequests that the condition be modifiedto require the Independent Fiduciary to


receive such an annual determinationfrom the Authorizing Plan Fiduciarywith respect to each Plan. TheDepartment has determined to modifythe final exemption as requested.Accordingly, the Department has addeda requirement to section II(C) of the finalexemption that the Authorizing PlanFiduciary make a periodicdetermination, at least annually, that theBanking Services, CDs and depositoryaccounts are necessary or appropriatefor the establishment or operation of thePlan, and communicate suchdetermination to the IndependentFiduciary. The Department notes thatthe Independent Fiduciary isresponsible under the final exemptionfor making the other determinationsrequired under section II(H).

(2) The Bank notes that, in paragraph8 of the Summary of Facts andRepresentations in the Notice ofProposed Exemption, the Departmentsummarizes U.S. Trust’s view of theBank’s financial condition using insome instances language from U.S.Trust’s original Independent Fiduciaryreport. In the interest of completeaccuracy of disclosure, the Bank wishesto note that the third sentence followingthe italicized heading, ‘‘Financialcondition of the Bank’’, (commencingwith ‘‘U.S. Trust represents that theduration positioning * * *’’) wasdeleted in the revised IndependentFiduciary report in favor of a moredetailed explanation, in Appendix A ofthe revised report, of the effect ofinterest rate changes on the Bank. TheBank points out that this change did notalter U.S. Trust’s conclusion that theBank is operated conservatively and iswell-capitalized and solvent.

(3) The Bank states that while theDepartment has accurately andcompletely identified the Plans and theBank’s products and services as theyexisted at the time of the filing of theexemption application, the Plans’investment needs are dynamic and oneor more Plans might identify additionalproducts offered by the Bank in thenormal course of its business that wouldfit the Plan’s investment needs. TheBank represents that this has occurredsince the exemption application wasfiled, with respect to two of the Bank’scollective funds:

The LongView Fund: A commingled,equity investment fund which investsproportionately in the securities thatcomprise the S&P 500 Index, designedto mirror the rate of return on the S&P500 Index. The LongView Fundcurrently has approximately $1.2 billionin assets. The Bank has overallresponsibility for the LongView Fund,acts as custodian, and oversees

investment of the Fund, which isoffered to the public in the ordinarycourse of the Bank’s business. Althoughtrustees of the Plans have tentativelyapproved investments in the LongViewFund, none of the Plans have yetinvested in it.

The LEI Fund: A commingled, equityinvestment fund designed to‘‘outperform’’ the S&P 500 Index by 100basis points per annum, gross of fees.The LEI Fund opened in January 1997and has approximately $38 million inassets. The Bank has overallresponsibility for the Fund, acts ascustodian and recordkeeper, andoversees the investment managers. Noneof the Plans have invested in the LEIFund, although trustees of certain of thePlans have expressed an interest in suchinvestment.

The Bank requests, in view of thependency of the current exemptionproposal, that the Department add thesetwo funds to the exemption byamending the definition of ‘‘BankingServices’’ in Section IV(c) of theexemption specifically to include thesefunds. In support of this request, theBank requested that the IndependentFiduciary, U.S. Trust, conduct the sametype of review of the LongView and LEIFunds that it conducted with respect tothe other banking services and productsthat are the subject of this exemption.The Independent Fiduciary’s reportswith respect to each fund was submittedto the Department with the Bank’scomment. As with respect to theinvestment management servicesreviewed in its original report, theIndependent Fiduciary requested thatTowers Perrin prepare reports regardingthese products, and the Towers Perrinreports were also submitted to theDepartment with the Bank’s comment.The Bank states that inclusion of thesefunds in the exemption at this timewould be in the interests ofadministrative convenience andfeasibility for the Department and theparties to avoid a second exemptionproceeding. The Bank notes that the twoadditional funds are fully described andanalyzed in the reports of Towers Perrinand the Independent Fiduciary, whichwere submitted with the comment.

With respect to the LongView Fund,in a supplemental report dated January14, 1997, the Independent Fiduciarysummarizes its findings andconclusions regarding that fund. TheIndependent Fiduciary states that itconsidered information obtained fromits own research as well as an extensivereport prepared by Towers Perrin whichanalyzed the Bank’s managementstructure regarding the LongView Fund,the investment process, key investment

professionals, performance results, fees,style and risk characteristics, andclients. The Independent Fiduciaryconcludes that making the LongViewFund available for investments by thePlans would be reasonable, appropriate,and in the best interests of the Plans.

With respect to the LEI Fund, in asecond supplemental report dated May8, 1997, the Independent Fiduciarysummarizes its findings andconclusions regarding that fund. Aswith the LongView Fund, theIndependent Fiduciary states that itconsidered information obtained fromits own research as well as an extensivereport on the LEI Fund by TowersPerrin. On the basis of its review andevaluation, the Independent Fiduciarydetermined that it would be in the bestinterests of the Plans to make the LEIFund available through inclusion in theexemption. However, in view of therelatively short performance history ofthe LEI Fund, the IndependentFiduciary intends to defer any Planinvestments in the LEI Fund until itcompletes its annual review of theBank’s investment management servicesincluded under the exemption, suchreview to occur effective January 3,1998. If at that time the IndependentFiduciary concludes that the LEI shouldcontinue to be made available under theexemption, the Independent Fiduciaryproposes to authorize Plan investmentsin the LEI Fund.

The Bank represents that theinclusion of these two funds in theexemption would be protective of theinterests of participants andbeneficiaries of the Plans. In this regard,the Bank notes the independent reviewand analysis of the funds by theIndependent Fiduciary and TowersPerrin, and the continuing oversight ofthe Independent Fiduciary of any Planinvestments in either of the Funds.

On the basis of the informationcontained in the reports of theIndependent Fiduciary reports andTowers Perrin, the Department hasdetermined that it would be appropriateto include the LongView Fund and theLEI Fund in the exemption.Accordingly, the definition of BankingServices in the exemption has beenmodified to include the LongView Fundand, effective January 3, 1998, the LEIFund.

For a more complete statement of thesummary of facts and representationssupporting the Department’s decision togrant this exemption refer to the Noticeof Proposed Exemption published onFebruary 18, 1997 at 62 FR 7269.FOR FURTHER INFORMATION CONTACT:Ronald Willett of the Department,


telephone (202) 219–8881. (This is nota toll-free number.)Operating Engineers Local 150,Apprenticeship Fund (the Fund), Located inPlainfield, Illinois

[Prohibited Transaction Exemption 97–36;Exemption Application No. L–10280]

ExemptionThe restrictions of section 406(a) and

406(b) (1) and (2) shall not apply to thesale (the Sale) of a certain parcel ofimproved real property (the Property)from the Fund to International Union ofOperating Engineers, Local 150 (Local150), a party in interest with respect tothe Plan provided that the followingconditions are met:

(1) The fair market value of theProperty is established by a qualifiedand independent real estate appraiser;

(2) Local 150 pays the greater of$180,000 or the current fair marketvalue of the Property as of the date ofthe transaction;

(3) The Sale is a one time transactionfor cash; and

(4) The Fund pays no fees orcommissions related to the Sale.

For a more complete statement of thefacts and representations supporting theDepartment’s decision to grant thisexemption, refer to the notice ofproposed exemption published on April17, 1997 at 62 FR 18803.FOR FURTHER INFORMATION CONTACT:Allison Padams of the Department,telephone (202) 219–8971. (This is nota toll-free number.)The Roquette America, Inc. Pension Plan, forSalaried Employees (the Plan) Located inKeokuk, Iowa, [Prohibited TransactionExemption 97–37; Exemption ApplicationNo. D–10390]

ExemptionThe restrictions of sections 406(a) of

the Act and the sanctions resulting fromthe application of section 4975 of theCode, by reason of section 4975(c)(1) (A)through (D) of the Code, shall not applyto (1) the loan by Aon Consulting, Inc.(Aon Consulting) to the Plan, inconnection with certain excessdistributions (the Overpayments) thatAon Consulting inadvertently caused tobe made under the Plan, and (2) thepotential repayment of the loan by thePlan to Aon Consulting.

This exemption is subject to thefollowing conditions:

(1) The Plan pays no interest norincurs any other expense relating to theloan;

(2) The loan amount covers theOverpayments, plus lost opportunitycosts attributable to the Overpayments;

(3) Any repayment of the loan isrestricted solely to the amount, if any,

recovered by the Plan with respect tothe Overpayments in litigation orotherwise; and

(4) A qualified, independent fiduciaryfor the Plan has reviewed the terms andconditions of the loan on behalf of thePlan and determined that such termsand conditions are in the best interestsof and appropriate for the Plan.

For a more complete statement of thefacts and representations supporting theDepartment’s decision to grant thisexemption, refer to the notice ofproposed exemption published on April17, 1997 at 62 FR 18806.

Written CommentsThe Department received two written

comments with respect to the notice ofproposed exemption.

Both commenters expressed concernthat the proposed exemption wouldnegatively affect their retirementbenefits. Northern Trust, the Plan’sindependent fiduciary, confirmed thatthe proposed exemption would notchange benefit payments under thePlan. The first commenter also statedthat Aon Consulting should make thePlan whole, not merely make the Planan interest-free loan. Northern Trustresponded that the interest-free loanwould have the effect of making thePlan whole, since Aon Consultingwould receive repayment of the loanonly to the extent that the Planrecovered any portion of theOverpayments made to certainParticipants. The second commenteradded that further legal action should betaken against these Participants.Northern Trust responded that underthe proposed exemption, AonConsulting would pay the legal feesassociated with recovering theOverpayments.

After a careful consideration of theentire record, the Department hasdetermined to grant the exemption asproposed.FOR FURTHER INFORMATION CONTACT: Ms.Karin Weng of the Department,telephone (202) 219–8881. (This is nota toll-free number.)Robert A. Benz & Co., P. A., Certified PublicAccountants

Employees Profit Sharing Plan (The Plan)

Located in Pensacola, Florida

[Prohibited Transaction Exemption 97–39;

Exemption Application No. D–10398]

ExemptionThe restrictions of sections 406(a) and

406 (b)(1) and (b)(2) of the Act and thesanctions resulting from the applicationof section 4975 of the Code, by reasonof section 4975(c)(1) (A) through (E) of

the Code, shall not apply to both (1) thecash sale (the Sale) of certain realproperty (the Property) to the Plan byRobert A. Benz & Co., P.A., CertifiedPublic Accountants (the Employer), aparty in interest with respect to thePlan, and (2) the lease-back (the Lease)of the Property by the Plan to theEmployer; provided:

(A) The terms and conditions of thetransactions are at least as favorable tothe Plan as those obtainable fromunrelated parties;

(B) The Plan is represented at alltimes and for all purposes with respectto the Sale and the Lease by a qualified,independent fiduciary;

(C) The Sale is a one-time transactionfor a lump sum cash payment;

(D) The purchase price is the fairmarket value of the Property asdetermined on the date of the Sale by aqualified, independent appraiser;

(E) The monthly rents paid to the Planwill be adjusted every year after the first12 months of the Lease by an amount toreflect the greater of either a 3 percentper year increase or the most recentpercentage increase in the U. S.Department of Labor Consumer PriceIndex;

(F) In addition, the rents initially paidunder the Lease are no less than the fairmarket rental value of the Property asdetermined by a qualified, independentappraiser, and thereafter are adjustedevery third year to be no less than thefair market rental value as thendetermined by the independentappraiser;

(G) The Lease is a triple-net leaseunder which the Employer as the lesseeis obligated for all expenses incurred bythe Property, including all taxes andassessments, maintenance, insurance,utilities, and any other expense;

(H) The qualified, independentfiduciary of the Plan monitors andenforces compliance with the terms andconditions of the Lease and thisexemption;

(I) At all times the qualified,independent fiduciary for the Plandetermines that the Lease is in the bestinterests of the Plan and its participantsand beneficiaries, and at all timesdetermines that there are adequateprotections of the rights of theparticipants and beneficiaries of thePlan, and takes all the necessary stepsto protect those rights;

(J) In the event the Plan sells theProperty and the proceeds received fromthe sale plus the net rentals received forthe Property are less than the Plan’s costof acquiring, holding, and maintainingthe Property plus a 5 percent per annumcompounded rate of return on the costto the Plan in acquiring, holding, and


maintaining the Property, the Employer,or its successors, shall pay in cash thedifference to the Plan within 45 days ofthe sale;

(K) No commissions, expenses, orcosts shall be incurred by the Plan fromthe Sale or the Lease; and

(L) At all times during the Sale andLease, the fair market value of theProperty represents less than 25 percentof the total assets of the Plan.

For a more complete statement of thefacts and representations supporting theDepartment’s decision to grant thisexemption, refer to the Notice ofProposed Exemption published on June4, 1997, at 62 FR 30616.FOR FURTHER INFORMATION CONTACT: Mr.C. E. Beaver of the Department,telephone (202) 219–8881. (This is nota toll-free number.)Gart Brothers Sporting Goods Company401(k) Plan (the Plan) Located in Denver,Colorado [Prohibited Transaction Exemption97–39; Exemption Application No. D–10403]

Exemption

The restrictions of sections 406(a) and406 (b)(1) and (b)(2) of the Act and thesanctions resulting from the applicationof section 4975 of the Code, by reasonof section 4975(c)(1) (A) through (E) ofthe Code, shall not apply to the cashsale (the Sale) by the Plan of a 5 percentinterest (the Interest) in the HampdenEnterprises Limited Partnership (thePartnership) to the Gart Bros. SportingGoods Company, the sponsor of the Plan(the Employer) and a party in interestwith respect to the Plan; provided (1)the terms and conditions of thetransaction are at least as favorable tothe Plan as those obtainable fromunrelated parties, (2) the Sale is a one-time transaction for cash, (3) the Planpays no commissions nor incurs anyother expenses in connection with thetransaction, (4) the Plan receives asconsideration from the Sale the greaterof either (a) the total funds expended bythe Plan in acquiring and holding theInterest, less any return of capitalrealized from its investment in theInterest, or (b) the fair market value ofthe Interest as determined on the date ofthe Sale by an independent appraiser,and (5) if the Employer ever receivesmore from the Interest than it pays thePlan when acquiring the Interest, theEmployer will pay the Plan the excess.

For a more complete statement of thefacts and representations supporting theDepartment’s decision to grant thisexemption, refer to the Notice ofProposed Exemption published on June4, 1997, at 62 FR 30618.FOR FURTHER INFORMATION CONTACT: Mr.C. E. Beaver of the Department,

telephone (202) 219–8881. (This is nota toll-free number.)BP America Inc. Retirement Trust, Located inCleveland, Ohio; IBM Retirement Plan Trust,Located in Armonk, New York; United StatesSteel Corporation Plan, Located inPittsburgh, Pennsylvania; and RetirementPlan of Marathon Oil Company, Located inFindlay, Ohio; (collectively, the Plans)[Prohibited Transaction Exemption No. 97–40; Exemption Application Nos. D–10441through D–10444]

Exemption

The restrictions of section 406(a) ofthe Act and the sanctions resulting fromthe application of section 4975 of theCode, by reason of section 4975(c)(1) (A)through (D) of the Code, shall not applyto (1) the granting to The IndustrialBank of Japan, Limited, New YorkBranch (IBJ), as the representative oflenders (the Lenders) participating in acredit facility (the Facility), of securityinterests in limited partnership interestsin The Westbrook Real Estate Fund II,L.P. (the Partnership) owned by thePlans with respect to which some of theLenders are parties in interest; and (2)the agreements by the Plans to honorcapital calls made by IBJ in lieu of thePartnership’s general partner; providedthat (a) the grants and agreements are onterms no less favorable to the Plans thanthose which the Plans could obtain inarm’s-length transactions with unrelatedparties; (b) the decisions on behalf ofeach Plan to invest in the Partnershipand to execute such grants andagreements in favor of IBJ are made bya fiduciary which is not includedamong, and is independent of, theLenders and IBJ; and (c) with respect toplans that may invest in the Partnershipin the future, such plans will haveassets of not less than $100 million andnot more than 5% of the assets of suchplans will be invested in thePartnership.

For a more complete statement of thefacts and representations supporting theDepartment’s decision to grant thisexemption, refer to the notice ofproposed exemption published on June4, 1997 at 62 FR 30621.FOR FURTHER INFORMATION CONTACT: GaryH. Lefkowitz of the Department,telephone (202) 219–8881. (This is nota toll-free number.)

General Information

The attention of interested persons isdirected to the following:

(1) The fact that a transaction is thesubject of an exemption under section408(a) of the Act and/or section4975(c)(2) of the Code does not relievea fiduciary or other party in interest ordisqualified person from certain other

provisions to which the exemptionsdoes not apply and the general fiduciaryresponsibility provisions of section 404of the Act, which among other thingsrequire a fiduciary to discharge hisduties respecting the plan solely in theinterest of the participants andbeneficiaries of the plan and in aprudent fashion in accordance withsection 404(a)(1)(B) of the Act; nor doesit affect the requirement of section401(a) of the Code that the plan mustoperate for the exclusive benefit of theemployees of the employer maintainingthe plan and their beneficiaries;

(2) These exemptions aresupplemental to and not in derogationof, any other provisions of the Act and/or the Code, including statutory oradministrative exemptions andtransactional rules. Furthermore, thefact that a transaction is subject to anadministrative or statutory exemption isnot dispositive of whether thetransaction is in fact a prohibitedtransaction; and

(3) The availability of theseexemptions is subject to the expresscondition that the material facts andrepresentations contained in eachapplication accurately describes allmaterial terms of the transaction whichis the subject of the exemption.

Signed at Washington, DC, this 25th day ofJuly, 1997.Ivan Strasfeld,Director of Exemption Determinations,Pension and Welfare Benefits Administration,U.S. Department of Labor.[FR Doc. 97–20242 Filed 7–30–97; 8:45 am]BILLING CODE 4510–29–P

NATIONAL SCIENCE FOUNDATION

Agency Information CollectionActivities: Proposed Modification OMBNo. 3145–0101; Comment Request;Title of Collection: 1998 Survey ofScientific and Engineering ResearchFacilities at Colleges and Universities

AGENCY: National Science Foundation.ACTION: Notice.

SUMMARY: Under the PaperworkReduction Act of 1995, Pub. L. 104–13(44 U.S.C. 3501 et seq.), and as part ofits continuing effort to reducepaperwork and respondent burden, theNational Science Foundation (NSF) isinviting the general public and otherFederal agencies to comment on thisproposed information collection. Thisnotice describes a modification to thecurrently cleared collection, NSFSurvey of Scientific and EngineeringResearch Facilities at Colleges andUniversities, OMB No. 3145–0101.


FOR FURTHER INFORMATION CONTACT:Call or write Gail A. McHenry for a copyof the collection instrument andinstructions at NSF Reports ClearanceOfficer, National Science Foundation,4201 Wilson Blvd. Suite 245, Arlington,VA. 22230; call (703) 306–1125 x2010;or send email to [email protected] include OMB No. 3145–0101with your communication.

SUPPLEMENTARY INFORMATION:1. Abstract. This survey collects

information on the science andengineering (S&E) research facilities atthe nation’s higher educationinstitution. These modifications to theapproved 1998 questionnaire will makethe data more useful to Federal agenciesand policymakers. The OMB, HealthDivision, intends to use the aggregatedata to establish benchmark guidelinesfor cost of construction and renovation.Indirect cost rate negotiators will alsouse these benchmarks for colleges anduniversities.

2. Proposed Modifications to theOMB-Approved 1998 Survey.

• Sample size. We are requesting thatthe 1998 survey sample be increasedfrom 315 to 365. (This change isrequested by NIH, NSF, and OMB.)Expanding the sample size with 50additional institutions will allow fordata to be reported by Carnegieclassification, by minority servinginstitutions and institutions within theEPSCoR States, and to ensure thatappropriate representation is made foreach state.

• Additional Information

• Currently data are collected for thetotal net assignable square feet (NASF)of animal laboratories. NIH hasrequested that the survey collect thepercent of total animal research NASFassigned to levels of restricted uselaboratories. The information is readilyavailable to the institutions andreporting it would be of minimalburden. This request would also servethe need of OMB to identify some of thedriving forces behind high cost of someresearch facilities.

• For more usable data, OMB isrequesting that data also be reported bygross square feet (GSF) of space inscience and engineering disciplines.Institutions already have that data tocalculate the NASF of that project

• Clarifying Relationship of Data

• OMB has requested that in additionto collecting the total repair/renovationor new construction costs (includingnon-fixed equipment over $1 million),that we also collect the proportion ofrepair/renovation or new construction

project costs assignable to non-fixedequipment costing over $1 million.These data are readily available to theinstitutions and reporting these datashould add very little burden.

• OMB has requested that in additionto collecting the proportion ofconstruction and repair/renovation costattributable to institutional funds, thatwe collect the percent of institutionalfunds made up by indirect costsrecovered from federal grants and/orcontracts. The question will be posed intwo parts: (1) Asking if the institutionhas ready access to these data; and (2)if data are available, asking theinstitution to supply that data. This wayof posing the question assures minimalburden to the respondent.

• Discontinuing the collection of thestatus of institutions relative to the capon tax-exempt bonds. This modificationwas requested by NIH as well as NSF.

3. Use of Information. The purpose ofthis study is to collect data about statusof academic S&E research facilities. Theinformation from this survey will beused by Federal policy makers,planners, and budget analysts in makingpolicy decisions, as well as by academicofficials, the S&E establishment, andState agencies that fund universities andcolleges.

The NSF will publish a separatereport of the findings for Congress; itwill also prepare a special report forNIH on the Status of BiomedicalResearch Facilities and it will alsoinclude them in other NSF compilationssuch as National Patterns of R&DResources and Science and EngineeringIndicators. Special reports will beprepared for other Federal agencies onan as-needed basis. A public release fileof collected data in aggregate form willbe made available to researchers on theWorld Wide Web. The results of thesurvey will help policy makers indecision about the health of academicS&E research, funding, regulations, andreporting guidelines.

4. Expected Respondents. Not-for-Profit institutions, specifically, researchorganizations/hospitals and academicinstitutions.

5. Burden on the Public. Much of theproposed modification includes datathat are readily available to therespondents; we expect that changes tothe questionnaire will cause little or nochange in burden hours. A substantialreduction in response burden over 1996is expected with the improvements inthe computer-aided survey: 60% of theinstitutions are expected to respondthrough this method in 1998, comparedto 40% in 1986.

The Foundation estimates a totalannual burden of 8,760 hours. The

calculation is 365 institutions×totalannual reporting and recordkeepingburden of 24 hours per respondent.

Comments RequestedDate: NSF should received written

comments on or before September 29,1997.

Address: Submit written comments toMrs. McHenry through surface mail(NSF Reports Clearance Officer,National Science Foundation, 4201Wilson Blvd. Suite 245, Arlington, VA22230); email ([email protected]); orfax (703–306–0201). Please includeOMB No. 3145–0101 with yourcommunication.

Special Areas for Review: NSFespecially requests comments 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’sestimate of the burden of the proposedcollection of information;

(c) Ways to enhance the quality,utility, and clarity of the information tobe collected; and

(d) Ways to minimize the burden ofthe collection of information on thosewho are to respond, including throughthe use of appropriate automated,electronic, mechanical, or othertechnological collection techniques, e.g.,permitting electronic submission ofresponses.

Dated: July 25, 1997.Gail A. McHenry,NSF Reports Clearance Officer.[FR Doc. 97–20099 Filed 7–30–97; 8:45 am]BILLING CODE 7555–01–M

NATIONAL SCIENCE FOUNDATION

Environmental Molecular ScienceInstitutes (EMSI): Special ResearchOpportunity (NSF 97–135); ProgramAnnouncement

The National Science Foundation(NSF) Directorate for Mathematical andPhysical Sciences and U.S. Departmentof Energy (DOE) Office of EnergyResearch (ER) announce a one-timeopportunity for support ofEnvironmental Molecular ScienceInstitutes (EMSI) aimed at increasingfundamental understanding of naturaland industrial processes and theirinteraction at the molecular level. NSFand DOE encourage cohesive,interdisciplinary, university-industrygroup efforts in basic research onfundamental issues that underpin theamelioration of environmental problemscaused by societal activities such as


manufacturing and utilization activitiesthat are energy- and pollution-intensive.

This funding opportunity willestablish one to three EnvironmentalMolecular Science Institutes. Five yearrequests in the range of $0.5 million to$2 million per year are appropriate. Upto $2.0 million per year from NSF willbe made available beginning in FY98,subject to availability of funds. Inaddition, approximately $2.0 millionfrom DOE in FY98, subject toavailability of funds, will supportspecific activities within Institutesappropriate to DOE interests, such aselaborated in the supplementaryinformation section below. Thisannouncement is being made jointly byDOE and NSF to ensure that thestrongest possible programs aresupported with the limited fundsavailable, to minimize multiplesubmissions to the two agencies, and toconcentrate resources to realizemeasurable progress in focused researchareas.

An Institute should serve as a nationalmodel and resource for excellence incollaborative environmental researchand in dissemination of results forsolution of amelioration ofenvironmental problems. To strengthenthe probability that the proposed basicresearch focus will contribute in thefuture to improved technologies andprocesses, it is expected that proposalswill include working collaborationswith appropriate and relevantindustries. Understanding the molecularbehavior of complex, dynamicenvironmental systems is expected torequire interdisciplinary approachesinvolving scientists from multipledepartments. An Institute must have afocused research theme and specificgoals. The organization andmanagement structure must be designedto enable these goals to be met. AnInstitute should not be a collection ofexisting projects. Rather proposers areinvited to take a fresh look atenvironmental challenges to develop aunified activity.

Examples of appropriate researchareas include, but are not limited to:chemical and materials synthesis orprocessing for pollution prevention;integrated understanding of speciation,sorption, transport, and bioavailabilityin a specified environment; response ofa specific environment to chemicalperturbations caused by humanactivities. The proposed activities, as anancillary benefit, should help tointegrate research and education andprovide broadened experience tostudents. Strong institutional supportfor programmatic reinforcement of the

educational activities will be consideredpositively.

Proposal SubmissionEligibility is limited to colleges,

universities, and other not-for-profitinstitutions in the U.S. and itsterritories, as described in detail in theGrant Proposal Guide (NSF 95–27).Potential applicants are required tosubmit a brief preliminary proposal. Allpreliminary applications must referencethis document (NSF 97–135) and fivecopies must be received by October 15,1997. The preliminary proposal shouldinclude a project summary; a three-pageproject description that outlines goals,research plans, and roles ofcollaborators; biographical sketcheslimited to two pages per investigator;one budget page for the total fundingrequested (institutional signature is notrequired). Other general guidance andforms are provided in the NSF GrantProposal Guide (NSF 9527). Proposalsmust be sent to: EMSI (NSF 97–135),NSF—Room P60–PPU, 4201 WilsonBoulevard, Arlington, VA 22230.

Preliminary proposals will beevaluated by NSF and DOE staff fromrelevant disciplines in order to advisePrincipal Investigators onresponsiveness to goals and prioritiesdescribed above and on the likelihoodof successful competition with otherproposals in the merit review process.Those submitting will be informed ofthe result of this review by November15, 1997.

Full proposals (15 copies includingthe original, prepared in accordancewith the NSF Grant Proposal Guide)must be received by February 1, 1998.These will be evaluated by appropriatemechanisms, which may include ad hocmail review, panel review, or site visits.In addition to the published new NSFcriteria, other factors will be considered,such as the potential for significantcontributions to environmentalchemistry, the strength of thecollaborations planned, the value toeducation, and the potential for nationalleadership among the constituencyinterested in the research theme.Proposals involving industrialcollaboration will receive preferenceover those of equal scientific merit thatlack such collaboration. Activitiesconsidered for funding by DOE will bereviewed for excellence of the scienceand relevance to the mission of theDepartment and its technologyprograms. Below is AdditionalInformation on scope, format, andreview criteria.

Grants awarded as a result of thisannouncement will be administered inaccordance with the terms and

conditions of NSF GC–1 (10/95) or FDP–III (u/1/96), Grant General Conditions.Copies of these documents are availableon www.nsf.gov under ‘‘Grants andAwards.’’ NSF encourages, but does notrequire, organizations responding to thisannouncement to contribute to the costsof the project beyond the minimum one-percent statutory cost-sharingrequirement. However, any additionalcost-sharing specified in the proposalwill be referenced and included as acondition of any award resulting fromthis announcement.Janet G. Osteryoung, Director, Division

of Chemistry, National ScienceFoundation, 4201 Wilson Blvd.,Arlington, VA 22230,[email protected], 703-306-1845

Robert S. Marianelli, Director, ChemicalSciences Division, Office of BasicEnergy Sciences, Office of EnergyResearch, U.S. Department of Energy,19901 Germantown Road,Germantown, MD 20874-1290,[email protected],(301) 903-5808

Additional Information on Scope ofInstitutes and Full Proposal Format

This letter broadly describes thenature and scope of an institute and isnot intended to be unnecessarilyprescriptive. There are many modelsand variations that may be considered,including the traditional understandingof an institute at a specific location, aswell as regional or more widelydistributed institutes. Proposal shouldinclude information that defines theinstitute, describes the planningprocess, defines mission and goals,describes how the desired goals will beachieved and how it will be determinedthat these goals have beenaccomplished. The proposing groups areencouraged to construct the appropriateorganization and structure that willmaximize the effectiveness and impactof their strengths and resources.

The leadership of an institute shouldbe provided by a small group, includinga director and, as approrpratie for thesize of the institute, an associatedirector and an external advisorycommittee. The director of an instituteshould be a respected scientist withdemonstrated organizational,managerial, and leadership ability. Aninstitute’s scientific guidance should beprovided by a committee of scientistsfrom the participating institutions.Although a multi-institutionalconsortium may be involved, a singleentity must accept overall managementresponsibility in dealing with NSF.

The NSF Grant Proposal Guide (GPG),NSF 95-27, describes the formatrequired for proposals. The Project


Description in the full proposal will besubject to the page limitations for eachsection described below.

Proposals not adhering to these limitswill be returned without review.*Detailed description of the intellectual

focus and rationale for the institute,its overall goals, and expected impact(3 pages, maximum);

*Planned scientific activities, includinga five-year plan for phasing activitiesin or out, and the roles of the variouspartners (15 pages, maximum);

*Plans for human resourcedevelopment, including involvementof undergraduate, graduate andpostdoctoral students and members ofunder-represented groups (2 pages,maximum);

*Description of planned outreachactivities and dissemination (2 pages,maximum);

*Description of goals and outcomesexpected and how the impact will bedemonstrated and evaluated (2 pages,maximum);

*Description of the organizationalstructure of the institute, clearlyoutlining the proposed managementstructure, mechanisms for focusinginstitute activities, methods forselecting and integrating researchemphases, criteria for selection ofparticipants, allocating funds andequipment, and managing theinvolvement of other groups (4 pages,maximum).Each biographical sketch, limited to

two pages, should include a briefsummary of results of prior NSFsupport. Please note that lettersdescribing collaborative arrangementssignificant to the proposals should beincluded under ‘‘supplementarydocumentation.’’ Only letters ofcommitment are permitted;‘‘endorsement’’ letters may not beincluded. No appendices are permitted.Additional sources of financial supportfor the institute should be identified.

Merit Review Process

Proposals submitted in response tothis announcement will be subject to theNEW merit review criteria approved bythe National Science Board on March28, 1997 (NSB9772). Additionalinformation on NSF’s new merit reviewcriteria is available in the Merit ReviewTask Force Final Report atwww.nsf.gov/cgibin/getpub?nsbmr975.The new merit review criteria are:

What is the Intellectual Merit andQuality of the Proposed Activity?

The following are suggested questionsthat the reviewer will consider inassessing how well the proposal meets

this criterion. Each reviewer willaddress only those questions which he/she considers relevant to the proposaland for which he/she is qualified tomake judgments.

How important is the proposedactivity to advancing knowledge andunderstanding within its own field andacross different fields? How wellqualified is the proposer (individual orteam) to conduct the project? (Ifappropriate, the reviewer will commenton the quality of prior work.) To whatextent does the proposed activitysuggest and explore creative andoriginal concepts? How well conceivedand organized is the proposed activity?Is there sufficient access to resources?

Wht Are the Broader Impacts of theProposed Activity?

The following are suggested questionsthat the reviewer will consider inassessing how well the proposal meetsthis criterion. Each reviewer willaddress only those questions which he/she considers relevant to the proposaland for which he/she is qualified tomake judgments.

How well does the activity advancediscovery and understanding whilepromoting teaching, training, andlearning? How well does the proposedactivity broaden the participation ofunderrepresented groups (e.g., genderethnicity, geographic, etc.)? To whatextent will it enhance the infrastructurefor research and education, such asfacilities, instrumentation, networks,and partnerships? Will the results bedisseminated broadly to enhancescientific and technologicalunderstanding? What may be thebenefits of the proposed activity tosociety?

Additional Criteria Specific to ThisActivity

In addition to these generic reviewcriteria, reviewers will be asked to usethe following additional criteria whenreviewing proposals that respond to thisannouncement. These criteria are asfollows:* Quality of the scientific activities and

their potential for leadership andimpact on environmental chemistryand solutions to environmentalproblems;

* Extent of interdisciplinarity and theextent to which communication andinteraction with other areas of scienceand engineering are fostered bylinkages and partnerships amonguniversity research groups, industry,national laboratories, etc.;

* Capabilities of the instituteleadership, including managerial and

organizational ability of the directorand of the proposed leadership team;

* Quality and anticipated effectivenessof the management plan, includingplans for interaction among institutestaff and institutional partners and foroperation of the institute, includingselection of activities andparticipants;

* Quality of the institute’s educationand training components, especiallyplans to attract, involve and mentorstudents and under-representedgroups;

* Quality and effectiveness of proposedoutreach activities and disseminationof results;

* Clarity of mission and goals andquality of the evaluation plan;

* Level and quality of the commitmentto the institute by the lead institutionand its partners.A summary rating and accompanying

narrative will be completed and signedby each reviewer. In all cases, reviewsare treated as confidential documents.Verbatim copies of reviews, excludingthe names of the reviewers, are mailedto the proposer by the Program Director.In addition, the proposer will receive anexplanation of the decision to award ordecline funding.

Supplementary Information on TopicalWorkshops Sponsored by NSF and DOE

NSF and DOE have co-sponsored twointerdisciplinary workshops to helpdefine priorities for research in twoareas that have been identified asactivities responsible for complex andintransigent environmental problems.

These are: (1) VehicularTransportation and (2) Reducing EnergyConsumption and Pollution from Energyand Pollution Intensive Processes.

A critical issue identified for the 21stCentury is the balancing of industrialactivity and environmental stewardship;more knowledge is needed to makechoices to achieve that balance. Thereare seven industries that consume 80percent of the energy and produce over90 percent of the wastes in themanufacturing sector. These sevenindustries are chemicals, petroleumrefining, forest products, steel,aluminum, glass, and metal casting.Those aspects of the workshop reportsthat deal with fundamental molecularscience and the crosscutting issuesidentified in the reports are particularlyrelevant to proposals in response to thisannouncement.

Copies of the workshop reportsentitled ‘‘Basic Research Needs forEnvironmentally ResponsiveTechnologies of the Future’’ and ‘‘BasicResearch Needs for Vehicles of theFuture’’ can be obtained from Princeton


Materials Institute, Bowen Hall,Princeton University, 70 ProspectAvenue, Princeton, New Jersey 08544–522.

The reports can also be found on theWorld Wide Webb at http://pmi.princeton.edu.

The Foundation provides awards forresearch and education in the sciencesand engineering. The awardee is whollyresponsible for the conduct of suchresearch and preparation of the resultsfor publication. The Foundation,therefore, does not assumeresponsibility for the research findingsor their interpretation.

The Foundation welcomes proposalsfrom all qualified scientists andengineers and strongly encourageswomen, minorities, and persons withdisabilities to compete fully in any ofthe research and education relatedprograms described here. In accordancewith federal statutes, regulations, andNSF policies, no person on grounds ofrace, color, age, sex, national origin, ordisability shall be excluded fromparticipation in, be denied the benefitsof, or be subject to discrimination underany program or activity receivingfinancial assistance from the NationalScience Foundation.

Facilitation Awards for Scientists andEngineers with Disability (FASED)provide funding for special assistance orequipment to enable persons withdisabilities (investigators and other staff,including student research assistants) towork on NSF projects. See the programannouncement or contact the programcoordinator at (703) 306–1636.

Privacy Act. The informationrequested on proposal forms in solicitedunder the authority of the NationalScience Foundation Act of 1950, asamended. It will be used in connectionwith the selection of qualified proposalsand may be disclosed to qualifiedreviewers and staff assistants as part ofthe review process; to applicantinstitutions/grantees; to provide orobtain data regarding the applicationreview process, award decisions, or theadministration of wards; to governmentcontractors, experts, volunteers, andresearchers as necessary to completeassigned work; and to other governmentagencies in order to coordinateprograms. See Systems of Records, NSF50, Principal Investigators/Proposal Fileand Associated Records, and NSF–51,60 FR 4449 (January 23, 1995).Reviewer/Proposal File and AssociatedRecords, 59 FR 8031 (February 17,1994).

Public Burden. Submission of theinformation is voluntary. Failure toprovide full and complete information,

however, may reduce the possibility ofyour receiving an award.

The public reporting burden for thiscollection of information is estimated toaverage 120 hours per response,including the time for reviewinginstructions. Send comments regardingthis burden estimate or any other aspectof this collection of information,including suggestions for reducing thisburden, to Gail A. McHenry, ReportsClearance Officer, InformationDissemination Branch, National ScienceFoundation, 4201 Wilson Boulevard,Suite 245, Arlington, VA 22230.

The National Science Foundation hasTDD (Telephonic Device for the Deaf)capability, which enables individualswith hearing impairment tocommunicate with the Foundationabout NSF programs, employment, orgeneral information. To access NSFTDD, dial (703) 306–0090; for FIRS,1–800–877–8339.

Dated: July 25, 1997.Janet G. Osteryoung,Director, Chemistry Division.[FR Doc. 97–20096 Filed 7–30–97; 8:45 am]BILLING CODE 7555–01–M


Documents Containing Reporting orRecordkeeping Requirements: Officeof Management and Budget (OMB)Review

AGENCY: U.S. Nuclear RegulatoryCommission (NRC).ACTION: Notice of the OMB review ofinformation collection and solicitationof public comment.

SUMMARY: The NRC has recentlysubmitted to OMB for review thefollowing for the collection ofinformation under the provisions of thePaperwork Reduction Act of 1995 (44U.S.C. Chapter 35).

1. Type of submission: Reinstatement.2. The title of the information

collection: Applicant Self-AssessmentForm.

3. The form number if applicable:NRC Form 563.

4. How often is the collectionrequired: On occasion.

5. Who will be required or asked toreport: Basically qualified externalapplicants applying for engineering andscientific positions with the NRC.

6. An estimated of the number ofresponses: 1,500.

7. The estimated number of annualrespondents: 1,500.

8. An estimate of the total number ofhours needed annually to complete the

requirement or request: 125 hours (fiveminutes per response).

9. An indication of whether Section3507(d). Pub. Law 104–13 applies: NotApplicable.

10. Abstract: The Applicant Self-Assessment will be used to collectuniform information from externalapplicants as to which technicalspecialties they possess that are uniqueto the needs of the NRC. Thisinformation will be reviewed by Officeof Personnel staff and used to matchapplicants’ technical specialties withthose required by selecting officialswhen an engineering or scientificvacancy position is to be filled.

Submit, by September 2, 1997,comments that address the followingquestions:

1. Is the proposed collection ofinformation necessary for the NRC toproperly perform its functions? Does theinformation have practical utility?

2. Is the burden estimate accurate?3. Is there a way to enhance the

quality, utility, and clarity of theinformation to be collected?

4. How can the burden of theinformation collection be minimized,including the use of automatedcollection techniques or other forms ofinformation technology?

A copy of the draft supportingstatement may be viewed free of chargeat the NRC Public Document Room,2120 L Street NW, (lower level),Washington, DC. Members of the publicwho are in the Washington, DC, area canaccess this document via modem on thePublic Document Room Bulletin Board(NRC’s Advanced Copy DocumentLibrary). Members of the public who arelocated outside of the Washington, DC,area can dial FedWorld, 1–800–303–9672, or use the FedWorld Internetaddress: fedworld.gov (Telnet). Thedocument will be available on thebulletin board for 30 days after thesignature date of the notice. If assistanceis needed in accessing the document,please contact the FedWorld help deskat 703–487–4608.

Comments and questions should bedirected to the OMB reviewer bySeptember 2, 1997: Edward Michlovich,Office of Information and RegulatoryAffairs (3150–0177), NEOB–10202,Office of Management and Budget,Washington, DC 20503.

Comments can also be submitted bytelephone at (202) 395–7318.

The NRC Clearance Officer is BrendaJo Shelton, (301) 415–7233.

Dated at Rockville, Maryland, this 23rd dayof July, 1997.


For the Nuclear Regulatory Commission.

Arnold E. Levin,Acting Designated Senior Official forInformation Resources Management.[FR Doc. 97–20185 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


Documents Containing Reporting orRecordkeeping Requirements; Officeof Management and Budget (OMB)Review

AGENCY: Nuclear RegulatoryCommission (NRC).ACTION: Notice of the OMB review ofinformation collection and solicitationof public comment.

SUMMARY: The NRC has recentlysubmitted to OMB for review thefollowing proposal for collection ofinformation under the provisions of thePaperwork Reduction Act of 1995 (44U.S.C. Chapter 35).

1. Type of submission, new, revision,or extension: Revision.

2. The title of the informationcollection: Proposed Rule, 10 FR Parts50 and 73, Frequency of Reviews andAudits for Emergency PreparednessPrograms, Safeguards Contingency Plansand Security Programs for NuclearPower Reactors.

3. The form number if applicable: Notapplicable.

4. How often is the collectionrequired: At least once every 2 years foreach program.

5. Who will be required or asked toreport: Nuclear power plant licensees.

6. An estimate of the number ofresponses: Approximately 170 per year.

7. The estimated number of annualrespondents: Approximately 73licensees per year.

8. An estimate of the number of hoursannually needed to complete therequirement or request: A reduction ofapproximately of 20,000 hrs annually(275 hours per licensee).

9. An indication of whether Section3504(h), Pub. L. 96–511 applies:Applicable.

10. Abstract: Currently, the frequencywith which licensees conductindependent reviews and audits of theiremergency preparedness programs,safeguards contingency plans, andsecurity programs is every 12 months.The proposed amendment wouldrequire that reactor licensees conductprogram reviews and audits in responseto program performance indicators, oron the occasion of a significant changein personnel, procedures, equipment, or

facilities, but in no case less frequentlythan every 24 months. The potentialsavings to some licensees could be asmuch as 50 percent of their currentcosts.

Submit by September 2, 1997,comments that address the followingquestions:

1. Is the proposed collection ofinformation necessary for the NRC toproperly perform its functions? Does theinformation have practical utility?

2. Is the burden estimate accurate?3. Is there a way to enhance the

quality, utility, and clarity of theinformation to be collected?

4. How can the burden of informationcollection be minimized, including theuse of automated collection techniquesor other forms of informationtechnology?

A copy of the submittal may beviewed free of charge at the NRC PublicDocument Room, 2120 L Street NW,(lower level), Washington, DC. Theproposed rule indicated in ‘‘the title ofthe information collection’’ is or hasbeen published in the Federal Registerwithin several days of the publicationdate of this Federal Register notice.Instruction for accessing the electronicOMB clearance package for therulemaking have been appended to theelectronic rulemaking. Members of thepublic may access the electronic OMBclearance package by following thedirections for electronic access providedin the preamble to the titled rulemaking.

Comments and questions should bedirected to the OMB reviewer bySeptember 2, 1997: Edward Michlovich,Office of Information and RegulatoryAffairs (3150 –0002,-0011), NEOB–10202, Office of Management andBudget, Washington, DC 20503.

Comments may also be communicatedby telephone at (202) 395–3084.

The NRC Clearance Officer is BrendaJo. Shelton, (301) 415–7233.

Dated at Bethesda, Maryland, this 24th dayof July, 1997.

For the Nuclear Regulatory Commission.Arnold E. Levin,Acting Designated Senior Official forInformation Resources Management.[FR Doc. 97–20186 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


Agency Information CollectionActivities: Submission for OMBReview; Comment Request

AGENCY: U.S. Nuclear RegulatoryCommission (NRC).

ACTION: Notice of the OMB review ofinformation collection and solicitationof public comment.

SUMMARY: The NRC has recentlysubmitted to OMB for review ofcontinued approval of informationcollection under the provisions of thePaperwork Reduction Act of 1995 (44U.S.C. Chapter 35). The NRC herebyinforms potential respondents that anagency may not conduct or sponsor, andthat a person is not required to respondto, a collection of information unless itdisplays a currently valid OMB controlnumber.

1. Type of submission, new, revision,or extension: Revision.

2. The title of the informationcollection: Policy statement onCooperation with States at CommercialNuclear Power Plants and OtherProduction or Utilization Facilities.

3. Current OMB approval number:3150–0163.

4. How often the collection isrequired: On occasion—when a Statewishes to observe NRC inspections orperform inspections for NRC.

5. Who is required or asked to report:Those States interested in observing orperforming inspections.

6. The number of annual respondents:Maximum of 50, although not all Stateshave participated in the program.

7. The number of hours neededannually to complete the requirement orrequest: An average estimate of 10 hoursper State or 500 hours if all Statesparticipated in the program.

8. An indication of whether Section3507(d), Pub. L. 104–13 applies: Notapplicable.

9. Abstract: States wishing to enterinto an agreement with NRC to observeor participate in NRC inspections atnuclear power facilities are requested toprovide certain information to the NRCto ensure close cooperation andconsistency with the NRC inspectionprogram as specified by theCommission’s Policy of Cooperationwith States at Commercial NuclearPower Plants and Other NuclearProduction or Utilization Facilities.

A copy of the submittal may beviewed free of charge at the NRC PublicDocument Room, 2120 L Street NW,(lower level), Washington, DC. Membersof the public who are in theWashington, DC area can access thesubmittal via modem on the PublicDocument Room Bulletin Board (NRC’sAdvanced Copy Document Library) NRCsubsystem at FedWorld, (703) 321–3339.Members of the public who are locatedoutside of the Washington, DC area candial FedWorld, 1–800–303–9672, or usethe FedWorld Internet address:


fedworld.gov (Telnet). The documentwill be available on the bulletin boardfor 30 days after the signature date ofthis notice. If assistance is needed inaccessing the document, please contactthe FedWorld help desk at (703) 487–4608. Additional assistance in locatingthe document is available from the NRCPublic Document Room, nationally at 1–800–397–4209, or within theWashington, DC area at (202) 634–3273.

Comments and questions may bedirected to the OMB reviewer bySeptember 2, 1997: Edward Michlovich,Office of Information and RegulatoryAffairs (3150–0163), NEOB–10202,Office of Management and Budget,Washington, DC 20503.

Comments can also be submitted bytelephone at (202) 395–3084.

The NRC Clearance Officer is BrendaJo. Shelton, (301) 415–7233.

Dated at Rockville, Maryland, this 24th dayof July, 1997.

For the Nuclear Regulatory Commission.Arnold E. Levin,Acting Designated Senior Official forInformation Resources Management.[FR Doc. 97–20187 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


[Docket No. 72–22]

Private Fuel Storage, Limited LiabilityCompany; Notice of Consideration ofIssuance of a Materials License for theStorage of Spent Fuel and Notice ofOpportunity for a Hearing

The Nuclear Regulatory Commissionis considering an application dated June20, 1997, for a materials license, underthe provisions of 10 CFR part 72, fromPrivate Fuel Storage, Limited LiabilityCompany (the applicant or PFS) topossess spent fuel and other radioactivematerials associated with spent fuelstorage in an independent spent fuelstorage installation (ISFSI) located onthe Skull Valley Goshute IndianReservation in Skull Valley, Utah. Ifgranted, the license will authorize theapplicant to store spent fuel in drystorage cask systems at the ISFSI whichthe applicant proposes to construct andoperate on the Skull Valley GoshuteIndian Reservation. Pursuant to theprovisions of 10 CFR part 72, the termof the license for the ISFSI would betwenty (20) years.

Prior to issuance of the requestedlicense, the NRC will have made thefindings required by the Atomic EnergyAct of 1954, as amended (the Act), andthe NRC’s rules and regulations. The

issuance of the materials license willnot be approved until the NRC hasreviewed the application and hasconcluded that approval of the licensewill not be inimical to the commondefense and security and will notconstitute an unreasonable risk topublic health and safety. The NRC, inaccordance with 10 CFR 51.20(b)(9),will complete an environmental impactstatement. This action will be thesubject of a subsequent notice in theFederal Register. Pursuant to 10 CFR2.105, by September 15, 1997, theapplicant may file a request for ahearing; and any person whose interestmay be affected by this proceeding andwho wishes to participate as a party inthe proceeding must file a writtenrequest for a hearing and a petition forleave to intervene with respect to thesubject materials license in accordancewith the provisions of 10 CFR 2.714. Ifa request for hearing or petition forleave to intervene is filed by the abovedate, an Atomic Safety and LicensingBoard designated by the Commission orby the Chairman of the Atomic Safetyand Licensing Board Panel will rule onthe request and/or petition, and theSecretary or the designated AtomicSafety and Licensing Board will issue anotice of hearing or an appropriateorder. In the event that no request forhearing or petition for leave to interveneis filed by the above date, the NRC may,upon satisfactory completion of allrequired evaluations, issue the materialslicense without further prior notice.

A petition for leave to intervene shallset forth with particularity the interestof the petitioner in the proceeding andhow that interest may be affected by theresults of the proceeding. The petitionshould specifically explain the reasonswhy intervention should be permittedwith particular reference to thefollowing factors: (1) The nature of thepetitioner’s right under the Act to bemade a party to the proceeding; (2) thenature and extent of the petitioner’sproperty, financial, or other interest inthe proceeding; and (3) the possibleeffect of any order that may be enteredin the proceeding on the petitioner’sinterest. The petition should alsoidentify the specific aspect(s) of thesubject matter of the proceeding as towhich petitioner wishes to intervene.Any person who has filed a petition forleave to intervene or who has beenadmitted as a party may amend apetition, without requesting leave of theBoard, up to 15 days prior to theholding of the first pre-hearingconference scheduled in the proceeding,but such an amended petition must

satisfy the specificity requirementsdescribed above.

Not later than fifteen (15) days priorto the first pre-hearing conferencescheduled in the proceeding, apetitioner shall file a supplement to thepetition to intervene which mustinclude a list of contentions which aresought to be litigated in the matter. Eachcontention must consist of a specificstatement of the issue of law or fact tobe raised or controverted. In addition,the petitioner shall provide a briefexplanation of the bases of thecontention and a concise statement ofthe alleged facts or expert opinionwhich support the contention and onwhich the petitioner intends to rely inproving the contention at the hearing.The petitioner must also providereferences to those specific sources anddocuments of which the petitioner isaware and on which the petitionerintends to rely to establish those facts orexpert opinion. Petitioner must providesufficient information to show that agenuine dispute exists with theapplicant on a material issue of law orfact. Contentions shall be limited tomatters within the scope of the actionunder consideration. The contentionmust be one which, if proven, wouldentitle the petitioner to relief. Apetitioner who fails to file such asupplement which satisfies theserequirements with respect to at least onecontention will not be permitted toparticipate as a party.

Those permitted to intervene becomeparties to the proceeding, subject to anylimitations in the order granting leave tointervene, and have the opportunity toparticipate fully in the conduct of thehearing.

A request for a hearing or a petitionfor leave to intervene must be filed withthe Secretary of the Commission, U.S.Nuclear Regulatory Commission,Washington, DC 20555, Attention:Docketing and Services Branch, or maybe delivered to the Commission’s PublicDocument Room, Gelman Building,2120 L Street, NW, Washington, DC, bythe above date. Where petitions are filedduring the last ten (10) days of thenotice period, it is requested that thepetitioner promptly so inform the NRCby a toll-free telephone call to WesternUnion at 1–(800) 248–5100 (in Missouri1–(800) 342–6700). The Western Unionoperator should be given DatagramIdentification Number N1023 and thefollowing message addressed to Mr.William F. Kane, Director, Spent FuelProject Office, Office of NuclearMaterial Safety and Safeguards;petitioner’s name and telephonenumber; date petition was mailed;facility name; and publication date and


page number of this Federal Registernotice. A copy of the petition shouldalso be sent to the Office of the GeneralCounsel, U.S. Nuclear RegulatoryCommission, Washington, DC 20555,and to Mr. Jay Silberg, P.C., Shaw,Pittman, Potts, & Trowbridge, 2300 NStreet, NW, Washington, DC 20037–8007.

Nontimely filings of petitions forleave to intervene, amended petitions,supplemental petitions, and/or requestsfor hearing will not be entertainedabsent a determination by theCommission, the presiding officer, orthe Atomic Safety and Licensing Boarddesignated to rule on the petition and/or request, that the petition and/orrequest should be granted based upon abalancing of the factors specified in 10CFR 2.714(a)(1) (i)–(v) and 2.714(d).

For further details with respect to thisaction, see the application dated June20, 1997, which is available for publicinspection at the Commission’s PublicDocument Room, 2120 L Street, NW,Washington, DC 20555. TheCommission’s license and safetyevaluation report, when issued, may beinspected at the above location.

Dated at Rockville, Maryland, this 21st dayof July 1997.

For the U.S. Nuclear RegulatoryCommission.William F. Kane,Director, Spent Fuel Project Office, Office ofNuclear Material Safety and Safeguards.[FR Doc. 97–20184 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


[Docket 70–7002]

Notice of Amendment to Certificate ofCompliance GDP–2 for the U.S.Enrichment Corporation PortsmouthGaseous Diffusion Plant Portsmouth,Ohio

The Director, Office of NuclearMaterial Safety and Safeguards, hasmade a determination that the followingamendment request is not significant inaccordance with 10 CFR 76.45. Inmaking that determination the staffconcluded that (1) there is no change inthe types or significant increase in theamounts of any effluents that may bereleased offsite; (2) there is nosignificant increase in individual orcumulative occupational radiationexposure; (3) there is no significantconstruction impact; (4) there is nosignificant increase in the potential for,or radiological or chemicalconsequences from, previously analyzed

accidents; (5) the proposed changes donot result in the possibility of a new ordifferent kind of accident; (6) there is nosignificant reduction in any margin ofsafety; and (7) the proposed changeswill not result in an overall decrease inthe effectiveness of the plant’s safety,safeguards or security programs. Thebasis for this determination for theamendment request is shown below.

The NRC staff has reviewed thecertificate amendment application andconcluded that it provides reasonableassurance of adequate safety, safeguards,and security, and compliance with NRCrequirements. Therefore, the Director,Office of Nuclear Material Safety andSafeguards, is prepared to issue anamendment to the Certificate ofCompliance for the Portsmouth GaseousDiffusion Plant. The staff has prepareda Compliance Evaluation Report whichprovides details of the staff’s evaluation.

The NRC staff has determined thatthis amendment satisfies the criteria fora categorical exclusion in accordancewith 10 CFR 51.22. Therefore, pursuantto 10 CFR 51.22(b), no environmentalimpact statement or environmentalassessment need be prepared for thisamendment.

USEC or any person whose interestmay be affected may file a petition, notexceeding 30 pages, requesting reviewof the Director’s Decision. The petitionmust be filed with the Commission notlater than 15 days after publication ofthis Federal Register Notice. A petitionfor review of the Director’s Decisionshall set forth with particularity theinterest of the petitioner and how thatinterest may be affected by the results ofthe decision. The petition shouldspecifically explain the reasons whyreview of the Decision should bepermitted with particular reference tothe following factors: (1) The interest ofthe petitioner; (2) how that interest maybe affected by the Decision, includingthe reasons why the petitioner shouldbe permitted a review of the Decision;and (3) the petitioner’s areas of concernabout the activity that is the subjectmatter of the Decision. Any persondescribed in this paragraph (USEC orany person who filed a petition) mayfile a response to any petition forreview, not to exceed 30 pages, within10 days after filing of the petition. If nopetition is received within thedesignated 15-day period, the Directorwill issue the final amendment to theCertificate of Compliance withoutfurther delay. If a petition for review isreceived, the decision on theamendment application will becomefinal in 60 days, unless the Commissiongrants the petition for review orotherwise acts within 60 days after

publication of this Federal RegisterNotice.

A petition for review must be filedwith the Secretary of the Commission,U.S. Nuclear Regulatory Commission,Washington, DC 20555–0001, Attention:Rulemakings and Adjudications Staff, ormay be delivered to the Commission’sPublic Document Room, the GelmanBuilding, 2120 L Street, NW,Washington, DC, by the above date.

For further details with respect to theaction see (1) the application foramendment and (2) the Commission’sCompliance Evaluation Report. Theseitems are available for public inspectionat the Commission’s Public DocumentRoom, the Gelman Building, 2120 LStreet, NW, Washington, DC, and at theLocal Public Document Room.

Date of amendment request: April 28,1997

Brief description of amendment: Theproposed amendment corrects atypographical error contained inTechnical Safety Requirement 2.6.4.2entitled ‘‘Air Gaps’’ by revisingSurveillance Requirement 2.6.4.2.1 from‘‘Verify and document the pressure ofair gaps required by NCSAs’’ to ‘‘Verifyand document the presence of air gapsrequired by NCSAs.’’

Basis for Finding of No Significance1. The proposed amendment will not

result in a change in the types orsignificant increase in the amounts ofany effluents that may be releasedoffsite.

The amendment corrects atypographical error in the surveillancerequirement of Technical SafetyRequirement 2.6.4.2 by replacing theword ‘‘pressure’’ with ‘‘presence.’’ Assuch, the proposed amendment will notresult in a change in the types orsignificant increase in the amounts ofany effluents that may be releasedoffsite.

2. The proposed amendment will notresult in a significant increase inindividual or cumulative occupationalradiation exposure.

The proposed amendment will notincrease radiation exposure.

3. The proposed amendment will notresult in a significant constructionimpact.

The proposed amendment will notresult in any construction, therefore,there will be no construction impacts.

4. The proposed amendment will notresult in a significant increase in thepotential for, or radiological or chemicalconsequences from, previously analyzedaccidents.

The proposed change involvescorrection of a typographical error. Assuch, it does not affect the potential for,


or radiological or chemicalconsequences from, previouslyevaluated accidents.

5. The proposed amendment will notresult in the possibility of a new ordifferent kind of accident.

The change will not create newoperating conditions or a new plantconfiguration that could lead to a newor different type of accident.

6. The proposed amendment will notresult in a significant reduction in anymargin of safety.

The proposed change corrects atypographical error. As such, there is noreductions in the margins of safety.

7. The proposed amendment will notresult in an overall decrease in theeffectiveness of the plant’s safety,safeguards or security programs.

The proposed amendment corrects atypographical error. As such, theeffectiveness of the safety, safeguards,and security programs is not decreased.

Effective date: 30 days after issuanceCertificate of Compliance No. GDP–2:

Amendment will incorporate a revisedSurveillance Requirement of aTechnical Safety Requirement.

Local Public Document Roomlocation: Portsmouth Public Library,1220 Gallia Street, Portsmouth, Ohio45662.

Dated at Rockville, Maryland, this 22ndday of July 1997.

For the Nuclear Regulatory CommissionCarl J. Paperiello,Director Office of Nuclear Material Safety andSafeguards.[FR Doc. 97–20036 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


[Docket 70–7001]

Notice of Receipt of AmendmentApplication to Certificate ofCompliance GDP–1 for The U.S.Enrichment Corporation PaducahGaseous Diffusion Plant Paducah,Kentucky; Notice of Comment Period

Notice is hereby given that the U.S.Nuclear Regulatory Commission (NRCor the Commission) has received anamendment application from the UnitedStates Enrichment Corporation that maybe considered to be significant pursuantto 10 CFR 76.45. Any interested partymay submit written comments on theapplication for amendment forconsideration by the staff. To be certainof consideration, comments must bereceived by September 2, 1997.Comments received after the due datewill be considered if it is practical to do

so, but the Commission is able to assureconsideration only for commentsreceived on or before this date.

Written comments on the amendmentapplication should be mailed to theChief, Rules Review and DirectivesBranch, Office of Administration, U.S.Nuclear Regulatory Commission,Washington, DC 20555, or may be handdelivered to 11545 Rockville Pike,Rockville, MD 20852 between 7:45 a.m.and 4:15 p.m. Federal workdays.Comments should be legible andreproducible, and include the name,affiliation (if any), and address of thesubmitter. All comments received by theCommission will be made available forpublic inspection at the Commission’sPublic Document Room and the LocalPublic Document Room. In accordancewith 10 CFR 76.62 and 76.64, a memberof the public must submit writtencomments to be eligible to petition theCommission requesting review of theDirector’s Decision on the amendmentrequest.

For further details with respect to theaction see the application foramendment. The application isavailable for public inspection at theCommission’s Public Document Room,the Gelman Building, 2120 L Street,NW, Washington, DC, and at the LocalPublic Document Room.

Date of amendment request: April 23,1997.

Brief description of amendment: Theamendment is related to the plannedmodifications to upgrade the seismiccapability of Buildings C–331 and C–335 at the Paducah Gaseous DiffusionPlant. Specifically, the proposedamendment will move back thecompletion date for the seismicmodifications contained in CompliancePlan Issue 36. Additionally, thefollowing three issues will be addressed:(1) The increased stiffness of thebuildings following completion of themodifications may increase the numberand the probability of seismically-induced equipment failures inside thebuildings; (2) the process of installingthe new structural steel may temporarilymake the building and containedequipment more susceptible toseismically-induced failure as theexisting structural frames are alteredand/or replaced; and (3) the process ofinstalling the new structural steel maytemporarily increase the probability ofequipment failures due to postulatedload handling accidents duringconstruction.

Certificate of Compliance No. GDP–1:Amendment will revise CompliancePlan Issue 36 on the seismicmodifications and will allow theplanned modifications to proceed.

Local Public Document Roomlocation: Paducah Public Library, 555Washington Street, Paducah, Kentucky42003.

Dated at Rockville, Maryland, this 22ndday of July 1997.

For the Nuclear Regulatory Commission.Carl J. Paperiello,Director, Office of Nuclear Material Safetyand Safeguards.[FR Doc. 97–20039 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


[Docket Nos. 50–369 and 50–370]

Duke Power Company; McGuireNuclear Station, Units 1 and 2;Environmental Assessment and;Finding of No Significant Impact

The U.S. Nuclear RegulatoryCommission (the Commission) isconsidering issuance of an exemptionfrom certain requirements of itsregulations for Facility OperatingLicense Nos. NPF–9 and NPF–17 issuedto the Duke Power Company (thelicensee), for operation of the McGuireNuclear Station, Units 1 and 2, locatedin Mecklenburg County, North Carolina.

Environmental Assessment

Identification of Proposed ActionThe proposed action would exempt

the licensee from the requirements of 10CFR 70.24, which requires a monitoringsystem that will energize clear audiblealarms if accidental criticality occurs ineach area in which special nuclearmaterial is handled, used, or stored. Theproposed action would also exempt thelicensee from the requirements tomaintain emergency procedures for eacharea in which this licensed specialnuclear material is handled, used, orstored to ensure that all personnelwithdraw to an area of safety upon thesounding of the alarm, to familiarizepersonnel with the evacuation plan, andto designate responsible individuals fordetermining the cause of the alarm, andto place radiation survey instruments inaccessible locations.

The proposed action is in response tothe licensee’s application datedFebruary 4, 1997, as supplemented onMarch 19, 1997.

The Need for the Proposed ActionThe purpose of 10 CFR 70.24 is to

ensure that if a criticality were to occurduring the handling of special nuclearmaterial, personnel would be alerted tothat fact and would take appropriateaction. At a commercial nuclear power


plant the inadvertent criticality withwhich 10 CFR 70.24 is concerned couldoccur during fuel handling operations.The special nuclear material that couldbe assembled into a critical mass at acommercial nuclear power plant is inthe form of nuclear fuel; the quantity ofother forms of special nuclear materialthat is stored on site is small enough topreclude achieving a critical mass.Because the fuel is not enriched beyond4.75 weight percent Uranium-235 andbecause commercial nuclear plantlicensees have procedures and featuresdesigned to prevent inadvertentcriticality, the staff has determined thatit is unlikely that an inadvertentcriticality could occur due to thehandling of special nuclear material ata commercial power reactor. Therequirements of 10 CFR 70.24, therefore,are not necessary to ensure the safety ofpersonnel during the handling of specialnuclear materials at commercial powerreactors.

Environmental Impacts of the ProposedAction

The Commission has completed itsevaluation of the proposed action andconcludes that there is no significantenvironmental impact if the exemptionis granted. Inadvertent or accidentalcriticality will be precluded throughcompliance with the McGuire NuclearStation Technical Specifications, thedesign of the fuel storage racksproviding geometric spacing of fuelassemblies in their storage locations,and administrative controls imposed onfuel handling procedures. TechnicalSpecifications requirements specifyreactivity limits for the fuel storageracks and minimum spacing betweenthe fuel assemblies in the storage racks.

Appendix A of 10 CFR Part 50,‘‘General Design Criteria for NuclearPower Plants,’’ Criterion 62, requires thecriticality in the fuel storage andhandling system to be prevented byphysical systems or processes,preferably by use of geometrically safeconfigurations. This is met at McGuire,as identified in the TechnicalSpecification Sections 3/4.9 and 5.6 andin the Updated Final Safety AnalysisReport (UFSAR) Section 9.1, by detailedprocedures that must be available foruse by refueling personnel. Therefore, asstated in the Technical Specifications,these procedures, the TechnicalSpecifications requirements, and thedesign of the fuel handling equipmentwith built-in interlocks and safetyfeatures, provide assurance that it isunlikely that an inadvertent criticalitycould occur during refueling. Inaddition, the design of the facility does

not include provisions for storage of fuelin a dry location.

UFSAR Section 9.1.1, New FuelStorage, states that new fuel is stored inthe New Fuel Storage Racks locatedwithin a New Fuel Storage Vault at eachMcGuire unit. The new fuel storageracks are arranged to provide drystorage. The racks consist of verticalcells grouped in parallel rows, six rowswide and 16 cells long, which providesupport for the new fuel assemblies andmaintain a minimum center-to-centerdistance of 21 inches betweenassemblies. (Note that in none of theselocations would criticality be possible.)

The proposed exemption would notresult in any significant radiologicalimpacts. The proposed exemptionwould not affect radiological planteffluent nor cause any significantoccupational exposures since theTechnical Specifications, designcontrols (including geometric spacingand design of fuel assembly storagespaces) and administrative controlspreclude inadvertent criticality. Theamount of radioactive waste would notbe changed by the proposed exemption.

The proposed exemption does notresult in any significant nonradiologicalenvironmental impacts. The proposedexemption involves features locatedentirely within the restricted area asdefined in 10 CFR Part 20. It does notaffect nonradiological plant effluentsand has no other environmental impact.Accordingly, the Commission concludesthat there are no significantnonradiological environmental impactsassociated with the proposed action.

Alternatives to the Proposed ActionSince the Commission has concluded

that there is no measurableenvironmental impact associated withthe proposed action, any alternativeswith equal or greater environmentalimpact need not be evaluated. As analternative to the proposed exemption,the staff considered denial of therequested exemption. Denial of therequest would result in no change incurrent environmental impacts. Theenvironmental impacts of the proposedaction and the alternative action aresimilar.

Alternative Use of ResourcesThis action does not involve the use

of any resources not previouslyconsidered in the ‘‘Final EnvironmentalStatement Related to the Operation ofMcGuire Nuclear Station Units 1, 2, and3’’ dated March 1972.

Agencies and Persons ConsultedIn accordance with its stated policy,

on July 12, 1997, the staff consulted

with the North Carolina State official,Richard Fry of the Division of RadiationProtection, North Carolina Departmentof Environment, Health, and NaturalResources, regarding the environmentalimpact of the proposed exemption. TheState official had no comments.

Finding of No Significant Impact

Based upon the environmentalassessment, the Commission concludesthat the proposed action will not havea significant effect on the quality of thehuman environment. Accordingly, theCommission has determined not toprepare an environmental impactstatement for the proposed action.

For further details with respect to theproposed action, see the licensee’s letterdated February 4, 1997, and supplementdated March 19, 1997, which areavailable for public inspection at theCommission’s Public Document Room,The Gelman Building, 2120 L Street,NW., Washington, DC, and at localpublic document room located at the J.Murrey Atkins Library, University ofNorth Carolina at Charlotte, 9201University City Boulevard, NorthCarolina.

Dated at Rockville, Maryland, this 24th dayof July 1997.

For the Nuclear Regulatory Commission.Peter S. Tam,Acting Director, Project Directorate II–2,Division of Reactor Projects—I/II, Office ofNuclear Reactor Regulation.[FR Doc. 97–20190 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


[Docket Nos. 50–413 and 50–414]

Duke Power Company, et al.; CatawbaNuclear Station, Units 1 and 2,Environmental Assessment andFinding of No Significant Impact

The U.S. Nuclear RegulatoryCommission (the Commission) isconsidering issuance of amendments toFacility Operating License Nos. NPF–35and NPF–52, issued to Duke PowerCompany, et al. (the licensee), foroperation of the Catawba NuclearStation, Units 1 and 2, located in YorkCounty, South Carolina.

Environmental Assessment

Identification of Proposed Action

The proposed action would amendthe licenses to reflect the licensee’sname change from ‘‘Duke PowerCompany’’ to ‘‘Duke EnergyCorporation.’’


The proposed action is in response tothe licensee’s application dated June 12,1997.

The Need for the Proposed Action

Duke Power Company changed itsname to ‘‘Duke Energy Corporation.’’The facility operating licenses forCatawba were issued to indicate thename of the licensee as ‘‘Duke PowerCompany,’’ and therefore need to beamended to substitute the new name ofthe licensee. The proposed action ispurely administrative.

Environmental Impacts of the ProposedAction

The Commission has completed itsevaluation of the proposed action andconcludes that there is no significantenvironmental impact if theamendments are granted. No changeswill be made to the design and licensingbases, and procedures of the two unitsat Catawba Nuclear Station. Other thanthe name change, no other changes willbe made to the facility operatinglicenses, including the TechnicalSpecifications.

The change will not increase theprobability or consequences ofaccidents, no changes are being made inthe types of any effluents that may bereleased offsite, and there is nosignificant increase in the allowableindividual or cumulative occupationalradiation exposure. Accordingly, theCommission concludes that there are nosignificant radiological environmentalimpacts associated with the proposedaction.

With regard to potentialnonradiological impacts, the proposedaction does not affect nonradiologicalplant effluents and has no otherenvironmental impact. Accordingly, theCommission concludes that there are nosignificant nonradiologicalenvironmental impacts associated withthe proposed action.

Alternatives to the Proposed Action

Since the Commission has concludedthere is no measurable environmentalimpact associated with the proposedaction, any alternatives with equal orgreater environmental impact need notbe evaluated. As an alternative to theproposed action, the staff considereddenial of the proposed action. Denial ofthe application would result in nochange in current environmentalimpacts. The environmental impacts ofthe proposed action and the alternativeaction are similar.

Alternative Use of Resources

This action does did not involve theuse of any resources not previously

considered in the Final EnvironmentalStatement related to the CatawbaNuclear Station.

Agencies and Persons Contacted

In accordance with its stated policy,on July 11, 1997, the staff consultedwith the South Carolina State official,Virgil Autrey of the Bureau ofRadiological Health, South CarolinaDepartment of Health andEnvironmental Control, regarding theenvironmental impact of the proposedamendments. The State official had nocomments.

Finding of No Significant Impact

Based upon the foregoingenvironmental assessment, theCommission concludes that theproposed amendments will not have asignificant effect on the quality of thehuman environment. Accordingly, theCommission has determined not toprepare an environmental impactstatement for the proposedamendments.

For further details with respect to theproposed action, see the licensee’srequest for the amendments dated June12, 1997, which is available for publicinspection at the Commission’s PublicDocument Room, The Gelman Building,2120 L Street, NW., Washington DC, andat the local public document roomlocated at the York County Library, 138East Black Street, Rock Hill, SouthCarolina.

Dated at Rockville, Maryland, this 24th dayof July 1997.

For the Nuclear Regulatory Commission.Peter S. Tam,Acting Director, Project Directorate II–2,Division of Reactor Projects—I/II, Office ofNuclear Reactor Regulation.[FR Doc. 97–20188 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P


Updated Standard Review PlanChapter 7: Issuance, Availability

The Nuclear Regulatory Commission(NRC) has prepared an update toChapter 7, Instrumentation andControls, of NUREG–0800, ‘‘StandardReview Plan for the Review of SafetyAnalysis Reports for Nuclear PowerPlants,’’ (SRP). The updated SRPChapter 7, Revision 4, incorporateschanges in the NRC review criteria inthe area of instrumentation and control(I&C) systems, particularly digitalcomputer-based I&C systems of nuclearpower plants that have occurred since

the last major revision of the SRP in1981.

The revisions were derived from thefollowing programmatic areas: NRCregulatory documents issued after the1981 SRP revision; NRC staff positionsrelated to digital I&C system retrofits atoperating nuclear power plants asdocumented in relevant safetyevaluation reports; NRC staffendorsement of industry consensusstandards applicable to I&C systems;NRC staff positions related toevolutionary and advanced light waterreactor design reviews as presented inSECY–91–292, ‘‘Digital ComputerSystems for Advanced Light WaterReactors,’’ and the Staff RequirementsMemorandum on SECY–93–087,‘‘Policy, Technical, and Licensing IssuesPertaining to Evolutionary andAdvanced Light Water Reactor (ALWR)Designs;’’ NRC design certificationsafety evaluation reports for the GeneralElectric Advanced Boiling WaterReactor Design and the ABB-CE System80+ Design; and nuclear power plantoperating experience. The revised textfor the SRP Chapter 7 update includesthe resolution of public commentsreceived in response to the draft versionissued on December 6, 1996.

The updated SRP Chapter 7 is a‘‘rule’’ for the purposes of the SmallBusiness Regulatory EnforcementFairness Act (5 U.S.C., Chapter 8). Thestaff believes that SRP Chapter 7,Revision 4 is a non-major rule and is inthe process of confirming this with theOffice of Management and Budget(OMB).

The updated SRP Chapter 7, Revision4 does not, by itself, establish any newor revised requirements. It incorporatespreviously established NRC staffpositions, and lessons learned from thecompleted reviews of I&C systems in theadvanced light water reactors anddigital I&C system retrofits of operatingreactors. The review guidance describedin the updated SRP Chapter 7 will beused by the NRC staff in the evaluationof future submittals in connection withapplications for construction permits,standard design certifications anddesign approvals, combined operatinglicenses, and operating plant licenseamendments.

The updated SRP Chapter 7, Revision4, is being made available to the publicas part of the NRC’s policy to inform thenuclear industry and the general publicof regulatory procedures and policies.SRP Chapter 7 will be revisedperiodically, as appropriate, toaccommodate future new technologies,information, and experience. The NRCencourages comments from interestedparties. Comments and suggestions will


be considered in future revisions to thedocument. Written comments may besubmitted to Chief, Rules Review andDirectives Branch, Division of Freedomof Information and Publication Services,U.S. Nuclear Regulatory Commission,Washington, DC 20555–0001.

The SRP Chapter 7, Revision 4 will beaccessible indefinitely from the NRCHomepage on the World Wide Web—URL: http://www.nrc.gov under the‘‘Nuclear Reactors’’ menu options byselecting ‘‘Standard Review PlanChapter 7, Instrumentation andControls,’’ beginning September 1997.Specific guidance is provided on-line toguide the user on the various optionsavailable for reading, commenting on,and downloading the document.

Chapter 7 of the SRP is available forinspection and copying at the NRCPublic Document Room, 2120 L StreetNW (Lower Level), Washington, DC20555.

A limited number of copies of SRPChapter 7 in the printed form on paperare available free, to the extent ofsupply, upon written request to theOffice of Administration, DistributionSection, U.S. Nuclear RegulatoryCommission, Washington, DC 20555–0001, or by fax at (301) 415–2260.

Dated at Rockville, Maryland, this 22ndday of July, 1997.

For the Nuclear Regulatory Commission.Jared Wermiel,Chief, Instrumentation and Controls Branch,Division of Reactor Controls and HumanFactors, Office of Nuclear Reactor Regulation.[FR Doc. 97–20040 Filed 7–30–97; 8:45 am]BILLING CODE 7590–01–P

RAILROAD RETIREMENT BOARD

Proposed Collection; CommentRequest

SUMMARY: In accordance with therequirement of Section 3506 (c)(2)(A) ofthe Paperwork Reduction Act of 1995which provides opportunity for publiccomment on new or revised datacollecitons, the Railroad RetirementBoard (RRB) will publish periodicsummaries of proposed data collections.

Comments are invited on: (a) Whetherthe proposed information collection isnecessary for the proper performance ofthe functions of the agency, includingwhether the information has practicalutility; (b) the accuracy of the RRB’sestimate of the burden of the collectionof the information; (c) ways to enhancethe quality, utility, and clarity of theinformation to be collected; and (d)ways to minimize the burden related to

the collection of information onrespondents, including the use ofautomated collection techniques orother forms of information technology.

Title and purpose of informationcollection: Application to Act asRepresentative Payee; OMB 3220–0052.Under Section 12 of the RailroadRetirement Act, the Railroad RetirementBoard (RRB) may pay benefits to arepresentative payee when an employee,spouse or survivor annuitant isincompetent or is a minor. Arepresentative payee may be a court-appointed guardian, a statutoryconservator or an individual selected bythe RRB. The producers pertaining tothe appointment and responsibilities ofa representative payee are prescribed in20 CFR part 266.

The forms furnished by the RRB toapply for representative payee status,and for securing the information neededto support the application follow. RRBForm AA–5, Application forSubstitution of Payee, obtainsinformation needed to determine theselection of a representative payee whowill serve in the best interest of thebeneficiary. RRB Form G–478,Statement Regarding Patient’sCapability to Manage Payments, obtainsinformation about an annuitant’scapability to manage payments. Theform is completed by the annuitant’spersonal physician or by a medicalofficer, if the annuitant is in aninstitution. It is not required when acourt has appointed an individual orinstitution to manage the annuitant’sfunds or, in the absence of suchappointment, when the annuitant is aminor.

Completion is voluntary. Oneresponse is requested of reachrespondent. The RRB is proposingminor editorial changes to Forms AA–5 and G–478 to incorporate languagerequired by the Paperwork ReductionAct of 1995. No other changes areproposed. The estimated completiontime(s) is estimated at 17 minutes forForm AA–5 and 6 minutes for Form G–478. The RRB estimates thatapproximately 3,000 Form AA–5’s and2,000 Form G–478’s are completedannually.ADDITIONAL INFORMATION OR COMMENTS:To request more information or toobtain a copy of the informationcollection justification, forms, and/orsupporting material, please call the RRBClearance Officer at (312) 751–3363.Comments regarding the informationcollection should be addressed toRonald J. Hodapp, Railroad RetirementBoard, 844 North Rush Street, Chicago,

Illinois 60611–2092. Written commentsshould be received within 60 days ofthis notice.Chuck Mierzwa,Clearance Officer.[FR Doc. 97–20205 Filed 7–30–97; 8:45 am]


SECURITIES AND EXCHANGECOMMISSION

[Release No. IC–22765; File No. 812–10722]

Aetna Life Insurance and AnnuityCompany, et al.

July 25, 1997.

AGENCY: Securities and ExchangeCommission (‘‘SEC’’ or ‘‘Commission’’).

ACTION: Notice of application forexemptions under the InvestmentCompany Act of 1940 (‘‘1940 Act’’).

APPLICANTS: Aetna Life Insurance andAnnuity Company (‘‘Aetna Annuity’’)and its Variable Annuity Account B.Variable Annuity Account C, andVariable Life Account B; and AetnaInsurance Company of America (‘‘Aetnaof America’’ and collectively with AetnaAnnuity, ‘‘Aetna’’) and its VariableAnnuity Account I.

RELEVANT 1940 ACT SECTIONS: Ordersrequested pursuant to Sections 26(b)and 17(b) of the 1940 Act.

SUMMARY OF APPLICATION: Applicantsseek an order pursuant to Section 26(b)of the 1940 Act, approving thesubstitution of shares of certainunaffiliated registered managementinvestment companies (‘‘ReplacedFunds’’) with shares of certain Aetna-advised, registered managementinvestment companies (‘‘SubstituteFunds’’). Applicants also seek an order,pursuant to Section 17(b) of the 1940Act, granting exemptions from Section17(a) to permit Applicants to carry outthe above-referenced substitutions inpart by redeeming shares of theReplaced Funds in-kind, and using theredemption proceeds to purchase sharesof the Substitute Funds, and to permitApplicants to combine certainsubaccounts holding shares of the sameSubstitute Fund after the substitutions.

FILING DATE: The application was filedon July 18, 1997, and amended andrestated on July 24, 1997.

HEARING OR NOTIFICATION OF HEARING: Anorder granting the application will be


issued unless the Commission orders ahearing. Interested persons may requesta hearing by writing to the Secretary ofthe Commission and serving Applicantswith a copy of the request, personally orby mail. Hearing requests should bereceived by the Commission by 5:30p.m. on August 19, 1997, and should beaccompanied by proof of service onApplicants, in the form of an affidavitor, 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 Secretary of theCommission.ADDRESSES: Secretary, Securities andExchange Commission, 450 fifth Street,N.W., Washington, DC 20549.Applicants, c/o Julie Rockmore, Esquire,Aetna Life Insurance and AnnuityCompany, 151 Farmington Avenue,RE4A, Hartford, CT 06156.FOR FURTHER INFORMATION CONTACT:Megan L. Dunphy, Attorney, or MarkAmorosi, Branch Chief, Office ofInsurance Products, Division ofInvestment Management, at (202) 942–0670.SUPPLEMENTARY INFORMATION: Thefollowing is a summary of theapplication. The complete application isavailable for a fee from the PublicReference Branch of the Commission.

Applicants’ Representations1. Aetna Annuity, a stock life

insurance company incorporated inConnecticut, is authorized to issue lifeinsurance and annuities in the Districtof Columbia, Guam, Puerto Rico, theVirgin Islands and all states of theUnited States. Aetna Annuity is anindirect subsidiary of Aetna Inc., whichis a holding company with shares tradedon the New York Stock Exchange.

2. Aetna of America, a stock lifeinsurance company incorporated in

Connecticut, is authorized to dobusiness in the District of Columbia andall states of the United States exceptNew York and North Carolina. Aetna ofAmerica is a wholly-owned subsidiaryof Aetna Annuity.

3. Aetna Annuity’s Variable AnnuityAccount B, Variable Annuity Account Cand Variable Life Account B and Aetnaof America’s Variable Annuity AccountI (collectively, the ‘‘Separate Accounts’’)are separate accounts established byAetna pursuant to the insurance laws ofConnecticut and are registered underthe 1940 Act as unit investment trusts.The assets of each Separate Accountsupport either variable Annuitycontracts or variable life insurancepolicies issued by Aetna (‘‘Products’’).Interests in each of the SeparateAccounts offered through such Productsare registered under the Securities Actof 1933 (‘‘1933 Act’’).

4. The variable annuity contracts andvariable life policies are structured toallow the accumulation of assets to fundbenefits payable under the Products(annuity payments or life insuranceproceeds). The assets accumulate invariable or fixed investment options.The variable investment options areregistered management investmentcompanies or separate series of thosecompanies (‘‘Funds’’). Contributionsallocated to a given Fund through aProduct are used to buy shares of thatFund. The shares of each Fund are heldin a separate subaccount of a SeparateAccount.

5. Most of Aetna’s variable annuitycontracts are issued as group contractswhere the owner of the contract is theemployer, sponsor or trustee(‘‘Sponsor’’) of a group retirement plan.Members of the group (‘‘Participants’’)acquire an interest in the contract andhave certain rights as determined by thegroup contract or the retirement plan.The remaining contracts are issued to oron behalf of individuals. All contracts

allow the owners (including Sponsors)of the Product (‘‘Customers’’) or in thecase of group contracts or policies,Participants, to allocate paymentsamong the variable and fixedinvestment options available under thecontract.

6. Variable life policies issued byAetna Annuity include individualvariable life, second to die, corporatevariable universal life and groupvariable life policies. Premiumpayments under the policies accumulatein variable and fixed investment optionsin the same manner as for variableannuity contracts. Accumulatedamounts are used to fund death benefitsand withdrawals payable under thepolicies.

7. There are currently 53 differentFunds offered as variable investmentoptions under the various Products, ofwhich 11 have Aetna Annuity as theinvestment adviser and its affiliate,Aeltus Investment Management, Inc., asthe subadviser (‘‘Aetna Funds’’). TheFunds are registered as managementinvestment companies under the 1940Act and the shares of each Fund areregistered under the 1933 Act.

8. Aetna is organizing a newmanagement investment company,Portfolio Partners, Inc. (‘‘PortfolioPartners’’), which will be authorized toissue shares in series (‘‘Portfolios’’),each having its own investmentobjectives and policies and its ownassets. Aetna will serve as theinvestment adviser of Portfolio Partnersand has contracted with unaffiliatedthird parties to manage the assets ofeach series of Portfolio Partners assubadviser.

9. Applicants propose to substituteshares of the Substitute Funds, fivePortfolios and two Aetna Funds, forshares of the Replaced Funds, elevenunaffiliated Funds (see Table 1).

TABLE 1.—FUNDS TO BE REPLACED

Replaced fund Substitute fund

1. Scudder Variable Life Investment Fund—International Portfolio(Class A Shares).

Portfolio Partners Scudder International Growth Portfolio.

2. MSF Emerging Growth Series ............................................................. Portfolio Partners MFS Emerging Equities Portfolio.3. MFS Research Series .......................................................................... Portfolio Partners MFS Research Growth Portfolio.4. MFS Value Series ................................................................................ Portfolio Partners MFS Value Equity Portfolio.5. American Century VP Capital Appreciation (Formerly TCI Growth) .... Portfolio Partners MFS Research Growth Portfolio.6. Alger American Small Capitalization Portfolio ...................................... Portfolio Partners MFS Emerging Equities Portfolio.7. Alger American MidCap Growth Portfolio ............................................ Portfolio Partners T. Rowe Price Growth Equity Portfolio.8. Alger American Growth Portfolio .......................................................... Portfolio Partners T. Rowe Price Growth Equity Portfolio.9. Neuberger & Berman AMT Growth Portfolio ....................................... Portfolio Partners MFS Value Equity Portfolio.10. Janus Aspen Short-Term Bond Portfolio ........................................... Aetna Variable Encore Fund (money market).11. Franklin Government Securities Trust ................................................ Aetna Income Shares (bond).


10. Applicants represent that theSubstitute Funds have investmentobjectives the same as, similar to, orconsistent with the objectives of theReplaced Funds. For each of thesubstitutions numbered 1–4 in Table 1above, the Replaced Fund andSubstitute Fund are ‘‘clone’’ funds ofthe same retail fund and have the sameinvestment objectives, and theinvestment adviser of the ReplacedFund will continue to provideinvestment advice to the SubstituteFund as a sub-adviser to the Fund.

For each of the Substitutionsnumbered 5–9 in Table 1 above,Applicants state that the investmentobjectives of the Replaced Fund andSubstitute Fund involved are not thesame, but are substantially similar. Foreach substitution, Applicants haveconcluded that, the investmentobjectives of the Substitute Funds aresufficiently similar to those of theReplace Funds so that the investmentobjectives of Customers and Participantscan be met.

In the substitutions numbered 10 and11 in Table 1 above, Applicants statethat the investment objectives of the twofunds, although different, are generallyconsistent. For each substitution,Applicants have concluded that theinvestment objectives are sufficientlyconsistent with those of the ReplaceFunds so that the essential investmentobjectives of Customers and Participantscan be met.

11. Applicants state that the proposedsubstitutions are part of an overallbusiness plan of Aetna to make itsProducts more competitive and thusmore attractive to Customers and moreefficient to administer and oversee.Applicants represent that the proposedsubstitutions and related transactionswill be in the best interest of Customersand Participants in that they will (i)continue to provide the benefits of thirdparty asset management whileincreasing Aetna’s ability to control theexpenses associated with themanagement and administration of theFunds; (ii) replace Funds with higherthan average volatility, performanceinconsistency and/or below averageperformance; (iii) replace funds withinsufficient assets to remain costeffective, and (iv) reduce costs and thepotential for conflicts.

12. The prospectuses for each of theregistration statements affected by theproposed substitution will be amendedto describe the Substitute Funds,identify which Funds are being replacedand disclose the impact of theSubstitutions on Fund fees andexpenses. The amendments will be

distributed to all Customers andParticipants.

13. Aetna will file with theCommission a new registrationstatement on Form N–1A, registeringPortfolio Partners under the 1940 Actand registering shares in each Portfoliounder the 1933 Act. Applicants statethat copies of the Portfolio prospectuseswill be distributed to Customers andParticipants. Alternatively, Applicantsmay send summaries (Summaries) of thePortfolio prospectuses to Participantsdescribing the material features of eachPortfolio, including its investmentobjective and policies, risks, investmentadviser, and to the extent applicable,past performance and a comparison ofthat performance to an appropriateindex. The Summaries also will adviseParticipants that before they make anydecision to transfer assets, they areentitled to review the Substitute Fundprospectuses and amendments to theprospectuses for their Products, andinclude instructions on how to obtainfree copies.

14. Applicants state that theprospectuses for the Portfolios andamendments to the Productprospectuses will be accompanied bynotices to all Customers andParticipants advising them of thesubstitutions. The notice will be sent toall Customers and Participants at least60 days prior to the date thesubstitutions (‘‘Substitution Date’’) willtake place and will describe thePortfolios and their sub-advisers, thefunds affected by the substitutions, thereasons for engaging in thesubstitutions, and the material termsand conditions of the substitutions. Thenotice also will advise Customers andParticipants that they can transfer assetsfrom any Replaced or Substitute Fund toany other funding options availableunder their Product, without charge andwithout limitation on the number oftransfers from the date of the noticethrough a date at least 30 days followingthe date of the substitution, or withdrawassets from the Products subject toapplicable deferred sales charges.Customers and Participants who hadassets in Replaced Funds will be sentconfirmation of the substitutions withinfive days following the SubstitutionDate confirming that the substitutionshave been completed.

15. Applicants represent that theproposed substitutions will be effectedby redeeming shares of the ReplacedFunds on the Substitution Date at netasset value and using the proceeds topurchase shares of the Substitute Fundsat net asset value on the same date. Notransfer or similar charges will beimposed by Aetna and, at all times, all

contract and policy values will remainunchanged and fully invested.

16. The use of in-kind redemptionsand contributions will be done in amanner consistent with the investmentobjectives and policies anddiversification requirements of theapplicable Substitute Fund, and AetnaAnnuity and each Substitute Fund’ssubadviser will review the in-kindredemptions to assure that the assetsproposed are suitable for the SubstituteFund. The assets subject to in-kindredemption and purchase will be valuedbased on the normal valuationprocedures of the redeeming andpurchasing Funds. Applicants state thatany inconsistencies in valuationprocedures between the Replaced Fundand the Substitute Fund will bereconciled so that the redeeming andpurchasing values are the same.

17. Applicants state that after thesubstitutions have been completed, inseveral instances, there will be two ormore subaccounts of the same SeparateAccount holding shares of the sameSubstitute Fund. In any such instance,Applicants intend to combine those twosubaccounts into a single subaccount bytransferring shares from one subaccountto the other. The transfers will be doneat net asset value on the same date sothat there is no financial impact to anyCustomer or Participant.

Terms and Conditions of theTransactions

1. Terms

The significant terms of thesubstitutions described in theapplication include:

a. The Substitute Funds haveobjectives, policies and restrictionssufficiently similar to the objectives ofthe Replaced Funds so that theCustomers’ and Participants’ objectiveswill continue to be met.

b. Aetna will waive its fees and/orreimburse the Portfolios’ expenses sothat through April 30, 1999, the fees andexpenses of the Portfolios will notexceed the fees and expenses set forthfor those Funds in the application,which in all cases are less than those ofthe Replaced Funds. Aetna anticipatesthat after April 30, 1999, the fees andexpenses of the Portfolios will continueto be less than or equal to thosecurrently charged by the applicableReplaced Funds, assuming that the assetlevels of the Portfolios do not decreasesignificantly.

c. Customers may transfer assets fromthe Replaced or Substitute Funds to anyother Fund available under theirProduct without any charge from the


date of notice through a date at least 30days following the Substitution Date.

d. The substitutions, in all cases, willbe effected at the net asset value of therespective shares in conformity withSection 22(c) of the 1940 Act and Rule22c–1 thereunder, without theimposition of any transfer or similarcharge by Aetna.

e. The substitution will take place atrelative net asset value with no changein the amount of any Customer’s orParticipant’s contract or policy value orin the dollar value of his or herinvestment in such contract or policy.Customers and participants will notincur any fees or charges as a result ofthe proposed substitutions, nor willtheir rights or Aetna’s obligations underthe contracts be altered in any way. Allexpenses incurred in connection withthe proposed substitutions, includinglegal, accounting and other fees andexpenses, will be paid by Aetna. Theproposed substitutions will not causethe contract fees and charges currentlybeing paid by existing Customers andParticipants to be greater after theproposed substitutions than before theproposed substitutions.

f. Redemptions in-kind will be donein a manner consistent with theinvestment objectives and policies anddiversification requirements of theapplicable Substitute Fund and AetnaAnnuity and each Substitute Fund’ssubadviser will review the in-kindredemptions to assure that the assetsproposed for the Fund are suitable forthe Substitute fund. Consistent withRule 17a–7(d) under the 1940 Act, nobrokerage commissions, fees (exceptcustomary transfer fees) or otherremuneration will be paid in connectionwith the in-kind transactions.

g. The substitutions will not becounted as new Fund selections indetermining the limit on the totalnumber of Funds that Customers andParticipants can select during the life ofa Product.

h. The substitutions will not alter inany way the annuity or life benefits, taxbenefits or any contractual obligationsof Aetna under the Products.

i. Customers and Participants maywithdraw amounts under the Productsor terminate their interest in a Product,under the conditions that currentlyexists, including payment of anyapplicable deferred sales charge.

j. Customers and Participants affectedby the substitutions will be sentconfirmation of the substitutions withinfive days following the SubstitutionDate identifying each substitution madeon behalf of that Customer orParticipant.

2. Conditions

The substitutions described in theapplication will not be completedunless all of the following conditionsare met:

a. The Commission will have issuedan order approving the substitutionsunder Section 26(b) of the 1940 Act.

b. The Commission will have issuedan order exempting the in-kindredemptions and the combination ofsubaccounts from the provisions ofsection 17(a) of the 1940 Act asnecessary to carry out the substitutionsas described in the application.

c. The Commission will have declaredeffective the amendments to theregistration statements for the Productsdescribing the substitutions.

d. The Commission will havedeclared the registration statement forPortfolio Partners and its Portfolioseffective.

e. Each Customer will have been senta copy of the effective prospectuses forthe Substitute Funds and the effectiveamendments to the applicable Productprospectus.

f. Aetna will have satisfied itself,based on advice of counsel familiar withinsurance laws, that the contractsinvolved in all the Products allow thesubstitutions of Funds as described inthe application and that the transactionscan be consummated as describedherein under applicable insurance lawsand under the various contracts andpolicies governing the Products.

g. Aetna will have complied with anyregulatory requirements it believesnecessary to complete the transactionsin each jurisdiction where the Productsare qualified for sale.

h. Aetna will have sent to Customersand Participants at least 60 days prior tothe Substitution Date a notice,describing the terms of the substitutionsand of Customers’ and Participant’srights in connection with them.

i. Participants will have been sentamendments to the Productprospectuses and either prospectuses forthe Portfolios or Summaries of themwith written instructions on how torequest a Portfolio prospectus, asprovided in the relief granted to Aetnaby the staff of the Commission. SeeAetna Life Insurance and AnnuityCompany (pub. avail. Jan. 6, 1997).

Applicants’ Legal Analysis

1. Section 26(b) of the 1940 Actprovides, in pertinent part, that ‘‘[i]tshall be unlawful for any depositor ortrustee of a registered unit investmenttrust holding the security of a singleissuer to substitute another security forsuch security unless the Commission

shall have approved such substitution.’’Section 26(b) of the 1940 Act alsoprovides that the Commission shallissue an order approving suchsubstitution if the evidence establishesthat the substitution is consistent withthe protection of investors and thepurposes fairly intended by the policiesand provisions of the 1940 Act.

2. Applicants request an orderpursuant to section 26(b) of the 1940Act approving the substitutions andrelated transactions. Applicants assertthat the purposes, terms, and conditionsof the proposed substitutions areconsistent with the protection ofinvestors and the purposes fairlyintended by the 1940 Act. Applicantsfurther assert that the proposedsubstitutions will not result in the typeof costly forced redemption that section26(b) was intended to guard against.

3. Section 17(a)(1) of the 1940 Actprohibits any affiliated person, or anaffiliate of an affiliated person, of aregistered investment company, fromselling any security other property tosuch registered investment company.Section 17(a)(2) of the 1940 Actprohibits any affiliated person frompurchasing any security or otherproperty from such registeredinvestment company.

4. Applicants state that redemptionsand purchases in-kind involve thepurchase of property from a registeredinvestment company and the sale ofproperty to a registered investmentcompany by Aetna, an affiliated personof those investment companies.Similarly, in instances where Aetnacombines two subaccounts into a singlesubaccount holding shares of the sameSubstitute Fund, the transfer of propertycould be said to involve purchase andsale transactions between thesubaccounts by an affiliated person ofeach separate account.

5. Applicants request an orderpursuant to section 17(b) of the 1940Act exempting the in-kind redemptionsand purchases and the combination ofcertain subaccounts from the provisionsof Section 17(a). Section 17(b) of the1940 Act provides that the Commissionmay grant an order exempting aproposed transaction from Section 17(a)if evidence establishes that: (1) Theterms 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; (2) theproposed transaction is consistent withthe policy of each registered investmentcompany concerned; and (3) theproposed transaction is consistent withthe general purposes of the 1940 Act.


6. Applicants represent that the termsof the in-kind redemptions andpurchases are reasonable and fair anddo not involve overreaching on the partof any person concerned and that theinterest of Customers and Participantswill not be diluted. The in-kindredemptions and purchases will be doneat values consistent with the policies ofboth the Replaced and Substitute Funds.Both Aetna and the proposed subadviserof the Substitute Funds will review allthe asset transfers to assure that theassets meet the objectives of theSubstitute Fund and that they arevalued under the appropriate valuationprocedures of the Replace Funds andthe Substitute Fund. In-kindredemptions and purchases will reducethe brokerage costs that wouldotherwise be incurred in connectionwith the substitutions. The Applicantsrepresent that the transactions areconsistent with the policies of eachinvestment company involved and thegeneral purposes of the 1940 Act, andcomply with the requirements of section17(b).

7. Applicants represent that thecombination of subaccounts is intendedto reduce administrative costs andthereby benefit Customers with assets inthose subaccounts. The purchase andsale transactions described in theapplication will be effected based on thenet asset value of the Fund shares heldin the subaccounts and the value of theunits of the subaccount involved.Therefore, there will be no change invalue to any Customer or Participant.

ConclusionApplicants assert that, for the reasons

summarized above, the requested orderapproving the substitution and relatedtransactions involving in-kindredemptions and the combination ofcertain separate account subaccountsshould be granted.

For the Commission, by the Division ofInvestment Management, pursuant todelegated authority.Jonathan G. Katz,Secretary.[FR Doc. 97–20171 Filed 7–30–97; 8:45 am]BILLING CODE 8010–01–M


[Rel. No. IC–22763; File No. 812–10398]

CUNA Mutual Life Insurance Company,et al.

July 24, 1997.AGENCY: Securities and ExchangeCommission (the ‘‘SEC’’ or‘‘Commission’’).

ACTION: Notice of Application forExemptions under the InvestmentCompany Act of 1940 (the ‘‘1940 Act’’).

APPLICANTS: CUNA Mutual LifeInsurance Company (‘‘CUNA MutualLife’’), CUNA Mutual Life VariableAccount (‘‘Account’’), Ultra Series Fund(‘‘Fund’’), CIMCO, Inc. (‘‘CIMCO’’),CUNA Mutual Life Insurance CompanyPension Plan for Agents, CUNA MutualLife Insurance Company Pension Planfor Home Office Employees, CUNAMutual Life Insurance Company 401(k)/Thrift Plan for Agents, CUNA MutualLife Insurance Company 401(k)/ThriftPlan for Home Office Employees, CUNAMutual Pension Plan, CUNA MutualSavings Plan and CUNA Mutual ThriftPlan. (The seven plans shall be referredto collectively as the ‘‘Plans.’’ CUNAMutual Life, the Account, the Fund,CIMCO and the Plans shall be referredto collectively as the ‘‘Applicants.’’)RELEVANT 1940 ACT SECTIONS: Orderrequested under section 6(c) of the 1940Act for exemptions form sections 9(a),13(a) and 15(b) of the 1940 Act, andRule 6e–3(T) thereunder; and an orderrequested under section 17(b) of the1940 Act for exemptions from section17(a) of the 1940 Act.SUMMARY OF APPLICATION: CUNA MutualLife, the Account and the Fund seek anorder exempting them and certain otherseparate accounts established in thefuture by CUNA Mutual Life, or any lifeinsurance company affiliate of CUNAMutual Life (‘‘future affiliatedaccounts’’) and other separate accountsestablished in the future by any otherlife insurance company (‘‘futureunaffiliated accounts,’’and together withthe future affiliated accounts, the‘‘future accounts’’), from the provisionsof sections 9(a), 13(a), 15(a) and 15(b) ofthe 1940 Act, and Rule 6e–3(T)thereunder, to the extent necessary topermit the Account and the futureaccounts to hold shares of the Fund atthe same time that the Fund offers itsshares to such future accounts, the Plansor other qualified pension or retirementplans (the ‘‘unaffiliated plans’’). Inaddition, the Plans and CIMCO seek anorder exempting them from Section17(a) of the 1940 Act to the extentnecessary to permit the Plans topurchase certain classes of shares of theFund with investment securities of thePlans.FILING DATE: The application was filedon October 15, 1996, and amended andrestated on May 9, 1997 and July 23,1997.HEARING OR NOTIFICATION OF HEARING: Anorder granting the application will beissued unless the Commission orders a

hearing. Interested persons may requesta hearing on this application by writingto the Secretary of the SEC and servingApplicants with a copy of the request,personally or by mail. Hearing requestsmust be received by the Commission by5:30 p.m. on August 18, 1997, andaccompanied by proof of service on theApplicants in the form of an affidavit or,for lawyers, a certificate of service.Hearing requests should state the natureof the interest, the reason for the requestand the issues contested. Persons mayrequest notification of the date of ahearing by writing to the Secretary ofthe SEC.ADDRESSES: Secretary, SEC, 450 FifthStreet, NW., Washington, DC 20549.Applicants, Linda L. Lilledahl, Esq.,Associate General Counsel, CUNAMutual Group, 5910 Mineral PointRoad, Madison, WI 53701–0391.FOR FURTHER INFORMATION CONTACT:Megan Dunphy, Attorney, or MarkAmorosi, Branch Chief, Office ofInsurance Products, Division ofInvestment Management, at (202) 942–0670.SUPPLEMENTARY INFORMATION: Followingis a summary of the application; thecomplete application is available for afee from the Public Reference Branch ofthe SEC.

Applications’ Representations

1. CUNA Mutual Life, former CenturyLife of America, is principally engagedin the offering of life insurance contractsand is the depositor and sponsor of theAccount. On July 1, 1990, CUNAMutual Life entered into a permanentaffiliation with CUNA Mutual InsuranceSociety (‘‘CUNA Mutual’’). All of thedirectors of CUNA Mutual Life are alsodirectors of CUNA Mutual and many ofthe senor executive officers of CUNAMutual Life hold similar positions withCUNA Mutual. However, bothcompanies remain separate corporateentities and their respective ownersretain their voting rights.

2. The Account, a separate accountregistered under the 1940 Act as a unitinvestment trust, was established onAugust 16, 1993 to serve as a fundingvehicle to support variable lifeinsurance contracts issued by CUNAMutual Life. The Account is dividedinto subaccounts and invests in sharesof open-end management investmentcompanies with one or more investmentportfolios or series, including the Fund.

3. The future accounts also wouldneed to rely on the exemptionsrequested in the application. Any suchfuture accounts would be registeredunder the 1940 Act as unit investmenttrusts.


4. CUNA Mutual, a mutual lifeinsurance company, is principallyengaged in the offering of insuranceproducts and related services.

5. CIMCO is engaged primarily in thebusiness of providing investmentmanagement and advice to insurancecompany pension plans, investmentcompanies and other organizations.CIMCO is registered under theInvestment Advisers Act of 1940, is theinvestment adviser to the Fund, andmanages certain assets of the Plans.CUNA Mutual Life and CUNA MutualInvestment Corporation each own a one-half interest in CIMCO. CUNA MutualInvestment Corporation is a wholly-owned subsidiary of CUNA Mutual.

6. The board of directors of CUNAMutual Life established CUNA MutualLife Insurance Company Pension PlanFor Agents, CUNA Mutual LifeInsurance Company Pension Plan ForHome Office Employees, CUNA MutualLife Insurance Company 401(k)/ThriftPlan for Agents, and CUNA Mutual LifeInsurance Company 401(k)/Thrift Planfor Home Office Employees (the ‘‘CUNALife Mutual Plans’’). Participation in aCUNA Mutual Life Plan is open toeligible employees of CUNA Mutual Lifeand its subsidiaries or other companiesunder common control with CUNAMutual Life and which has adopted aCUNA Mutual life Plan. CUNA MutualLife Insurance Company 401(k)/ThriftPlan for Agents and CUNA Mutual LifeInsurance Company 401(k)/Thrift Planfor Home Office Employees (the ‘‘CUNAMutual Life Defined ContributionPlans’’) are voluntary definedcontribution plans. CUNA Mutual LifeInsurance Company Pension Plan ForAgents and CUNA Mutual LifeInsurance Company Pension Plan forHome Office Employees are definedbenefit plans.

7. The board of directors of CUNAMutual established CUNA MutualPension Plan, CUNA Mutual SavingsPlan and CUNA Mutual Thrift Plan(‘‘CUNA Mutual Plans’’). Participationin a CUNA Mutual Plan is open toeligible employees of CUNA Mutual andits subsidiaries or other companiesunder common control with CUNAMutual and which adopted a CUNAMutual Plan. The CUNA MutualPension Plan is a defined benefit plan.The CUNA Mutual Savings Plan andCUNA Mutual Thrift Plan (the ‘‘CUNAMutual Defined Contribution Plans’’)are voluntary defined contributionplans.

8. All of the Plans are intended toqualify under sections 401(a) and 501(a)of the Internal Revenue Code of 1986, asamended (the ‘‘Code’’). The CUNAMutual Life Defined Contribution Plans

and CUNA Mutual Defined ContributionPlans include cash or deferredarrangements intended to qualify undersection 401(k) of the Code. The Plansalso are subject to, and have beendesigned to comply with, the provisionsof the Employee Retirement IncomeSecurity Act of 1977 (‘‘ERISA’’).

9. Each of the Plans is funded by atrust with an institutional trustee or byan annuity contract issued by CUNAMutual Life or CUNA Mutual. CUNAMutual Life and CUNA Mutual retainthe right to establish different fundingarrangements or to appoint othertrustees. Each of the Plans is managedand administered by a plan committeeand other fiduciaries appointed byCUNA Mutual Life or CUNA Mutual, asapplicable (hereinafter, ‘‘plancommittees’’).

10. The unaffiliated plans will bepension or retirement plans intended toqualify under Section 401(a) and 501(a)of the Code and will be subject to, andwill be designed to comply with, theapplicable provisions of ERISA. Theunaffiliated plans will not be affiliatedpersons of the Applicants or affiliatedpersons of such persons. The trusteesand the other fiduciaries of theunaffiliated plans also will not beaffiliated persons of the Applicants oraffiliated persons of such persons.

11. The CUNA Mutual Thrift Planoffers participants seven investmentoptions including, among others, thefollowing: a growth and incomeinvestment portfolio, a capitalappreciation investment portfolio, abond investment portfolio a balancedinvestment portfolio, and a moneymarket investment portfolio. The CUNAMutual Savings Plan offers participantsthree investment options: a growth andincome investment portfolio, a bondinvestment portfolio, and a moneymarket investment portfolio. The CUNAMutual Life Defined Contribution Plansoffer participants three investmentoptions: a capital appreciationinvestment portfolio, a growth andincome investment portfolio and amoney market investment portfolio.Assets of the other Plans are not held aspart of separate Plan investmentportfolios.

12. The Fund, an open-endmanagement investment companyorganized as a Massachusetts businesstrust on September 16, 1983, is a seriescompany that consists of six investmentportfolios: Capital Appreciation StockFund, Growth and Income Stock Fund,Balanced Fund, Bond Fund, MoneyMarket Fund and Treasury 2000 Fund.

13. The investment objective of theCapital Appreciation Stock Fund islong-term capital growth. The

investment objective of the Growth andIncome Stock Fund is long-term capitalgrowth, with income as a secondaryconsideration. The investment objectiveof the Balanced Fund is to achieve ahigh total return through thecombination of income and capitalappreciation by investing in a broadlydiversified life of securities includingcommon stocks, bonds and moneymarket instruments. The investmentobjective of the Bond Fund is togenerate a high level of current income,consistent with the prudent limitationof investment risk, through investmentin a diversified portfolio of fixed-income securities with maturities of upto 30 years. The investment objective ofthe Money Market Fund is to seek thehighest current income available frommoney market instruments consistentwith the preservation of capital andliquidity by maintaining a dollarweighted average portfolio maturitywhich does not exceed 90 days. Theinvestment objective of the Treasury2000 Fund is to provide safety of capitaland a relative predictable payout uponportfolio maturity, primarily byinvesting in stripped Treasurysecurities.

14. To date, the Fund has offered itsshares only to CUNA Mutual Life (asseed money investments), the Account,CUNA Mutual Life Variable AnnuityAccount (‘‘Annuity Account’’), andCUNA Mutual Life Group VariableAnnuity Account (‘‘Group AnnuityAccount’’). The Fund offers each seriesof shares to corresponding subaccountsof the Account to support variable lifeinsurance contracts (‘‘VLI contracts’’)and to the Annuity Account and theGroup Annuity Account to supportvariable annuity contracts (‘‘VAcontracts,’’ and together with VLIcontracts, ‘‘variable contracts’’).

15. Changes in the tax law havecreated the opportunity for the Fund tosubstantially increase its assets basedthrough the sale of Fund shares to thePlans and the unaffiliated plans. Section817(h) of the Code imposes certaindiversification standards on the assetsunderlying variable contracts. The Codeprovides that variable contracts shallnot be treated as annuity contracts orlife insurance contracts for any periodin which the underlying assets are not,in accordance with regulationsprescribed by the Treasury Department,adequately diversified. On March 2,1989, the Treasury Department issuedregulations which establisheddiversification requirements for theinvestment portfolios underlyingvariable contracts. Treas. Reg. § 1.817–5(1989). The regulations provide that, tomeet the diversification requirements,


all of the beneficial interests in theinvestment company must be held bythe segregated asset accounts for one ormore insurance companies. Theregulations do, however, contain certainexceptions to this requirement, one ofwhich allows shares in an investmentcompany to be held by the trustee of aqualified pension or retirement planwithout adversely affecting the ability ofshares in the same investment companyalso to be held by the separate accountsof insurance companies in connectionwith their variable contracts. Treas. Reg.§ 1.817–5(f)(3)(iii). As a result of thisexception to the general diversificationrequirement, qualified pension andretirement plans (such as the Plans orthe unaffiliated plans) may hold Fundshares and select an investmentportfolio of the Fund as an investmentoption without endangering the taxstatus of CUNA Mutual Life’s VLIcontracts or VA contracts as lifeinsurance or annuities, respectively.

16. Applicants propose that, in one ormore discrete instances, the Planspurchase Fund shares using investmentsecurities held by the Plans. The CUNAMutual Life Defined Contribution Plansand the CUNA Mutual DefinedContribution Plans would useinvestment securities constituting aseparate Plan investment portfolio,currently available to participants as aninvestment option, to purchase Fundshares, while the other Plans would usesecurities held by the Plan but not as aseparate Plan investment portfolio.

17. Applicants state that the CUNAMutual Defined Contribution Plans andthe CUNA Mutual Life DefinedContribution Plans will each use theassets of their capital appreciationinvestment portfolios to purchase sharesof the Fund’s Capital AppreciationStock Fund, use the assets of theirgrowth and income investmentportfolios to purchase shares of theFund’s Growth and Income Stock Fund,use the assets of their bond investmentportfolios to purchase shares of theFund’s Bond Fund, use the assets oftheir balanced investment portfolio topurchase shares of the Fund’s BalancedFund and use the assets of the moneymarket investment portfolios topurchase shares of the Fund’s MoneyMarket Fund. If the proposedconsolidations were to occur, the Planswould initially acquire a substantialmajority of the outstanding shares of theFund’s Growth and Income Stock Fund,Bond Fund and Money Market Fund aswell as a controlling interest in theFund’s Capital Appreciation StockFund.

Applicants’ Legal Analysis

A. Request for Exemptions UnderSection 6(c)

(i) General Grounds for Relief

1. CUNA Mutual Life, the Accountand the Fund (the ‘‘Section 6(c)Applicants’’) request that theCommission issue an order pursuant tosection 6(c) of the 1940 Act exemptingthem as well as any future accounts anddepositors and principal underwriters ofany future accounts from the provisionsof sections 9(a), 13(a), 15(a) and 15(b) ofthe 1940 Act, and Rule 6e–3(T)(b)(15)thereunder, to the extent necessary forthe Account and any future accounts tohold shares of the Fund at the same timethat the Plans or the unaffiliated planshold shares of the Fund or for theAccount and any unaffiliated futureaccount to simultaneously hold sharesof the Fund.

2. CUNA Mutual Life and the Accountcurrently rely on the exemptionsprovided by Rule 6e–3(T)(b)(15) underthe 1940 Act, which provides partialexemptions from sections 9(a), 13(a),15(a) and 15(b) of the 1940 Act forcertain VLI contracts. However, theexemptions granted by the rule areavailable only where: (i) the Fund offersits shares exclusively to separateaccounts of CUNA Mutual Life or anylife insurance company affiliate ofCUNA Mutual Life offering eitherscheduled premium variable lifeinsurance contracts or flexible premiumvariable life insurance contracts, orboth; or (ii) the Fund offers its shares tovariable annuity separate accounts ofCUNA Mutual Life or of any lifeinsurance company affiliate of CUNAMutual Life. The Rule 6e–3(T)(b)(15)exemptions would not be available toCUNA Mutual Life, the Account or anyfuture accounts (affiliated orunaffiliated) if the Fund were to sell itsshares to the Plans or to unaffiliatedplans.

3. In general, section 9(a) of the 1940Act disqualifies any person convicted ofcertain offenses, and any companyaffiliated with that person, from actingor serving in various capacities withrespect to a registered investmentcompany. Section 9(a)(3) provides thatit is unlawful for any company to serveas investment adviser or principalunderwriter for any registered open-endinvestment company if an affiliatedperson of that company is subject to adisqualification enumerated in sections9(a) (1) or (2). However, Rule 6e–3(T)(b)(15) (i) and (ii) provideexemptions from section 9(a), undercertain circumstances and subject tocertain conditions that limit the

application of the eligibility restrictionsof Section 9(a) to affiliated individualsor companies that directly participate inthe management of the Fund.

4. The section 6(c) Applicants assertthat the partial relief provided by Rule6e–3(T)(b)(15) effectively limits theamount of monitoring of personnel thatCUNA Mutual Life and its affiliates (orfuture account depositors and theiraffiliates) would have to conduct toensure compliance with section 9 to thatwhich is appropriate in light of thepolicy and purposes of section 9. Thesection 6(c) Applicants further assertthat the rule recognizes that it is notnecessary for the protection of investorsor the purposes fairly intended by thepolicy and provisions of the 1940 Act toapply to provisions of section 9(a) to themany hundreds of individuals in a largeinsurance company complex, most ofwhom typically have no involvement inmatters pertaining to investmentcompanies affiliated with thatorganization.

5. Rule 6e–3(T)(b)(15)(iii) providespartial exemptions from sections 13(a),15(a) and 15(b) of the 1940 Act to permitCUNA Mutual Life, under certainlimited circumstances, to: (i) disregardthe voting instructions of VLI contractowners if following such instructionswould cause CUNA Mutual Life to make(or refrain from making) certaininvestments that would result inchanges in the subclassification orinvestment objectives of the Fund; or (ii)(subject to the provisions of paragraphs(b)(5)(i) and (b)(7)(ii)(A) of Rule 6e–3(T))approve or disapprove any contractbetween the Fund and CIMCO (oranother investment adviser), when suchaction is mandated by an insuranceregulatory authority.

6. The section 6(c) Applicants assertthat historically, the exclusivityprovision in Rule 6e–3(T)(b)(15) evolvedfrom the Commission’s concern aboutpossible divergent interests between oramong different classes of investors(e.g., VA owners and VLI owners) inmutual funds supporting variable lifeinsurance separate accounts. The unitinvestment trust structure forsupporting VLI contracts created theopportunity for a mutual fundunderlying a trust also to offer its sharesto a variable annuity separate account(hereinafter, ‘‘mixed funding’’). Thisstructure also created the opportunityfor a mutual fund underlying such aseparate account also to offer its sharesto separate accounts of two or moreinsurance companies that are notaffiliated persons of each other(hereinafter, ‘‘shared funding’’).

7. The section 6(c) Applicants statethat the Commission addressed its


concerns about divergent interestsamong investors when it adopted Rule6e–2 (the primary exemptive rule forscheduled premium variable lifeinsurance). Rule 6e–2 does not permitmixed or shared funding. Severalinsurers relying on Rule 6e–2 soughtand obtained individual exemptions topermit mixed funding, subject to certainconditions designed to identify andresolve potential or existing conflicts ofinterest among variable contract owners.The section 6(c) Applicants maintainthat, ultimately, Rule 6e–3(T)(b)(15) wasdesigned to permit a separate accountsupporting both flexible and scheduledpremium VLI contracts to share thesame underlying fund and engage inmixed funding.

8. The section 6(c) Applicantsmaintain that qualified retirement planinvestors in the Fund would havesubstantially the same interests ascurrent variable contract owners. Likevariable contract owners, qualifiedretirement plan investors are long-terminvestors. Therefore, most can beexpected not to withdraw their assetsfrom the Plans or the unaffiliated plans.In addition, since neither variablecontract owners nor Plan andunaffiliated plan in investors would betaxed on the investment return of theirrespective investments in the Fund,they would share a strong interest in theFund operating in a manner thatpreserves its tax status.

9. The section 6(c) Applicantsrepresent that the Account and thePlans are governed in similar ways aswould be future accounts andunaffiliated plans. Plan committees (andother plan fiduciaries) have a fiduciaryduty to participants that is similar to theobligations that CUNA Mutual Life orany other life insurance company has tolook after the interests of variablecontract owners.

10. The section 6(c) Applicants assertthat, because investors in the Plans andunaffiliated plans would have beneficialinterests similar to those of currentinvestors, the addition of the Plans andunaffiliated plans as shareholders of theFund and the addition of participants aspersons having beneficial interests inthe Fund should not increase the risk ofmaterial irreconcilable conflicts amongand between investors. The section 6(c)Applicants further assert that even if amaterial irreconcilable conflictinvolving the Plans or the unaffiliatedplans or their respective participantsarose, the fiduciaries of the Plans andthe trustees (or other fiduciaries) of theunaffiliated plans can, if their fiduciaryduty to the participants requires it,redeem the shares of the Fund held bythe Plans or the unaffiliated plans and

make alternative investments withoutobtaining prior regulatory approval.Similarly, the Plans and most, if not all,of the unaffiliated plans may hold cashor other liquid assets pending theirreinvestment in a suitable alternativeinvestment.

1. The section 6(c) Applicantsmaintain that variable contract ownerswould benefit from the expectedincrease in net assets of the Fund’sportfolios resulting from additionalinvestments by the Plans andunaffiliated plans. Such additionalinvestments should lower some of thecosts of investing for variable contractowners, promote economies of scale,permit increased safety through greaterportfolio diversification, provide theFund’s investment adviser with greaterflexibility because of a larger portfolio,and make the addition of new portfoliosin the future more feasible.

12. The section 6(c) Applicants notethat when the Commission last revisedRule 6e–3(T) in 1987, the TreasuryDepartment had not issued TreasuryRegulation 1.817–5 which permits theFund to sell shares to qualified pensionor retirement plans without adverselyaffecting the tax status of variablecontracts. The section 6(c) Applicantssubmit that, although proposedregulations had been published, theCommission did not envision thispossibility when it last examined Rule6e–3(T)(b)(15), and might well havebroadened the exclusivity provision ofthe rule at that time to include planssuch as the Plans (or the unaffiliatedplans) had this possibility beenapparent.

(ii) Voting Rights13. The section 6(c) Applicants do not

see any inherent conflicts arisingbetween or among the interests ofvariable contract owners, or Planparticipants because of the potential forthe Plans to hold a controlling interestin a portfolio of the Fund. If theexemptions requested herein aregranted, the trustees or the plancommittee of each Plan would enter intoa participation agreement with the Fundthat contains certain conditions, asdiscussed below. These conditionswould serve to enhance the ability ofthe Fund’s board of trustees and CUNAMutual Life as well as depositors offuture accounts to protect the interestsof variable contract owners andminimize any potential for materialconflicts between or among the interestsof plan investors on the one hand andvariable contract owners on the other.

14. The section 6(c) Applicantsmaintain that there is no reason tobelieve that the trustees or the plan

committees of the various Plans as agroup would vote in a manner thatwould disadvantage variable contractowners. Moreover, because a majority ofthe Fund’s trustees will not beinterested persons of the Fund, thetrustees, the plan committees and otheraffiliated persons of the Plans will notbe in a position to exercise undueinfluence over the Fund or any of itsportfolios.

15. Also, with regard to resolving orremedying possible material conflicts ofinterest related to voting, the Plans’investment in the Fund does not presentany complications not otherwiseoccasioned by traditional mixed fundingas permitted by Rule 6e–3(T)(b)(15). Thesection 6(c) Applicants submit that theinterests and opinions of Fund investorsmay differ, but this does not mean thatinherent conflicts of interest existbetween or among such investors.

16. Section 403(a) of ERISA providesthat, with few exceptions, trustees of theunaffiliated plans would have theexclusive authority and responsibilityfor exercising voting rights attributableto their respective plan’s investmentsecurities. Where a named fiduciaryappoints an investment adviser, theadviser has the authority andresponsibility to exercise such votingrights unless the authority andresponsibility is reserved to thetrustee(s) or a non-trustee fiduciary.

17. The section 6(c) Applicantsgenerally expect many of theunaffiliated plans to have their trusteesor other fiduciaries exercise, in theirdiscretion, voting rights attributable toinvestment securities held by theunaffiliated plans. Some of theunaffiliated plans, however, mayprovide for the trustee(s), an investmentadviser (or advisers), or another namedfiduciary to exercise voting rights inaccordance with instructions fromparticipants.

18. Where unaffiliated plans do notprovide participants with the right togive voting instructions, the section 6(c)Applicants do not see any potential formaterial irreconcilable conflicts ofinterest between variable contractowners and unaffiliated plan investorswith respect to voting of Fund shares. Inthis regard, the section 6(c) Applicantssubmit that investment in the Fund bythe unaffiliated plans will not create anyof the voting complications occasionedby traditional mixed and sharedfunding, or by the Plans’ proposedinvestment in the Fund.

19. Where unaffiliated plans provideparticipants with the right to give votinginstructions, the section 6(c) Applicantsdo not believe that participants inunaffiliated plans generally or those in


a particular unaffiliated plan, either asa single group or in combination withparticipants in other unaffiliated plans,would vote in a manner that woulddisadvantage variable contract owners.The purchase of Fund shares by theunaffiliated plans that provide votingrights does not present anycomplications not otherwise occasionedby mixed and shared funding.

20. In light of Treasury Regulation1.817–5(f)(3)(iii) which specificallypermits ‘‘qualified pension or retirementplans’’ and separate accounts to sharethe same underlying managementinvestment company, the section 6(c)Applicants have concluded that neitherthe Code, nor other TreasuryRegulations or revenue rulingsthereunder, would create any inherentconflicts of interest between or amongparticipants and variable contractowners.

(iii) Tax Treatment of Distributions21. Although there are differences in

the manner in which distributions fromthe Plans or the unaffiliated plans anddistributions from variable contracts aretaxed, the section 6(c) Applicantsmaintain that these differences willhave no impact on the Fund. TheAccount, any future accounts, the Plans,and the unaffiliated plans each willpurchase and redeem Fund shares at netasset value in conformity with Rule22c–1 under the 1940 Act.

(iv) Potential Future Conflicts ArisingFrom Tax Law Changes

22. The section 6(c) Applicants do notsee any greater potential for materialirreconcilable conflicts arising betweenthe interests of plan investors and otherFund investors from possible futurechanges in the federal tax laws than thatwhich already exists with regard to suchconflicts arising between VLI contractowners and VA contract owners.

(v) Grounds for Relief for SharedFunding

23. The section 6(c) Applicantsmaintain that the holding of Fundshares by separate accounts ofunaffiliated insurance companies wouldnot entail greater potential for materialirreconcilable conflicts arising betweenor among the interests of VLI ownersand VA owners than does traditionalmixed funding. Likewise, the holding ofFund shares by separate accounts ofunaffiliated insurance companies wouldnot create greater potential for materialirreconcilable conflicts arising betweenor among the interests of variablecontract owners and plan investors thanwould be the case if only separateaccounts of CUNA Mutual Life’s

insurance company affiliates and planinvestors held Fund shares.

24. The section 6(c) Applicants assertthat shared funding does not presentany issues that do not already existwhere a single insurance company islicensed to do business in several, or all,states. The section 6(c) Applicants notethat where insurers are domiciled indifferent states, it is possible that thestate insurance regulatory body in astate in which one insurance companyis domiciled could require action that isinconsistent with the requirements ofinsurance regulators in one or moreother states in which other insurancecompanies are domiciled. The section6(c) Applicants submit that thispossibility is no different from and nogreater than what exists where a singleinsurer and its affiliates offer theirinsurance products in several states.

25. The section 6(c) Applicants alsoassert that the right of an insurancecompany to disregard VLI contractowner voting instructions does not raiseany issues different from those raised bythe authority of different state insuranceregulators over separate accounts.Affiliation does not eliminate thepotential for divergent judgments bysuch companies as to the advisability orlegality of a change in investmentpolicies, principal underwriting, orinvestment adviser of an open-endmanagement investment company inwhich their separate account invests.The section 6(c) Applicants assert thatthe potential for disagreement betweenor among insurance companies islimited by the requirement that theinsurance company’s disregard of votinginstructions be both reasonable andbased on specific good faithdeterminations. Moreover, in the eventthat a decision of CUNA Mutual Life orthe depositor of a future account todisregard VLI contract owners’instructions represents a minorityposition or would preclude a majorityvote at a Fund shareholders meeting,CUNA Mutual Life or such depositorcould be required, at the election of theFund, to withdraw its investment in thatFund.

(vi) Conditions for ReliefApplicants represent and agree that if

the exemptions required in theapplication pursuant to section 6(c) aregranted, CUNA Mutual Life and theAccount will only rely on suchexemptions to purchase and hold Fundshares if the following conditions aremet:

1. The board of trustees of the Fund,including a majority of those trustees who arenot interested persons of the Fund orinterested persons of such persons, adopts a

resolution approving the sale of Fund sharesto the Plans and the unaffiliated plans. forthis purpose, interested person means‘‘interested persons’’ as defined by Section2(a)(19) of the 1940 Act, and rulesthereunder, and as modified by anyapplicable Commission orders, except that ifthis condition is not met by reason of thedeath, disqualification, or bona fideresignation of any trustee or trustees, then theoperation of this condition shall besuspended for (a) a period of 45 days of thevacancy or vacancies may be filled by theremaining trustees, (b) a period of 60 days ifa vote of shareholders is required to fill thevacancy or vacancies, or (c) such longerperiod as the Commission may prescribe byorder upon application.

2. The board of trustees of the Fund, amajority of whom shall not be interestedpersons of the Fund or interested persons ofsuch persons, shall monitor the Fund for theexistence of any material irreconcilableconflicts between or among the interests ofVLI owners, VA owners and plan investorsand determine what action, if any, should betaken in response to those conflicts. Amaterial irreconcilable conflict may arise fora variety of reasons, including: (a) an actionby any state insurance regulatory authority,(b) a change in applicable federal or stateinsurance, tax, or securities laws orregulations, or (c) a public ruling, privateletter ruling, no-action or interpretive letter,or any similar action by insurance, tax, orsecurities regulatory authorities, (d) themanner in which the investments of anyFund are being managed, (e) a difference invoting instructions given by VLI owners, VAowners and plan investors, (f) a decision byCUNA Mutual Life to disregard variablecontract owner voting instructions, and (g) adecision by a Plan trustee (or other Planfiduciary) to disregard voting instructions ofPlan participants.

3. CUNA Mutual Life will monitor itsoperations and those of the Fund for thepurpose of identifying any material conflictsor potential material conflicts between oramong the interests of plan investors, VAowners and VLI owners.

4. CUNA Mutual Life and CIMCO willreport any such conflicts or potentialconflicts to the Fund’s board of trustees andwill provide the board at least annually, withall information reasonably necessary for theboard to consider any issues raised by suchexisting or potential conflicts. CUNA MutualLife will also assist the board in carrying outthis obligation including, but not limited to:(a) informing the board whenever itdisregards VLI owner voting instructions,and (b) providing such other information andreports as the board may reasonably request.CUNA Mutual Life will carry out theseobligations with a view only to the interestsof VA owners and VLI owners.

5. CUNA Mutual Life will provide ‘‘pass-through’’ voting privileges to VA owners andVLI owners as long as the Commissioninterprets the 1940 Act to require suchprivileges in such cases. CUNA Mutual Lifewill vote Fund shares held by it that are notattributable to VA contract or VLI contractreserves in the same proportion asinstructions received in a timely fashion from


VA owners and VLI owners and shall beresponsible for ensuring that the Accountand the Annuity Account each calculate‘‘pass-through’’ votes in a consistent manner.

6. In the event that a conflict of interestarise between VA owners or VLI owners andplan investors, CUNA Mutual Life will, at itsown expense, take whatever action isnecessary to remedy such conflict as itadversely affects VA owners or VLI ownersup to and including (1) establishing a newregistered management investment company,and (2) withdrawing assets attributable toreserves for the VA contracts or VLI contractssubject to the conflict form the Fund andreinvesting such assets in a differentinvestment medium (including anotherportfolio of the Fund) or submitting thequestion of whether such withdrawal shouldbe implemented to a vote of all affected VAowners or VLI owners, and, as appropriate,segregating the asset supporting the contractsof any group of such owners that votes infavor of such withdrawal, or offering to suchowners the option of making such a change.CUNA Mutual Life will carry out theresponsibility to take the foregoing actionwith a view only to the interests of VAowners and VLI owners. Notwithstanding theforegoing, CUNA Mutual Life will not beobligated to establish a new funding mediumfor any group of VA contracts or VLIcontracts if an offer to do so has beendeclined by a vote of a majority of the VAowners or VLI owners adversely affected bythe conflict.

7. If a material irreconcilable conflict arisesbecause of CUNA Mutual Life’s decision todisregard the voting instructions of VLIowners and that decision represents aminority position or would preclude amajority vote at any Fund shareholdermeeting, then, at the request of the Fund’sboard of trustees, CUNA Mutual Life willredeem the shares of the Fund to which thedisregarded voting instructions relate. Nocharge or penalty, however, will be imposedin connection with such a redemption.

8. A majority vote of the disinterestedtrustees of the Fund shall represent aconclusive determination as to the existenceof a material irreconcilable conflict betweenor among the interests of VLI owners, VAowners and plan participants. A majorityvote of the disinterested trustees of the Fundshall represent a conclusive determination asto whether any proposed action adequatelyremedies any material irreconcilable conflictbetween or among the interests of VLIowners, VA owners and plan participants.The Fund shall notify CUNA Mutual Life,depositors of future accounts, Plans andunaffiliated plans in writing of anydetermination of the foregoing type.

9. All reports sent by CUNA Mutual Life,the depositors of the future accounts, thePlans or the unaffiliated plans to the boardof trustees of the Fund or notices sent by theboard to CUNA Mutual Life, the depositorsof the future accounts, the Plans or theunaffiliated plans notifying the recipient ofthe existence of or potential for a materialconflict between the interests of VA owners,VLI owners and plan investors as well asboard deliberations regarding conflicts orpotential conflicts shall be recorded in the

board meeting minutes of the Fund or otherappropriate records, and such minutes orother records shall be made available to theCommission upon request.

10. The Fund’s prospectus shall disclosethat (1) its shares are offered in connectionwith mixed funding, shared funding and to401(a) plans, (2) both mixed funding, sharedfunding and investment by 401(a) plans inthe Fund may present certian conflicts ofinterest between VA owners, VLI owners andplan investors and (3) the Fund’s board oftrustees will monitor for the existence of anymaterial conflict of interest. The Fund shallalso notify the Plan trustees, the trustees ofunaffiliated plans, CUNA Mutual Life andthe life insurance company depositors of thefuture accounts that similar prospectusdisclosure may be appropriate in separateaccount prospectuses or any planprospectuses or other plan disclosuredocuments.

11. CUNA Mutual Life and the Accountwill continue to rely on Rule 6e–3(T)(b)(15)and to comply with all of its conditions. Inthe event that Rule 6e–3(T) is amended, orany successor rule is adopted, CUNA MutualLife and the Account will instead complywith such amended or successor rule.

12. Each Plan will execute a participationagreement with the Fund requiring thetrustees or plan committees of the Plan to: (a)monitor the Plan’s operations and those ofthe Fund for the purpose of identifying anymaterial conflicts or potential materialconflicts between or among the interests ofplan investors, VA owners and VLI owners,(b) report any such conflicts or potentialconflicts to the Fund’s board of trustees, and(c) provide the board, at least annually, withall information reasonably necessary for theboard to consider any issues raised by suchexisting or potential conflicts and any otherinformation and reports that the board mayreasonably request, (d) ensure that the Planvotes Fund shares as required by applicablelaw and governing Plan documents.

13. In the event that a conflict of interestarises between plan investors and VA ownersor other investors in the Fund, each Planwill, at its own expense, take whatever actionis necessary to remedy such conflict as itadversely affects that Plan or participants inthat Plan up to and including (1) establishinga new registered management investmentcompany, and (2) withdrawing Plan assetssubject to the conflict from the Fund andreinvesting such assets in a differentinvestment medium (including anotherportfolio of the Fund) or submitting thequestion of whether such withdrawal shouldbe implemented to a vote of all affected planparticipants, and, as appropriate, segregatingthe assets of any group of such participantsthat votes in favor of such withdrawal, oroffering to such participants the option ofmaking such a change. Each Plan will carryout the responsibility to take the foregoingaction with a view only to the interests of theplan investors in its Plan. Notwithstandingthe foregoing, no Plan will be obligated toestablish a new funding medium for anygroup of participants if an offer to do so hasbeen declined by a vote of a majority of thePlan’s participants adversely affected by theconflict.

14. If a material irreconcilable conflictarises because of a Plan trustee’s (or otherfiduciary’s) decision to disregard the votinginstructions of Plan participants (if such Planshould provide voting rights to itsparticipants) and that decision represents aminority position or would preclude amajority vote at any shareholder meeting,then, at the request of the Fund’s board oftrustees, the Plan will redeem the shares ofthe Fund to which the disregarded votinginstructions relate. No charge or penalty,however, will be imposed in connection withsuch a redemption.

15. The Fund will comply with all theprovisions of the 1940 Act relating to securityholder (i.e., persons such as VLI owners andVA owners or participants in plans thatprovide participants with voting rights)voting including Sections 16(a), 16(b) (whenapplicable) and 16(c) (even though the Fundis not a trust of the type described therein).

Applicants also represent that, withregard to the reliance of the futureaccounts (including their life insurancecompany depositors) on the section (6(c)exemptions requested in theapplication, the Fund will only sellshares to future accounts if the lifeinsurance company depositors enterinto a participation agreement with theFund requiring the depositor to complywith conditions 3, 4, 5, 6, 7, 8 and 11in the same manner as will CUNAMutual Life. Likewise, the Fund willonly sell shares to unaffiliated plansholding 10% or more of the shares ofany investment portfolio of the Fund ifsuch plans enter into a participationagreement with the Fund requiring thetrustees or other appropriate planfiduciaries to comply with conditions 8,12, 13, and 14 in the same manner aswill the Plans.

B. Request for Exemptions UnderSection 17(b)

1. CIMCO and the Plans request thatthe Commission issue an order pursuantto section 17(b) of the 1940 Actexempting them from the provisions ofsection 17(a) of the 1940 Act to theextent necessary to permit the Plans topurchase shares of the Fund withinvestment securities of the Plans.Section 17(a)(1) of the 1940 Act, inrelevant part, prohibits any affiliatedperson of a registered investmentcompany, or any affiliated person ofsuch person, acting as principal, fromknowingly selling any security or otherproperty to that company. Section17(a)(2) of the 1940 Act generallyprohibits the persons described above,acting as principals, from knowinglypurchasing any security or otherproperty from the registered investmentcompany.

2. Section 17(b) of the 1940 Actprovides that the Commission may,upon application, grant an order


exempting any transaction from theprohibitions of section 17(a) if theevidence establishes that: (i) The termsof the proposed transaction, includingthe consideration to be paid or received,are reasonable and fair and do notinvolve overreaching on the part of anyperson concerned; (ii) the proposedtransaction is consistent with the policyof each registered investment companyconcerned, as recited in its registrationstatement and reports filed under the1940 Act; and (iii) the proposedtransaction is consistent with thegeneral purposes of the 1940 Act.

3. Section 2(a)(3) of the 1940 Actdefines the term ‘‘affiliated person ofanother person’’ in relevant part as: ‘‘(A)any person directly or indirectlyowning, controlling, or holding withpower to vote, 5 per centum or more ofthe outstanding voting securities of suchother person; (B) any person 5 percentum or more of whose outstandingvoting securities are directly orindirectly owned, controlled, or heldwith power to vote, by such person; (C)any person directly or indirectlycontrolling, controlled by, or undercommon control with, such otherperson.* * *’’

4. CIMCO and the Plans assert thatsince a person under common controlwith a registered investment company isan affiliated person of that investmentcompany, CIMCO and the CUNAMutual Life Plans are affiliated personsof the Fund and of all of its investmentportfolios. In addition, because CUNAMutual Life owns of record more than5% of the shares of each of the Fund’sinvestment portfolios, CUNA MutualLife is an affiliated person of the Fundand each of the Fund’s investmentportfolios. The Plans’ proposal topurchase Fund shares with investmentsecurities would entail the sale of suchsecurities by the Plans (or by CIMCOand the Plans), acting as principal, tothe Fund and therefore wouldcontravene section 17(a).

5. Because each person who is undercommon control with a registeredinvestment adviser is an affiliatedperson of that adviser, the CUNAMutual Plans are affiliated persons of anaffiliated person of the Fund.

6. CIMCO and the Plans assert thatbecause CUNA Mutual Life owns ofrecord all shares of the Fund andbecause section 2(a)(9) of the 1940 Actestablishes a presumption that a personowning 25% or more of anotherperson’s outstanding voting securitiescontrols the latter person, the Fund andeach of its investments portfolios isarguably under the control of CUNAMutual Life notwithstanding the factthat variable contract owners may be

considered the beneficial owners of anysuch shares. CIMCO and the Plansfurther submit that, because CIMCO andthe CUNA Mutual Life Plans arecontrolled by CUNA Mutual Life, they,the Fund, and the Fund’s portfolios areunder the common control of CUNAMutual Life. Because CIMCO is alsocontrolled by CUNA Mutual as are theCUNA Mutual Plans, CIMCO and theCUNA Mutual Plans are under commoncontrol.

7. CIMCO and the Plans represent thatthe terms of the proposed transactionsas set froth in the application, includingthe consideration to be paid andreceived: (i) Are reasonable and fair anddo not involve overreaching on the partof any person concerned; (ii) areconsistent with the policies of the Fundand of its Capital Appreciation StockFund, Growth and Income Stock Fund,Balanced Fund, Bond Fund and itsMoney Market Fund, as recited in itscurrent registration statement andreports filed under the 1940 Act; and(iii) are consistent with the generalpurposes of the 1940 Act.

8. Subject to certain enumeratedconditions, Rule 17a–7 under the 1940Act exempts from the prohibitions ofsection 17(a) a purchase or saletransaction between: (i) Registeredinvestment companies or separate seriesof registered investment companies,which are affiliated persons, or affiliatedpersons of affiliated persons, of eachother, (ii) between separate series of aregistered investment company; or (iii)between a registered investmentcompany or a separate series of aregistered investment company and aperson which is an affiliated person ofsuch registered investment company (oraffiliated person of such person) solelyby reason of having a commoninvestment adviser or investmentadvisers which are affiliated persons ofeach other, common directors, and/orcommon officers

9. CIMCO and the CUNA MutualPlans submit that they cannot rely onRule 17a–7 because they are notaffiliated persons of the Fund (or of theBond Fund, Money Market Fund or theTreasury 2000 fund) solely by reason ofhaving acommon investment adviser oraffiliated investment advisers, commondirectors, and/or common officers.Likewise, the CUNA Mutual Planscannot rely on Rule17a–7 because theyare not affiliated persons of an affiliatedperson of the Fund solely by reason ofhaving a common investment adviser oraffiliated investment advisers, commondirectors, and/or common officers.Moreover, CIMCO and the Plans alsonote that since the proposed purchase ofFund shares by the Plans involves the

purchase and sale of securities forsecurities, the proposed transactiondoes not meet the condition of Rule17a–7 that the transaction be a purchaseor a sale for no consideration other thancash payment against prompt deliveryof a security for which marketquotations are readily available.

10. CIMCO and the Plans maintainthat the terms of the proposedtransactions, including theconsideration to be received by theFund, are reasonable, fair, and do notinvolve overreaching by investmentcompany affiliates principally becausethe transactions will conform in allmaterial respects with the substance ofall but one of the conditions enumeratedin Rule 17a–7. CIMCO and the Plansassert that where, as here, they or therelevant investment company wouldcomply in substance with, but cannotliterally meet all of the requirements of,Rule 17a–7, the Commission shouldconsider the extent to which they wouldmeet the Rule 17a–7 or other similarconditions, and issue an order if theprotections of Rule 17a–7 would beprovided in substance.

11. CIMCO and the Plans submit thatthe proposed transactions would offer tothe Fund the same degree of protectionfrom overreaching that Rule 17a–7 offersto investment companies generally inconnection with qualifying non-investment company affiliates of suchinvestment companies. Although thetransactions will not be for cash, eachwill be effected based upon: (i) Theindependent market price of the Plans’investment securities valued asspecified in Rule 17a–7(b), and (ii) thenet asset value per share of the CapitalAppreciation Stock Fund, Growth andIncome Stock Fund, Balanced Fund,Bond Fund or the Money Market Fund,valued in accordance with theprocedures disclosed in the Fund’sregistration statement and as requiredby Rule 22c–1 under the 1940 Act.CIMCO and the Plans represent that nobrokerage commission, fee, or otherremuneration will be paid to any partyin connection with the proposedtransactions. In addition, although theboard of trustees of the Fund will notadopt specific procedures to govern theproposed transactions (because therewill be at most only one suchtransaction for each Plan), it willscrutinize and specifically approve byresolution each such transaction,including the price to be paid for theFund’s shares and the nature andquality of the securities offered inpayment for such shares.

12. CIMCO and the Plans representthat the proposed sale of additionalshares is consistent with the investment


policy of the Capital Appreciation StockFund, Growth and Income Stock Fund,Balanced Fund, Bond Fund and MoneyMarket Fund, as recited in the Fund’sregistration statement, and the sale ofshares for investment securities, ascontemplated by the proposedtransactions, is also consistent withthese investment policies provided that:(i) The shares are sold at net asset value,and (ii) the securities are of the type andquality that each investment portfoliowould have acquired with the saleproceeds had the shares been sold forcash. As recited in the conditions listedbelow, the Fund’s board of trustees willexamine the portfolios of each CUNAMutual Life and CUNA Mutual DefinedContribution Plan, capital appreciationstock investment portfolio, growth andincome stock investment portfolio,balanced investment portfolio, bondinvestment portfolio and money marketportfolio as well as any securitiesoffered by the other Plans and onlyapprove the proposed transactions ifthey, including a majority of thesetrustees who are not interested personsof the Fund, or interested persons ofsuch persons, determine that (i) and (ii)would be met.

13. The proposed transactions, asdescribed herein, are consistent with thegeneral purposes of the 1940 Act asstated in the Findings and Declarationof Policy in Section 1 of the 1940 Act.The proposed transactions do notpresent any of the conditions or abusesthat the 1940 Act was designed toprevent.

14. CIMCO and the Plans also assertthat the proposed transactions, inaddition to meeting the standards ofSection 17(b) vis-a-vis the Fund, are fairand reasonable to the Plans and are inthe best interests of the Planparticipants as determined by the plancommittees of each Plan. In particular,CIMCO and the Plans submit that theproposed transactions are consistentwith the policy and purpose of the Plansas recited in each Plan’s plandocuments, and are consistent with theprovisions of ERISA (applicable todefined contribution plans) regardingreporting and disclosure, participationand vesting, funding, fiduciaryresponsibility, administration andenforcement.

15. CIMCO and the Plans representthat the plan committee of each Planwill determine that the proposedtransactions are in the best interests ofparticipants in their Plan, and areconsistent with the policies and purposeof the Plan as recited in the Plansthemselves. In particular, the plancommittee of each CUNA Mutual LifeDefined Contribution Plan and CUNA

Mutual Defined Contribution Plan willdetermine that the Fund’s CapitalAppreciation Stock Fund hassubstantially the same investmentobjects as the Plans’ capital appreciationstock investment portfolio, the Fund’sGrowth and Income Stock Fund hassubstantially the same investmentobjects as the Plans’ growth and incomestock investment portfolio, the Fund’sBalanced Fund has substantially thesame investment objectives as the Plans’balanced investment portfolio, theFund’s Bond Fund has substantially thesame investment objectives as the Plans’bond investment portfolio, and that theFund’s Money Market Fund hassubstantially the same investmentobjectives as the Plans’ money marketinvestment portfolio.

16. CIMCO and the Plans representthat Plan participants will benefit fromthe fact that the expense of liquidatingPlan assets, purchasing Fund shareswith cash, and reinvesting the cash insubstantially the same assets, would beavoided. CIMCO and the Plans furtherrepresent that, in light of the fact thatthe plan committees of the CUNAMutual Life and the CUNA MutualDefined Contribution Plans will havedetermined that the Fund’s CapitalAppreciation Stock Fund, Growth andIncome Stock Fund, Balanced Fund,Bond Fund and Money Market Fundshould replace the Plans’ current capitalappreciation stock investment portfolio,growth and income stock investmentportfolio, balanced investment portfolio,bond investment portfolio and moneymarket investment portfolio,respectively, the proposed transactionswould greatly diminish the expense ofthis replacement to Plan participants.

17. CIMCO and the Plans representthat the proposed transactions areconsistent with the provisions of ERISAapplicable to defined contribution plansregarding reporting and disclosure,participation and vesting, funding,fiduciary responsibility, administrationand enforcement.

18. CIMCO and the plans representand agree that if the exemptionsrequested in the application pursuant tosection 17(b) of the 1940 Act aregranted, the Plans will purchase sharesof the Fund with investment securitiesonly if the following conditions are met:

1. The transactions are effected at the‘‘independent current market price’’ of theinvestment securities as that term is definedin Rule 17a–7 under the 1940 Act, and at thenet asset value of appropriate Fund sharesnext computed after the closing of thetransaction.

2. No brokerage commission, fee (exceptfor customary transfer fees), or other

remuneration is paid in connection with thetransactions.

3. The Fund’s board of trustees, includinga majority of those trustees who are notinterested persons of the Fund, or interestedpersons of such persons, reviews the terms ofthe transactions, the composition of theinvestment portfolios of the Plans to be usedas the purchase price in the transactions, andthe value (and the valuation method) of theinvestment securities comprising thepurchase price in the transactions; andadopts a resolution determining separatelyfor each transaction, that the transaction isreasonable and fair to the existing investorsin the appropriate Fund investment portfolio,that the transaction would not subject theFund to overreaching and that the investmentsecurities offered by the Plan trustees onbehalf of each Plan in that transaction areconsistent with the investment objective,policies and restrictions of the related Fundinvestment portfolio.

4. The Fund agrees in writing that it willmaintain and preserve for a period of not lessthan six years from the end of the fiscal yearin which the transaction occurs, the first twoyears in an easily accessible place, a writtenrecord of each such transaction setting fortha description of the investment securitiesused as the purchase price for Fund shares,the terms of such transaction, and theinformation and materials upon which thedeterminations described in condition 3above were made.

Conclusion1. CIMCO and the Plans request an

order of the Commission pursuant tosection 17(b) of the 1940 Act, exemptingthem from section 17(a) of the 1940 Actto the extent necessary to permit thePlans to purchase shares of the Fundwith investment securities of the Plans.CIMCO and the Plans represent that, forthe reasons stated above, the terms ofthe proposed transactions, including theconsideration to be paid and received,are reasonable and fair to the Fund, toits Capital Appreciation Stock Fund, itsGrowth and Income Stock Fund, itsBalanced Fund, its Bond Fund and itsMoney Market Fund, to shareholdersand the variable contract ownersinvested in each of these Funds and donot involve overreaching on the part ofany person concerned. Furthermore, theproposed transactions will be consistentwith the policies of the Fund and of itsCapital Appreciation Stock Fund, itsGrowth and Income Stock Fund, itsBalanced Fund, its Bond Fund and itsMoney Market Fund as stated in theFund’s current registration statementand reports filed under the 1940 Actand with the general purposes of the1940 Act.

2. In addition, the section 6(c)Applicants request an order of theCommission pursuant to section 6(c) ofthe 1940 Act, exempting them and anyfuture accounts from the provisions of


sections 9(a), 13(a), 15(a) and 15(b) ofthe 1940 Act, and Rule 6e–3(T)(b)(15)thereunder, to the extent necessary forthe Account and any future accounts tohold shares of the Fund at the same timethat the Plans and the unaffiliated planshold shares of the Fund or for theAccount and any unaffiliated futureaccount simultaneously hold shares ofthe Fund. The section 6(c) Applicantssubmit that, for the reasons statedabove, the requested exemptions areappropriate in the public interest andconsistent with the protection ofinvestors and the purposes fairlyintended by the policy and provisions ofthe 1940 Act.



[Release No. 35–26745]

Filings Under the Public Utility HoldingCompany Act of 1935, as Amended(‘‘Act’’)

July 25, 1997.Notice is hereby given that the

following filing(s) has/have been madewith the Commission pursuant toprovisions of the Act and rulespromulgated thereunder. All interestedpersons are referred to the application(s)and/or declaration(s) for completestatements of the proposedtransaction(s) summarized below. Theapplication(s) and/or declaration(s) andany amendments thereto is/are availablefor public inspection through theCommission’s Office of PublicReference.

Interested persons wishing tocomment or request a hearing on theapplication(s) and/or declaration(s)should submit their views in writing byAugust 18, 1997, to the Secretary,Securities and Exchange Commission,Washington, DC 20549, and serve acopy on the relevant applicant(s) and/ordeclarant(s) at the address(es) specifiedbelow. Proof of service (by affidavit or,in case of an attorney at law, bycertificate) should be filed with therequest. Any request for hearing shallidentify specifically the issues of fact orlaw that are disputed. A person who sorequests will be notified of any hearing,if ordered, and will receive a copy ofany notice of order issued in the matter.After said date, the application(s) and/

or declaration(s), as filed or as amended,may be granted and/or permitted tobecome effective.

Central Power and Light Company, etal. (70–9075)

Central Power and Light Company,539 North Carancahua Street, CorpusChristi, Texas 78401–2802, PublicService Company of Oklahoma, 212 EastSixth Street, Tulsa, Oklahoma 74119–1212, Southwestern Electric PowerCompany, 428 Travis Street, Shreveport,Louisiana 71156–0001, and West TexasUtilities Company, 301 Cypress Street,Abilene, Texas 79601–5820, each anelectric public-utility subsidiarycompany (collectively, ‘‘OperatingCompanies’’) of Central and South WestCorporation (‘‘CSW’’), a registeredholding company, and Central andSouth West Services, Inc. (‘‘CSWServices’’), Williams Tower 2, 2 West2nd Street, Tulsa, Oklahoma 74103, aservice company subsidiary of CSW,have filed an application under sections9(a) and 10 of the Act and rule 54 underthe Act.

The Operating Companies, directly orthrough CSW Services, propose to enterinto arrangements with one or moreproviders (‘‘Plan Providers’’) ofwarranty plans (‘‘Plans’’) for theservicing and repair of appliances andoffer the Plans to their customers.Applicants propose to offer Plans forkitchen and laundry appliances,heating, ventilation and air conditioningsystems, personal computer systems andhome entertainment video and audiosystems.

The Plans would be offered tocustomers of the Operating Companyusing marketing materials eitherdesigned or approved by the OperatingCompanies and mailed to customersusing the billing and mailing systems ofthe Operating Companies. The Planswould be legal obligations of the PlanProviders, underwritten by suchinsurance arrangements as theOperating Companies might require.The Plan Providers would beresponsible for responding to customers’calls for service and for makingarrangements with adequately licensedand insured service contractors toperform the services covered by thePlans. In certain cases, the OperatingCompanies might qualify as servicecontractors under the Plans.

The Operating Companies would billenrolled customers for monthly Planfees and remit the fees to the PlanProviders. Either the Plan Providerswould pay a service and administrationfee to the Operating Companies, or theOperating Companies would retain sucha fee out of the monthly Plan fees. The

Operating Companies would have noresponsibility for ensuring payment ofthe monthly fees.

For the Commission, by the Division ofInvestment Management, pursuant todelegated authority.Margaret H. McFarland,Deputy Secretary.[FR Doc. 97–20169 Filed 7–30–97; 8:45 am]BILLING CODE 8010–01–M


[Rel. No. IC–22764; 811–3879]

Seilon, Inc.; Notice of Application

July 25, 1997.AGENCY: Securities and ExchangeCommission (‘‘SEC’’).ACTION: Notice of Application forDeregistration under the InvestmentCompany Act of 1940 (the ‘‘Act’’).

APPLICANT: Seilon, Inc. (‘‘Seilon’’).RELEVANT ACT SECTION: Section 8(f).SUMMARY OF APPLICATION: Applicantseeks an order declaring that it hasceased to be an investment company.FILING DATE: The application was filedon March 18, 1997, and amended onJuly 9, 1997.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 applicant with acopy of the request, personally or bymail. Hearing requests should bereceived by the SEC by 5:30 p.m. onAugust 19, 1997, and should beaccompanied by proof of service onapplicant, 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 may request notification of ahearing by writing to the SEC’sSecretary.ADDRESSES: Secretary, SEC, 450 5thStreet, NW., Washington, DC 20549.Applicant, P.O. Box 411, 212 West MainStreet, Smithville, Missouri 64089.FOR FURTHER INFORMATION CONTACT:Deepak T. Pai, Staff Attorney, at (202)942–0574, or Mercer E. Bullard, BranchChief, at (202) 942–0564 (Division ofInvestment Management, Office ofInvestment Company Regulation).SUPPLEMENTARY INFORMATION: Thefollowing is a summary of theapplication. The complete applicationmay be obtained for a fee at the SEC’sPublic Reference Branch.


1 Investment securities are defined in section3(a)(2) to include all securities except (A)Government securities, (B) securities issued byemployees’ securities companies, and (C) securitiesissued by majority owned subsidiaries of the ownerwhich are not investment companies, and are notrelying on the exception from the definition ofinvestment company in sections 3(c)(1) or 3(c)(7) ofthe Act.

Applicant’s Representations

1. Seilon is a registered closed-endmanagement investment companyorganized as a Delaware corporation. InOctober 1984, Seilon registered underthe Act by filing a notification ofregistration on Form N–8A. Seilon hasmade no public offering of securitiessince its registration under the Act.Seilon has not filed any securitiesregistration statements pursuant to theSecurities Act of 1993. Any sales ofsecurities of Seilon have been effectedthrough private placements pursuant toapplicable federal and state exemptions.Seilon has approximately 2,300stockholders. Seilon states that it is nota party to any litigation oradministrative proceeding, and that it isnot in the process of liquidating orwinding up its affairs and has nointention of liquidating its assets. Seilonrequests an order declaring that it hasceased to be an investment companybecause it does not meet the definitionof an investment company undersection 3(a)(1) of the Act.

2. Seilon was incorporated inNovember, 1921, as the SciberlingRubber Company, with its principaloffices located in Akron, Ohio.Originally, Seilon was primarilyengaged in the business ofmanufacturing tires, but in the early1960’s, Seilon’s stock price began todeteriorate. As a result, Mr. EdwardLamb, an attorney in Toledo, Ohio,acquired voting control over thecompany in order to diversify itsbusiness activities.

3. As part of Seilon’s plan to diversifyits business activities, it changed itsname from the Sciberling RubberCompany to Seilon, Inc. During the1960’s, Seilon acquired ThomasInternational (sugar cane harvestingequipment), Lockport (central pivotirrigation systems), and Air-WaySanitizer (vacuum cleaner systems),among others. All of these companieswere operating companies that did nothold investment securities. In 1969,Seilon acquired a controlling interest inFirst Bancorporation, a registered bankholding company in Reno, Nevada.Consequently, Seilon was required tobecome a registered bank holdingcompany and to divest itself of certainnon-banking businesses. In 1976, Seilonchanged the name of FirstBancorporation to Nevada NationalBancorporation (‘‘Nevada Bancorp’’). In1982, Seilon sold Nevada Bancorp andthereafter, Seilon sold ThomsonInternational, the remaining asset ofSeilon, to facilitate the retirement ofSeilon’s outstanding debt.

4. After selling Nevada Bancorp andThomas International, Seilon’s onlyassets were cash and other short-termliquid assets, which it intended toutilize for the acquisition of anotheroperating company. Because Seilon wasunable to purchase another operatingcompany, it registered under the Act.

5. Around 1989, Seilon acquiredCollege Transitions, Inc., a corporationheadquartered in Conyers, Georgia, andchanged its name to DiversifiedMerchandise and Service Corporation(‘‘Diversified’’). Diversified was engagedin the wholesale distribution of college-identified expendable merchandise toconvenience stores in the SoutheastUnited States. In 1991, Diversified filedfor bankruptcy under Chapter 7 of theU.S. Bankruptcy Code and liquidated itsassets. Since Diversified’s liquidation,Seilon has not owned any otheroperating subsidiaries and essentiallyhas remained inactive. After theliquidation, Seilon’s only assets werecash, cash equivalents, and other liquidassets.

6. In 1996, in order to infuseadditional capital into the company,Seilon undertook a private placement ofits common stock with a group relatedto the Mayfield International, Inc. inMinneapolis, Minnesota. The privateplacement was for 650,000 shares ofcommon stock of Seilon at a price of$1.00 per share, and 250,000 shares ofpreferred stock at a price of $1.00 pershare. With this additional funding,Seilon acquired ninety percent of theoutstanding stock of Peachtree MedicalEquipment, Inc. (‘‘Peachtree’’) andPhysicians Home Care Services, Inc.(‘‘Physicians Home Care’’), both ofwhich are Georgia corporations, fromDavid and Paula Court on July 27, 1996,at a price of $900,000. David and PaulaCount each own the remaining tenpercent of stock in Peachtree andPhysicians Home Care, respectively.Seilon was unable to borrow any fundsfor these acquisitions because of thelimitations of the Act related to theissuance of debt.

7. Seilon states that, if an orderpursuant to section 8(f) is granted by theSEC, it intends to aggressively pursuethe acquisition of several othercompanies in the health care business,subject to its ability to obtain financingat a reasonable cost. Currently, due tothe limitations of the Act, suchacquisitions will be limited to the extentthat Seilon is unable to issue debt tofinance such transactions. Seilon statesthat it does not anticipate acquiringinvestment securities, nor do Peachtreeand Physicians Home Care contemplateowning investment securities thatwould subject Seilon to the

requirements of the Act. Thus, thederegistration would allow Seilon theresumption of its historic posture,similar to that it assumed in the periodfrom 1921 to 1983, and would furtherpermit the acquisition of other concernswith the use of seller financing asopposed to equity.

Applicant’s Legal Analysis

1. Section 3(a)(1)(C) of the Act definesan investment company as any issuerwhich ‘‘is engaged * * * in thebusiness of investing, reinvesting,owning, holding, or trading insecurities, and owns or proposes toacquire investment securities having avalue exceeding forty percentum of thevalue of such issuer’s total assets(exclusive of Government securities andcash items) on an unconsolidatedbasis.’’ 1 At the time of its initial filingunder the Act, Seilon believed that itmet the definition of investmentcompany under section 3(a)(1)(C) of theAct, because its short-term liquid assetswere securities as defined in the Actand accounted for more than 40% of itstotal assets. Seilon now believes that itdoes not meet the definition ofinvestment company under section3(a)(1)(C) of the Act.

2. Seilon states that at the end of1996, the value of its assets was$1,144,251. Seilon holds subsidiarypromissory notes in the amount of$900,000. Seilon asserts that thepromissory notes are excluded from thedefinition of investment securitiesunder section 3(a)(2) of the Act becausethe promissory notes are securities ofPeachtree and Physicians Home Care,Seilon’s majority-owned subsidiaries.Seilon also asserts that any remainingcash and cash items held by it areexcluded from the definition ofinvestment securities under section3(a)(2). Thus, Seilon contends that itdoes not own any investment securitiesand does not meet the criteria in section3(a)(1)(C) of the Act to be deemed aninvestment company. Further, Seilonasserts that its subsidiaries do not haveany investment securities that can beattributed to Seilon.

3. Seilon asserts that it has alwaysderived all of its revenues and incomefrom the business of its operatingsubsidiaries, rather than from itsincidental holdings of cash and cash


1 15 U.S.C. § 78s(b)(1).

2 See Securities Exchange Act Release No. 38067(December 20, 1996), release adopting anti-manipulation rules concerning securities offerings(‘‘Reg M’’).

3 See Securities Exchange Act Release No. 38478(April 4, 1997).

4 See Securities Exchange Act Release No. 38067(December 20, 1996), adopting Reg M. See alsoSecurities Exchange Act Release No. 38363 (March4, 1997), regarding technical amendments toRegulation M.

equivalents. Seilon states that it has notderived any net income from investmentsecurities for the last twelve years.Seilon states that all of such subsidiarieshave been majority-owned and none ofthem has ever been an investmentcompany within the meaning of the Act.In addition, Seilon asserts that its recentacquisitions have been for the purposeof operating such businesses. Seilonstates that its net income is derived fromthe operation of its subsidiaries, whichgenerate income from the sale of homehealth services and the sale and rentalof durable medical equipment.



[Release No. 34–38873; File SR–NYSE–97–15]

Self-Regulatory Organizations; Noticeof Filing and Order GrantingAccelerated Approval of ProposedRule Change and Amendment No. 1 bythe New York Stock Exchange, Inc.Relating to Requirements forNotification by Member Organizationsof Participation in Distributions

July 24, 1997.Pursuant to section 19(b)(1) of the

Securities Exchange Act of 1934 (the‘‘Act’’),1 notice is hereby given that onMay 21, 1997, the New York StockExchange, Inc. (‘‘NYSE’’ or ‘‘theExchange’’) filed with the Securities andExchange Commission (‘‘Commission’’)the proposed rule change. The Exchangesubsequently filed Amendment No. 1 onJune 20, 1997. The proposed rulechange and Amendment No. 1 aredescribed in Items I, II and III below,which Items have been prepared by theself-regulatory organization. TheCommission is publishing this notice tosolicit comments on the proposed rulechange from interested persons and togrant accelerated approval of theproposed rule change.

I. Self-Regulatory Organization’sStatement of the Terms of Substance ofthe Proposed Rule Change

The proposed rule change consists ofan amendment to NYSE Rule 392 torequire notification by memberorganizations of any stabilizing bidmade in connection with an offering of

an Exchange-listed security. Proposednew language is in italics.

Notification Requirements for Offeringsof Listed Securities

Rule 392(a) No change.(b) Any Exchange member or member

organization effecting a syndicatecovering transaction or imposing apenalty bid or placing or transmitting astabilizing bid in a listed security shallprovide prior notice of such to theExchange in such format and withinsuch time frame as the Exchange mayfrom time to time require.

II. Self-Regulatory Organization’sStatement of the Purpose of, andStatutory Basis for, the Proposed RuleChange

In its filing with the Commission, theself-regulatory organization includedstatements concerning the purpose ofand basis for the proposed rule changeand discussed any comments it receivedon the proposed rule change. The textof these statements may be examined atthe places specified in Item III belowand is set forth in Sections A, B, and Cbelow.

A. Self-Regulatory Organization’sStatement of the Purpose of, andStatutory Basis for, the Proposed RuleChange

1. PurposeIn March 1997, the Exchange

proposed Rule 392 to requirenotification to the Exchange whenever amember organization acts as a leadunderwriter in any offering of anExchange-listed security. TheExchange’s Rule 392 codifies thenotification requirements of RegulationM under the Act.2 The Commissionapproved Rule 392 on April 4, 1997.3

The Exchange is now proposing toamend Rule 392 with respect tonotification of any stabilizing bid madein connection with an offering. Rule104(h)(1) under Reg M requiresnotification to the market when anyperson makes a stabilizing bid.4 TheExchange understands that suchnotification to the market includesnotification to the Exchange as a self-regulatory organization. To encompass

this, the Exchange proposes to add arequirement in Rule 392 for stabilizationnotification. The Exchange originallyproposed to require the date and time ofa stabilizing bid or transaction underRule 392(a) but subsequently amendedthe proposal under Amendment No. 1,to require prior notice of the placing ortransmitting of a stabilizing bidpursuant to Rule 392(b).

2. Statutory Basis

The statutory basis for the proposedrule change is the requirement underSection 6(b)(5) of the Act that anExchange have rules that are designed topromote just and equitable principles oftrade, to remove impediments to, andperfect the mechanism of a free andopen market and, in general, to protectinvestors and the public interest.

B. Self-Regulatory Organization’sStatement on Burden on Competition

The Exchange does not believe thatthe proposed rule change will imposeany burden on competition that is notnecessary or appropriate in furtheranceof the purposes of the Act.

C. Self-Regulatory Organization’sStatement on Comments on theProposed Rule Change Received FromMembers, Participants or Others

The Exchange has neither solicitednor received written comments on theproposed rule change.

III. Solicitation of CommentsInterested persons are invited to

submit written data, views andarguments concerning the foregoing.Persons making written submissionsshould file six copies thereof with theSecretary, Securities and ExchangeCommission, 450 Fifth Street NW.,Washington, DC 20549.

Copies of the submission, allsubsequent amendments, all writtenstatements with respect to the proposedrule change that are filed with theCommission, and all writtencommunications relating to theproposed rule change between theCommission and any person, other thanthose that may be withheld from thepublic in accordance with theprovisions of 5 U.S.C. 552, will beavailable for inspection and copying inthe Commission’s Public ReferenceRoom, 450 Fifth Street, NW.,Washington, DC 20549.

Copies of such filing will also beavailable for inspection and copying atthe principal office of the above-mentioned self-regulatory organization.All submissions should refer to the filenumber in the caption above and shouldbe submitted by August 21, 1997.


5 15 U.S.C. § 78s(b)(2).6 17 CFR 200.30–3(a)(12).

IV. Commission’s Findings and OrderGranting Accelerated Approval of theProposed Rule Change

The Commission finds that theNYSE’s proposal is consistent with theAct and the rules and regulationsthereunder applicable to nationalsecurities exchanges. Specifically, theCommission finds that the proposedrule change is consistent with section6(b)(5) of the Act that requires that anexchange have rules that are designed toprevent fraudulent and manipulativeacts and practices, to promote just andequitable principles of trade, to removeimpediments to and perfect themechanism of a free and open marketand a national market system, and, ingeneral, to protect investors and thepublic interest.

In addition, the Commission believesthat the Exchange’s proposal to enhancetimely notification to the Exchange ofstabilizing bids made with respect toofferings of NYSE-listed securities willfacilitate compliance with RegulationM. The Commission therefore findsgood cause for approving the proposedrule change prior to the thirtieth dayafter the date of publication of filingthereof in the Federal Register.

It is therefore ordered, pursuant tosection 19(b)(2) of the Act,5 that theproposed rule change, NYSE–97–15, be,and hereby is, approved.

For the Commission, by the Division ofMarket Regulation, pursuant to delegatedauthority.6


SMALL BUSINESS ADMINISTRATION

[Declaration of Disaster #2965]

State of Michigan; (Amendment #1)

In accordance with a notice from theFederal Emergency Management Agencydated July 22, 1997, the above-numbered Declaration is herebyamended to include Genesee County,Michigan as a disaster area due todamages caused by severe storms,tornadoes, and flooding which occurredon July 2, 1997.

In addition, applications for economicinjury loans from small businesseslocated in the contiguous counties ofSaginaw, Shiawassee, and Tuscola inthe State of Michigan may be filed untilthe specified date at the previouslydesignated location.

All other information remains thesame, i.e., the deadline for filing

applications for physical damage isSeptember 9, 1997 and for economicinjury the termination date is April 13,1998.(Catalog of Federal Domestic AssistanceProgram Nos. 59002 and 59008)

Dated: July 23, 1997.Becky C. Brantley,Acting Associate Administrator for DisasterAssistance.[FR Doc. 97–20140 Filed 7–30–97; 8:45 am]BILLING CODE 8025–01–P

DEPARTMENT OF STATE

[Public Notice No. 2572]

Shipping Coordinating CommitteeSubcommittee on Safety of Life at SeaWorking Group on Fire Protection;Notice of Meeting

The U.S. Safety of Life at Sea (SOLAS)Working Group on Fire Protection willconduct an open meeting onWednesday, August 20, 1997, at 9:30AM, in Room 6103 at U.S. Coast GuardHeadquarters, 2100 2nd Street, SW,Washington, DC 20593. The purpose ofthe meeting will be to prepare fordiscussions anticipated to take place atthe Forty-second Session of theInternational Maritime Organization’sSubcommittee on Fire Protection, to beheld December 8–12, 1997.

The meeting will focus on proposedamendments to the 1974 SOLASConvention for the fire safety ofcommercial vessels. Specific discussionareas include: Ro-ro ferry safety, fire testprocedures, proposed restructuring ofChapter II–2, fire extinguishing systems,emergency escape breathing devices,criteria for maximum fire loads,interpretations to SOLAS 74, the HighSpeed Craft Code, role of the humanelement, and shipboard safetyemergency plans.

Members of the public wishing tomake a statement on new issues orproposals at the meeting are requestedto submit a brief summary to the U.S.Coast Guard five days prior to themeeting.

Members of the public may attendthis meeting up to the seating capacityof the room. For further informationregarding the meeting of the SOLASWorking Group on Fire Protectioncontact Mr. Jack Booth at (202) 267–2997.

Dated: July 21, 1997.Russell A. La Mantia,Chairman, Shipping Coordinating Committee.[FR Doc. 97–20085 Filed 7–30–97; 8:45 am]BILLING CODE 4710–07–M



Reports, Forms and RecordkeepingRequirements; Agency InformationCollection Activity Under OMB Review

AGENCY: Office of the Secretary, DOTACTION: Notice.

SUMMARY: In compliance with thePaperwork Reduction Act of 1995(U.S.C. 3501 et seq.), this noticeannounces that the InformationCollection Request (ICR) abstractedbelow has been forwarded to the Officeof Management and Budget (OMB) forreview and comment. The ICR describesthe nature of the information collectionand its expected cost and burden. TheFederal Register Notice with a 60-daycomment period soliciting comments onthe following collections of informationwas published on April 23, 1997 [62 FR19854].DATES: Comments must be submitted onor before September 2, 1997.FOR FURTHER INFORMATION CONTACT:Bernie Stankus, Office of AirlineInformation, K–25, Bureau ofTransportation Statistics, 400 SeventhStreet, S.W., Washington, DC 20590,(202) 366–4387.


Bureau of Transportation Statistics(BTS)

Title: Part 249 Preservation ofRecords.

Type of Request: Extension of acurrently approved informationcollection.

OMB Control Number: 2138–0006.Affected Public: Certificated air

carriers and public charter operators.Abstract: Part 249 requires the

retention of such records as general andsubsidiary ledgers, journals and journalvouchers, voucher distribution registers,accounts receivable and payablejournals and ledgers, subsidy recordsdocumenting underlying financial andstatistical reports to the Department,funds reports, consumer records, salesreports, auditors and flight coupons,airway bills, etc. Depending on thenature of the document, it may beretained for a period of 30 days to 3years. Public charter operators andoverseas military personnel charteroperators must retain documents whichevidence or reflect deposits made byeach charter participant andcommissions received by, paid to, ordeducted by travel agents, and allstatements, invoices, bills and receiptsfrom suppliers or furnishers of goodsand services in connection with the tour


or charter. These records are retained for6 months after completion of the charterprogram. Not only is it imperative thatcarriers and charter operators retainsource documentation, but it is criticalthat we ensure that DOT has access tothese records. Given DOT’s establishedinformation needs for such reports, theunderlying support documentation mustbe retained for a reasonable period oftime. Absent the retention requirements,the documentary support for suchreports may or may not exist for audit/validation purposes and the relevanceand usefulness of carrier submissionswould be impaired, since the data couldnot be verified to the source on a testbasis.

Estimated Annual Burden Hours: 678hours.

Number of Respondents: 470.ADDRESSES: Send comments to theOffice of Information and RegulatoryAffairs, Office of Management andBudget, 725–17th Street, NW.,Washington, DC 20503, Attention DOTDesk Officer. Comments are invited on:whether the proposed collection ofinformation is necessary for the properperformance of the functions of theDepartment, including whether theinformation will have practical utility;the accuracy of the Department’sestimate of the burden of the proposedinformation collection; ways to enhancethe quality, utility and clarity of theinformation to be collected; and ways tominimize the burden of the collection ofinformation on respondents, includingthe use of automated collectiontechniques or other forms of informationtechnology.

Issued in Washington, DC, on July 24,1997.Vanester M. Williams,Clearance Officer, United States Departmentof Transportation.[FR Doc. 97–20110 Filed 7–30–97; 8:45 am]BILLING CODE 4910–62–P



Privacy Act of 1974: Systems ofRecords

AGENCY: Operating Administrations,DOT.ACTION: Notice.

SUMMARY: Notice to amend systems ofrecords.EFFECTIVE DATE: July 31, 1997.FOR FURTHER INFORMATION CONTACT:Crystal M. Bush at (202) 366–9713(Telephone), (202) 366–7066 (FAX),

[email protected] (InternetAddress).SUPPLEMENTARY INFORMATION: TheDepartment of Transportation systemsof records notices subject to the PrivacyAct of 1974 (5 U.S.C. 552a), as amended,have been published in the FederalRegister and are available from theabove mentioned address.

The proposed amendments are notwithin the purview of subsection (r) ofthe Privacy Act of 1974, (5 U.S.C. 552a),as amended, which requires thesubmission of a new or altered systemsreport.

DOT/FHWA 204

SYSTEM NAME:FHWA Motor Carrier Safety Proposed

Civil and Criminal Enforcement Cases,DOT/FHWA.

SECURITY CLASSIFICATION:Confidential.

SYSTEM LOCATION:Department of Transportation (DOT),

Federal Highway Administration(FHWA). All FHWA Regional Offices(See 49 CFR part 7 appendix D foraddresses).

CATEGORIES OF INDIVIDUALS COVERED BY THESYSTEM:

Officers, agents or employees of motorcarriers, including drivers who havebeen the subject of investigation forMotor Carrier Safety regulationviolations.

CATEGORIES OF RECORDS IN THE SYSTEM:This system of records contains

information pertaining to Motor Carriersafety regulation violations andidentifying features.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:Motor Carrier Safety Act of 1984.

PURPOSE(S):This system of records serves as a

Federal Highway Administrationdocket. The records are maintained byboth the Regional Counsels and theOffice of Chief Counsel at theWashington Headquarters, and are usedto decide enforcement action and foruse as historical documents in case ofappeal.

ROUTINE USES OF RECORDS MAINTAINED IN THESYSTEM, INCLUDING CATEGORIES OF USERS ANDTHE PURPOSES OF SUCH USES:

These records and information in therecords are used for referral to U.S.Attorney civil proceedings or referred toother agencies for criminal or civilinvestigation of other Federal violations.

Prefatory Statement of GeneralRoutine Uses. Routine use number 5does not apply to this system of records.

DISCLOSURE TO CONSUMER REPORTINGAGENCIES:

Not applicable.

POLICIES AND PRACTICES FOR STORING,RETRIEVING, ACCESSING, RETAINING, ANDDISPOSING OF RECORDS IN THE SYSTEM:

Storage:The records are maintained in file

folders in the Regional Counsel’s Office.

RETRIEVABILITY:

These records are indexed by namesof motor carriers or individuals.

SAFEGUARDS:

The records are marked‘‘Confidential.’’ Only Office of ChiefCounsel or Regional Counsel Officeemployees and Office of Motor Carriers(OMC) employees have access to thefiles.

RETENTION AND DISPOSAL:

The records are retained for one yearand then are generally sent to the localFederal Records Centers for anadditional three-year period.

SYSTEM MANAGER(S) AND ADDRESS:

FHWA, Office of Chief Counsel, 400Seventh Street, SW., Room 4224,Washington, DC 20590; FHWA RegionalOffices, Office of Regional Counsel.

NOTIFICATION PROCEDURE:

Same as ‘‘System Manager.’’

RECORD ACCESS PROCEDURES:


CONTESTING RECORD PROCEDURES:


RECORD SOURCE CATEGORIES:

Individuals, motor carrier files, OMCfile information as gathered by OMCinvestigators, etc.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

Pursuant to (k) (2) of 5 U.S.C. 552athis system of records is exempt fromsubsections (c)(3), (d), (e)(1), (e)(4) (G),(H), and (I) and (f).

DOT/FHWA 212

SYSTEM NAME:

Medals of Honor File.

SECURITY CLASSIFICATION:

Sensitive.

SYSTEM LOCATION:

Department of Transportation (DOT),Federal Highway Administration(FHWA), Office of Motor Carrier FieldOperations, 400 Seventh Street, SW.,Room 4432A, Washington, DC 20590.



Nominees and recipients ofPresidential Medals of Honor forLifesaving on Highways.

CATEGORIES OF RECORDS IN THE SYSTEM:Description of incidents, motor carrier

safety investigators’ reports, and relatedcorrespondence.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:DOT Order 3450. DOT Award for

Heroism, dated March 11, 1975.

PURPOSE(S):The purpose of this system of records

is to provide a source of historicalinformation to monitor individuals thathave been nominated for the DOTAward for Heroism. The system is usedby Motor Carrier personnel for thenomination, the approval or disapprovalof prospective recipients, andpresentation of the DOT Medal of Honorfor Heroism.


To determine the applicability ofMedals of Honor criteria and tomaintain background information forpreparation of Medal presentation.

See Prefatory Statement of GeneralRoutine Uses. The routine usesnumbered 1, 2, 4, and 9 are notapplicable to this system of records.


Not applicable.


STORAGE:The records are maintained in a file

folder in a single file drawer.

RETRIEVABILITY:The records are indexed by name of

Medal of Honor nominees and/orrecipients.

SAFEGUARDS:These records are accessible only by

designated persons who are involved inthe Medal of Honor nomination,approval, and presentation processes.

RETENTION AND DISPOSAL:The records are retained

approximately two years afterpresentation or denial of the Medal ofHonor.

SYSTEM MANAGER(S) AND ADDRESS:Department of Transportation, Federal

Highway Administration, Office ofMotor Carrier Field Operations, 400

Seventh Street, SW., Room 4432A,Washington, DC 20590.


Same as in ‘‘System Manager’’ above.






Medal of Honor Nomination.


None.

DOT/FHWA 213

SYSTEM NAME:

Driver Waiver File.


Sensitive.

SYSTEM LOCATION:

Department of Transportation, FederalHighway Administration (FHWA),FHWA Regional Offices and MotorCarriers.


The records pertain to operators ofinterstate commercial vehicles thattransport certain commodities.

CATEGORIES OF RECORDS IN THE SYSTEM:

The records include applications forwaiver (usually involving physicaldisability); final disposition of requestfor waiver; and waiver renewal.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Motor Carrier Safety Act of 1984.

PURPOSE(S):

This system of records is necessary tomonitor drivers of commercial interstatevehicles who have been identified asphysically impaired. The regulationsstate that impaired drivers must beevaluated every two years to insure thatthey are physically qualified to drive acommercial vehicle.


To control physically impairedoperators of commercial motor vehicles.

See Prefatory Statement of GeneralRoutine Uses. Routine use number 5 isnot applicable to this system of records.


Not applicable.


STORAGE:

The records are maintained in filefolders in file cabinets.

RETRIEVABILITY:

The records are filed by drivers’name.

SAFEGUARDS:

Files are classified as sensitive andare accessible only by designatedemployees within the Regional Officesof Motor Carriers.


The files are retained while the driverwaivers are active. The inactive driverwaiver files are purged each year.


Department of Transportation, FederalHighway Administration, Office ofMotor Carrier Research and Standards,400 Seventh Street, SW., Washington,DC 20590.








Information obtained fromApplication for Waiver or WaiverRenewal.


None.

DOT/FHWA 215

SYSTEM NAME:

Travel Advance File.


Sensitive.

SYSTEM LOCATION:

Department of Transportation (DOT),Federal Highway Administration(FHWA), Office of Budget and Finance,400 Seventh Street, SW., Washington,DC 20590; Federal AviationAdministration, Southern Region,Travel and Transportation Section,ASO–22A, Campus Building, Room C–210E, 1701 Columbia Avenue, CollegePark, GA 30337; and all FHWA FederalLands Division Offices.


Employees who are not eligible for thecontractor issued credit card and other


groups of employees, such as FederalLands, and relocating employees.

CATEGORIES OF RECORDS IN THE SYSTEM:Record of travel advances and

repayments.

AUTHORITY FOR MAINTENANCE OF SYSTEM:FHWA Order 2700.2.

PURPOSE(S):The data contained in this system of

records is required by the GeneralAccounting Office (GAO) for controllingthe repayments of travel advances toFHWA personnel.


To control the repayments of FHWAtravel advances. The Support ofAdvance Receivable document is usedfor posting and as a legal record forcollection of receivables.

See Prefatory Statement of GeneralRoutine Uses.


Disclosures pursuant to 5 U.S.C.552a(b)(12): Disclosures may be madefrom this system to ‘‘consumer reportingagencies’’ (collecting on behalf of theU.S. Government) as defined in the FairCredit Reporting Act (15 U.S.C.1681a(f)) or the Federal ClaimsCollection Act of 1982 (31 U.S.C.3701(a)(3)).


STORAGE:Open advances are maintained on a

5 x 8 inch form.

RETRIEVABILITY:

The files are indexed by name.

SAFEGUARDS:The records are maintained in a

locked file cabinet.

RETENTION AND DISPOSAL:The files are retained for 61⁄2 years

pursuant to General Records Schedule9, Travel and Transportation Records.


Department of Transportation, FederalHighway Administration, Office ofBudget and Finance, Chief, OperationsTeam, 400 Seventh Street, SW.,Washington, DC 20590.








The information is obtained from theindividuals on whom the records aremaintained.


None.

DOT/FHWA 216

SYSTEM NAME:

Travel Voucher—Change of DutyStation.


Non-sensitive.

SYSTEM LOCATION:

Department of Transportation, FederalHighway Administration, Office ofBudget and Finance, 400 Seventh Street,SW., Washington, DC 20590; FederalAviation Administration, SouthernRegion, Travel and TransportationSection, ASO–22A, Campus BuildingRoom C–210E, 1701 Columbia Avenue,College Park, GA 30337.


First duty station employees andtransferring employees within theFHWA and those from other Federalagencies.


Travel vouchers, copies of third partypayments (i.e., GBL carrier bills,relocation service bills, tax informationrecords, administrative notices, and IRS4782’s.


FHWA Order 2700.2.

PURPOSE(S):

The data contained in this system ofrecords is required by the GeneralAccounting Office (GAO) to support thepayments to employees and serves assupport for updated employee earningsrecords. Voucher examiners providecopies to employees from these records.The records are also used to conductresearch and to develop reports.


The file supports the payments toemployees and serves as support forupdated employee earnings records.Retrieval of records by voucherexaminers is needed to provide copiesto employees, to conduct research andto develop reports.


Disclosures pursuant to 5 U.S.C.552a(b)(12): Disclosures may be madefrom this systems to ‘consumerreporting agencies’ (collecting on behalfof the U.S. Govt.) as defined in the FairCredit Reporting Act (15 U.S.C.1681a(f)) or the Federal ClaimsCollection Act of 1982 (31 U.S.C.3701(a)(3)).


STORAGE:

Maintained on an 8 x 10 inch form.

RETRIEVABILITY:

The files are indexed by name.

SAFEGUARDS:

Supervised by the PCS Team Leaderand Chief of the Operations Team inFHWA and the Supervisor of the FAATravel and Relocation Section.


General Records Schedule 9, Traveland Transportation Records.


Department of Transportation, FederalHighway Administration, Office ofBudget and Finance, Chief, OperationsTeam, 400 Seventh Street, SW.,Washington, DC 20590; and Chief,Travel and Transportation Section,Federal Aviation Administration, ASO–22A, Campus Building, Room C–210E,1701 Columbia Avenue, College Park,GA 30337.








The information is obtained fromindividuals on whom the records aremaintained.


None.

DOT/FHWA 217

SYSTEM NAME:

Accounts Receivable.


Sensitive.

SYSTEM LOCATION:

Department of Transportation, FederalHighway Administration, Office of


Budget and Finance, 400 Seventh Street,SW., Washington, DC 20590.


Individuals indebted to the FederalHighway Administration.

CATEGORIES OF RECORDS IN THE SYSTEM:Amount of indebtedness.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:FHWA Order 2700.2.

PURPOSE(S):The records in this system are

required by the Internal RevenueService (IRS) and the Department ofJustice to monitor and control accountsreceivable and support bills ofcollection issued to debtors of theFederal Highway Administration.


To control accounts receivable andsupport bill of collections issued todebtors of the Federal HighwayAdministration.

SEE PREFATORY STATEMENT OF GENERALROUTINE USES.


Disclosures pursuant to 5 U.S.C.552a(b)(12): Disclosures may be madefrom this systems to ‘‘consumerreporting agencies’’ (collecting on behalfof the U.S. Govt.) as defined in the FairCredit Reporting Act (15 U.S.C.1681a(f)) or the Federal ClaimsCollection Act of 1982 (31 U.S.C.3701(a)(3)).


STORAGE:Records are maintained in file folders

and loose-leaf binders.

RETRIEVABILITY:The records are filed by name.

SAFEGUARDS:Supervised by Chief, Accounting

Team.

RETENTION AND DISPOSAL:General Records Schedule 7,

Expenditure Accounting Records.

SYSTEM MANAGER(S) AND ADDRESS:Department of Transportation, Federal

Highway Administration, Office ofBudget and Finance, Chief, AccountingTeam, 400 Seventh Street, SW.,Washington, DC 20590.

NOTIFICATION PROCEDURE:Same as in ‘‘System Manager’’ above.






Employer.


None.

DOT/OST 035

SYSTEM NAME:

Personnel Security Record System.


Unclassified.

SYSTEM LOCATION:

Department of Transportation (DOT),Office of the Secretary (OST), Office ofSecurity and AdministrativeManagement, M–70,400 7th Street, SW.,Washington, DC 20590.


DOT applicants, employees, formeremployees, and detailees to DOT fromother Federal agencies.


Records of personnel securityprocessing, personal data oninvestigative and employment formscompleted by the individual, reports ofinvestigations, records of security andsuitability determinations, records ofaccess authorizations granted,documentation of security briefings/debriefings received, record of securityviolations by the individual.


49 CFR part 1.

PURPOSE(S):

To make suitability determinations foremployment or retention in governmentservice, assignment to sensitive dutypositions and access to classifiedinformation.


Used by Departmental personnelsecurity representatives, includingcontractor personnel, for makingsecurity determinations and grantingaccess authorizations, by Departmentalpersonnel management officials formaking suitability determinations, byrepresentatives of other Federal agencieswith which the individual is seekingemployment, and by Federal agenciesconducting official inquiries to theextent that the information is relevantand necessary to the requesting agency’s

inquiry, and by Departmental officials,to the extent necessary, to identify theindividual to sources from whominformation is requested for any of theforegoing purposes to inform the sourceof the nature and purpose of the requestand to indicate the type of informationrequested.

See Prefatory Statement of GeneralRoutine Uses.


Disclosures pursuant to 5 U.S.C.552a(b)(12): Disclosures may be madefrom this system to ‘‘consumer reportingagencies’’ (collecting on behalf of theU.S. Govt.) as defined in the Fair CreditReporting Act (15 U.S.C. 1681a(f)) or theFederal Claims Collection Act of 1982(31 U.S.C. 3701(a)(3)).


STORAGE:Completed forms and typed pages in

individual folders in a manual filingsystem, and on a manual system controlcards.

RETRIEVABILITY:By name.

SAFEGUARDS:Stored in locked room with

proprietary lock or in approved securitysafe. Access limited to authorized staffmembers.

RETENTION AND DISPOSAL:Retained in accordance with General

Records Schedule 18. Authorizeddestruction done by secure means usedfor classified materials.

SYSTEM MANAGER(S) AND ADDRESS:Director, Office of Security and

Administrative Management, M–70,Department of Transportation, Office ofthe Secretary, 400 7th Street, SW.,Washington, DC 20590.

NOTIFICATION PROCEDURE:Same as System Manager.

RECORD ACCESS PROCEDURES:Same as System Manager. However,

information compiled solely for thepurpose of determining suitability,eligibility, or qualification for Federalcivilian employment or access toclassified information may be exemptedfrom the access provisions pursuant to5 U.S.C. 552a(k)(5).

CONTESTING RECORD PROCEDURES:Same as ‘‘Record Access Procedure.’’

RECORD SOURCE CATEGORIES:Investigative sources contacted in

personnel security investigations,


National Agency Check and WrittenInquiry and similar investigations;investigative reports reviewed at otherGovernment agencies; personal historystatements, employment applicationsand other data provided by theindividual and/or other agencies.


Information compiled solely for thepurpose of determining suitability,eligibility, or qualification for federalcivilian employment or access toclassified information may be exemptedfrom the access provisions pursuant to5 U.S.C. 552a(k) (1) and/or (5).


Crystal M. Bush,Privacy Act Coordinator, Department ofTransportation.[FR Doc. 97–20064 Filed 7–30–97; 8:45 am]




Senior Executive Service PerformanceReview Boards (PBR) Membership

AGENCY: Department of Transportation(DOT).

ACTION: Notice.

SUMMARY: DOT publishes the names ofthe persons selected to serve on thevarious Departmental PerformanceReview Boards (PRB) established byDOT under the Civil Service ReformAct.

FOR FURTHER INFORMATION CONTACT:Glenda M. Tate, Director, HumanResource Management, and ExecutiveSecretary, DOT Executive ResourcesBoard, (202) 366–4088.

SUPPLEMENTARY INFORMATION: Title 5U.S.C. 4312 requires that each agencyimplement a performance appraisalsystem making senior executivesaccountable for organizational andindividual goal accomplishment. Aspart of this system, 5 U.S.C. 4314(c)requires each agency to establish one ormore PRBs, the function of which is toreview and evaluate the initial appraisalof a senior executive’s performance bythe supervisor and to makerecommendations to the final ratingauthority relative to the performance ofthe senior executive.

The persons named below have beenselected to serve on one or moreDepartmental PRBs.

Issued in Washington, D.C., on July 25,1997.Melissa J. Spillenkothen,Assistant Secretary for Administration.


Transportation Administrative ServiceCenter

Bureau of Transportation StatisticsRichard M. Biter, Deputy Director,

Office of Intermodalism, Office of theSecretary

Roberta D. Gabel, Assistant GeneralCounsel for Environmental, CivilRights, and General Law, Office of theSecretary

Bernard Gaillard, Director, Office ofInternational Transportation andTrade, Office of the Secretary

Paul M. Geier, Assistant GeneralCounsel for Litigation, Office of theSecretary

Luz A. Hopewell, Director, Office ofSmall And Disadvantaged BusinessUtilization, Office of the Secretary

George W. McDonald, Deputy Director,Office of Budget and ProgramPerformance, Office of the Secretary

Samuel Podberesky, Assistant GeneralCounsel for Aviation Enforcement andProceedings, Office of the Secretary

Patricia D. Parrish, Principal, CustomerService, TASC

Rolf R. Schmitt, Associate Director forTransportation Studies, Bureau ofTransportation Statistics

Edward L. Thomas, AssociateAdministrator for Research,Demonstration and Innovation,Federal Transit Administration

Gerard P. Yoest, Director, InternationalAffairs, United States Coast Guard

Office of Inspector GeneralEileen Boyd, Deputy Inspector General

for Enforcement and Compliance,Department of Health and HumanServices

John J. Connors, Deputy InspectorGeneral, Department of Housing andUrban Development

Judith J. Gordon, Assistant InspectorGeneral for Systems Evaluation,Department of Commerce

Nancy Hendricks, Assistant InspectorGeneral for Audits, Department ofEnergy

William G. Dupree, Assistant InspectorGeneral for Investigations,Department of Defense

Steven A. McNamara, AssistantInspector General for Audit,Department of Education

Everett Mosley, Deputy InspectorGeneral, Agency for InternationalDevelopment

Robert S. Terjesen, Assistant InspectorGeneral for Investigations,Department of State

Joseph R. Willever, Deputy InspectorGeneral, Office of PersonnelManagement

United States Coast GuardRADM Gerald F. Woolever, Assistant

Commandant for Human Resources,United States Coast Guard

RADM Ernest R. Riutta, AssistantCommandant for Operations, UnitedStates Coast Guard

RADM Joyce M. Johnson, Director,Health and Safety Directorate, UnitedStates Coast Guard

RADM John T. Tozzi, AssistantCommandant for Systems, UnitedStates Coast Guard

RADM Paul E. Busick, AssistantCommandant for Acquisition, UnitedStates Coast Guard

RADM George N. Naccara, Director ofInformation and Technology, UnitedStates Coast Guard

RADM Paul J. Pluta, Director, Office ofIntelligence and Security, UnitedStates Coast Guard

Jerry A. Hawkins, Director, Office ofPersonnel and Training, FederalHighway Administration

Diana Zeidel, Deputy AssociateAdministrator for Administration,Federal Highway Administration

Richard Chapman, Principal, Office ofInformation Technology Operations,TASC

Kay Frances Dolan, Director of HumanResource Management, FederalAviation Administration

Joan M. Bondareff, Chief Counsel,Maritime Administration

Federal Highway AdministrationGeorge S. Moore, Jr., Associate

Administrator for Administration,Federal Highway Administration

Julie A. Cirillo, Regional Administrator,Region 9, San Francisco, FederalHighway Administration

Robert J. Betsold, AssociateAdministrator for Research andDevelopment, Federal HighwayAdministration

Gloria J. Jeff, Associate Administratorfor Policy, Federal HighwayAdministration

Thomas J. Ptak, Associate Administratorfor Program Development, FederalHighway Administration

Herman Simms, AssociateAdministrator for Administration,National Highway Traffic SafetyAdministration

Federal Railroad AdministrationJane Bachner, Deputy Associate

Administrator for Policy and ProgramDevelopment, Federal RailroadAdministration

James T. McQueen, AssociateAdministrator for Railroad


Development, Federal RailroadAdministration

Ray Rogers, Associate Administrator forAdministration, Federal RailroadAdministration

Bruce M. Fine, Executive Advisor,Federal Railroad Administration

Rosalind A. Knapp, Deputy GeneralCounsel, Office of the Secretary

George S. Moore, AssociateAdministrator for Administration,Federal Highway Administration

Luz A. Hopewell, Director, Office ofSmall and Disadvantaged BusinessUtilization, Office of the Secretary


Herman Simms, AssociateAdministrator for Administration,National Highway Traffic SafetyAdministration

Adele Derby, Associate Administratorfor Regional Operations, NationalHighway Traffic SafetyAdministration

Robert Shelton, Associate Administratorfor Safety Performance Standards,National Highway Traffic SafetyAdministration

Dennis Judycki, AssociateAdministrator for Safety and SystemsApplication, Federal HighwayAdministration

Luz A. Hopewell, Director, Office ofSmall and Disadvantaged BusinessUtilization, Office of the Secretary

Federal Transit Administration

Rosalind A. Knapp, Deputy GeneralCounsel, Office of the Secretary

Peter G. Halpin, Director, Office ofCongressional Affairs, Office of theSecretary

James T. McQueen, AssociateAdministrator for RailroadDevelopment, Federal RailroadAdministration

Janet L. Sahaj, Deputy AssociateAdministrator, Office of ProgramManagement, Federal TransitAdministration

Gloria J. Jeff, Associate Administratorfor Policy, Federal HighwayAdministration

Jerry A. Hawkins, Director, Office ofPersonnel and Training, FederalHighway Administration

Kevin E. Heanue, Director, Office ofEnvironment and Planning, FederalHighway Administration

Maritime Administration

Bruce J. Carlton, AssociateAdministrator for Policy andInternational Affairs, MaritimeAdministration

James J. Zok, Associate Administratorfor Ship Financial Assistance and

Cargo Preference, MaritimeAdministration

Margaret D. Blum, AssociateAdministrator for Port, Intermodaland Environmental Activities,Maritime Administration

John L. Mann, Jr., AssociateAdministrator for Administration,Maritime Administration

James E. Caponiti, AssociateAdministrator for National Security,Maritime Administration

Joan M. Bondareff, Chief Counsel,Maritime Administration

Sharon Brooks, Director, Office ofCongressional and Public Affairs,Maritime Administration

Jerry A Hawkins, Director, Office ofPersonnel and Training, FederalHighway Administration

Research and Special ProgramsAdministration

Beverly Pheto, Director, Office of Budgetand Program Performance, Office ofthe Secretary

David J. Litman, Director, Acquisitionand Grant Management, Office of theSecretary

Joseph Kanianthra, Director, Office ofCrash Avoidance Research, NationalHighway Traffic SafetyAdministration

Richard Felder, Associate Administratorfor Pipeline Safety, Research andSpecial Programs Administration

Jerry Franklin, Associate Administratorfor Management and Administration,Research and Special ProgramsAdministration

William A. Vincent, Director, Office ofPolicy and Program Support, Researchand Special Programs Administration

Judith S. Kaleta, Chief Counsel,Research and Special ProgramsAdministration

Robert A. McGuire, Deputy AssociateAdministrator for Hazardous MaterialSafety, Research and SpecialPrograms Administration

Frank F. Tung, Deputy Director, VolpeNational Transportation SystemsCenter, Research and SpecialPrograms Administration.



Coast Guard

[CGD 97–046]

Chemical Transportation AdvisoryCommittee Meeting

AGENCY: Coast Guard, DOT.ACTION: Notice of meetings.

SUMMARY: The Chemical TransportationAdvisory Committee (CTAC) and itsVapor Control System (VCS)Subcommittee will meet to discussvarious issues relating to the marinetransportation of hazardous materials inbulk. All meetings are open to thepublic.DATES: The meeting of CTAC will beheld on Thursday, September 4, 1997,from 9 a.m. to 3 p.m. The meeting of theVCS Subcommittee will be held onWednesday, September 3, 1997, from 9a.m. to 11:30 a.m. Written material andrequests to make oral presentationsshould reach the Coast Guard on orbefore August 25, 1997.ADDRESSES: The CTAC meeting will beheld in room 6200, Nassif Building, 400Seventh St. SW., Washington, DC. TheVCS Subcommittee meeting will be heldin room 2415 at U.S. Coast GuardHeadquarters, 2100 Second St. SW.,Washington, DC. Written material andrequests to make oral presentationsshould be sent to Commander Kevin S.Cook, Commandant (G–MSO–3), U.S.Coast Guard Headquarters, 2100 SecondSt. SW., Washington, DC 20593–0001.FOR FURTHER INFORMATION CONTACT:Commander Kevin S. Cook, ExecutiveDirector of CTAC, or Lieutenant J. J.Plunkett, Assistant to the ExecutiveDirector, telephone (202) 267–0087, fax(202) 267–4570.SUPPLEMENTARY INFORMATION: Notice ofthese meetings is given pursuant to theFederal Advisory Committee Act, 5U.S.C. App. 2.

Agendas of Meetings

Chemical Transportation AdvisoryCommittee (CTAC). The agendaincludes the following:

(1) Progress report from thePrevention through People (PTP)Subcommittee.

(2) Final report from the VaporControl System (VCS) Subcommittee.

(3) Chemical spill response effortsconducted by Marine Safety Office NewOrleans, LA, including the details of thecapsizing of ID 960, collision of the M/V FORMOSA SIX, and the grounding ofDC 346.

(4) Status of the implementation ofthe International Management Code forthe Safe Operation of Ships and forPollution Prevention (InternationalSafety Management (ISM) Code).

(5) Status of the Hazardous SubstanceResponse Plan rulemaking project.

(6) Lessons learned duringimplementation of the StreamlinedInspection Program (SIP).

Vapor Control System (VCS)Subcommittee. The agenda includes thefollowing:


(1) Review the minutes from themeeting conducted July 22–23, 1997, inHouston, TX.

(2) Discuss work completed by facilityVCS work group.

(3) Discuss work completed by vesselVCS work group.

ProceduralAll meetings are open to the public.

At the Chairperson’s discretion,members of the public may make oralpresentations during the meetings.Persons wishing to make oralpresentations at the meeting shouldnotify the Executive Director no laterthan August 25, 1997. Written materialfor distribution at the meeting shouldreach the Coast Guard no later thanAugust 25, 1997. If a person submittingmaterial would like a copy distributedto each member of the committee orsubcommittee in advance of themeetings, that person should submit 25copies to the Executive Director no laterthan August 18, 1997.

Information on Services for theDisabled

For information on facilities orservices for the disabled or to requestspecial assistance at the meeting,contact Lieutenant Plunkett as soon aspossible.

Dated: July 25, 1997.Joseph J. Augelo,Director of Standards, Marine Safety andEnvironmental Protection.[FR Doc. 97–20222 Filed 7–30–97; 8:45 am]BILLING CODE 4910–14–M



Notice of Availability of the Record ofDecision for the ProposedDevelopment of the JFK InternationalAirport Light Rail System, Queens,New York

AGENCY: Federal AviationAdministration (FAA), DOT.ACTION: Notice of Availability of theRecord of Decision (ROD).

SUMMARY: The FAA is making availablethe Record of Decision for the proposedDevelopment of the JFK InternationalAirport Light Rail System Queens, NewYork.FOR FURTHER INFORMATION CONTACT: Mr.Laurence Schaefer, FAA, John F.Kennedy International Airport, AEA–610, Jamaica, NY 11430, fax: (718) 955–9219; telephone (718) 553–3340.SUPPLEMENTARY INFORMATION: Anyperson may obtain a copy of the ROD by

submitting a request to the FAA contactidentified above. The FAA is LeadAgency for purposes of implementingthe procedures required by the NationalEnvironmental Policy Act of 1969(NEPA), as amended, on a proposedtransportation system for an airportaccess improvement project sponsoredby the The Port Authority of New Yorkand New Jersey (Port Authority),operator of the airport.

The purpose of this notice is to informthe public that the Record of Decision(ROD) is available to anyone uponrequest.

The FAA considered potentialenvironmental impacts and other factorsresulting from the construction of theJFK International Airport Light RailSystem Project (the Project) at JFKInternational Airport (JFK). The RODpresents:—alternatives considered for the project;—the basis/justification for selecting the

Preferred Alternative;—impacts analysis;—mitigation measures for the Preferred

Alternative;—response to comments; and—Agency Findings.

The project proposed by the Portauthority is the development of a LightRail System (LRS) to improve groundaccess within JFK International Airport(JFK) in Queens County, New York, aswell as to and from JFK via connectionsat Jamaica Station and the New YorkCity Transit Howard Beach Station.Construction of the Project requires theincorporation of the system right-of-wayin the Airport Layout Plan. The FAAconditionally approved a modificationto the Airport Layout Plan on January23, 1997. This approval was madesubject to an acceptable environmentalreview.

The FAA, as the Lead Agency hasdetermined that the requirements of theNEPA have been satisfied for theconstruction of the proposed project inQueens County, New York. Thisdecision is based upon the FAA’s closemonitoring of the process andconsideration of the effects of theproject, all of which are documented inthe Draft Environmental ImpactStatement, the Written Reevaluation/Technical Report on Changes to theProposed JFK Airport Access Programand the Final Environmental ImpactStatement. The FAA’s determinationsare outlined in the ROD. The FinalEnvironmental Impact Statement wasapproved on May 12, 1997. The RODwas concurred in on July 18, 1997.

The LRS is intended to achieve theobjective of providing reliable, safe, andefficient ground access for air

passengers and employees with frequentservice to, from, and within JFK, andlinks to the regional mass transportationsystem, that will assist JFK to realize itseffective capacity and continueoperating successfully. By removingcars traveling to and from JFK on theregional roadway network, the LRSwould result in reduced vehicle milestraveled (VMT) in the region, easingcongestion, and improving air quality,assisting in the region’s efforts tocomply with federal air qualitystandards. In terms of broaderobjectives, the LRS is intended tosupport the region’s competitiveposition in the global economy, as wellas preserve the capacity of the nationalair transportation system.

Improved access to JFK will providethe potential for JFK to remain thecritical gateway that it currently is, andmay enhance its ability to compete withother gateway cities in the Region.

Issued in Jamaica, New York on July 23,1997.William DeGraaff,Assistant Manager, Airports Division.[FR Doc. 97–20075 Filed 7–30–97; 8:45 am]BILLING CODE 4910–13–M



Aviation Rulemaking AdvisoryCommittee; Meeting

AGENCY: Federal AviationAdministration (FAA), DOT.ACTION: Notice of Meeting.

SUMMARY: The FAA is issuing this noticeto advise the public of a meeting of theFederal Aviation AdministrationAviation Rulemaking AdvisoryCommittee to discuss general aviationoperations issues.DATES: The meeting will be held onAugust 19, 1997 at 9:30 a.m.ADDRESSES: The meeting will be held atthe Helicopter AssociationInternational, 1635 Prince Street,Alexandria, VA 22314.FOR FURTHER INFORMATION CONTACT:Noreen Hannigan, Regulations Analyst,Office of Rulemaking (ARM–106), 800Independence Avenue, SW.,Washington, DC 20591. Telephone:(202) 267–7476; FAX: (202) 267–5075.SUPPLEMENTARY INFORMATION: Pursuantto section 10(a)(2) of the FederalAdvisory Committee Act (Pub. L. 92–463; 5 U.S.C. App. II), notice is herebygiven of a meeting of the AviationRulemaking Advisory Committee todiscuss general aviation operations


issues. This meeting will be held onAugust 19, 1997 at 9:30 a.m. at theHelicopter Association International,1635 Prince Street, Alexandria, VA22314.

The agenda for this meeting willinclude: (1) A status report on the Part103 (Ultralight Vehicles) WorkingGroup’s NPRM, ‘‘Sport PilotCertification Requirements;’’ (2) a statusreport on the IFR Fuel Requirements/Destination and Alternate WeatherMinimums Working Group’s NPRM,‘‘Flight Plan Requirements forHelicopter Operations Under InstrumentFlight Rules;’’ (3) a discussion ofoverflights of national parks; (4) and theFAA’s August 4, 1997, implementationof revisions to 14 CFR part 61.

Attendance is open to the interestedpublic but may be limited to the spaceavailable. The public must makearrangements in advance to present oralstatements at the meeting or maypresent written statements to thecommittee at any time. In addition, signand oral interpretation can be madeavailable at the meeting, as well as anassistive listening device, if requested10 calendar days before the meeting.Arrangements may be made bycontacting the person listed under theheading FOR FURTHER INFORMATIONCONTRACT.

Issued in Washington, DC on July 24, 1997.Louis C. Cusimano,Assistant Executive Director for GeneralAviation Operations, Aviation RulemakingAdvisory Committee.[FR Doc. 97–20076 Filed 7–30–97; 8:45 am]BILLING CODE 4910–13–M


Maritime Administration

[Docket No. M–038]

Information Collection Available forPublic Comments andRecommendations

ACTION: Notice and request forcomments.

SUMMARY: In accordance with thePaperwork Reduction Act of 1995, thisnotice announces the MaritimeAdministration’s (MARAD’s) intentionsto request extension of approval forthree years of a currently approvedinformation collection.DATES: Comments should be submittedon or before September 29, 1997.FOR FURTHER INFORMATION CONTACT:Erhard W. Koehler, Division of ShipMaintenance and Repair, MaritimeAdministration, MAR–611, Room 2119,

400 Seventh Street, SW., Washington,DC 20590. Telephone 202–366–2631 orFAX 202–366–3954. Copies of thiscollection can also be obtained from thatoffice.


Title of Collection: Maintenance andRepair Cumulative Summary.

Type of Request: Extension ofcurrently approved informationcollection.

OMB Control Number: 2133–0007.Form Number: MA–140.Expiration Date of Approval: March

31, 1998.Summary of Collection of

Information: The collection consists ofform MA–140 to which are attachedinvoices and other supportingdocuments for expenses claimed forsubsidy. Subidized operators submitform MA–140 to the appropriateMARAD region office for review within60 days of the termination of asubsidized voyage.

Need and Use of the Information: Thecollected information is necessary toperform the reviews required in order topermit payment of Maintenance andRepair subsidy.

Description of Respondents:Subsidized ship operators must submitthe necessary paperwork to determinequalification for subsidy.

Annual Responses: 100.Annual Burden: 1200 hours.Comments: Send all comments

regarding this information collection toJoel C. Richard, Department ofTransportation, MaritimeAdministration, MAR–120, Room 7210,400 Seventh Street, SW., Washington,DC 20590. Send comments regardingwhether this information collection isnecessary for proper performance of thefunction of the agency and will havepractical utility, accuracy of the burdenestimates, ways to minimize thisburden, and ways to enhance quality,utility, and clarity of the information tobe collected.

By Order of the Maritime Administrator.


Joel C. Richard,Secretary.[FR Doc. 97–20117 Filed 7–30–97; 8:45 am]





American Honda Motor Company, Inc.;Receipt of Application for TemporaryExemption From Federal Motor VehicleSafety Standard No. 122

American Honda Motor Co., Inc., ofTorrance, California (‘‘Honda’’), hasapplied for a temporary exemption fromthe fade and water recoveryrequirements of Federal Motor VehicleSafety Standard No. 122 MotorcycleBrake Systems. The basis of theapplication is that an exemption wouldmake easier the development or fieldevaluation of a new motor vehicle safetyfeature providing a safety level at leastequal to the safety level of the standard.

This notice of receipt of anapplication is published in accordancewith the requirements of 49 U.S.C.30113(b)(2) and does not represent anyjudgment of the agency on the merits ofthe application.

Honda seeks an exemption of one yearfor its 1998 CBR1100XX motorcycle‘‘from the requirement of the minimumhand-lever force of five pounds in thebase line check for the fade and waterrecovery tests.’’ It wishes to evaluate themarketability of an ‘‘improved’’motorcycle brake system setting whichis currently applied to the model sold inEurope. The difference in setting islimited to a softer master cylinder returnspring in the European version. Usingthe softer spring results in a ‘‘morepredictable (linear) feeling during initialbrake lever application.’’ Although ‘‘thechange allows a more predictable rise inbrake gain, the on-set of braking occursat lever forces slightly below the fivepound minimum’’ specified in StandardNo. 122. Honda considers thatmotorcycle brake systems havecontinued to evolve and improve sinceStandard No. 122 was adopted in 1972,and that one area of improvement isbrake lever force which has graduallybeen reduced. However, the five-poundminimum specification ‘‘is preventingfurther development and improvement’’of brake system characteristics. Thislimit, when applied to the CBR1100XX‘‘results in an imprecise feeling whenthe rider applies low-level front brakelever inputs.’’

The machine is equipped withHonda’s Linked Brake System (LBS)which is designed to engage both frontand rear brakes when either the frontbrake lever or the rear brake pedal isused. The LBS differs from other


integrated systems in that it allows therider to choose which wheel gets themajority of braking force, depending onwhich brake control the rider uses.

According to Honda, the overallbraking performance remainsunchanged from a conformingmotorcycle. If the CBR1100XX isexempted it will meet ‘‘the stoppingdistance requirement but at lever forcesslightly below the minimum.’’

Specifically, Honda asks for relieffrom the first sentence of S6.10 Brakeapplication forces, which reads:

‘‘Except for the requirements of thefifth recovery stop in S5.4.3 and S5.7.2(S7.6.3 and S7.10.2) the hand lever forceis not less than five and not more than55 pounds and the foot pedal force isnot less than 10 and not more than 90pounds.’’

Upon review of this paragraph,NHTSA has determined that grantingHonda’s petition would require relieffrom different provisions of StandardNo. 122, although S6.10 relates to them.Paragraph S6 only sets forth the testconditions under which a motorcyclemust meet the performancerequirements of S5. A motorcyclemanufacturer certifies compliance withthe performance requirements of S5 onthe basis of tests conducted according tothe conditions of S6 and in the mannerspecified by S7. In short, NHTSAbelieves that granting Honda’s petitionwould require relief from theperformance requirements of S5 that arebased upon the lever actuation force testconditions of S6.10 as used in the testprocedures of S7.

These relate to the baseline checksunder which performance is judged forthe service brake system fade and faderecovery tests (S5.4), and for the waterrecovery tests (S5.7). According to thetest procedures of S7, the baseline checkstops for fade(S7.6.1) and waterrecovery (S7.10.1) are to be made at 10to 11 feet per second per second (fpsps)per stop. The fade recovery test (S7.6.3)also specifies stops at 10 to 11 fpsps.Test data submitted by Honda with itsapplication show that, using a handlever force of 2.3 kg (5.1 pounds), thedeceleration for these stops is 3.05 to

3.35 meters per second per second, or10.0 to 11.0 fpsps. This does not meanthat Honda cannot comply under thestrict parameters of the standard, but thesystem is designed for responsiveperformance when a hand lever force ofless than five pounds is used. For thesereasons, NHTSA interprets Honda’sapplication as requesting relief fromS5.4.2, S5.4.3, and S5.7.2.

Honda argues that granting anexemption would be in the publicinterest and consistent with objectivesof traffic safety because it ‘‘shouldimprove a rider’s ability to preciselymodulate the brake force at low-levelbrake lever input forces. Improving thepredictability, even at very low-levelbrake lever input, increases the rider’sconfidence in the motorcycle’s brakesystem.’’

Interested persons are invited tosubmit comments on the applicationdescribed above. Comments should referto the docket number and the noticenumber, and be submitted to: DocketSection, National Highway TrafficSafety Administration, room 5109, 400Seventh Street, SW, Washington, DC20590. It is requested but not requiredthat 10 copies be submitted.

All comments received before theclose of business on the commentclosing date indicated below will beconsidered, and will be available forexamination in the docket at the aboveaddress both before and after that date.To the extent possible, comments filedafter the closing date will also beconsidered. Notice of final action on theapplication will be published in theFederal Register pursuant to theauthority indicated below.

Comment closing date: September 2,1997.

(49 U.S.C. 30113; delegations of authorityat 49 CFR 1.50. and 501.8.)

Issued on July 24, 1997.

L. Robert Shelton,Associate Administrator for SafetyPerformance Standards.[FR Doc. 97–20092 Filed 7–30–97; 8:45 am]

BILLING CODE 49l0–59–P


Research and Special ProgramsAdministration

Office of Hazardous Materials Safety;Notice of Delays in Processing ofExemption Applications

AGENCY: Research and Special ProgramsAdministration, DOT.ACTION: List of Applications Delayedmore than 180 days.

SUMMARY: In accordance with therequirements of 49 U.S.C. 5117(c), RSPAis publishing the following list ofexemption applications that have beenin process for 180 days or more. Thereason(s) for delay and the expectedcompletion date for action on eachapplication is provided in associationwith each identified application.FOR FURTHER INFORMATION CONTACT: J.Suzanne Hedgepeth, Director, Office ofHazardous Materials, Exemptions andApprovals, Research and SpecialPrograms Administration, U.S.Department of Transportation, 400Seventh Street, SW, Washington, DC20590–0001, (202) 366–4535.

Key to ‘‘Reasons for Delay’’

1. Awaiting additional informationfrom applicant.

2. Extensive public comment underreview.

3. Application is technically verycomplex and is of significant impact orprecedent-setting and requires extensiveanalysis.

4. Staff review delayed by otherpriority issues or volume of exemptionapplications.

Meaning of Application NumberSuffixes

N—New application.M—Modificaiton request.PM—Party to application with

modification request.Issued in Washington, DC, on July 25,

1997.J. Suzanne Hedgepeth,Director, Office of Hazardous Materials,Exemptions and Approvals.

NEW EXEMPTION APPLICATIONS

Application No. Applicant Reason fordelay

Estimated date ofcompletion

10581–N ................ Luxfer UK Limited, Nottingham, England ........................................................................... 4 09/30/197711193–N ................ U.S. Department of Defense, Fall Church, VA .................................................................. 4 09/30/197711232–N ................ State of Alaska Department of Transportation, Juneau, AK ............................................. 4 09/30/197711409–N ................ Pure Solve, Inc., Irving, TX ................................................................................................ 1 08/29/197711442–N ................ Union Tank Car Co., East Chicago, IN .............................................................................. 4 09/30/197711443–N ................ Hercules Inc., Wilmington, DE ........................................................................................... 4 08/29/197711465–N ................ Monsanto Co., St. Louis, MO ............................................................................................. 4 09/30/197711511–N ................ Brenner Tank Inc., Fond du lac, WI ................................................................................... 4 09/30/1977


NEW EXEMPTION APPLICATIONS—Continued



11523–N ................ Bio-Lab, Inc., Conyers GA ................................................................................................. 4 09/30/197711537–N ................ Babson Bros. Co, Romeoville, IL ....................................................................................... 4 09/30/197711540–N ................ Convenience Products, Fenton, MO .................................................................................. 1 09/30/197711559–N ................ Japan Oxygen, Inc., Long Beach, CA ............................................................................... 4 08/29/197711561–N ................ Solkatronic Chemicals, Fairfield, NJ .................................................................................. 4 09/30/197711578–N ................ General Alum & Chemical Co., Searsport, MA ................................................................. 4 08/29/197711591–N ................ Clearwater Distributors, Inc., Woodridge, NY .................................................................... 4 010/30/197711592–N ................ Amtrol Inc., West Warwick, RI ........................................................................................... 4 08/29/199711597–N ................ Zeneca, Inc., Wilmington, DE ............................................................................................ 4 08/29/199711606–N ................ Safety-Kleen Corp., Elgin, IL .............................................................................................. 4 08/29/199711613–N ................ Monsanto Co., St. Louis, MO ............................................................................................. 4 09/30/199711621–N ................ Aerojet Industrial Products, North Las Vegas, NV ............................................................ 4 09/30/199711646–N ................ Barton Solvents Inc., Des Moines, IO ................................................................................ 4 08/29/199711653–N ................ Phillips Petroleum Co., Bartlesville, OK ............................................................................. 4 08/29/199711654–N ................ Hoechst Celanese Corp., Dallas, TX ................................................................................. 4 08/29/199711662–N ................ FIBA Technologies, Inc., Westboro, MA ............................................................................ 4 09/30/199711668–N ................ AlliedSignal, Inc., Morristown, NJ ...................................................................................... 4 08/29/199711671–N ................ Matheson Gas Products, Secaucus, NJ ............................................................................ 1 09/30/199711678–N ................ Air Transport Association, Washington, DC ...................................................................... 4 08/29/199711682–N ................ Cryolor, Argancy, 57365 Ennery—France ......................................................................... 4 08/29/199711687–N ................ Tri Tank Corp., Syracuse, NY ............................................................................................ 4 08/29/199711699–N ................ GEO Specialty Chemicals, Bastrop, LA ............................................................................. 4 08/29/199711701–N ................ Dept. of Defense, Falls Church, VA ................................................................................... 4 09/30/199711721–N ................ The Coleman Co., Inc., Wichita, KS .................................................................................. 4 09/30/199711722–N ................ Citergas S.A., 86400 Civray, FR ........................................................................................ 1 08/29/199711735–N ................ R.D. Offutt Co., Parket Rapids, MN ................................................................................... 4 08/29/199711739–N ................ Oceaneering Space Systems, Houston, TX ...................................................................... 1 09/30/199711740–N ................ Morton International, Inc., Ogden, UT ............................................................................... 4 08/29/199711748–N ................ Frank W. Hake Association, Memphis, TN ........................................................................ 4 08/29/199711751–N ................ Delta Resigns & Refractories, Detroit, MI .......................................................................... 4 08/29/199711759–N ................ E.I. DuPont de Nemours & Co., Inc., Wilmington, DE ...................................................... 4 09/30/199711761–N ................ Vulcan Chemicals, Birmingham, AL ................................................................................... 4 09/30/199711762–N ................ Owens Fabricators, Inc, Baton Rouge, LA ........................................................................ 4 08/29/199711765–N ................ Laidlaw Environmental Services Inc., Columbia, SC ......................................................... 4 08/29/199711767–N ................ Ausimont USA, Inc., Thorofare, NJ .................................................................................... 4 09/30/199711768–N ................ Flotec, Inc., Indianapolis, IN ............................................................................................... 4 08/29/199711769–N ................ Great Western Chemical Co., Portland, OR ...................................................................... 4 08/29/199711772–N ................ Kleespie Tank & Petroleum Equipment, Morris, MN ......................................................... 4 08/29/199711773–N ................ West Coast Air Charter, Ontario, CA ................................................................................. 4 07/31/199711774–N ................ Safety Disposal System, Inc., Opa Locka, FL ................................................................... 1 09/30/199711780–N ................ Hewlett-Packard Co., Washington, DC .............................................................................. 4 09/30/199711782–N ................ Aeronex, Inc., San Diego, CA ............................................................................................ 4 09/30/199711783–N ................ Peoples Natural Gas, Rosemount, MN .............................................................................. 4 09/30/199711786–N ................ Dow Corning Corp., Midland, MI ........................................................................................ 4 08/29/199711797–N ................ Cryodyne Technologies, Radnor, PA ................................................................................. 4 09/30/199711798–N ................ Air Products & Chemicals, Inc., Allentown, PA ................................................................. 4 09/30/199711800–N ................ General Fire Extinguisher Corp., Northbrook, IL ............................................................... 4 09/30/199711809–N ................ Laidlaw Environmental Services Inc., Columbia, SC ......................................................... 4 09/30/199711811–N ................ Laidlaw Environmental Services Inc., Columbia, SC ......................................................... 4 09/30/199711814–N ................ The Columbiana Boiler Co., Columbia, OH ....................................................................... 4 09/30/199711815–N ................ Union Pacific Railroad Co. et al, Omaha, NE .................................................................... 4 09/30/199711816–N ................ The Scotts Co., Marysville, OH .......................................................................................... 4 09/30/199711817–N ................ FIBA Technologies, Inc., Westboro, MA ............................................................................ 4 10/30/199711821–N ................ Wyoming Department of Transportation, Cheyenne, WY ................................................. 4 10/20/199711824–N ................ The Dow Chemical Co., Freeport, TX ............................................................................... 4 09/30/199711830–N ................ North Coast Container Corp., Cleveland, OH .................................................................... 4 09/30/199711843–N ................ Shell Chemical Co., Houston, TX ...................................................................................... 4 09/30/1997

MODIFICATIONS TO EXEMPTIONS



970–M ................... Callery Chemical Corp., Pittsburgh, PA ............................................................................. 4 8/29/19974354–M ................. PPG Industries, Inc., Pittsburgh, PA .................................................................................. 1 8/29/19975493–M ................. Montana Sulphur & Chemical Co., Billings, MT ................................................................ 4 8/29/19975876–M ................. FMC Corp., Philadelphia, PA ............................................................................................. 4 8/29/19976117–M ................. Montana Sulphur & Chemical Co., Billings, MT ................................................................ 4 8/29/19976610–M ................. ARCO Chemical Co., Newton Square, PA ........................................................................ 4 9/30/19977517–M ................. Trinity Industries, Inc., Dallas, TX ...................................................................................... 4 9/30/1997


MODIFICATIONS TO EXEMPTIONS—Continued



7879–M ................. Halliburton Energy Services, Duncan, OK ......................................................................... 4 9/30/19978556–M ................. Air Products & Chemicals, Inc., Allentown, PA ................................................................. 4 8/29/19978723–M ................. Dyno Nobel Inc., Salt Lake City, UT .................................................................................. 4 9/30/19979184–M ................. The Carbide/Graphite Group, Inc., Louisville, KY .............................................................. 4 9/30/19979266–M ................. ERMEWA, Inc., Houston, TX ............................................................................................. 4 9/30/19979413–M ................. EM Science Cincinnati, OH ................................................................................................ 4 9/30/19979706–M ................. Taylor-Wharton, Harrisburg, PA ......................................................................................... 4 8/29/19979758–M ................. Suunto, Carlsbad, CA ........................................................................................................ 4 9/30/19979819–M ................. Halliburton Energy Services, Duncan, OK ......................................................................... 4 9/30/199710429–M ............... Baker Performance Chemicals, Inc., Houston, TX ............................................................ 4 9/30/199710511–M ............... Schlumberger Technology Corporation, Houston, TX ....................................................... 4 8/29/199710798–M ............... Olin Corp., Stamford, CT ................................................................................................... 4 8/29/199710974–M ............... International Paper, Erie, PA ............................................................................................. 4 8/29/199711058–M ............... Spex Certiprep Inc., Metuchen, NJ .................................................................................... 4 8/29/199711260–M ............... Texas Instruments Inc., Attleboro, MA ............................................................................... 4 9/30/199711262–M ............... Caire, Inc., Burnsville, MN ................................................................................................. 4 8/29/199711579–M ............... Dyno Nobel Inc., Salt Lake City, UT .................................................................................. 4 9/30/199711580–M ............... The Columbiana Boiler Co., Columbiana, OH ................................................................... 4 9/30/1997



Submission to OMB for Review;Comment Request

July 22, 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: New.Form Number: IRS Form W–7A.Type of Review: New collection.Title: Application for Taxpayer

Identification Number for PendingAdoptions.

Description: Form W–7A will be usedto apply for an Internal Revenue Servicetaxpayer identification number (anATIN) for use in pending adoptions. AnATIN is a temporary nine-digit numberissued by the IRS to individuals who arein the process of adopting a U.S.

resident child but who cannot get asocial security number for that childuntil the adoption is final.

Respondents: Individuals orhouseholds.

Estimated Number of Respondents/Recordkeepers: 50,000.

Estimated Burden Hours PerRespondent/Recordkeeper:

Recordkeeping—7 min.Learning about the law or the form—

7 min.Preparing the form—16 min.Copying, assembling, and sending the

form to the IRS—17 min.Frequency of Response: On occasion.Estimated Total Reporting/

Recordkeeping Burden: 39,000 hours.OMB Number: 1545–0139.Form Number: IRS Form 2106.Type of Review: Extension.Title: Employee Business Expenses.Description: Internal Revenue Code

(IRC) section 62 allows employees todeduct their business expenses to theextent of reimbursement in computingAdjusted Gross Income. Expenses inexcess of reimbursements are allowed asan itemized deduction. Unreimbursedmeals and entertainment are allowed tothe extent of 50% of the expense. Form2106 is used to figure these expenses.




Recordkeeping—1 hr., 38 min.

Learning about the law or the form—20 min.

Preparing the form—1 hr., 13 min.Copying, assembling and sending the

form to the IRS—41 min.Frequency of Response: Annually.Estimated Total Reporting/

Recordkeeping Burden: 2,678,861 hours.OMB Number: 1545–0938.Form Number: IRS Form 1120-IC-

DISC, Schedule K and Schedule P.Type of Review: Extension.Title: Interest Charge Domestic

International Sales Corporation Return(Form 1120); Shareholder’s Statement ofIC-DISC Distributions (Schedule K); andIntercompany Transfer Price orCommission (Schedule P).

Description: U.S. corporations thathave elected to be an interest chargedomestic international sales corporation(IC-DISC) file Form 1120-IC-DISC toreport their income and deductions. TheIC-DISC is not taxed, but IC-DISCshareholders are taxed on their share ofIC-DISC income. IRS uses Form 1120-IC-DISC to check the IC-DISC’scomputation of income. Schedule K(Form 1120-IC-DISC) is used to reportincome to shareholders; Schedule P(Form 1120-IC-DISC) is used by the IC-DISC to report its dealings with relatedsuppliers, etc.

Respondents: Business or other for-profit.




Recordkeeping Learning about thelaw or the form Preparing the form

Copying, as-sembling, andsending the

form to the IRS

1120–IC–DISC ........................................................... 95 hr., 54 min ............ 19 hr., 56 min ............ 29 hr., 49 min ............ 2 hr., 9 min.Schedule K ................................................................ 4 hr., 4 min ................ 47 min ....................... 54 min..Schedule P ................................................................ 12 hr., 55 min ............ 1 hr., 17 min .............. 1 hr., 34 min..

Frequency of Response: Annually.Estimated Total Reporting/

Recordkeeping Burden: 232,253 hours.OMB Number: 1545–1441.Form Number: IRS Form 2106-EZ.Type of Review: Extension.Title: Unreimbursed Employee

Business Expenses.Description: Internal Revenue Code

(IRC) section 62 allows employees todeduct their business expenses to theextent of reimbursement in computingAdjusted Gross Income. Expenses inexcess of reimbursements are allowed asan itemized deduction. Unreimbursedmeals and entertainment are allowed tothe extent of 50% of the expense. Form2106-EZ is used to figure theseexpenses.


Estimated Number of Respondents/Recordkeepers: 3,337,019.


Recordkeeping—40 min.Learning about the law or the form—

5 min.Preparing the form—28 min.Copying, assembling, and sending the

form to the IRS—20 min.


Recordkeeping Burden: 5,205,750 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. 97–20114 Filed 7–30–97; 8:45 am]BILLING CODE 4830–01–P


Submission to OMB for Review;Comment Request

July 24, 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 Treasury

Bureau 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: 1545–0085.Form Number: IRS Form 1040A,

Schedules 1, 2, 3 and EIC.Type of Review: Revision.Title: U.S. Individual Income Tax

Return.Description: This form is used by

individuals to report their incomesubject to income tax and compute theircorrect tax liability. The data are usedto verify that the income reported on theform is correct and are also for statisticsuse.


Estimated Number of Respondents/Recordkeepers: 26,051,305.


Form Recordkeeping Learning about thelaw or the form Preparing the form

Copying,assem-

bling andsending

the form tothe IRS

Form 1040A ........................................................................ 1 hr., 4 min. ............... 2 hr., 8 min. ............... 3 hr., 4 min. ............... 35 min.Schedule 1 .......................................................................... 20 min. ...................... 4 min. ........................ 10 min. ...................... 20 min.Schedule 2 .......................................................................... 33 min. ...................... 10 min. ...................... 40 min. ...................... 28 min.Schedule 3 .......................................................................... 13 min. ...................... 14 min. ...................... 25 min. ...................... 35 min.Schedule EIC ...................................................................... 0 min. ........................ 2 min. ........................ 4 min. ........................ 20 min.


Recordkeeping Burden: 200,524,903hours.

OMB Number: 1545–0410.Form Number: IRS Form 6468.Type of Review: Revision.Title: How to Prepare Media Label for

Form W–4.Description: 26 U.S.C. 3402 requires

all employers making payment of wagesto deduct (withhold) tax upon suchpayments. Employers are furtherrequired under Regulation31.3402(f)(2)–1(g) to submit certain

withholding certificates (W–4) to IRS.Form 6468 is sent to employers whoprefer to file this information onmagnetic tape.

Respondents: Business or other for-profit, Not-for-profit institutions, Farms,Federal Government, State, Local orTribal Government.

Estimated Number of Respondents:400.

Estimated Burden Hours PerRespondent: 5 minutes.

Frequency of Response: Quarterly.Estimated Total Reporting Burden: 33

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. 97–20115 Filed 7–30–97; 8:45 am]




Submission for OMB Review;Comment Request

July 24, 1997.

The Department of Treasury hassubmitted 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.

Bureau of the Public Debt (BPD)

OMB Number: 1535–0067.Form Number: PD F 974.Type of Review: Extension.Title: Certificate by Owner of United

States Registered Securities ConcerningForged Requests for Payment orAssignments

Description: Form PD F 974 is used byowners of United States Securities tocertify that the signature was forged toa request for payment or an assignment.


Estimated Number of Respondents:3,000.

Estimated Burden Hours PerResponse: 15 minutes.

Frequency of Response: On occasion.Estimated Total Reporting Burden:

750 hours.OMB Number: 1535–0101.Form Number: PD F 345.Type of Review: Extension.Title: Description of Registered

Securities.Description: This form is used to

identify an owner’s registered securities.Respondents: Individuals or

households.Estimated Number of Respondents:

5,000.Estimated Burden Hours Per

Response: 15 minutes.Frequency of Response: On occasion.Estimated Total Reporting Burden:

1,250 hours.Clearance Officer: Vicki S. Thorpe

(304) 480–6553, Bureau of the PublicDebt, 200 Third Street, Parkersburg,West VA 26106–1328.

OMB Reviewer: Alexander T. Hunt(202) 395–7860, Office of Managementand Budget, Room 10226, New

Executive Office Building, Washington,DC 20503.Lois K. Holland,Departmental Reports Management Officer.[FR Doc. 97–20116 Filed 7–30–97; 8:45 am]BILLING CODE 4810–40–P


Performance Review Board

AGENCY: Department of the Treasury.ACTION: Notice.

SUMMARY: This notice lists themembership to the DepartmentalOffices’ Performance Review Board(PRB) and supersedes the list publishedin Federal Register 39485, Vol. 60,dated August 2, 1995, in accordancewith 5 U.S.C. 4314(c)(4). The purpose ofthe PRB is to review the performance ofmembers of the Senior ExecutiveService and make recommendationsregarding performance ratings,performance awards, and otherpersonnel actions.

The names and titles of the PRBmembers are as follows:Joan Affleck-Smith, Director, Office of

Financial Institutions PolicySteven O. App, Deputy Chief Financial

OfficerJohn H. Auten, Director, Office of

Financial AnalysisRichard S. Carnell, Assistant Secretary

(Financial Institutions Policy)Joyce H. Carrier, Deputy Assistant

Secretary (Public Liaison)Mary E. Chaves, Director, Office of

International Debt PolicyLowell Dworin, Director, Office of Tax

AnalysisJoseph B. Eichenberger, Director, Office

of Multilateral Development BanksJames H. Fall, III, Deputy Assistant

Secretary (Technical AssistancePolicy)

James J. Flyzik, Director, Office ofTelecommunications Management

Michael B. Froman, Chief of StaffJon M. Gaaserud, Director, U.S. Saudi

Arabian Joint Commission ProgramOffice

Geraldine A. Gerardi, Director forBusiness Taxation

William H. Gillers, Director, Office ofManagement Advisory Services

Robert F. Gillingham, Deputy AssistantSecretary (Policy Coordination)

Ronald A. Glaser, Director, Office ofEqual Employment Opportunity

Donald V. Hammond, Deputy AssistantFiscal Secretary

James E. Johnson, Assistant Secretary(Enforcement)

Raymond W. Kelly, Under Secretary forEnforcement

Edward S. Knight, General CounselDavid A. Lebryk, Acting Deputy

Assistant Secretary (HumanResources)

David A. Lipton, Deputy UnderSecretary (International Affairs)

Margrethe Lundsager, Deputy AssistantSecretary (Trade and InvestmentPolicy)

Mark C. Medish, Deputy AssistantSecretary (Eastern Europe and SovietUnion Policy)

Carl L. Moravitz, Director, Office of theBudget

George Muñoz, Assistant Secretary(Management) and Chief FinancialOfficer

Gerald Murphy, Fiscal AssistantSecretary

Alex Rodriguez, Deputy AssistantSecretary (Administration)

Susan L. Sallet, Deputy AssistantSecretary (Public Affairs)

Howard M. Schloss, Assistant Secretary(Public Affairs)

G. Dale Seward, Director, AutomatedSystems Division

Mary Beth Shaw, Director, Office ofFinancial Management

John P. Simpson, Deputy AssistantSecretary (Regulatory, Trade, andTariff Affairs)

Jane L. Sullivan, Director, Office ofInformation Resources Management

Mozelle W. Thompson, DeputyAssistant Secretary (GovernmentFinancial Policy)

Robert A. Welch, Director, Office ofProcurement

FOR FURTHER INFORMATION CONTACT:Debra Tomchek, Executive Secretary,PRB, Room 1462, Main TreasuryBuilding, 1500 Pennsylvania Avenue,NW, Washington, DC 20220. Telephone:(202) 622–1440. This notice does notmeet the Department’s criteria forsignificant regulations.George Muñoz,Assistant Secretary of the Treasury(Management).[FR Doc. 97–20202 Filed 7–30–97; 8:45 am]BILLING CODE 4810–25–M


Customs Service

[T.D. 97–66]

Customs Accreditation of SGS ControlServices, Inc. as an AccreditedCommercial Laboratory

AGENCY: U.S. Customs Service,Department of the Treasury.ACTION: Notice of Accreditation of SGSControl Services, Inc. as a CommercialLaboratory.


SUMMARY: SGS Control Services, Inc. ofDeer Park, Texas, has applied to U.S.Customs for accreditation forcomposition and identity of organicchemicals under § 151.13 of theCustoms Regulations (19 CFR 151.13) attheir Wilmington, North Carolinafacility. Customs has determined thatthis office meets all of the requirementsfor accreditation as a commerciallaboratory. Therefore, in accordancewith § 151.13(f) of the CustomsRegulations, SGS Control Services, Inc.,Wilmington, North Carolina, isaccredited to perform analysis on theproducts named above.LOCATION: SGS Control Services, Inc.accredited site is located at: 111 CowanStreet, Wilmington, North Carolina,28402.EFFECTIVE DATE: July 23, 1997.FOR FURTHER INFORMATION CONTACT: IraS. Reese, Senior Science Officer,Laboratories and Scientific Services,U.S. Customs Service, 1301 ConstitutionAvenue NW, Washington, DC 20229 at(202) 927–1060.

Dated: July 24, 1997.George D. Heavey,Director, Laboratories and Scientific Services.[FR Doc. 97–20224 Filed 7–30–97; 8:45 am]BILLING CODE 4820–02–P


Customs Service

[T.D. 97–67]

Revocation of Customs Broker License

AGENCY: U.S. Customs Service,Department of the Treasury.ACTION: Broker License Revocation.

SUMMARY: Notice is hereby given thatthe Commissioner of Customs, pursuantto Section 641, Tariff Act of 1930, asamended, (19 U.S.C. 1641), and Parts111.51 and 111.74 of the CustomsRegulations, as amended (19 CFR 111.51and 111.74), the following Customsbroker licenses are canceled withprejudice.

Port Individual LicenseNo.

New York Joseph FrancisJacovina.

3294

New York Wood, Niebuhr &Co., Inc.

4814

Dated: July 28, 1997.Philip Metzger,Director, Trade Compliance.[FR Doc. 97–20225 Filed 7–30–97; 8:45 am]BILLING CODE 4820–02–P


Customs Service

[T.D. 97–68]

Revocation of Customs Broker License

AGENCY: U.S. Customs Service,Department of the Treasury.ACTION: Broker License Revocation.

SUMMARY: Notice is hereby given thatthe Commissioner of Customs, pursuantto Section 641, Tariff Act of 1930, asamended, (19 U.S.C. 1641), and Parts111.51 and 111.74 of the CustomsRegulations, as amended (19 CFR 111.51and 111.74), canceled the followingCustoms broker licenses withoutprejudice.

Port Individual LicenseNo.

New York Stephen M. Winsch 10229New York Devin M. Diran ........ 9287New York Michael Titone ......... 9422New York Thomas M. McGrath 9677New York Nehls & O’Connell ... 3943New York Francis X. Coughlin,

Jr.4087

New York F.X. Coughlin Co.,Inc.

7171

New York Robert A. Leslie ....... 5274New York Lo Curto & Funk Inc 9914New York Trans-Marine Sys-

tem, Inc.3745

Seattle ..... Scott D. Ogden ........ 7404Seattle ..... Austen D. Hemion ... 2525Houston ... R.W. Smith .............. 1803

Dated: July 28, 1997.Philip Metzger,Director, Trade Compliance.[FR Doc. 97–20226 Filed 7–30–97; 8:45 am]BILLING CODE 4820–02–P


Internal Revenue Service

Proposed Collection; CommentRequest For Forms 8628 and 8635

AGENCY: Internal Revenue Service (IRS),Treasury.ACTION: Notice and request forcomments.

SUMMARY: The Department of theTreasury, as part of its continuing effortto reduce paperwork and respondentburden, invites the general public andother Federal agencies to take thisopportunity to comment on proposedand/or continuing informationcollections, as required by thePaperwork Reduction Act of 1995,Public Law 104–13 (44 U.S.C.3506(c)(2)(A)). Currently, the IRS issoliciting comments concerning Form

8628, Order Blank For Federal IncomeTax Forms For ‘‘Plan Only’’ Accounts,and Form 8635, BPOL Order Blank forFederal Income Tax Forms.DATES: Written comments should bereceived on or before September 29,1997 to be assured of consideration.ADDRESSES: Direct all written commentsto Garrick R. Shear, Internal RevenueService, room 5571, 1111 ConstitutionAvenue NW., Washington, DC 20224.FOR FURTHER INFORMATION CONTACT:Requests for additional information orcopies of the information collectionshould be directed to Carol Savage,(202) 622–3945, Internal RevenueService, room 5569, 1111 ConstitutionAvenue NW., Washington, DC 20224.


Title: Form 8628, Order Blank ForFederal Income Tax Forms For ‘‘PlanOnly’’ Accounts, and Form 8635, BPOLOrder Blank for Federal Income TaxForms.

OMB Number: 1545–1222.Form Number: Forms 8628 and 8635.Abstract: Forms 8628 and 8635 allow

banks, post offices and libraries todistribute tax forms and publications totaxpayers at convenient locations.Participation is on a voluntary basis anddone as a public service for the InternalRevenue Service.

Current Actions: Changes to Form8635.

Forms 9545, 9545–A and 9161 wereeliminated and incorporated into Form8635. Upon examination of the orderblanks, it was determined that Forms8635 and 9161, and Forms 9545 and9545–A, were almost identical. Form8635 was modified slightly so all outletsin the BPOL Program could utilize thesame form; thus we could eliminateduplication.

There are no changes to Form 8628 atthis time.

Type of Review: Revision of acurrently approved collection.

Affected Public: Business or other for-profit organizations, not-for-profitinstitutions, and Federal, state, local ortribal governments.

Estimated Number of Respondents:42,000.

Estimated Time Per Respondent: 5minutes.

Estimated Total Annual BurdenHours: 3,350.

The following paragraph applies to allof the collections of information coveredby this notice:

An agency may not conduct orsponsor, and a person is not required torespond to, a collection of informationunless the collection of informationdisplays a valid OMB control number.


Books or records relating to a collectionof information must be retained as longas their contents may become materialin the administration of any internalrevenue law. Generally, tax returns andtax return information are confidential,as required by 26 U.S.C. 6103.

Request for CommentsComments submitted in response to

this notice will be summarized and/orincluded in the request for OMBapproval. All comments will become amatter of public record. Comments areinvited on: (a) Whether the 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 collection ofinformation; (c) ways to enhance thequality, utility, and clarity of theinformation to be collected; (d) ways tominimize the burden of the collection ofinformation on respondents, includingthrough the use of automated collectiontechniques or other forms of informationtechnology; and (e) estimates of capitalor start-up costs and costs of operation,maintenance, and purchase of servicesto provide information.

Approved: July 23, 1997.Garrick R. Shear,IRS Reports Clearance Officer.[FR Doc. 97–20251 Filed 7–30–97; 8:45 am]BILLING CODE 4830–01–U

UNITED STATES INFORMATIONAGENCY

Training Programs in Canada,Germany, Greece, Italy, Turkey, andthe United Kingdom

ACTION: Request for proposals.

SUMMARY: The Office of CitizenExchanges of the United StatesInformation Agency’s Bureau ofEducational and Cultural Affairsannounces an open competition for anassistance award program. Public andprivate non-profit organizations meetingthe provisions described in IRSregulation 26 CFR 1.501(c) may apply todevelop projects that link theirinternational exchange interests inWestern Europe with counterpartinstitutions/groups in ways supportiveof the aims of the Bureau of Educationaland Cultural Affairs.

Overall grant making authority forthis program is contained in the MutualEducational and Cultural Exchange Actof 1961, Public Law 87–256, asamended, also known as the Fulbright-Hays Act. The purpose of the Act is ‘‘to

enable the Government of the UnitedStates to increase mutual understandingbetween the people of the United Statesand the people of other countries * * *;to strengthen the ties which unite uswith other 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.’’

The funding authority for the programcited above is provided through theFulbright-Hays Act.

Programs and projects must conformwith Agency requirements andguidelines outlined in the SolicitationPackage. USIA projects and programsare subject to the availability of funds.

Announcement Title and Number: Allcommunications with USIA concerningthis RFP should refer to theannouncement’s title and referencenumber E/P–98–03.

Deadline for Proposals: All copiesmust be received at the U.S. InformationAgency by 5 p.m. Washington, DC timeon Friday, October 31, 1997. Faxeddocuments will not be accepted at anytime. Documents postmarked by the duedate but received at a later date will notbe accepted. Grants may begin February1, 1998.FOR FURTHER INFORMATION CONTACT: TheOffice of Citizen Exchanges, E/PE, Room220, U.S. Information Agency, 301 4thStreet, SW., Washington, DC 20547,telephone: 202–619–5319, fax: 202–619–4350, Internet Address:[[email protected]] to request aSolicitation Package containing moredetailed information. Please requestrequired application forms, andstandard guidelines for preparingproposals, including specific criteria forpreparation of the proposal budget.

To Download a Solicitation Packagevia Internet: The entire SolicitationPackage may be downloaded fromUSIA’s website 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 entering thesystem.

Please specify USIA Program OfficerChristina Miner on all inquiries andcorrespondences. Interested applicantsshould read the complete Federal

Register announcement before sendinginquiries or submitting proposals. Oncethe RFP deadline has passed, Agencystaff may not discuss this competition inany way with applicants until theBureau proposal review process hasbeen completed.

Submissions: Applicants must followall instructions given in the SolicitationPackage. The original and ten copies ofthe application should be sent to: U.S.Information Agency, Ref.: E/P–98–03,Office of Grants Management, E/XE,Room 326, 301 4th Street, SW.,Washington, DC 20547.

Applicants must also submit the‘‘Executive Summary’’ and ‘‘ProposalNarrative’’ sections of the proposal on a3.5′′ diskette, formatted for DOS. Thismaterial must be provided in ASCII text(DOS) format with a maximum linelength of 65 characters. USIA willtransmit these files electronically toUSIS posts overseas for their review,with the goal of reducing the time ittakes to get posts’ comments for theAgency’s grants review process.

Diversity, Freedom and DemocracyGuidelines

Pursuant to the Bureau’s authorizinglegislation, programs must maintain anon-political character and should bebalanced and representative of thediversity of American political, social,and cultural life. ‘‘Diversity’’ should beinterpreted 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 for Diversity’section for specific suggestions onincorporating diversity into the totalproposal. Pub. L. 104–319 provides that‘‘in carrying out programs ofeducational 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.SUPPLEMENTARY INFORMATION:Diminished resources have forced USIAto limit the scope of this announcement;regrettably, proposals for countries andthemes other than the ones describedbelow will not be eligible forconsideration.


USIA is interested in proposals in thefollowing areas and countries:

Canada: Projects should focus on aU.S.-Canada parliamentary staffexchange program.

Germany: Projects should focus on aparliamentary exchange program forU.S. and German state legislators. Theprogram for German legislators shouldexamine such issues as the statepolitical process, legislative structure,federalism, school to work transitionand immigration/multiculturalism.

Greece: Projects should focus on thepractices and ethics of journalism. Thefirst part of the exchange should includean in-country seminar on the practicaltechniques and ethical requirementsneeded to report stories. The programwould include sessions for professionaland student journalists from Greeknewspapers and public and privatecommunications/journalism schools. Inthe second part of the exchange up totwelve journalists and students wouldparticipate in a U.S. internship program.

Italy: Projects should focus on judicialreform. Participants should include keymagistrates, academics or think tankresearchers. In part one of the exchangea small Italian delegation would travelto the U.S. for a program involvingmeetings, shadowing, and directobservation of the U.S. judicial system.The U.S. program should focus on theU.S. white collar criminal trial process,typical case development at the stateand federal levels and theadministration of the U.S. judicialsystem, including the organization offederal and state courts, continuingeducation for judges and courtemployees, the role of court and lawclerks, and the use of new technology.In the second part of the exchangeAmerican legal experts/practitionerswould spend time in Italy consultingwith the Ministry of Justice, theSuperior Council of the Magistracy inRome, and individual magistrateassociations in Milan, Rome and Naples.

Turkey: Projects should focus on localgovernment administration in botheastern and western Turkey.Participants should include mayors andmunicipal officials, who are members ofthe Turkish Municipal Association. Inthe first part of the exchange Turkishparticipants would travel to the U.S. fora program concentrating onadministration and fiscal andmanagement procedures and relationswith the federal government. Thesecond part of the exchange would sendapproximately two U.S. specialists inadministration and fiscal managementto Turkey to conduct workshops withregional associations in at least three

key regions (Ankara, Istanbul andAdana).

United Kingdom: Projects shouldfocus on student political activists. Theprogram would bring to the U.S. studentpolitical activists from Great Britain,Wales, Scotland and Northern Ireland.The exchange should concentrate ondeveloping political and personal skillswith no relations to Northern Irelandspecific issues. The program mightinclude workshops on writing andspeaking skills, media, negotiation, andthe American system of government.Case studies and role playing could alsobe included. A cultural componentwhich would support the developmentof personal relationship is also berecommended.

Exchange and training programssupported by institutional grants shouldoperate at two levels: they shouldenhance institutional relationships; andthey should offer practical andcomparative information to individualsto assist them with their professionalresponsibilities. Strong proposalsusually have the followingcharacteristics: An existing partnerrelationship between an Americanorganization and a host-countryinstitution; a proven track record ofconducting program activity; costsharing from American or in-countrysources, including donations of air fares,hotel and housing costs; experiencedstaff with language facility; and a clear,convincing plan showing howpermanent results will be accomplishedas a result of the activity funded by thegrant. USIA wants to see tangible formsof time and money contributed to theproject by the prospective granteeinstitution, as well as funding fromthird party sources.

Note: Research projects or projects limitedto technical issues are not eligible for supportnor are film festivals or exhibits. Exchangeprograms for students or faculty or proposalsthat request support for the development ofuniversity curricula or for degree-basedprograms are also ineligible under this RFP.Proposals to link university departments orto exchange faculty and/or students arefunded by USIA’s Office of AcademicPrograms (E/A) under the UniversityAffiliation Program and should not besubmitted in response to this RFP.

Guidelines

1. All grant proposals must clearlydescribe the type of persons who willparticipate in the program as well as theprocess by which participants will beselected. In the selection of all foreignparticipants, USIA and USIS postsretain the right to nominate participantsand to approve or reject participantsrecommended by the program

institution. Programs must also complywith J–1 visa regulations.

2. Programs that include internshipsin the U.S. should provide letterstentatively committing host institutionsto support the internships. Letters ofcommitment from the hosts of studytour site visits should also be included,if applicable.

3. Applicants are encouraged toconsult with USIS offices regardingprogram content and partnerinstitutions before submitting proposals.Award-receiving applicants will beexpected to maintain contact with theUSIS post throughout the grant period.

Funding

Please refer to the SolicitationPackage for complete packageinstructions.

Applicants must submit a detailedline item budget based on specificinstructions in the Program and BudgetGuidelines of the Proposal SubmissionInstructions. Proposals for less than$75,000 will receive preference.Proposals with strong cost-sharing willbe given priority.

Grants awarded to eligibleorganizations with less than four yearsof experience in conductinginternational exchange programs will belimited to $60,000.

Applicants must submit acomprehensive budget for the entireprogram. There must be a summarybudget as well as a break-downreflecting both the administrativebudget and the program budget. Forfurther clarification, applicants mayprovide separate sub-budgets for eachprogram component, phase, location, oractivity in order to facilitate USIAdecisions on funding.

Allowable costs for the programinclude the following:

(1) International and domestic airfares; visas; transit costs; groundtransportation costs.

(2) Per Diem. For the U.S. program,organizations have the option of using aflat $140/day for program participantsor the published U.S. Federal per diemrates for individual American cities. Foractivities outside the U.S., the publishedFederal per diem rates must be used.

Note: U.S. escorting staff must use thepublished Federal per diem rates, not the flatrate.

(3) Interpreters. If needed, interpretersfor the U.S. program are provided by theU.S. State Department LanguageServices Division. Typically, a pair ofsimultaneous interpreters is providedfor every four visitors. USIA grants donot pay for foreign interpreters toaccompany delegations from their home


country. Grant proposal budgets shouldcontain a flat $140/day per diem foreach Department of State interpreter, aswell as home-program-home airtransportation of $400 per interpreterplus any U.S. travel expenses during theprogram. Salary expenses are coveredcentrally and should not be part of anapplicant’s proposed budget.

(4) Book and cultural allowance.Participants are entitled to and escortsare reimbursed a one-time culturalallowance of $250 per person, plus aparticipant book allowance of $50. U.S.staff do not get these benefits.

(5) Consultants. May be used toprovide specialized expertise or to makepresentations. Daily honoraria generallydo not exceed $250 per day.Subcontracting organizations may alsobe used, in which case the writtenagreement between the prospectivegrantee and subcontractor should beincluded in the proposal.

(6) Room rental, which generallyshould not exceed $250 per day.

(7) Materials development. Proposalsmay contain costs to purchase, develop,and translate materials for participants.

(8) One working meal per project. Percapita costs may not exceed $5–8 for alunch and $14–20 for a dinner,excluding room rental. The number ofinvited guests may not exceedparticipants by more than a factor oftwo-to-one.

(9) All USIA-funded delegates will becovered under the terms of a USIA-sponsored health insurance policy. Thepremium is paid by USIA directly to theinsurance company.

(10) Other costs necessary for theeffective administration of the program,including salaries for grant organizationemployees, benefits, and other directand indirect costs per detailedinstructions in the application package.

Review Process

USIA will acknowledge receipt of allproposals and will review them fortechnical eligibility. Proposal 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 be reviewed bythe program office, as well as the USIAOffice of Western European andCanadian Affairs and the USIA postoverseas, where appropriate. Proposalsmay be reviewed by the Office of theGeneral Counsel or by other Agency

elements. Funding decisions are at thediscretion of the USIA AssociateDirector for Educational and CulturalAffairs. Final technical authority forassistance awards (grants or cooperativeagreements) resides with the USIAgrants officer.

Review Criteria

Technically eligible applications willbe competitively reviewed according tothe criteria stated below. These criteriaare not rank ordered and all carry equalweight in the proposal evaluation:

1. Quality of the program idea:Proposals should respond to theprogram requirements of the RFP.

2. Program planning and ability toachieve objectives: Program objectivesshould be stated clearly and preciselyand should reflect the applicant’sexpertise in the subject area and theregion. Goals should be reasonable andattainable. A detailed agenda andrelevant work plan should demonstratehow objectives will be achieved. Atimetable indicating when majorprogram tasks will be undertakenshould be provided. The substance ofseminars, presentations, consulting,internships and itineraries should bespelled out in detail. Responsibilities ofincountry partners should be clearlydescribed.

3. Support of diversity: Proposalsshould demonstrate substantive supportof the Bureau’s policy on diversity.Achievable and relevant features shouldbe cited in both program administration(selection of participants, programvenue and program evaluation) andprogram content (orientation and wrap-up sessions, program meetings, resourcematerials and follow-up activities).

4. Multiplier effect/impact: Proposedprograms should strengthen long-termmutual understanding, includingmaximum sharing of information andestablishment of long-term institutionaland individual linkages.

5. Institutional capacity: Proposedpersonnel and institutional resourcesshould be adequate and appropriate toachieve the program or project’s goals.The narrative should demonstrateproven ability to handle logistics.Proposal should reflect the institution’sexpertise in the subject area andknowledge of the country. Proposalsshould demonstrate an institutionalrecord of successful exchange programs,including responsible fiscalmanagement and full compliance withall reporting requirements for past

Agency grants as determined by USIA’sOffice of Contracts. The Agency willconsider the past performance of priorrecipients and the demonstratedpotential of new applicants.

6. Follow-on Activities: Proposalsshould provide a plan for continuedfollow-on activity (without USIAsupport) which ensures that USIAsupported programs are not isolatedevents.

7. Project Evaluation: Proposalsshould include a plan to evaluate theactivity’s success, both as the activitiesunfold and at the end of the program. Adraft survey questionnaire or othertechnique plus description of amethodology to use to link outcomes tooriginal project objectives isrecommended. Successful applicantswill be expected to submit intermediatereports after each project component isconcluded or quarterly, whichever isless frequent.

8. Cost-effectiveness/cost sharing: Theoverhead and administrativecomponents of the proposal, includingsalaries and honoraria, should be keptas low as possible. All other itemsshould be necessary and appropriate.Proposals should maximize cost-sharingthrough other private sector support aswell as institutional direct fundingcontributions.

Notice

The terms and conditions publishedin this RFP are binding and may not bemodified by any 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 funds. Awards made willbe subject to periodic reporting andevaluation requirements.

Notification

Final awards cannot be made untilfunds have been appropriated byCongress, allocated and committedthrough internal USIA procedures.

Dated: July 28, 1997.James D. Whitten,Acting Deputy Associate Director forEducational and Cultural Affairs.[FR Doc. 97–20183 Filed 7–30–97; 8:45 am]BILLING CODE 8230–01–M

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Part II

EnvironmentalProtection Agency40 CFR Part 51Regional Haze Regulations; ProposedRule



40 CFR Part 51

[Docket No A–95–38; FRL–5862–7]

RIN 2060–AF34

Regional Haze Regulations

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Notice of proposed rulemaking.

SUMMARY: On July 18, 1997 EPApublished revisions to the nationalambient air quality standards (NAAQS)for ozone and particulate matter (PM).In the final action revising the PMNAAQS, EPA recognized that visibilityimpairment is an important effect of PMon public welfare and concluded thatthe most appropriate approach foraddressing visibility impairment is toestablish secondary standards for PMidentical to the suite of primarystandards in conjunction with a revisedvisibility protection program to addressregional haze in mandatory Class IFederal areas (certain large nationalparks and wilderness areas). Section169A of the Clean Air Act (Act) setsforth a national goal for visibility whichis the ‘‘prevention of any future, and theremedying of any existing, impairmentof visibility in mandatory class I Federalareas which impairment results frommanmade air pollution.’’ This sectioncalls for regulations to assure reasonableprogress toward meeting the nationalgoal.

Today’s proposal sets forth a programto address regional haze visibilityimpairment in the nation’s mosttreasured national parks and wildernessareas. Because much of the pollutionaffecting haze in these generally ruralareas is transported long distances,measures to protect these areas shouldalso reduce air pollution and improvevisibility outside of these areas as well.DATES: Written comments on thisproposal must be received by October20, 1997. The EPA will hold a publichearing on the proposed rules onSeptember 18, 1997.ADDRESSES: Comments. Commentsshould be submitted (in duplicate ifpossible) to the Air and RadiationDocket and Information Center, 401 MStreet, SW, Washington, DC 20460,Attention Docket Number A–95–38.Comments and data may also besubmitted electronically by followingthe instructions under SUPPLEMENTARYINFORMATION of this document. NoConfidential Business Information (CBI)should be submitted through e-mail.

Public hearing. The regional haze ruleis subject to the requirements of section307(d)(5) of the Act that the Agencyprovide opportunity for public hearing.The EPA will hold a public hearing onthe proposed rules at the Adam’s MarkHotel, 1550 Court Place, Denver,Colorado beginning at 10:00 AM on thedate noted above. The EPA will hold thepublic comment period open for 30 daysafter completion of the public hearing toprovide an opportunity for submissionof rebuttal and supplementalinformation. Persons wishing to speak atthe public hearing should contactBarbara Miles at (919) 541–5531.

Docket. The public docket for thisaction is available for public inspectionand copying between 8:00 a.m. and 4:00p.m., Monday through Friday, at the Airand Radiation Docket and InformationCenter (6102), Attention Docket A–95–38, South Conference Center, Room 4,401 M Street, SW, Washington, DC20460. A reasonable fee for copying maybe charged. The regional hazeregulations are subject to the rulemakingprocedures under section 307(d) of theAct. The documents relied on todevelop the proposed regional hazeregulations have been placed in thedocket.FOR FURTHER INFORMATION CONTACT: Forgeneral questions regarding this action,contact Bruce Polkowsky, U.S. EPA,MD–15, Research Triangle Park, NC27711, telephone (919) 541–5532.


Electronic Availability—The officialrecord for this rulemaking, as well asthe public version, has been establishedunder docket number A–95–38(including comments and datasubmitted electronically as describedbelow). A public version of this record,including printed, paper versions ofelectronic comments, which does notinclude any information claimed as CBI,is available for inspection from 8 a.m. to4 p.m., Monday through Friday,excluding legal holidays. The officialrulemaking record is located at theaddress in ADDRESSES at the beginningof this document. Electronic commentscan be sent directly to EPA at: [email protected]. Electroniccomments must be submitted as anASCII file avoiding the use of specialcharacters and any form of encryption.Comments and data will also beaccepted on disks in WordPerfect in 5.1file format or ASCII file format. Allcomments and data in electronic formmust be identified by the docket numberA–95–38. Electronic comments on thisproposal may be filed online at manyFederal Depository Libraries. In

addition, the following communicationsand outreach mechanisms have beenestablished regarding implementation ofthe ozone and PM NAAQS and regionalhaze programs:

Overview information—World WideWeb (WWW) sites have been developedfor overview information on visibilityissues, the NAAQS, and discussions ofimplementation issues by the Clean AirAct Advisory Committee, Subcommitteeon Ozone, Particulate Matter, andRegional Haze ImplementationPrograms. These web sites can beaccessed from Uniform ResourceLocator (URL): http://www.epa.gov/airlinks/.

Detailed and technical information—Information related to implementationissues under discussion by the aboveSubcommittee, established under theFederal Advisory Committee Act(FACA), is available on the Ozone,Particulate Matter, and Regional Haze(O3/PM/RH) Bulletin Board on theOffice of Air Quality Planning andStandards (OAQPS) TechnologyTransfer Network (TTN), which is acollection of electronic bulletin boardsystems operated by OAQPS containinginformation about a wide variety of airpollution topics. The O3/PM/RHBulletin Board contains separate areasfor each of the five work groups of theFACA Subcommittee, with informationon issue papers currently underdiscussion, materials for upcomingmeetings, summaries of past meetings,general information about the process,lists of Subcommittee and work groupmembers, and so on. The TTN can beaccessed by any of the following threemethods:—By modem; the dial-in number is

(919) 541–5742. Communicationssoftware should be set with thefollowing parameters: 8 Data Bits, NoParity, 1 Stop Bit (8-N–1) 14,400 bps(or less).

—Full Duplex.—ANSI or VT–100 Terminal Emulation.The TTN is also available on the WWWsite at the following URL: http://ttnwww.rtpnc.epa.gov. The TTN canalso be accessed on the Internet usingFile Transfer Protocol (FTP); the FTPaddress is ttnftp.rtpnc.epa.gov. The TTNHelpline is (919) 541–5384.

Table of ContentsI. Regional Haze Program

A. IntroductionB. BackgroundC. Key Organizations Addressing Regional

Haze Issues1. National Academy of Sciences2. Clean Air Act Advisory Committee and

Its Subcommittee on Ozone, ParticulateMatter, and Regional HazeImplementation Programs


1 Areas designated as mandatory Class I Federalareas are those national parks exceeding 6000 acres,wilderness areas and national memorial parksexceeding 5000 areas, and all international parkswhich were in existence on August 7, 1977.Visibility has been identified as an important valuein 156 of these areas. See 40 CFR Part 81, SubpartD. The extent of a mandatory Class I Federal areaincludes subsequent changes in boundaries, such aspark expansions. CAA section 162(a).

2 H.R. Rep. No. 294, 95th Cong. 1st Sess. at 205(1977).

3 ‘‘Reasonably attributable’’ visibility impairment,as defined in 40 CFR 51.301(s), means ‘‘attributableby visual observation or any other technique theState deems appropriate.’’ It includes impacts tomandatory Federal Class I areas caused by plumesor layered hazes from a single source or small groupof sources.

4 H.R. Rep. No. 95–294 at 204 (1977).5 H.R. Rep. No. 95–294 at 204 (1977).6 See Table 24–6, Long-Term Visibility and

Aerosol Data Bases, in ‘‘Acidic Deposition, State ofScience and Technology, Volume III, Terrestrial,Materials, and Health and Visibility Effects, Report24, Visibility Existing and Historical Conditions,Causes and Effects. p. 24–51, 1991, and Chapter 8,‘‘Effects on Visibility and Climate’’ in ‘‘Air QualityCriteria for Particulate Matter’’, U.S. EPA, EPA 600/P–95/001bF, April 1996.

7 See Clean Air Act Advisory Committee,Subcommittee on Ozone, Particulate Matter, andRegional Haze Implementation Programs, InitialReport on Subcommittee Discussions, April 1997.See also Grand Canyon Visibility TransportCommission, Recommendations for ImprovingWestern Vistas, June 1996.

8 See 45 FR 80084 (December 2, 1980) and 40 CFR51.300–51.307.

9 See 45 FR 80086.10 State of Maine v. Thomas, 874 F. 2d 883, 885

(1st Cir. 1989) (‘‘EPA’s mandate to control theContinued

3. Grand Canyon Visibility TransportCommission (GCVTC)

a. Reasonable Progressb. Clean Air Corridorsc. Stationary Sourcesd. Mobile Sourcese. Prescribed Firef. Air Pollution Prevention, Future

Regional Coordinating Entity, and Areasin Need of Additional Research

g. ConclusionsD. Overview of Proposed Revisions to

Visibility RegulationsE. ApplicabilityF. Definitions1. Deciview2. Reasonable Progress Targeta. Protection for Most Impaired and Least

Impaired Daysb. Determining Baseline Conditionsc. Protecting Vistas Seen From Within

Class I Areasd. Calculating Changes in DeciviewsG. Implementation Plan Revisions1. SIPs Due 12 Months After Promulgation2. Plan Revisions to Address Best Available

Retrofit Technology (BART)3. Plan Revisions for Section 110(a)(2)

RequirementsH. Visibility MonitoringI. Long-term Strategy

II. Regulatory RequirementsA. Executive Order 12866B. Regulatory Flexibility ActC. Impact on Reporting RequirementsD. Unfunded Mandates Reform ActE. Environmental Justice

I. Regional Haze Program

A. Introduction

The visibility protection programunder sections 110(a)(2)(J), 169A, and169B of the Act is designed to protectmandatory Federal Class I areas 1 fromimpairment due to manmade airpollution. Congress adopted thevisibility provisions in the Clean AirAct to protect visibility in these ‘‘areasof great scenic importance.’’ 2 Thecurrent regulatory program addressesvisibility impairment in these areas thatis ‘‘reasonably attributable’’ 3 to aspecific source or small group ofsources. In adopting section 169A, thecore visibility provisions adopted in the

1977 Clean Air Act Amendments,Congress also expressed its concernwith ‘‘hazes’’ and the potentialcorresponding need to control a ‘‘varietyof sources’’ and ‘‘regionally distributedsources.’’ 4 The purpose of today’sproposal to revise the existing visibilityregulations at 40 CFR 51.300–51.307 isto integrate certain fundamentalprovisions addressing regional hazeimpairment. The resulting regulationwill reflect a comprehensive visibilityprotection program for mandatory ClassI Federal areas.

Regional haze is produced by amultitude of sources located across abroad geographic area emitting fineparticles and their precursors. Twentyyears ago, when initially adopting thevisibility protection provisions of theAct, Congress specifically recognizedthat the ‘‘visibility problem is causedprimarily by emission into theatmosphere of sulfur dioxide, oxides ofnitrogen, and particulate matter,especially fine particulate matter, frominadequate[ly] controlled sources.’’ 5

The fine particulate matter (PM)(e.g.,sulfates, nitrates, organic and elementalcarbon, and soil dust) that impairvisibility by scattering and absorbinglight are among the same particlesrelated to serious health effects andmortality in humans, as well as toenvironmental effects such as aciddeposition. The role of regionaltransport of fine particles incontributing to elevated PM levels andregional haze impairment has been welldocumented by many researchers 6 andrecognized as a significant issue bymany policy makers.7 Data from theexisting visibility monitoring networkshow that visibility impairment causedby air pollution occurs virtually all thetime at most national park andwilderness area monitoring stations.Average visual range in most of theWestern U.S. is 100–150 kilometers(km), or about one-half to two-thirds ofthe visual range that would existwithout manmade air pollution. In mostof the East, the average visual range is

less than 30 kilometers, or about one-fifth of the visual range that would existunder natural conditions.

B. BackgroundSection 169A of the Act, established

in the 1977 Amendments, sets forth anational visibility goal that calls for ‘‘theprevention of any future, and theremedying of any existing, impairmentof visibility in mandatory Class IFederal areas which impairment resultsfrom manmade air pollution.’’ TheEPA’s existing visibility regulations, 8

developed in 1980, address visibilityimpairment that is ‘‘reasonablyattributable’’ to a single source or smallgroup of sources. Under these rules, the35 States and 1 territory (Virgin Islands)containing mandatory Class I Federalareas are required to: (1) Revise theirSIPs to assure reasonable progresstoward the national visibility goal; (2)determine which existing stationaryfacilities should install the BestAvailable Retrofit Technology (BART)for controlling pollutants which impairvisibility; (3) develop, adopt,implement, and evaluate long-termstrategies for making reasonableprogress toward remedying existing andpreventing future impairment in themandatory Class I Federal areas; (4)adopt certain measures to assesspotential visibility impacts due to newor modified major stationary sources,including measures to notify FLMs ofproposed new source permitapplications, and to consider visibilityanalyses conducted by FLMs in theirnew source permitting decisions; and(5) conduct visibility monitoring inmandatory Class I Federal areas.

The 1980 rules were designed to bethe first phase in EPA’s overall programto protect visibility. The EPA explicitlydeferred action addressing regional hazeimpairment until some future date‘‘when improvement in monitoringtechniques provides more data onsource-specific levels of visibilityimpairment, regional scale modelsbecome refined, and our scientificknowledge about the relationshipsbetween emitted air pollutants andvisibility impairment improves.’’ 9

While EPA is addressing visibilityprotection in phases, the visibilityprotection provisions of the Act arebroad. The national visibility goal insection 169A calls for addressingvisibility impairment generally,including regional haze.10 Further,


vexing problem of regional haze emanates directlyfrom the Clean Air Act, which ‘declares as anational goal the prevention of any future, and theremedying of any existing, impairment of visibilityin mandatory Class I Federal areas whichimpairment results from manmade air pollution.’’’)(citation omitted).

11 See U.S. EPA, ‘‘Interim Findings on the Statusof Visibility Research’’, February 1995, (EPA/600/R–95/021); see also 60 FR 8659 notice announcingthe report availability and how to obtain copies(Feb. 15, 1995).

12 See U.S. EPA, ‘‘Effects of the 1990 Clean AirAct Amendments on Visibility in Class I Areas; AnEPA Report to Congress,’’ October 1993, (EPA–452/R–93–014)

13 CAA Section 169B(e)(1)14 Grand Canyon Visibility Transport Commission

(GCVTC), ‘‘Recommendations for ImprovingWestern Vistas’’, Report to the U.S. EPA, June 10,1996 (hereafter ‘‘GCVTC Report’’).

15 CAA Section 169B(e)(1).

Congress added section 169B as part ofthe 1990 Amendments to the Act tofocus attention on regional haze issues.This section includes provisions forEPA to conduct visibility research onregional regulatory tools with theNational Park Service and other federalagencies, to develop an interim findingsreport on the visibility research,11 and toprovide periodic reports to Congress onvisibility improvements due toimplementation of other air pollutionprotection programs.12 Section 169Ballows the Administrator to establishvisibility transport commissions.Section 169B(f) called for EPA toestablish a visibility transportcommission for the region affectingvisibility of the Grand Canyon NationalPark, the purpose of which was to assessscientific and technical informationpertaining to adverse impacts onvisibility from existing and projectedgrowth in emissions, and to issue areport to EPA recommending measuresto remedy such impacts. The statutespecifically called for the report toaddress long-term strategies foraddressing regional haze.13 In 1991 EPAestablished the Grand Canyon VisibilityTransport Commission (GCVTC) and itsfinal report was completed in June1996.14 Section 169B(e) calls for theAdministrator, within 18 months ofreceipt of the GCVTC report, to carry outher ‘‘regulatory responsibilities undersection [169A], including criteria formeasuring ‘reasonable progress’ towardthe national goal.’’ 15 Today’s proposal isthe first step toward fulfilling EPA’sresponsibility, defined since 1980, toput in place a national regulatoryprogram that addresses both reasonablyattributable and regional haze visibilityimpairment.

Today’s proposal also implements theAdministrator’s decision to address thegeneral national public welfare concernfor visibility through a combined

program of setting a new PM2.5

secondary national ambient air qualitystandard equivalent to the primarystandard, promulgated in a recentFederal Register rule published on July18, 1997 (62 FR 38652), and a revisedvisibility protection program to addressregional haze impairment in mandatoryClass I Federal areas.

The regional haze program is beingproposed in a manner that can facilitateintegration to the extent possible withthe implementation programs for newNAAQS for ozone and particulatematter (PM) given the sources, precursorpollutants, and geographic areas ofconcern that these air quality programshave in common. The regional hazeprogram recognizes the value ofmultistate coordination for regionalhaze program planning andimplementation because of the key roleof regional pollutant transport incontributing to haze at mandatory ClassI Federal areas, most of which are inremote locations. At a minimum,voluntary regional planning activities,such as establishing common protocolsand approaches for emission inventorydevelopment, emissions tracking,progress assessments, and regionalmodel development, can benefit thoseStates that will need to participate infuture development of emissionmanagement strategies for PM standardsas well. EPA plans to address thismultistate coordination process infuture guidance. An example ofvoluntary coordination among States toaddress visibility issues is the effortunder way by western States and Tribesto form the Western Regional AirPartnership.

C. Key Organizations AddressingRegional Haze Issues

In developing these proposedrevisions, EPA has taken into account asignificant body of knowledge,developed by a wide range ofstakeholders, on regional haze technicaland policy issues. Three importantbodies in particular have recentlyaddressed regional haze issues: theNational Academy of SciencesCommittee on Haze in National Parksand Wilderness Areas, the Clean Air ActAdvisory Committee (Subcommittee onOzone, Particulate Matter, and RegionalHaze Implementation Programs), andthe Grand Canyon Visibility TransportCommission (GCVTC). An overview ofthese groups follows.

1. National Academy of SciencesThe 1993 report by the National

Academy of Sciences, ProtectingVisibility in National Parks andWilderness Areas, contributed

significantly to the state of the scienceregarding regional haze visibilityimpairment. The National Academy ofSciences formed a Committee on Hazein National Parks and Wilderness Areasin 1990 to address a number of regionalhaze-related issues, including methodsfor determining anthropogenic sourcecontributions to haze and methods forconsidering alternative source controlmeasures. The Committee issued severalimportant conclusions in the report,including: (1) Current scientificknowledge is adequate and controltechnologies are available for takingregulatory action to address regionalhaze; (2) progress toward the nationalgoal will require regional programs thatoperate over large geographic areas andlimit emissions of pollutants that cancause regional haze; (3) a program toaddress regional haze visibilityimpairment that focuses solely ondetermining the contributions ofindividual emission sources to suchvisibility impairment is likely to fail,and strategies instead should be adoptedto consider the effect of many sourcessimultaneously on a regional basis; (4)visibility impairment can be attributedto emission sources on a regional scalethrough the use of several kinds ofmodels; (5) visibility and controlpolicies might need to be different inthe West than the East; (6) efforts toimprove visibility within Class I areaswill benefit visibility outside theseareas, and could help alleviate othertypes of air quality problems as well; (7)achieving the national visibility goalwill require a substantial, long-termprogram; and (8) continued progresstoward this goal will require a greatercommitment toward atmosphericresearch, monitoring, and emissionscontrol research and development. TheEPA has taken these conclusions andrecommendations into account indeveloping today’s action

2. Clean Air Act Advisory Committeeand Its Subcommittee on Ozone,Particulate Matter, and Regional HazeImplementation Programs

The Subcommittee on Ozone, PM andRegional Haze ImplementationPrograms, established in September1995, has also provided important inputon regional haze and NAAQSimplementation issues. TheSubcommittee discussed a range ofpolicy and technical issues related toimplementation programs for attainingnew and revised NAAQS and reducingregional haze in Class I areas. TheSubcommittee includes representativesof several important stakeholder groups,including State, Tribal, and localgovernments, industry and small


16 Clean Air Act Advisory Committee,Subcommittee on Ozone, Particulate Matter, andRegional Haze Implementation Programs, InitialReport on Subcommittee Discussions, April 1997.

17 See 56 FR 57523.18 See CAA Section 169B(d).19 A clean air corridor is defined as a region that

generally brings clear air to a receptor region, suchas the Class I areas of the Golden Circle.

20 See section 169B(e)(2).21 See section 169A(b).

business, environmental groups,academia, and others. BetweenSeptember 1995 and July 1997, theSubcommittee has held 10 meetings invarious locations across the U.S. Workgroups reporting to the Subcommitteehave developed (and continue todevelop) recommendations on a numberof air quality management issues. Onepaper specifically addressed regionalhaze issues. Several other issue papershave been developed on planning andimplementation issues related to allthree programs. The Subcommittee hasissued a report to the full Committeesummarizing the Subcommittee’sdiscussions through November 1996. 16

In discussing the various issue papersto date, the Subcommittee has providedimportant input to EPA on potentialimplementation options and approachesfor the three air quality programs underconsideration. The Subcommittee hasrecognized the significant role oftransport of pollutants contributing toozone, PM, and regional hazethroughout the country. TheSubcommittee has also recognized thatin order to properly address air qualityproblems resulting from transportedemissions, it is important to identify thebroader geographic area contributingemissions to a particular area of concern(such as an area violating the NAAQS,or a mandatory Federal Class I areaidentified for visibility protection). Forair quality problems that do not resultpredominantly from local emissionssources, the Subcommittee has generallysupported the concept of initiating, asappropriate, multistate planningprocesses for conducting technicalassessments (emission inventories,modeling, source attribution) anddeveloping regional emission reductionstrategy alternatives. A framework forregional planning efforts is addressed inthe Subcommittee’s ‘‘InstitutionalMechanisms’’ paper, which is stillunder development to date. Theprocedures and functions of regionalplanning efforts such as the OzoneTransport Assessment Group and theGrand Canyon Visibility TransportCommission can serve as models forfuture voluntary regional planningefforts. The Subcommittee has alsorecognized the need for expandedmonitoring networks, particularlychemical analysis of PM2.5 forimplementation of both PM NAAQS andregional haze programs. TheSubcommittee has discussed keyprogram elements related to regional

haze, including the definition of‘‘reasonable progress,’’ criteria formeasuring progress, and controlstrategies for achieving such progress.The discussions covered issues relatedto how regional institutions should beinvolved in determining reasonableprogress objectives and the need for aregional haze program to include afederal ‘‘backstop’’ for such objectives,as well as specific timeframes for settingobjectives and periodically assessingprogress.

3. Grand Canyon Visibility TransportCommission (GCVTC)

As noted, the GCVTC issued a reportin June 1996 containingrecommendations for visibilityprotection. Today’s rulemakingaddresses the Commission’srecommendations to EPA.

The EPA established the GCVTC onNovember 13, 1991 (56 FR 57522, Nov.12, 1991). Based on EPA’s ‘‘broaddiscretionary authority under section169B(c) * * * to establish visibilitytransport regions and commissions,’’ itexpanded the scope of the GCVTC,to include additional Class I areas in thevicinity of the Grand Canyon National Park—what is sometimes referred to as the ‘‘GoldenCircle’’ of parks and wilderness areas. Thisincludes most of the national parks andnational wilderness areas of the ColoradoPlateau.17

The GCVTC was charged withassessing information about visibilityimpacts in the region and making policyrecommendations to EPA to addresssuch impacts. The Act called for theCommission to assess studies conductedunder section 169B as well as otheravailable information ‘‘pertaining toadverse impacts on visibility frompotential or projected growth inemissions for sources located in the* * * Region,’’ and to issue a report toEPA recommending what measures, ifany, should be taken to protectvisibility.18 The Act specificallyprovided for the Commission’s report toaddress the following measures: (1) Theestablishment of clean air corridors,19 inwhich additional restrictions onincreases in emissions may beappropriate to protect visibility inaffected Class I areas; (2) the impositionof additional new source reviewrequirements in clean air corridors; and(3) the promulgation of regulationsaddressing regional haze.

In June 1996, the GCVTC issued itsrecommendations to EPA. The Act calls

for EPA, taking into account therecommendations and other relevantinformation, to ‘‘carry out [its]regulatory responsibilities under section[169A], including criteria for measuring‘reasonable progress’ toward thenational goal’’ within eighteen monthsof receiving the recommendations.20

Regulations issued under section 169Amust provide guidelines to the States onappropriate techniques and methods forcharacterizing, modeling andcontrolling visibility impairment, andmust require applicable SIPs to containsuch emission limits, schedules ofcompliance and other measures as maybe necessary to make reasonableprogress toward meeting the nationalgoal.21 The EPA regulations issued afterconsidering the Commission reportmust require affected States to revisetheir SIPs within 12 months.

The GCVTC recommendationscovered a wide range of control strategyapproaches, planning and trackingactivities, and technical findings whichaddress protection of visibility in theClass I areas of the Golden Circle. Theprimary recommendations of theGCVTC include: (1) Air pollutionprevention and reduction of per capitapollution is a high priority; (2)Emissions growth should be tracked forits effect on clean air corridors; (3)Stationary source emissions should beclosely monitored and regional targetsshould be established for sulfur dioxideemissions in 2000, with triggers forregulatory programs if targets are notmet; (4) Focus should be given toemissions reductions in and near classI areas; (5) Mobile source emissionsshould be capped and nationalmeasures aimed at further reducingtailpipe emissions are supported; (6)Further assessment of the contributionof road dust to visibility impairmentand its potential future impacts shouldbe given high priority; (7) Further studyis needed on emissions from Mexico; (8)Fire emissions are recognized assignificantly impacting visibility, andprograms should be implemented tominimize effects on visibility; and (9) Afuture regional coordinating entity isneeded to follow through on theCommission’s recommendations. TheCommission also adopted an approachto ‘‘reasonable progress’’ that, consistentwith the national visibility goal, is basedon remedying existing impairment andpreventing future impairment.

The EPA has taken the Commission’srecommendations, as well as the body oftechnical information developed byCommission, into account in developing


22 GCVTC Report, p. 26.23 See proposed definition of ‘‘reasonable progress

target,’’ 40 CFR 51.301(z).24 See proposed 40 CFR 51.306(d).

25 GCVTC Report, p. 87.26 GCVTC Report, p. ii and 32–37.27 GCVTC Report, p. 36.

the regional haze rules set forth in thisproposal. The Commission’srecommendations have components thatcontemplate implementation through acombination of actions by EPA, otherFederal agencies, States and Tribes inthe region, and voluntary measures onthe part of public and private entitiesthroughout the region. TheCommission’s recommendations alsodistinguish between recommendedactions and policy or strategy optionsfor consideration. The EPA hasconsidered these factors in addressingthe recommendations, discussed below.

a. Reasonable Progress. The EPA’sproposed approach to ‘‘reasonableprogress’’ is consistent with theCommission’s approach. TheCommission’s report provides that‘‘[t]he overall goal of the Commission’srecommendations is to improvevisibility on the worst days and topreserve existing visibility on the bestdays, at Class I areas on the ColoradoPlateau.’’ Thus, the Commissionhighlights the importance of not onlyremedying existing impairment butpreserving and protecting goodvisibility. The Commission’s reportfurther provides that ‘‘[r]easonableprogress towards the national visibilitygoal is achieving continuous emissionreductions necessary to reduce existingimpairment and attain steadyimprovement of visibility in mandatoryClass I areas and managing emissionsgrowth so as to prevent perceptibledegradation of clean air days.’’ 22

The EPA’s proposed criteria formeasuring reasonable progress, theproposed reasonable progress target, hasbeen informed by the Commission’sreport in several respects. EPA proposesboth to improve visibility on the mostimpaired days and to prevent visibilitydegradation on the least impaireddays.23 Similar to the Commission’sprovision for ‘‘steady improvement ofvisibility,’’ EPA proposes a quantitativevisibility target and proposes to requirethat progress toward the target bedemonstrated and evaluated on an on-going periodic basis. Finally, EPAproposes to provide that State plansconsider emissions reductions inevaluating whether the quantitativereasonable progress target has beenachieved.24

b. Clean Air Corridors. TheCommission concluded that a clean aircorridor does exist for the Golden Circleregion and that clean air corridors arekey sources of clear air at Class I areas.

At the same time, the GCVTC found thatfuture growth in this area is notexpected to perceptibly impact visibilityin the Class I areas modeled, and thatadditional new source reviewrequirements would not be needed inthis area.25 The GCVTC recommendedcareful tracking of emissions growth inthese areas but did not recommendadditional control measures beyondthose required under current laws.

The EPA generally agrees that nospecial requirements need to beproposed for clean air corridors.Nevertheless, these corridors contain asignificant number of mandatoryFederal Class I areas, and the regionalemissions control strategies necessary toensure reasonable progress toward thenational visibility goal will need toaddress sources of pollution in theseareas.

c. Stationary Sources. TheCommission found that continuingimplementation of existing Clean AirAct requirements such as efforts toaddress visibility impairment under thecurrent rules would, in the short-term,result in significant sulfur dioxide (SO2)emissions reductions in the region andcorresponding improvements invisibility.26 The Report specificallyencourages States and Tribes to reviewthe visibility impacts at Class I areas onthe Colorado Plateau from uncontrolledpollution sources and to makeexpeditious determinations regardingthe need for additional control. TheCommission also provides for theestablishment and tracking of progresstoward an initial stationary source SO2emissions target to be achieved by theyear 2000. A long-term target for theyear 2040 and provisions for interimtargets were also recommended.Progress in complying with emissiontargets would be assessed periodically.Exceeding the targets would trigger aregulatory emissions reduction program(such as an emission cap and incentive-based market trading program).27 Thereport indicates that State and Tribalparticipants will evaluate developmentof a regional emissions cap and tradingregulatory program to achieve theemissions reductions. Finally, the reportprovides that the participants in theCommission process intend to designthe emissions reduction strategy forEPA’s consideration before it takes finalregulatory action on the Commission’srecommendations in order to createeconomic incentives for earlyreductions, and to provide flexibility

and certainty to sources in planningfuture actions.

The EPA fully agrees with theimportance of addressing existingvisibility impairment in the GoldenCircle parks and wilderness areas that isattributable to single or small groups ofstationary sources. The EPA hasretained its existing visibility protectionprogram, and intends for States tocontinue making progress in addressingvisibility impairment from such sources.The EPA is committed to working withStates, Tribes, and Federal LandManagers to address such impairment.

Likewise, EPA is fully supportive oflong-term efforts by the States in theregion addressing regional haze in theGolden Circle to address visibility-impairing emissions from stationarysources. Indeed, a centerpiece of today’sproposal is a long-term strategy, to beadopted by affected States throughoutthe country. The proposed long-termstrategy requirements are intended toprovide a flexible air quality planningframework to facilitate the interstatecoordination necessary to reduceregional haze visibility impairment inmandatory Class I Federal areasnationwide.

The long-term strategy proposedherein would be due one year afterissuance of this proposal as a final rule,estimated to be due in 1999.Implementation would occur in phases,with initial planning for additionalmonitoring, emissions tracking andmodeling to begin in 1999, andidentification of stationary sources andpotential emissions reductions to occurby 2001. Emissions control strategieswould be due in 2003, or 2005 for Statespreparing PM2.5 nonattainment controlstrategy SIP revisions, and revised everythree years thereafter. The planningschedule for the long-term strategy hasbeen developed to facilitate integrationwith State planning for the PM andOzone NAAQS. Similarly, EPA intendsto address specific visibility emissionscontrol strategies in more detail inconjunction with the PM and OzoneNAAQS control strategies.

In today’s proposal, EPA has notincluded the Commission’s specificstationary source emissions target andrelated provisions as regulatoryrequirements. However, the proposedrule in no way precludes the States inthe GCVTC transport region fromexpeditiously adopting, on their owninitiative, these control strategyprovisions. These States are well-situated for achieving earlier reductionsin light of the technical and policygroundwork established during theCommission’s deliberations, and theimportance of protecting visibility in the


28 GCVTC Report, p. ii and 38–45.29 GCVTC Report, p. ii–iii and 47–50.

30 See 40 CFR 51.306(e)(5).31 GCVTC Report, p. i and 28–31.

premiere natural resources thatcomprise the Golden Circle. The EPArequests public comment on whether itshould instead adopt, or adopt withmodification, these specificrecommendations.

d. Mobile Sources. The Commissiondetermined that mobile sourceemissions are projected to decreasethrough about the year 2005 due toimproved control technologies but wasconcerned that emissions wouldincrease thereafter. The Commissionrecommended a number of national,regional and local strategies related tomobile sources.28 Recognizing theproblems with establishing a nationalmobile source control program basedstrictly on the impact of the GoldenCircle, the Commission report‘‘promotes’’ several national initiativesthat may benefit air quality in thetransport region.

The EPA agrees with the centralpolicy embodied in the Commission’srecommendations on mobile sources—that there are certain categories ofpollution sources that especially lendthemselves to national controlstrategies. The EPA administers and isdeveloping programs under Title II ofthe Clean Air Act that address emissionsfrom motor vehicles, highway and non-road heavy-duty engines, marineengines (including recreational outboardand personal watercraft), small gasolineengines and locomotives. The EPA willcontinue to implement these and othernationally-applicable programs, such asthe new source performance standardsand national emission standards forsources of hazardous pollutants, thatprovide important air pollutionprotection in the Commission Transportregion and other areas of the country.

e. Prescribed Fire. The Commissionmade a number of recommendationsrelated to minimizing the emissions andvisibility impacts of both prescribed fireused by Federal land managementagencies to maintain ecosystem balancesand agricultural/silvicultural prescribedburning practices.29 Therecommendation directed at EPAsuggested that EPA require all Federal,State, Tribal, and private prescribed fireprograms to incorporate smoke effects inplanning and application by the year2000.

The EPA has long recognized thatprescribed fire can have significanteffects on visibility. The EPA’s currentvisibility protection regulations requireStates to consider smoke managementtechniques for agricultural and forestrymanagement purposes in developing

long-term strategies.30 This requirementwould apply to the long-term strategiesfor addressing regional haze visibilityimpairment proposed in this notice.Further, EPA currently participates inan interagency forum on prescribed fireto support on-going efforts to addressthese issues.

f. Air Pollution Prevention, FutureRegional Coordinating Entity, and Areasin Need of Additional Research. TheCommission recommended a number ofregional, State, and local policies for airpollution prevention including energyconservation, increased energyefficiency, promotion of the use ofrenewable resources for energyproduction, and enhanced publiceducation and outreach.31 The EPAstrongly supports pollution preventioninitiatives and has taken numeroussteps to promote pollution preventionunder the Pollution Prevention Act of1990, the Emergency Planning andCommunity Right-to-Know Act, andother environmental statutes EPAadministers. The EPA has carried outimportant voluntary pollutionprevention programs, such as the GreenLights program. Under this program,EPA uses education and outreach toencourage businesses, public schools,and government agencies to reduce theamount of electricity used whilemaintaining lighting quality.

The Commission determined thatthere is a need for a group like theCommission to oversee, promote, andsupport many of its recommendations,and urged EPA to provide support forsuch an organization. States and Tribesin the Commission’s transport region arecurrently discussing the formation of anorganization to succeed theCommission. At the request of the Statesand Tribes, EPA has participated in andsupported these efforts.

The Commission’s report identifiedareas warranting further research andanalysis, including the impact fromemissions within and near the GoldenCircle Class I areas, the contribution ofroad dust, and emissions from Mexico.EPA especially encourages the Statesand Tribes to address the informationaldeficiencies that would inhibitdevelopment of long-term strategies toaddress regional haze visibilityimpairment.

g. Conclusions. The precedingdiscussion addresses the keyCommission recommendations to EPA.As discussed here and elsewhere intoday’s action, the Commission’srecommendations have informed EPA’sproposed rules. The EPA seeks public

comment on the manner it has proposedto address the Commission’srecommendations in this rulemaking,and EPA requests alternativesuggestions for addressing therecommendations.

D. Overview of Proposed Revisions toVisibility Regulations

In developing the proposed revisionsto the visibility regulations, EPA hastried to maintain as much of the existingregulatory language as possible, wheresuch provisions appropriately apply toboth reasonably attributable andregional haze visibility impairment.This approach is intended to minimizethe level of effort needed for States toadopt new regulations and revise SIPsin order to address regional hazerequirements, particularly for thoseStates that have already adopted plansto implement the existing visibilityprogram.

Several new elements of the visibilityprotection program are proposed in thisnotice. These elements are outlinedbelow and discussed in greater detail insubsequent subsections of this notice.

• Expanded applicability of theregional haze program to all States, theDistrict of Columbia, and certainterritories.

• Establishment of presumptivereasonable progress targets.

• Requirements for periodic SIPrevisions, including periodicdemonstrations by States on whetherreasonable progress targets are beingachieved for each mandatory Class IFederal area.

• Analysis of sources contributing toregional haze impairment, includingsources potentially subject to BART.

• Expansion of the currentmonitoring network as necessary to berepresentative of all mandatory Class IFederal areas.

• Development of strategies to reduceemissions of visibility impairingpollutants in conjunction with strategiesto meet the new and revised NAAQS forPM2.5 and ozone.

The current program for addressingreasonably attributable impairmentremains in place, including, forexample, requirements for BART and along-term strategy to address‘‘reasonably attributable’’ visibilityimpairment, State consultation withFLMs on SIP revisions, consideration ofintegral vistas, and visibilitymonitoring. Further, the programrequires the review of new sourceimpacts on visibility in mandatory ClassI Federal areas to prevent futurevisibility impairment. The existingregulations have been in place for nearlyseventeen years and EPA is not


32 National Research Council, ProtectingVisibility in National Parks and Wilderness Areas,1993.

33 Latimer and Associates, Particulate MatterSource-Receptor Relationships Between All Pointand Area Sources in the United States and PSDClass I Area Receptors, Report prepared for EPAOffice of Air Quality Planning and Standards,September 1996.

34 ENVIRON International Corporation,Development of Revised Federal Class I AreaGroups in Support of Regional Haze Regulations,Report prepared for EPA Office of Air QualityPlanning and Standards, September 1996.

reopening those regulations for publiccomment in this rulemaking. However,EPA seeks public comment on theregulatory changes proposed in thisaction related to integrating the newregional haze provisions with theexisting visibility regulations. Forexample, EPA seeks comment on itsproposed revisions to 40 CFR 51.306(c)to integrate periodic long-term strategyrevisions for regional haze with theperiodic long-term strategy assessmentsfor reasonably attributable visibilityimpairment. The EPA is also seekingcomment on a revision to 40 CFR51.306(a)(1) which requires the State toaddress any certification of reasonablyattributable impairment that occurs 6months before a long-term strategy is

due in the next long-term strategyrevision. This revision clarifies that theState has the same grace period inconsidering certifications of impairmentas when the original visibility SIP wasdeveloped. Beyond specific revisionsproposed today, comments on theexisting regulations are generallyoutside of the scope of this proposal.

The EPA is proposing to maketechnical corrections to cross-referencesto other rules within the existing rulelanguage to reflect changes in thenumbering of Part 51. In addition, EPAis proposing to add ‘‘light extinction’’ tothe list of indices (visual range, contrast,and coloration) currently used to define‘‘visibility impairment’’ in 40 CFR51.301(x) and referenced throughout therule. Light extinction is the underlying

physical property of the atmosphere thatdetermines visual range. EPA is alsoproposing to coordinate the FederalLand Manager notification,consultation, and timing requirementsfor regional haze plan development andrevision with those of the currentprogram addressing reasonablyattributable impairment. This approachwill allow for efficient coordinationbetween the State and Federal landmanagers on comprehensive visibilitySIP submittals and revisions.

The proposed revisions establish anew framework for States to follow inrevising their visibility SIPs. The keymilestones of the proposed visibilityprogram are contained in the tablebelow:

Date Activity

July 1997 ......................................... Promulgation of revised ozone and PM NAAQS and proposal of revised visibility regulations.February 1998 ................................. Promulgation of revised visibility regulations.March 1998 ..................................... Commence regional planning activities as necessary.February 1999 ................................. States submit new/revised visibility SIPs, including monitoring plan, identification of potential BART

sources, and schedule for assessing BART and associated emission reductions by February 2001, long-term strategy provisions (including procedures for future plan requirements), revisions as necessary toaddress section 110(a)(2) requirements relevant to regional haze, and provisions / procedures for Statecoordination with FLM.

February 2000 ................................. New monitoring sites online.February 2001 ................................. State assessment of BART sources to be completed and available for use in regional modeling and control

strategy development.July 2003 ......................................... SIPs due for emission reduction strategies for regional haze. First demonstration of progress in relation to

reasonable progress targets due. One year monitoring reporting begins. (July 2005 for States preparingPM2.5 nonattainment control strategy SIPs.)

July 2006 (and every 3 years there-after).

Visibility SIP revision to demonstrate progress in relation to reasonable progress targets, and to adjustemission reduction strategies as necessary. (July 2008 for States noted above)

The following sections focus onproposed new elements of the visibilityprotection program.

E. Applicability

Section 51.300(b) of the existingvisibility regulations addresses‘‘reasonably attributable’’ impairmentfrom relatively nearby sources andrequires the 36 States containingmandatory Class I Federal areas tosubmit SIP revisions to assurereasonable progress toward the nationalvisibility goal. A proposed 40 CFR51.300(b)(3) would expand theapplicability of the program to all States(excluding certain territories) for thepurpose of addressing regional hazevisibility impairment. This provisionwould require the following additionalStates to participate in the program:Nebraska, Kansas, Iowa, Wisconsin,Illinois, Indiana, Ohio, Mississippi, NewYork, Pennsylvania, Massachusetts,Rhode Island, Connecticut, Marylandand Washington, DC. The territories ofPuerto Rico, Guam, American Samoa,and the Northern Mariana Islandswould not be subject to the program

because of their great distance from anymandatory Class I Federal area.However, Hawaii, Alaska, and theVirgin Islands would be subject to theregional haze provisions because of thepotential for emissions from sourceswithin their borders to contribute toregional haze impairment in mandatoryClass I Federal areas also located withinthese States. These States would notneed to participate in regional planningactivities, but would be expected toimplement programs to developemission reduction strategies to achievethe reasonable progress targetsestablished by these revised regulations.

Section 169A(b)(2) requires Statescontaining mandatory Class I Federalareas or having emissions which ‘‘mayreasonably be anticipated to cause orcontribute to any impairment ofvisibility in any such area’’ to revisetheir visibility SIPs in order to makereasonable progress toward the nationalvisibility goal. Many scientific studiesand technical assessments, includingthe 1990 report from the National AcidPrecipitation Assessment Program, the1993 NAS report, and the 1996 GCVTC

report ‘‘Recommendations forImproving Western Vistas,’’ have shownthat regional haze is frequently causedby fine particles that are transportedsignificant distances, even hundreds orthousands of kilometers 32. Modelinganalyses have been conducted for EPAthat use county-to-Class I area transfercoefficients for PM-fine to identifycounties which may reasonably beanticipated to contribute transportedPM-fine to mandatory Class I Federalareas. These studies by Latimer andAssociates 33 and Environ InternationalCorporation 34 suggest that, to varyingdegrees, emissions from each of the


35 Dennis, Robin L. ‘‘Using the Regional AcidDeposition Model to Determine the NitrogenDeposition Airshed of the Chesapeake BayWatershed,’’ in Atmospheric Deposition to theGreat Lakes and Coastal Waters, edited by JoelBaker, 1996.

36 Clean Air Act, section 169A(b)(2).

37 See Pitchford, M. and Malm, W. ‘‘Developmentand Applications of a Standard Visual Index,’’Atmospheric Environment, v.28, no. 5, March 1994.

38 U.S. Environmental Protection Agency. AirQuality Criteria for Particulate Matter. ResearchTriangle Park, NC: National Center forEnvironmental Assessment. Office of Research andDevelopment. July 1996.

39 EPA has referenced Tribal plans becausesection 301(d) of the Act calls for EPA to issueregulations specifying those provisions of the Actfor which it is appropriate to treat Indian Tribes inthe same manner as States. On August 25, 1994,EPA published its proposed rules. See 59 FR 43956.EPA has not yet issued final rules. However, theproposed rules would allow eligible Tribes thatseek to be treated in the same manner as States toadminister visibility implementation plans. See 59FR 43966 and 43980. If the final rules addressingTribal authority under the Clean Air Act are issuedand similarly allow eligible Indian Tribes toadminister visibility implementation plans, EPAmay make conforming changes in the final visibilityrules proposed here (in this action) to reflect suchpotential Tribal plans without providing additionalopportunity for public comment.

contiguous 48 States contribute to PM-fine loadings and associated visibilityimpairment in at least one mandatoryClass I Federal area. Other analysesusing the Regional Acid DepositionModel (RADM) have estimated thatsulfate and nitrate deposition receptorsare influenced by sources located up to600–800 kilometers away. 35 Theseanalyses, combined with the geographicdistribution of large emission sourcesand mandatory Class I Federal areas,provide the basis for the expandedapplicability of the visibility program toall States for the purposes of protectingagainst visibility impairment due toregional haze. In addition, the 1993NAS report observed that the section169A requirement for a State to reviseits implementation plan if it ‘‘mayreasonably be anticipated’’ to cause orcontribute to impairment in anymandatory Class I Federal area 36

indicates that Congress intended that‘‘the philosophy of precautionary actionshould apply to visibility protection asit applies to other areas [such as theNAAQS].’’

However, this expanded applicabilityshould not be interpreted by the Statesto mean that they will necessarily haveto adopt control strategies for regionalhaze immediately. Instead, it means thata State subject to the program firstshould participate in a regional airquality planning group to furtherestablish and refine the relativecontributions of various States toregional haze conditions in mandatoryClass I Federal areas. Thus, it will beimportant for all States havingemissions which may be reasonablyanticipated to contribute to regionalhaze in mandatory Class I Federal areasto participate in the planning processemployed to develop regionalrecommendations on Stateapportionment of emission reductionand control measure responsibilities.The States subject to the program willneed to establish or identify existing SIPauthorities enabling the State to takeactions to address its contribution tovisibility problems in other States andto carry out other proposed planningrequirements. The EPA seeks publiccomment on the proposed applicabilityof the regional haze visibility protectionprogram.

Regarding applicability for thepurpose of addressing reasonablyattributable impairment, the existing

regulations continue to apply to the 36States and territories in which at leastone mandatory Class I Federal area islocated. It should be recognized, theexisting requirement in 40 CFR51.300(b)(1), along with sections110(k)(5) and 169A of the Act, provideEPA with general authority to request aSIP revision from any State (includingthose not having a mandatory Class IFederal area) in the event thatinformation exists demonstrating thatemissions from sources in the State arereasonably anticipated to contribute to‘‘reasonably attributable’’ visibilityimpairment in a mandatory Class IFederal area located in another State.

F. Definitions

1. DeciviewThe proposed reasonable progress

targets are expressed in terms of the‘‘deciview’’ metric, the definition ofwhich is proposed in section 301(bb).The deciview is an atmospheric hazeindex that expresses uniform changes inhaziness in terms of commonincrements across the entire range ofconditions, from pristine to extremelyimpaired environments.37 A onedeciview change in haziness is a smallbut noticeable change in haziness undermost circumstances when viewingscenes in mandatory Class I Federalareas. The deciview is a means ofexpressing atmospheric light extinction,just as visual range is an expression ofatmospheric light extinction. All threeof these visibility metrics aremathematically related. Just as in thecase of atmospheric light extinction orvisual range, deciview levels can also becalculated from ambient PM2.5 and PM10

data using certain assumptions foraverage light extinction efficiencyattributed to specific components of PM(such as sulfates, nitrates, elementalcarbon, and so on). One can use thesesame assumptions to evaluate whetherpotential emission reduction strategieswill lead to perceptible visibilitychanges in the future.

An advantage to using the deciview isthat it can be used to express changesin visibility impairment linearly withhuman perception. The scales for lightextinction coefficient and visual rangedo not express perception linearly. Forexample, a 5-mile change in visualrange can in some cases be verysignificant, such as a change from 5 to10 miles in an impaired environment,whereas it may be barely perceptible ona clearer day (such as from 95 to 100miles). The EPA recognized the

deciview as an appropriate metric forregulatory purposes in chapter 8 of theStaff Paper for the Particulate MatterNAAQS review.38 The EPA proposesuse of the deciview metric in theproposed definition of the reasonableprogress target, at 40 CFR 301(z) of theproposed regulations, because of theimportance that progress for visibility bemeasured in terms of ‘‘perceptible’’changes in visibility, and due to thesimplicity of its useful scale. In contrast,the sole use of a metric such as emissionreductions or ambient particle masswould not directly relate to the visibilityconditions since the composition of theambient particle mass is key to its effecton visibility. Additionally, theatmospheric processes and transportthat affect the way in which pollutantloadings translate into visibilityimpairment varies by location. The EPArequests comment on its proposed useof the deciview metric in EPA’svisibility regulations.

The EPA is also proposing, as notedin the discussion below, to use thetracking of pollutant emissions tosupplement the periodic evaluation ofdeciview changes in implementing theregional haze reasonable progressrequirement. When calculating theability of a SIP or Tribal plan 39 todemonstrate reasonable progress, theStates or Tribes can consider otheremissions reduction requirements (e.g.,emission reductions meeting RFP for theNAAQS) toward meeting the reasonableprogress target. However, given thatother air quality progress measures relyon tracking emissions reductions of keypollutants, the EPA requests commentsregarding appropriate methods fortranslating other program metrics intovisibility changes.

2. Reasonable Progress Targeta. Protection for Most Impaired and

Least Impaired Days. The proposed


40 The IMPROVE network is described in Unit I.H.of this notice.

41 136 Cong. Rec. S2878 (daily ed. March 21,1990) (statement of Sen. Adams).

42 GCVTC Report, p. x.

43 See proposed 40 CFR 51.30644 See CAA section 169A(g)(1) and 169A(g)(2).

45 See proposed 40 CFR 51.301(z).46 See CAA Section 169A(b)(2)(B).

definition in 40 CFR 51.301(z) for‘‘reasonable progress target’’ sets forthpresumptive quantitative objectives tobe met in each mandatory Class IFederal area nationally. The proposedtargets provide for progress toward thenational visibility goal of reducing anyexisting and preventing any futureimpairment by perceptibly improvingthe days that are most impaired (i.e., theaverage of the 20 percent most impaireddays over an entire year) and allowingno degradation in the ‘‘cleanest’’ or leastimpaired days (i.e., the average of the 20percent least impaired days over anentire year). In deciding upon anappropriate characterization of the‘‘most’’ and ‘‘least’’ impaired days, EPAconsidered the typical frequency ofvisibility monitoring in the IMPROVEnetwork 40 (twice a week), and thenumber of samples that would beavailable for analysis annually (104possible samples per year). The EPAdetermined that basing these targets onany fewer than 20 data points annuallywould allow an average value to beunduly influenced by a singleanomalous data point. EPA’s basis isconsistent with the approach used bythe GCVTC in its technical assessmentwork. The GCVTC also characterized themost and least impaired days as theaverage of the best and worst 20% daysin a given year.

The approach of improving the mostimpaired days and preventingdegradation of the least impaired days isalso supported by the legislative historyof the 1990 Clean Air Act Amendmentsand the reasonable progress definitionused by the GCVTC. The legislativehistory provides that, ‘‘At a minimum,progress and improvement must requirethat visibility be perceptibly improvedcompared to periods of impairment, andthat it not be degraded or impairedduring conditions that historicallycontribute to relatively unimpairedvisibility.’’ 41 The approach taken by theGCVTC, also emphasized improving theimpaired days and protecting the cleandays. The GCVTC interpreted therequirement for reasonable progress tobe met by ‘‘achieving continuousemissions reductions necessary toreduce existing impairment and attain asteady improvement in visibility inmandatory Class I areas, and managingemissions growth so as to preventperceptible degradation of clear airdays.’’ 42 In establishing this definition,the GCVTC in effect set forth continuous

emission reductions as a basic strategyfor meeting the goals of improving themost impaired days and maintaining theleast impaired days.

In today’s rulemaking, EPA issimilarly providing for ‘‘attaining asteady improvement in visibility’’ and‘‘preventing perceptible degradation ofclean air days’’ through its proposeddefinition of a reasonable progresstarget. Under the proposed rules, Statesmeeting the reasonable progress targetrequirements would satisfy thereasonable progress requirements ofsection 169A for the purpose ofaddressing regional haze impairment.The EPA is setting forth proposedrequirements for periodic reasonableprogress demonstrations to bedeveloped for all mandatory Class IFederal areas beginning as early as July2003 and every 3 years thereafter.43

These demonstrations shouldincorporate control strategies developedby each State, in conjunction withstrategies developed for the NAAQS andother programs. Recognizing that manyfactors will determine if a State candevelop and implement controlmeasures to meet a specific increment ofvisibility change, EPA is also proposingin 40 CFR 51.306(d)(5) that States, inconsultation with the Federal LandManagers and approval from EPA, maydevelop alternate reasonable progresstargets. At the same time, the alternatetarget must be explained based onrelevant statutory factors and may notallow for visibility degradation.44 Therelevant statutory factors are listed insection 169A(g)(1) and include the costsof compliance, the time necessary forcompliance, and the energy and nonairquality environmental impacts ofcompliance, and the remaining usefullife of any existing source subject tosuch requirements. Inclusion of thealternative reasonable progressprovision is intended to recognize thatthe qualitative factors listed in the Actmay influence what is considered‘‘reasonable progress’’ in individualmandatory class I Federal area. In suchcases consideration of these factorsmight lead a State to adopt analternative target for a given mandatoryClass I Federal area which might differfrom targets of other mandatory Class IFederal areas within a larger planningregion. Further discussion of thealternate progress target is included inUnit I.I. of this preamble below. TheEPA requests public comment on thepresumptive ‘‘reasonable progresstarget’’ proposed in this action as well

as the proposal to allow alternativetargets.

The proposed ‘‘reasonable progresstarget’’ has two elements: (1) For themost impaired days, a rate ofimprovement equivalent to 1.0 deciviewover a 10-year or 15-year period; and (2)for the least impaired days, no increasein deciview as compared to the baselineconditions.45 The EPA is proposing twooptions for the rate of improvement forthe most impaired days. One option is1.0 deciview improvement every 10years, the second option is 1.0 deciviewevery 15 years. The EPA proposes toexpress the presumptive reasonableprogress targets in terms of deciviewchanges to reflect perceptible changesfor complex scenes like those found inmandatory Federal Class I areas. TheEPA believes it is important to expressprogress measures for visibility in termsof ‘‘perceptible’’ changes.

EPA proposes the presumptive rate ofprogress for the most impaired daysequivalent to a 1.0 deciviewimprovement over 10 to 15 years forthree main reasons. The first reason isthat tracking visibility over longer timeperiods, allows for better analysis oftrends despite inter-annual changes inweather conditions, transport patterns,and variances in naturally occurringemissions of fine particles. Secondly,the 10 to 15 year time periods areconsistent with the Clean Air Actrequirement for each SIP to contain along term strategy for visibilityprotection covering the next 10–15years.46 It logically follows that thepublic would expect a visibility strategycovering a 10 to 15-year period toactually result in a perceptibleimprovement in visibility over thatperiod. Third, a gradual improvement invisibility conditions over a 10 to 15 yearperiod is consistent with the GCVTCdefinition of reasonable progress, whichis ‘‘achieving continuous emissionreductions necessary to reduce existingimpairment and attain steadyimprovement of visibility in mandatoryClass I areas * * *’’

In considering the choice between the10 and 15 year options, EPA notes thefollowing. Both time periods are withinthe statutory provisions for long-termstrategies of 10 to 15 years. However,while the 15-year option allows moretime for States to plan and implementcontrol strategies, a presumptive rate of1.0 deciview in 15 years would take 50percent longer to attain the national goalthan a presumptive rate of 1.0 deciviewin 10 years. Congress did not specify atime frame within which the national


47 See proposed 40 CFR 51.306(d)(2).

goal is to be achieved, but given themagnitude of current impairment insome areas, even with the moreexpeditious 10-year presumptive target,it will take a long time to achieve thenational visibility goal in all mandatoryClass I Federal areas. At the same time,the costs of the program may besubstantial (see Unit II.A below). Themore conservative 15-year presumptivetarget would allow these costs to bespread out over a longer time period.The EPA solicits comment on these twooptions for presumptive rate ofimprovement for the most impaireddays.

With respect to the ‘‘no degradation’’target (0.0 deciview change) for the leastimpaired days, EPA believes this targetis consistent with the national goal ofpreventing future impairment, as well aswith the GCVTC definition ofreasonable progress (‘‘* * * managingemissions growth so as to preventperceptible degradation of clean airdays’’).

The EPA solicits comment on theseand any other proposed options forreasonable progress targets for the mostimpaired and least impaired days.Commenters should address howalternative proposals would ensurereasonable progress toward the nationalvisibility protection goal.

The proposed regulations requireStates to provide a demonstration ofreasonable progress every 3 years. TheEPA intends that a demonstration ofcompliance with the presumptivereasonable progress targets be theprincipal means of measuringreasonable progress with respect toregional haze impairment. Measures toachieve this progress must includemeasures to address Best AvailableRetrofit Technology requirements andother measures necessary to achievesuch progress that are contained in StateSIPs and long-term strategies.

b. Determining Baseline Conditions.The demonstration of compliance withthe reasonable progress targets,beginning as early as 2003, will requireStates to determine the baselineconditions, for both the haziest days andthe clearest days, 47 for all mandatoryClass I Federal areas in the State. TheEPA proposes that for each Class I areain the State, the State computes a simpleannual average of the haziest andclearest days to establish a record overtime. As noted in the previous section,the haziest and clearest days are to berepresented by the average of the 20%highest and lowest deciview valuesmeasured each calendar year. Baselinevalues should be calculated based on a

minimum of three years of monitoringdata collected at the Class I area, or ata monitoring location that is determinedto be representative of that Class I area.EPA would allow up to nine years ofmonitoring data collected prior to thefirst reasonable progress demonstrationSIP submittal (due as early as 2003) tobe used to establish baseline haziest andclearest conditions. Currently, there are30 Class I sites with 8 consecutive yearsof visibility monitoring data (1988–95).A baseline established on more thanthree years of data may better accountfor inter-annual variability due tometeorology. However, a baselineestablished on more than three years ofdata also may not accurately representcurrent conditions if significantemission reductions have occurredduring that time period. The EPA isconsidering allowing any State thatestablishes a baseline using only threeyears of data to call that baseline aninterim baseline, and to be able tomodify that baseline at the time offuture reasonable progressdemonstration SIP revisions so that upto nine years of data are used forestablishing a final baseline. It shouldbe noted that if there are substantialchanges to regional emissions duringthis time period that affect visibilitylevels (e.g. large reduction in emissionsfrom the acid rain program) then theState should demonstrate why use ofthat time period is appropriate forbaseline determinations. The EPAsolicits comment on this approach forsetting baselines from which to trackreasonable progress for the haziest andcleanest days, specifically on the use ofthe simple annual averaging of thetwenty percent haziest and clearestdays, on the three year minimum andnine year maximum number of yearsused in establishing current baselineconditions, and on the interim baselineconcept.

It is proposed that tracking of thehaziest and clearest days be maintainedon a three year SIP review and revisioncycle. The EPA is contemplating usinga simple average of the 20 percent mostimpaired days and the 20 percent leastimpaired days for each year over a threeyear period as the indicator fordetermining whether the ‘‘reasonableprogress target’’ is being met. Since athree year period may be subject tohigher variation in both meteorologicalconditions and natural emissions thatimpair visibility than a ten-year period,EPA is considering supplementing thethree year review of measured visibilityprogress with evaluation of theemissions reductions used to supportthe planned improvement in visibility

during SIP development. Thisevaluation of planned emissionreductions is based on the approachtaken by the GCVTC in calling forcontinuous emissions reductions andtracking. Analysis of IMPROVE datacollected since 1988 shows that somesites may not be meeting the proposedreasonable progress targets. If themonitoring data representing a Class Iarea does not track along thepresumptive reasonable progress rate,the State would need to reviewemissions inventory estimates for bothanthropogenic and natural emissionsand anthropogenic emissions reductionassumptions, that were used inestimating compliance with thepresumptive rate as part of the threeyear SIP revision process. Ifanthropogenic emissions tracked asplanned, the State, using any additionalvisibility data (i.e., optical instrumentmeasurements) and meteorological data,should demonstrate that currentemissions strategies will make progressin the next 3-year planning period. AState would need to revise its SIPemission reduction strategies in order tobring the visibility conditions to a levelat or below the reasonable progresstarget when anthropogenic emissionswere shown to exceed levels used inplanning to meet the reasonableprogress target. The EPA solicitscomment on this approach towardtracking the reasonable progress target,specifically on (1) approaches otherthan a simple block average, (2) theapproach for compliance with thepresumptive target supplemented by acheck on anthropogenic emissions, and(3) on whether the complianceassessment should be set forth in theregulations proposed here or inguidance.

Under the proposed rules, once thevisibility conditions for the haziest daysin a mandatory Class I Federal area arewithin 1.0 deciview of naturalconditions, the visibility SIP would beconsidered a type of maintenance plan.The reasonable progress demonstrationwould need to reflect no furtherdegradation of visibility conditions forboth the haziest and clearest daysconsistent with the national goal toprevent future impairment.

Due to the broad variety of scenic,atmospheric, and lighting conditions atthe mandatory Class I Federal areasacross the country, at any specific timea given area may contain vistas forwhich slightly more or less than onedeciview above background conditionsrepresents a perceptible impact for thecomponents of the scene. For example,a view of a snow-capped mountain maybe more sensitive to changes in air


quality than a view of a forest with theresult that less than a 1.0 deciviewchange is perceptible for that portion ofthe scene. Conversely, in another scenea deciview change slightly greater than1.0 may not be perceptible. The EPAproposes a one deciview incrementabove natural conditions to be perceivedas sufficiently near to natural conditionsfor those sensitive scenes that arethought to exist in all mandatory ClassI Federal areas. However EPAacknowledges that for specific scenes agreater or lesser deciview change can beperceived, and so requests comments onwhether it would be more appropriate toestablish a 0.5 deciview, 1.5 deciview,or 2.0 deciview cut point fordetermining when visibility planningshould become exclusively preventativeto assure maintenance of existingnatural conditions.

This concern is less important for thepresumptive reasonable progress targetof 1.0 deciview improvement in thehaziest days every ten to fifteen yearscontained in today’s proposal.Generally, a rate of progress for thehaziest days equivalent to 1.0 deciviewevery 10 or 15 years should result in aperceptible improvement across therange of complex views found in allClass I areas. If there are particular ClassI areas for which a slight variation canbe demonstrated, the adequacy of 1.0deciview in realizing perceptibleimprovement may be a relevantconsideration in evaluating analternative reasonable progress target sothat a perceptible improvement is thetarget for the planning period.

c. Protecting Vistas Seen From WithinClass I Areas. The proposedpresumptive reasonable progress targetsare designed to improve visibilityconditions in all mandatory Class IFederal areas. The scenic vistas enjoyedby visitors to many parks often extendto important natural features outsidethese parks. In developing the 1980program addressing reasonablyattributable impairment, the EPAafforded the Federal Land Managers theopportunity to account for specificimpairment outside of the mandatoryFederal class I areas by establishing‘‘integral vistas.’’ Integral vistas areviews perceived from within amandatory Class I Federal area of aspecific panorama or landmark locatedoutside the Class I area boundary. Thesevistas are considered ‘‘integral’’ to theenjoyment of the Class I area and wereafforded a level of protection similar toviews contained within the Class Iboundaries. With respect to regionalhaze, a monitoring station in or near theClass I area that is established asrepresenting the regional haze

conditions for that area may not berepresentative of all views that can beseen from that Class I area, many ofwhich may have been critical to thereasons Congress established theseprotected areas. The EPA solicitscomment on whether, under a regionalhaze program, such important viewsrequire special protection, what supportunder the Clean Air Act exists forestablishment of such protection, andthe appropriate mechanism forprotecting such views outside Class Iareas within requirements of a Stateimplementation plan.

d. Calculating Changes in Deciviews.The revised rule proposes in 40 CFR51.306(d) that every 3 years, Statesperform a comparison of actual orrepresentative monitoring data topresumptive reasonable progress targets.The EPA expects that tracking ofvisibility conditions will beaccomplished by measuring the particleconstituents at representativemonitoring sites using techniquesdeveloped and peer-reviewed, such asthose used in the IMPROVE monitoringnetwork. Progress is to be tracked interms of deciviews. Deciviews can becalculated from light extinction valuesderived from speciated particlemonitoring (known as reconstructedlight extinction), or from opticalmeasurements of light scattering(nephelometers) or light extinction(transmissometers). A deciview measurederived from reconstructed lightextinction avoids the need ofeliminating data for weather eventswhich can obstruct optical monitoringdevices and therefore allows for aconsistent technique to be applied fromyear to year. The EPA solicits commentson using a reconstructed light extinctionapproach as the basis for calculatingvisibility changes in terms of deciview,whether this approach should bespecifically included in the regulatoryrequirements, and on other approachesfor calculating visibility changes usingother monitoring information collectedat Class I areas.

G. Implementation Plan Revisions

1. SIPs Due 12 Months AfterPromulgation

40 CFR 51.302 of the existingvisibility regulations required States torevise implementation plans within 9months of rule promulgation to includea long-term strategy for making progresstoward the national goal, provisions fornotification of Federal Land Managersfor certain new source permits, amonitoring strategy, an assessment ofvisibility impairment in mandatoryClass I Federal areas, and emission

limitations representing BART. Under40 CFR 51.306(c) in the existingregulations, long-term strategies are tobe reviewed and revised as appropriateevery three years.

Proposed section 40 CFR51.302(a)(1)(ii) would require States tosubmit visibility SIP revisions forregional haze within 12 months ofissuance of the final regional haze rules.This is consistent with section169B(c)(2) of the Act and comparable tothe time allowed for visibility SIPrevisions under the 1980 regulations.Based on the current schedule, EPAplans to finalize this rule in February1998, so the first visibility SIP revisionwould be due 12 months later, inFebruary 1999.

The EPA is proposing that 40 CFR51.302 of the existing regulations berevised to incorporate timingrequirements for future SIP revisionsand to outline additional plan elementsrequired specifically to address regionalhaze impairment. Specifically, proposed40 CFR 51.302(a)(1)(ii) requires thatimplementation plans be revised torequire States to in the future reviseSIPs in accordance with the proposednew timing requirements in proposed40 CFR 51.306(c). In this proposedsection, the next implementation planrevision is required 4 years later inorder to coordinate implementationplan revisions with those for theNAAQS to the extent possible. Futurevisibility implementation plan revisionsare required in proposed 40 CFR51.306(c) every 3 years thereafter. Theseimplementation plan revisions willinclude an assessment of whetherreasonable progress targets have beenmet for all mandatory Class I Federalareas in the State, and emissionreduction strategies as appropriate formeeting reasonable progress targets foreach subsequent 3-year period.

Many of the 40 CFR 51.302 elementscurrently required in visibility SIPs forreasonably attributable impairment willalso be needed in visibility SIPs toaddress regional haze impairment.These include provisions forcoordination with FLMs as found in 40CFR 51.302(b) of the existing regulationsfor which EPA is proposing revisionsrelated to regional haze, and generalimplementation plan requirements for along-term strategy and a monitoringstrategy, as found in the existing 40 CFR51.302(c).

In addition, implementation planrequirements due within 12 months thatare specific to regional haze areproposed in 40 CFR 51.302(c)(5). Theproposed revision identifies twoprincipal new elements: identificationof sources potentially subject to BART,


48 See CAA section 169A(g)(2).

49 See CAA section 169A(b)(2).50 See CAA section 169A(b)(2). The legislative

history also explains that at a minimum, visibilitySIPs are to include two principal elements: BARTand the long-term strategy. H.R. Rep. No. 564, 95thCongress, 1st Sess. at 154 (1977).

51 The 1993 report of the National ResearchCouncil, Protecting Visibility in National Parks andWilderness Areas, provides an example, using aspeciated rollback model, of the apportionment ofanthropogenic light extinction among source typesin the eastern, southwestern, and northwesternUnited States. This example illustrates some of thekey issues that arise in any apportionment ofvisibility impairment.

52 REMSAD and MODELS3 are regional-scalecomputer models under development that willpredict particulate matter and visual air qualitybased on emissions, transport, and atmosphericchemistry.

and revisions as necessary for the Stateto meet the requirements under section110(a)(2) of the Act as they pertain toimplementation of measures to addressregional haze. These elements arediscussed in greater detail in the nexttwo sections below.

2. Plan Revisions To Address BestAvailable Retrofit Technology (BART)

The first new element in proposed 40CFR 51.302(c)(5) requires States toidentify, within the first 12 months afterrule promulgation, sources located inthe State that are potentially subject toBART (i.e., ‘‘existing stationaryfacilities’’ as defined in existing 40 CFR51.301(e)). The list should include thosesources potentially subject to BART thatemit any air pollutant which mayreasonably be anticipated to cause orcontribute to regional haze visibilityimpairment in any mandatory Class IFederal area, and which meet certainspecific criteria. These criteria requirethat potential BART sources are majorstationary sources, includingreconstructed sources, from one of 26identified source categories which havethe potential to emit 250 tpy or more ofany air pollutant, and which wereplaced into operation between August1962 and August 1977. The 26 sourcecategories identified in existing 40 CFR51.301(e) and section 169A(g)(7) of theClean Air Act include sources such aselectric utilities, smelters, petroleumrefineries, and kraft pulp mills. Thepurpose of this requirement is to havethe States identify early in the planningprocess the universe of sourcespotentially subject to BART so relatedinformation can be taken into account indeveloping future control strategies,both for the NAAQS and regional haze.

Several factors must be taken intoconsideration in determining BART,including the technology available, thecosts of compliance, the energy andnonair environmental impacts ofcompliance, any pollution controlequipment in use at the source, theremaining useful life of the source, andthe degree of improvement in visibilitywhich may reasonably be anticipated toresult from the use of such technology.48

The provisions in the Act requiringBART appear to demonstrate Congress’intention to focus attention on thisspecific set of large existing sources,which are minimally controllingemissions, as possible candidates foremissions reductions needed to makereasonable progress toward the nationalvisibility goal.

Note that the States are responsiblefor revising their SIPs to contain ‘‘such

emission limits, schedules ofcompliance, and other measures’’ asmay be necessary to make reasonableprogress toward the national visibilitygoal.49 Such implementation planrevisions are to include, at a minimum,provisions meeting the BART and long-term strategy requirements of the Act.50

Thus, these SIPs can ensure reasonableprogress by addressing emissionsreductions from a wide range of existingemissions sources that may reasonablybe anticipated to cause or contribute toregional haze impairment, some ofwhich are specifically subject to theBART requirement and some of whichare not.

Proposed 40 CFR 51.302(c)(5) alsorequires States to submit within 12months a plan and schedule forevaluating BART for applicable sourceswithin the next 3 years after rulepromulgation (i.e., between February1998 and February 2001). A three-yeartime frame has been proposed for thisrequirement so that possible emissionlimits and associated emissionreductions for all applicable BARTsources can be integrated into futureregional modeling and control strategydevelopment activities for attainment ofthe PM2.5 and ozone standards as well.In this way, States can assess the degreeto which reductions from sourcessubject to BART will also benefit otherair quality problems, and vice versa. Inthis way, States can explore ways tointegrate control strategies for ozone andPM with the requirement for BART. Itis expected that control strategy optionswill be analyzed by States as part ofregional technical assessments.

The EPA believes that becauseregional haze is the cumulative productof emissions from many sources over abroad area, the test for determiningwhether a single source ‘‘mayreasonably be anticipated to contribute’’to regional haze in a mandatory Class IFederal area should not involveextremely costly or lengthy studies ofspecific sources. The National Academyof Sciences report supports thisrecommendation, stating that ‘‘it wouldbe an extremely time-consuming andexpensive undertaking to try todetermine, one source at a time, thepercent contribution of each source tohaze.’’ While one of the factors toconsider in determining BART is ‘‘thedegree of improvement in visibilitywhich may reasonably be anticipated,’’EPA believes this factor should be

evaluated to reflect the degree ofimprovement in visibility that could beexpected at each class I area if BARTrequirements are implemented forapplicable BART sources. Thisevaluation would be similar todeveloping attainment strategies for theNAAQS, and could be accomplishedusing a basic technique, such as aspeciated rollback approach,51 or a morecomplex technique, such as a regionalmodel (like REMSAD or MODELS3).52

Thus, while the other BART factorswould be evaluated for each source thatis reasonably anticipated to contributeto regional haze in a mandatory Class IFederal area, EPA proposes that thedegree of visibility improvementexpected to result would be evaluated inthe context of the overall emissionsreduction strategy. As the descriptivename ‘‘regional haze’’ implies, regionalhaze is characterized by regional orregion wide impairment of mandatoryClass I Federal areas. The EPA requestspublic comments on this proposedapproach for the BART assessmentprocess for regional haze.

By comparison, under the existingvisibility regulations, the BART processis triggered by the Federal landmanager. The FLM may certify to theState at any time that impairment existsin any mandatory Class I Federal area.See existing 40 CFR 51.302(c)(1). Stateimplementation plans must provide fora BART analysis for any existingstationary facility that may cause orcontribute to ‘‘reasonably attributable’’impairment in any Class I areaidentified by the Federal land manager.In determining BART, the State mustconsider the various factors listed insection 169A(g)(2), including costs ofcompliance and the degree ofimprovement in visibility which mayreasonably be anticipated to result fromthe use of such technology on a specificsource. See existing 40 CFR 51.301(c).

The proposed approach to evaluatingpotential improvements in regional hazevisibility impairment due to BARTdiffers from the current approach forreasonably attributable impairment inthat the degree to which visibility isexpected to improve in a mandatory


Class I Federal area would take intoaccount the emission reductions fromthe multiple sources affecting that ClassI area. An alternative approach wouldbe to evaluate the degree ofimprovement in regional hazeimpairment expected from each specificBART source. Under this approach, asingle source’s contribution to regionalhaze visibility impairment in a Class Iarea would be assessed. Section169A(b)(2)(A) provides that BART isrequired for applicable sources that emitair pollution that is reasonablyanticipated to contribute to anyvisibility impairment in a Class I area.

Thus, the ‘‘degree of improvement’’estimated under section 169A(g)(2),which in most cases may be less thanperceptible, would be based on theimprovement projected from a singleBART source. The concern with thisapproach is the substantial technicaldifficulty in establishing source-specificreceptor relationships for a regionaltransport environmental effect. TheNational Academy of SciencesCommittee on Haze in National Parksand Wilderness Areas has expresseddoubt that such source specificattributions could be the basis for aworkable visibility protection program.However, allowing assessment of BARTsources on a source-specific basis wouldnot preclude States from includingcontrols on BART sources in their long-term strategy in order to achieve theapplicable reasonable progress targets,even if source-specific impairmentcould not be demonstrated. This optionwould likely give States greaterflexibility in developing the most cost-effective means to address the BARTand long-term strategy requirements.The EPA requests comment on thesealternative approaches to implementingthe BART and long-term strategyrequirements to address regional hazevisibility impairment.

In the proposed 40 CFR 51.306(d)(3),this action also sets forth the timingrequirement for States to includeprovisions to address the BARTrequirement in their implementationplans due in July 2003 except asdiscussed in Unit I.I. This approach isconsistent with recommendations of theClean Air Act Advisory Committee(CAAAC) and its Subcommittee tointegrate control strategies acrossprograms to the greatest extent possible.The CAAAC’s Subcommittee on Ozone,Particulate Matter, and Regional HazeImplementation Programs is currentlydiscussing a number of issues related tocontrol strategies, and EPA intends toconsider any CAAAC recommendationsin future implementation guidance.

Finally, with respect to proposedregulatory changes related to BART,EPA notes that the existing 40 CFR51.302(c)(4)(iv) of the existing visibilityregulations requires BART to beimplemented no later than five yearsafter ‘‘plan approval.’’ EPA proposes toclarify this provision to read ‘‘planapproval or revision’’ consistent withsection 169A(g)(4) of the Act.

The EPA requests comment on all ofthe proposed BART requirementsdiscussed above including whetheradditional regulatory revisions beyondthose addressed here are necessary.While EPA requests comment onpossible emission reduction strategies tobe used for implementing BART andlong-term strategy requirements underthe regional haze program, EPA alsoexpects to address more specific controlstrategy options for BART and the long-term strategy requirements for regionalhaze in later guidance.

3. Plan Revisions for Section 110(a)(2)Requirements

The second element of proposed 40CFR 51.302(c)(5) relates to SIP revisionsnecessary to meet the variousrequirements under section 110(a)(2) ofthe Act. Section 169B(e)(2) provides forEPA to require States to revise theirsection 110 implementation planswithin 12 months to contain ‘‘suchemission limits, schedules ofcompliance, and other measures asnecessary’’ to carry out theseregulations. In addition, visibilityprotection is specifically provided for insection 110(a)(2)(J).

The elements of section 110(a)(2) arecritical to establishing a strongfoundation for ongoing implementationof the visibility protection program. TheEPA believes that during this initial 12-month period, the States should focusfirst on plan requirements providing foradequate future planning activities inconjunction with other States.

Important planning activities includedevelopment of enhanced emissioninventories and emissions trackingsystems, monitoring networkdeployment, and refinement of regionalmodels. The EPA encourages all Statesto participate in regional planningactivities. This planning will thenfacilitate the future assessment ofregional strategies to achieve reasonableprogress targets, and will also providebeneficial data and tools needed forattainment of the new ozone and PMNAAQS.

States will need to address each of thesection 110 elements needing revisionto support implementation of therevised visibility program. The EPAbelieves that the following sections

should be closely reviewed for meetingthe needs of a regional haze program.

• Section 110(a)(2)(D) requires theState plan to contain adequateprovisions to prohibit interstatetransport that contributes significantlyto nonattainment in or interferes withmaintenance by other States withrespect to the NAAQS or interferes withmeasures in other States to protectvisibility. This provision is highlightedto emphasize the critical role oftransport in dealing with visibilityissues and to serve as an incentive toregional planning and cooperationamong States.

• Section 110(a)(2)(K) requires SIPs toprovide for air quality modeling for theNAAQS and collection of necessaryemissions inventory information to useas input to the models. Many primaryand secondary PM and ozone emissions(VOC, NOX, SO2, ammonia, primaryPM, elemental carbon, organic carbon)also result in visibility impairment, sodeveloping enhanced statewideemission inventories for thesepollutants will benefit all threeprograms. Further, sections 110(a)(2)(F),110(a)(2)(A), and 169A(b) providespecific authority for emissionsinventory requirements and generalauthority to require measures necessaryto protect visibility. It will be importantfor States to develop inventories bothfor sources potentially subject to BART,and for other sources that are reasonablyanticipated to contribute to regionalhaze visibility impairment. Theinventories can then be used as inputsto regional models and possibly as thebasis for regional pollutant tradingprograms, as suggested by the GCVTC.Integrated modeling tools such asMODELS3 are under developmentwhich will be able to predict ozone andPM concentrations, as well as theresulting regional haze, using theenhanced inventory data. It isanticipated that emission inventoryinputs to regional modeling will beneeded in the 1999–2000 time frame.The need for enhanced inventorydevelopment and expanded regionalmodeling capabilities has been greatlyemphasized by a number oforganizations, including the GCVTC andCAAAC.

• Section 110(a)(2)(B). Expansion ofthe existing visibility monitoringnetwork to provide for representativemonitoring of all Class I areas is thethird major technical task for Stateemphasis. Proposed revisions related tomonitoring are more fully discussed inUnit I.H. of this action.

• Section 110(a)(2)(A) requires Statesto submit enforceable emission limitsand compliance schedules. The EPA


believes that, in general, enforceable‘‘emission limitations’’ and ‘‘schedulesof compliance’’ as required undersections 169A and 169B of the Actshould be appropriately incorporatedinto SIPs after assessment of regionalstrategies can be coordinated with theozone and PM implementationprograms. However, it is important torecognize that regional haze ‘‘areas ofconcern’’ (i.e., mandatory Class IFederal areas) are already defined, andmodeling work can begin early in theplanning process to define the areas ofinfluence affecting them. In addition,there may be some parts of the countrythat have no nonattainment areas (orareas of violation) for which theassessment of regional strategies forhaze could proceed earlier, but thesemodeling activities would be dependentupon completion of inventoryenhancements and availability ofadequate regional models.

Timing requirements for future SIPrevisions after the ‘‘12-month SIP’’ areincluded in proposed section 40 CFR51.306(c). The proposal states that thenext SIP revision will be due 4 yearsafter the first SIP revision is required, inJuly 2003, except as noted below. Bydoing this, EPA seeks to allow forintegration of planning activities andcontrol strategy development to themaximum extent possible. The EPArecognizes that the implementationschedule for the Ozone and PM NAAQSmay change in light of monitoring dataavailability and other factors related todevelopment of a SIP attainmentstrategy.

In light of EPA’s intent to fostercoordinated planning andimplementation of the regional hazerequirements proposed and the newPM2.5 while still addressing the need toensure reasonable progress inaddressing visibility impairment, EPA isalso proposing to allow States preparingnonattainment plans for fine particulatematter (PM2.5) to submit their regionalhaze emissions control strategy SIPrevisions by but not later than therequired date for submittal of the State’sPM2.5 attainment control strategy SIPrevisions. See proposed 40 CFR 51.306(d)(3) and (d)(6). This approach wouldallow the initial emissions managementmeasures portion of the regional hazelong-term strategies to be developed inconjunction with the first round ofPM2.5 nonattainment actions. EPA alsotakes comment on how to appropriatelybalance coordination among SIPrequirements with the potential delay inensuring reasonable progress toward thenational visibility protection goal.

The proposed 40 CFR 51.306(c) alsostates that visibility SIPs are to be

revised every 3 years thereafter (e.g.,2006, 2009, etc.) This requirement isconsistent with the overall need to trackreasonable progress over time, as well aswith the 3-year requirement for long-term strategy review and revision in thecurrent rules. The EPA has clarified thisprovision by proposing to removereference to periodic review andrevision ‘‘as appropriate.’’ The EPAproposes to require a SIP revision every3 years, and proposes that the processfor developing the plan revision includeconsideration of a ‘‘report’’ outliningprogress toward the national goal. TheEPA believes that a requirement forregular SIP revisions will result in amore effective program over time andprovide a focus for demonstratingongoing progress and making mid-course corrections in emissionsstrategies.

To the extent possible, the EPA willendeavor to coordinate timingrequirements for RFP submittals for theNAAQS with long-term strategyrevisions for visibility. The timing ofprogress reviews for RFP for the NAAQSwill be addressed in future guidance.

Instead of periodic SIP revisions everythree years, the EPA is also consideringrequiring that the SIPs be revised every5 years after the initial visibility long-term strategy SIP (e.g., 2008, 2013, etc.).This would allow more time forcollection of visibility data to be used inassessing compliance with the visibilitytarget. This longer time period wouldalso be less influenced by unusualmeteorological conditions than a three-year period. Periodic five-year revisionswould also reduce the administrativeburden on the States. However, a five-year period may not as easily allow formid-course corrections in sufficienttime to ensure meeting the progresstarget over a 10-year or 15-year period.A 5-year revision period would also beinconsistent with the 3-year timing forlong-term strategy revisions forreasonably attributable visibilityimpairment in the existing rules. TheEPA requests public comment on thefrequency of periodic SIP revisions. Inparticular, EPA seeks public input onwhether a five-year periodic SIPrevision schedule would be moreappropriate. In considering a 5-yearreview period for regional haze, the EPAalso seeks comment on whether itshould revise current rules to adopt a 5-year SIP revision schedule for‘‘reasonable attributable’’ impairmentSIP requirements to allow foradministrative efficiency.

H. Visibility MonitoringVisibility monitoring is authorized

under the section 169A(b)(1) provision

for issuing guidelines to the States onmonitoring, the section 169A(b)(2)provision requiring SIPs to address‘‘other measures as may be necessary,’’as well as the section 110(a)(2)(B)authority requiring Stateimplementation plans to provide for themonitoring of ambient air quality. Since1986, visibility monitoring (usingaerosol, optical, and photographictechniques) has been coordinatedthrough the IMPROVE program, acooperative, multi-agency approachwith participation by EPA, the FLMs,and States. Each of the participants inthe IMPROVE Steering Committeecontributes funding for the purchaseand operation of monitoring equipment,and participates in resource and sitingdecisions. Speciated fine PM data andreconstructed light extinction data hasbeen collected since 1988 for 30 sites,and more than 60 sites have at least 1year of data collected using IMPROVEprotocols. The IMPROVE protocols andquality assurance procedures that havebeen enhanced over the years are thebasis for forthcoming EPA guidance.

EPA believes that continuedcoordination of visibility monitoring iscritical due to the commonresponsibilities of States, FLMs, andEPA for visibility protection. Proposedin 40 CFR 51.305(b) are variousmonitoring requirements forimplementation of the regional hazeprogram, including a requirement thatdevelopment of monitoring strategies becoordinated with the FLMs and otheragencies, such as EPA, that are involvedin existing visibility monitoring efforts.

Proposed 40 CFR 51.302(c)(2)(iv)requires States to submit monitoringstrategies (revisions for those Stateswith existing strategies) as part of theirimplementation plans within 12 monthsof promulgation, and proposed section40 CFR 51.302(c)(2)(v) requiresrevisions of these strategies four yearslater (in 2003), and every 3 yearsthereafter, at the same time that long-term strategy revisions would berequired.

A central element of each State’svisibility program will be thedemonstration every 3 years of currenttrends in visibility compared toreasonable progress targets for eachmandatory Class I Federal area in theState. This demonstration must rely onhistorical monitoring data to the greatestextent possible. Since visibilitymonitoring does not exist at all 156mandatory Class I Federal areas, it willbe essential for each State to develop amonitoring strategy, in conjunction withthe appropriate FLMs and other States,which ensures that ‘‘representative’’monitoring has been or will be


established for each mandatory Class IFederal area in the State.

Proposed 40 CFR 51.305(b)(2) requiresthat additional monitoring sites beestablished within 12 months of plansubmittal as necessary to ensure thatprogress in relation to the reasonableprogress targets can be determined. TheEPA recognizes that due to resourcelimitations, it would be difficult toestablish monitoring sites at all 156mandatory Class I Federal areas. Thissection, in conjunction with theproposed new provisions in 40 CFR51.305(b)(1) and (b)(3), call for theestablishment of additional monitoringsites such that monitoring can beconsidered representative of all Class Iareas. The EPA believes that severaladditional sites are needed to moreeffectively characterize regionaltransport of haze on a national basis.However, the concept of a‘‘representative’’ network will likely bethe subject of much discussion, andultimately it will need to incorporateboth technical and policy concerns ofthe States and FLMs. The EPAencourages the States and FLMs todiscuss this issue in depth, possiblyusing the IMPROVE Steering Committeeas a forum for further discussion. EPAtakes comment on whether 12 monthsfrom plan submittal is an adequateamount of time for installation of newsites.

In the strategy, the participants in themonitoring network should address thefollowing questions:—For areas with monitoring funded

solely by one agency, will suchmonitoring remain in place until thenext progress demonstration?

—For an area without existingmonitoring, is there a monitoring sitenearby that can be considered‘‘representative’’ of this area? If not,the strategy should implement theaddition of a site to the network.

—For which mandatory Class I Federalareas in the State will new visibilityor fine particle monitoring be initiatedwithin the next 3 years?The EPA plans to issue a visibility

monitoring guidance document in thenear future that will be designed toassist the States in developing thismonitoring strategy. The document willprovide guidance for determining‘‘representative’’ sites and will includetechnical criteria and procedures forconducting aerosol, optical, and scenemonitoring of visibility conditions inClass I areas. The procedures currentlyused in the IMPROVE network will beincluded in this guidance. For thepurpose of assuring that monitoring datawill be complete in assessing and

modifying long-term strategies, Statesshould review the existing monitoringstrategy with the FLMs and otherparticipating agencies to assess the needfor additional monitoring sites ormodifications to existing ones on thesame periodic basis as the long-termstrategy revisions.

States should emphasize thecoordination of the design of monitoringnetworks for PM2.5 and visibility to thegreatest extent possible in order tooptimize resources. In some situations,existing visibility monitoring sites canbe used to meet Part 58 requirements tocharacterize regional PM2.5 levels.However, States needing to establishnew PM2.5 monitoring sites tocharacterize regional levels shouldconsider siting new monitors at or neara mandatory Class I Federal area thatcurrently has no monitoring.Reconstructed light extinction can becalculated for any PM2.5 site collectingaerosol data that undergoescompositional analysis. Thisinformation can help fill certain spatialgaps and can be used for calibration ofregional models for PM and visibility, aswell as for assessments of visibilitynationally under the secondaryparticulate matter standard.

Proposed 40 CFR 51.305(b)(4) requiresthe States to report to EPA all visibilitymonitoring data on at least an annualbasis. The characterization of visibilitytrends is one important reason for thisrequirement. It will be important forStates to track annual trends in relationto the reasonable progress targets.Annual trend data can provide theStates with an early indication of theeffectiveness of current strategies inmeeting presumptive reasonableprogress targets for specific mandatoryClass I Federal areas before the trienniallong-term strategy review comes due.Annual consolidation of this data willalso enable EPA to better characterizenational and regional visibility trends inits annual air quality trends report.

Another important reason for thisrequirement is to provide for theultimate integration of monitoring datafrom the new PM2.5 monitoring networkand the visibility monitoring network,both of which will include PM2.5 andPM10 mass as well as compositionalanalysis by aerosol species. Class I areaparticle mass and speciation data canfill important data gaps in definingregional concentrations for air qualitymodeling analyses. As noted above, EPAseeks for these two monitoring networksto be developed in a complementarymanner.

Due to the well-established qualityassurance procedures and accessibilityof data collected through the IMPROVE

network, EPA does not expect thisreporting requirement to beexceptionally burdensome. Theelectronic transfer of data shouldfacilitate the process as well. The EPArequests public comment on itsproposed requirement for reporting ofdata, and on the other proposedrevisions to the visibility monitoringrequirements.

I. Long-Term Strategy

The existing long-term strategyprovisions in 40 CFR 51.306 requireseveral basic elements:—A strategy for making reasonable

progress in improving visibility in allmandatory Class I Federal areas in theState. Specifically, the strategy shouldinclude measures necessary to remedyany reasonably attributableimpairment certified by a FLM. Thestrategy should specify emissionreduction measures for sourcessubject to BART requirements, and forother sources causing or contributingto such visibility impairment in theseareas. The strategy should alsoinclude measures necessary forreasonable progress to be achieved inother mandatory Class I Federal areaslocated outside the State that may beaffected by emissions within theState.

—A SIP assessment every 3 years,including a review of progress madeand a revision of the long-termstrategy as appropriate, includingconsultation with the FLM and areport to EPA and the public.

—Provisions for review of new sourceimpacts on visibility.

—Coordination with existing plans andgoals, including those of FLMs.The basic framework for the long-term

strategy provisions in 40 CFR 51.306remains the same. The proposedrevisions do not affect the on-goingrequirement for States to continue toaddress reasonably attributableimpairment while adding newprovisions to address regional hazeimpairment. The EPA has specificallyrevised the regulation to preserve therequirements in the existing visibilityprogram for addressing reasonablyattributable impairment. Theserequirements are to continue to beimplemented independent of whetherthe State is currently meeting reasonableprogress targets or not. Proposed 40 CFR51.306(a)(1) has been revised to addressthis point. This proposed revisionrequires the State to first identifywhether there is an active certificationof reasonably attributable impairmentfor any Class I area in the State. If anactive certification is pending, the long-


term strategy needs to address theprogress made in assessing BARTpursuant to this certification and otherrelated activities. This proposed sectionprovides that all other visibilityimpairment will be considered asregional haze and be addressed inaccordance with other provisions in 40CFR 51.306, including the proposed 40CFR 51.306(d).

The proposed 40 CFR 51.306(d) (1)and (2) set forth requirements for theState, within 12 months to develop aprocedure that will, by a date 5 yearsfrom rule promulgation, determinecurrent visibility conditions for everymandatory Class I Federal area. Theprocedure should provide forcoordination with the FLMs and useappropriate data available or plannedfor under the monitoring plan. Currentconditions are to be defined (orestimated for mandatory Class I Federalareas without monitoring at the time ofpromulgation of these revisions) for theaverage of the 20 percent most impaireddays and 20 percent least impaireddays, using the deciview scale. TheState should use all years wheremonitoring data are available orestimation and apportionmenttechniques noted in Agency guidancecan be applied. As mentioned in thediscussion of the baseline in Part E.above, a minimum of three years ofmonitoring data should be used.Adjustments to a baseline using 3 yearsof data can be made using more ambientdata up to nine consecutive years.

In addition, proposed 40 CFR51.306(d)(1) requires the State toestablish a procedure in consultationwith the FLMs by which levels ofnaturally-occurring PM-fine andvisibility will be established within fiveyears. Estimates from NAPAP 1990 anddeveloped by Trijonis (PM2.5: 1.5 µg/m3

in west, 3.3 µg/m3 in east) may beconverted to deciview and used as adefault as necessary. After the SIPrevision due in 2003, these assessmentswill then be required every 3 years. Theperiodic assessment of natural andcurrent conditions should take intoconsideration new findings from theresearch community, improvedemissions estimates for wildfire,prescribed fire and windblown dust,and any future policies for ecosystemmanagement, prescribed fire, and so on.

The proposed 40 CFR 51.306(d)(3)also requires that the regional haze long-term strategy submitted within 1 year ofthe final promulgation of these rulesinclude provisions for requiring that foreach Class I area with existinganthropogenic impairment greater than1 deciview, the State shall within 5years of rule promulgation (except in

the case of States concurrentlypreparing nonattainment controlstrategy SIP revisions for PM2.5) adoptmeasures and revise its SIP to includeemission reduction strategies that wouldmeet the reasonable progress targetswithin the next 3-year period. Thesemeasures are to address the bestavailable retrofit technologyrequirement, as well as other necessarymeasures from non-BART sources toensure that reasonable progress targetsare achieved. Such measures shouldinclude a combination of local andregional measures. Regional measuresrecommended through the multistateimplementation process are expected totake regional modeling efforts intoconsideration. States will take theseassessments into account, but will bethe ultimate authority responsible forcontrol strategy development andimplementation. The types of analysesconducted by the GCVTC to identifyand assess the various source categoriescontributing to regional haze on theColorado plateau can serve as a modelfor regional approaches to developstrategies for making reasonableprogress. Although the GCVTC processdid not emphasize analysis of sourcespotentially subject to BART, EPAbelieves it is important that States makesuch an analysis a primary componentof the long-term strategy.

The proposed timing for requiredemission reduction strategies forregional haze is designed to allowsufficient time to conduct technicalassessments on a regional scale. TheEPA also proposes that emissionreduction strategies for visibility berevised every 3 years thereafter in orderto meet the reasonable progress targetsfor any mandatory Class I Federal areaslocated in the State. These revisedstrategies are to be implementedthrough SIP revisions.

Section 51.306(f) of 40 CFR specifiesa number of factors, currently set forthin 40 CFR 51.306(e), in considering theneed for visibility-specific measures,including the measures beingimplemented for other programs. It ispossible that for some areas of thecountry, such as parts of the EasternU.S., emission reductions achieved forthe acid rain program could besufficient to meet the presumptivereasonable progress targets initially. TheEPA has proposed revisions that wouldrequire the State to address theanticipated net effect on visibility due toprojected changes in point, area, andmobile source emissions over the next10–15 years when developing emissionsstrategies that will meet the reasonableprogress requirements. In some areas,these changes in emissions would be

expected primarily from populationgrowth, while in others emissionschanges may result from potential newindustrial, energy, natural resourcedevelopment, or land managementactivities.

The proposed 40 CFR51.306(d)(3)(ii)(B) would require SIPs toexplicitly address the contribution byeach State needed to meet reasonableprogress targets. This section providesthat such strategies should be consistentwith strategies recommended throughregional planning processes conductedfor related air quality issues. Thisprovision should serve as an incentivefor States to participate in regionalplanning activities. The EPA believesthat multi-state planning, modeling, andcontrol strategy assessment will beimportant in addressing regional haze.At the same time, each State isultimately responsible for determiningits contribution to ensure reasonableprogress in mandatory Class I Federalareas affected by its emissions sourcesand implementing appropriateemissions control strategies. Inevaluating visibility SIP revisions, theEPA will consider the informationsubmitted by the State as well as anyrelevant regional planning analysis.

The proposed 40 CFR 51.306(d)(4)sets forth requirements to be addressedby the State in the implementation planrevision if it has not met thepresumptive reasonable progress targetsover the past 3-year period. Thisprovision requires the State to firstdetermine whether targeted emissionsreductions planned for in its previouslong-term strategy revision wereachieved. This approach follows fromthe GCVTC definition of reasonableprogress as ‘‘continuous emissionreductions.’’ This step would involvereviewing emissions sources,inventories, and other data used as the‘‘baseline’’ for any modelingassessments or assumptions used indeveloping the strategy. If suchreductions were found to have beenactually achieved, the State must thenevaluate other factors, such asmeteorological conditions, that wereresponsible for not achieving the targets.This assessment must be provided toEPA as part of the implementation planrevision process. If planned emissionreductions were not achieved, then theState must revise its emissionsreduction strategies to enable it to meetover the next 3-year period thepresumptive reasonable progress targetsthat would have been required if thetargets had been achieved initially. This3-year submittal, review and adjustmentof emission reduction strategies issimilar to the tracking of reasonable


further progress for the NAAQS.Additional discussion on achievingreasonable progress targets is found inUnit I.F.2.b., Determining BaselineConditions, of this action.

The proposed 40 CFR 51.306(d)(5)introduces requirements for States tofollow in developing ‘‘alternate progresstargets.’’ A State would pursuedevelopment of such targets if it candemonstrate that achievement of thepresumptive targets would not bereasonable due to the factors found insection 169(A)(g)(1) of the Act that areto be considered in developing long-term strategies. These factors includethe costs of compliance, the timenecessary for compliance, the energyand nonair quality environmentalimpacts of compliance, and theremaining useful life of any affectedsource or equipment therein. Thissection requires the State to provide toEPA a satisfactory justification for anyalternate progress target. The Stateshould consult with other States whoseemissions may contribute to regionalhaze in the Class I area, the appropriateFederal Land Manager, and EPA indevelopment of an alternativereasonable progress target for any ClassI area. This provision recognizes thatconsideration of these factors may leada State to adopt alternative reasonableprogress targets for a mandatory Class IFederal area that differ from those ofother mandatory Class I Federal areaswithin a planning region. However, theproposed rules prohibit States frominterpreting the alternative target toallow a degradation of visibilityconditions due to human-causedemissions. At a minimum, for any threeyear period between long-term strategyrevisions, the State’s plan shouldprovide maintenance of currentconditions for the most and leastimpaired days. The alternative targetand corresponding justification must besubmitted as part of the State visibilitySIP revision process. Any alternativereasonable progress target submitted bythe State will be reviewable throughpublic hearings on the SIP revision andwill be subject to approval by EPA.

The EPA seeks public comment on allaspects of its proposed regulatoryrevisions to the visibility long-termstrategy requirements in 40 CFR 51.306as well as all of the other proposedpolicies and regulatory revisions relatedto regional haze SIP requirements setforth in this action.

II. Regulatory RequirementsThe discussion below addresses

requirements of the RegulatoryFlexibility Act, Unfunded MandatesReform Act, Paperwork Reduction Act,

Executive Order 12898, and ExecutiveOrder 12866 for purposes of theproposed regional haze rule.

A. Executive Order 12866Under Executive Order 12866, the

Agency must determine whether aregulatory action is ‘‘significant’’ and,therefore, subject to Office ofManagement and Budget (OMB) reviewand other requirements of the ExecutiveOrder. The order defines ‘‘significantregulatory action’’ as one 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 orcommunities;

(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 the Executive Order.

In view of its important policyimplications, the proposed regionalhaze rule has been judged to be a‘‘significant regulatory action’’ withinthe meaning of the Executive Order, andEPA has submitted it to OMB forreview. The drafts of proposed rulessubmitted to OMB, the documentsaccompanying such drafts, writtencomments thereon, written responses byEPA, and identification of the changesmade in response to OMB suggestions orrecommendations will be documentedin the public docket and made availablefor public inspection at EPA’s Air andRadiation Docket Information Center(Docket No. A–95–38).

The EPA has prepared and enteredinto the docket a Regulatory ImpactAnalysis (RIA) entitled RegulatoryImpact Analysis for Proposed Ozoneand Particulate Matter NationalAmbient Air Quality Standard andRegional Haze Rule. This RIA assessesthe costs, economic impacts, andbenefits associated with theimplementation of the current andseveral alternative NAAQS for ozoneand PM and the regional haze rule. Asdiscussed in the RIA, there are anunusually large number of limitationsand uncertainties associated with theanalyses and resulting cost impacts andbenefit estimates. Furthermore, theassumptions regarding implementationare necessarily speculative in nature.Under the proposed regional haze rule,

States bear the primary responsibilityfor establishing control requirements forassuring reasonable progress toward thenational visibility goal. Until such timeas States make decisions regardingcontrol measures, EPA may onlyspeculate as to which sources may beregulated and as to what types of controlrequirements or emission limits may berequired.

The proposed regional haze ruleestablishes presumptive targets forvisibility improvements in mandatoryClass I Federal areas, but also providesdiscretion to the States to establishalternate targets where warranted. TheEPA has prepared a RIA that analyzesthe costs and benefits of implementinga regional haze program to achieve 2different presumptive targets forvisibility improvement: one target equalto a rate over 10 years, the other over 15years. The targets can be attained bytaking into account emissionsreductions achieved under other airquality programs, includingimplementation of the new ozone andparticulate matter standards. The RIAanalysis estimates that annual costs overthe period 2000–2010 would likelyresult in the expenditure by State, local,and tribal governments and the privatesector, in aggregate, of over $100 millionper year for both presumptive options.

It is important to note, however, thatthere is significant uncertainty in thesecost estimates for a number of technicalreasons specific to the analysis, butmore importantly because of theflexibility that States have inestablishing alternate targets and indeveloping emissions control strategiesto meet the target. The EPA has no wayof estimating the number of States thatmay seek to establish alternate progresstargets for any of the 156 mandatoryClass I Federal areas required to makeprogress or in predicting the actualcontrol measures that will be employed.For this reason, the costs associatedwith the presumptive target options inthe RIA may be significantly overstated.As stated in the RIA, total annual costsof the rule in 2010 would be zero if allStates adopted alternative reasonableprogress targets which imposed noadditional controls beyond thoserequired for the PM NAAQS, $2.1billion if all States adopted theproposed presumptive reasonableprogress target of 1.0 deciviewimprovement in the most impaired daysover 15 years, and $2.7 billion if allStates adopted the proposedpresumptive reasonable progress targetof 1.0 deciview improvement over 10years. Nevertheless, it is likely that theywould exceed the $100 millionthreshold in any event.


Total annual benefits in 2010 underthese three alternative scenarios wouldbe $0, $1.3 to $3.2 billion, or $1.7 to$5.7 billion respectively. Since it islikely that some States will adopt thepresumptive targets and some willadopt alternative targets for mandatoryClass I Federal areas, actual costs andbenefits would probably fall withinthese ranges. These benefits areincremental to the visibility benefits,including those for mandatory Class IFederal area visibility improvementexpected from implementation of thePM and Ozone NAAQS recentlypromulgated on July 18, 1997 (62 FR38652 and 38856). There are importantbenefits to human health and welfare,and to the environment from improvingair quality in these important naturalareas by reducing emissions of fineparticles (the main contributors tovisibility impairment).

B. Regulatory Flexibility ActThe Regulatory Flexibility Act (RFA),

5 U.S.C. 601 et seq., provides that,whenever an agency is required topublish a general notice of rulemakingfor a proposed rule, the agency mustprepare regulatory flexibility analysesfor the proposed and final rule unlessthe head of the agency certifies that itwill not have a significant economicimpact on a substantial number of smallentities. Small entities include smallbusinesses, small governments (e.g.,cities, towns, school districts), andsmall non-profit organizations. Theregional haze rule being proposed todayapplies to States, not to small entities.It proposes to establish presumptivevisibility protection goals for certainnational parks and wilderness areas thatStates may modify, where appropriate,based on a review of specific criteriarelated to the degree of visibilityimpairment, the costs of controllingemissions and other relevantinformation, after consultation with theFederal Land Managers. In addition, therule proposes planning, monitoring andprogress reporting requirements thatwould apply to States to assure thatStates are making progress toward thenational visibility goal for mandatoryClass I Federal areas.

Under the proposed rules, Stateswould decide how to obtain sufficientemissions control measures throughState-level rulemakings. In developingemission control measures, section169A of the Clean Air Act requiresStates to address best available retrofittechnology requirements (BART) for aselect list of major stationary sourcesdefined by the Clean Air Act section169A(g)(7). Before any such majorstationary source would be subject to

BART for regional haze, however, theState would have to make adetermination which involves someState discretion in considering a numberof relevant statutory factors set forth insection 169A(g)(2), including the costsof compliance, any existing controltechnology in use at the source, theremaining useful life of the source, theenergy and nonair qualityenvironmental impacts of compliance,and the degree of visibilityimprovement that may reasonably beanticipated. Further, EPA is seekingpublic comment on the potential foralternative approaches to addressing theBART requirement, as discussed earlierin this action. For BART and for othermeasures the State may adopt to meetthe requirements of a regional haze rule,EPA will also be exploring furtherpolicy issues in a future implementationguidance. The potential consequences oftoday’s proposal are thus speculative atthis time. Any requirements foremission control measures, like the SIPprocess for attaining national ambientair quality standards, will be establishedby State rulemaking. Because the Stateswill exercise substantial interveningdiscretion in implementing theproposed rule, EPA certifies that theregional haze rule being proposed todaywill not, if promulgated, have asignificant economic impact on asubstantial number of small entitieswithin the meaning of the RFA. Thelegal reasoning supporting thiscertification is analogous to thereasoning explained in certifying therecent NAAQS rulemakings for ozoneand particulate matter; a full statementof this reasoning was publishedpreviously in the Federal Register aspart of the Notices of Final Rulemakingon July 18, 1997, for those two NAAQSrulemakings (62 FR 38652 and 38856).

The EPA’s finding that today’sproposed regional haze rule will nothave a significant economic impact ona substantial number of small entitiesalso entails that the small-entityprovisions in section 609 of the RFA donot apply. Nevertheless, EPA undertooksmall-entity outreach activities modeledon these provisions on a voluntarybasis. These activities includeconducting a review panel, followingRFA procedures, to solicit advice andrecommendations from representativesof small businesses, small governments,and other small organizations. Thispanel review resulted in a final reportentitled ‘‘Final Report of the ReviewPanel Convened to Consider EPA’sPlanned Phase I Guidance onImplementation of New or RevisedOzone and Particulate Matter NAAQS

and Proposed Rule on Regional Haze’’,dated June 10, 1997. A copy of thereport has been placed in the docket forthis rulemaking. The EPA has alsoadded a number of additional small-entity representatives to its CAAACSubcommittee on NAAQS and regionalhaze implementation.

The goal of this outreach activity is towork with the small-entityrepresentatives to find implementationapproaches that minimize impacts onsmall entities, and to help andencourage the States to use theseapproaches as they develop their StateImplementation Plans for NAAQSattainment and regional haze reduction.It should be noted that the principalway States can minimize small-entityimpact is by their choices of controlstrategies. While development of controlstrategies will be required in order forStates to fully implement a regionalhaze program, EPA plans to addresscoordination of regional haze andNAAQS-related implementationstrategies in future guidance. However,the small-entity review panel felt that itwas important to share whateverinformation available with the States, sothat states can begin thinking aboutsmall-entity impacts as part of theirearly planning. Therefore, the panelrecommended that EPA develop andpublish a guidance memorandum to theStates which will summarize currentknowledge on approaches to minimizesmall-entity impacts. The EPA hasaccepted that recommendation, and willpublish such a memorandum shortlyafter today’s action appears. Included inthe guidance memorandum will be apreliminary list of various actions thatStates might take to alleviate adverseimplementation impacts on smallbusiness while at the same timeassuring that air quality goals areachieved. This list will then continue tobe refined as part of the process todevelop the future guidance.

C. Impact on Reporting RequirementsThe information collection

requirements in this proposed rulerelating to State requirements for theprotection of visibility in specially-protected national parks and wildernessareas have been submitted to OMB forreview under the Paperwork ReductionAct, 44 U.S.C. 3501, et seq. AnInformation Collection Requestdocument has been prepared by EPA(ICR No. 1813.01 and a copy may beobtained from Sandy Farmer,Information Policy Branch; EPA; 401 MSt., SW (Milked 2137); Washington, DC20460 or by calling (202) 260–2740.

This collection of information has anestimated reporting burden for the fifty


States and District of Columbia,averaging 623 hours per year per State.The Agency expects the Federal burdenwill be approximately 216 hours peryear. The Agency anticipates annualStates costs of about $1.0 million,approximately $25,000 per State. TheAgency estimates the annual Federalcosts to be approximately $7000. Theseestimates include time for reviewingrequirements and instructions,evaluating data sources, gathering andmaintaining data, and completing andreviewing the collection of information.

Send comments by October 20, 1997regarding these burden estimates or anyother aspect of these collections ofinformation, including suggestions forreducing this burden to Chief,Information Policy Branch; EPA; 401 MSt., SW. (Mailcode 2137), Washington,DC 20460; and to the Office ofInformation and Regulatory Affairs,Office of Management and Budget,Washington, DC 20503, marked‘‘Attention: Desk Officer for EPA.’’ Thefinal rule will be accompanied withresponses to OMB or public commentson the information collectionrequirements contained in this proposal.

D. Unfunded Mandates Reform ActSection 202 of the Unfunded

Mandates Reform Act of 1995(‘‘Unfunded Mandates Act’’) (signedinto law on March 22, 1995) requiresthat the Agency must prepare abudgetary impact statement beforepromulgating a rule that includes aFederal mandate that may result inexpenditure by State, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year. The budgetary impactstatement must include: (i)Identification of the Federal law underwhich the rule is promulgated; (ii) aqualitative and quantitative assessmentof anticipated costs and benefits of theFederal mandate and an analysis of theextent to which such costs to State,local, and tribal governments may bepaid with Federal financial assistance;(iii) if feasible, estimates of the futurecompliance costs and anydisproportionate budgetary effects of themandate; (iv) if feasible, estimates of theeffect on the national economy; and (v)a description of the Agency’s priorconsultation with electedrepresentatives of State, local, and tribalgovernments and a summary andevaluation of the comments andconcerns presented. Section 203requires the Agency to establish a planfor obtaining input from and informing,educating, and advising any smallgovernments that may be significantlyor uniquely impacted by the rule.

Section 204 requires the Agency toprovide for an effective process forState, local, and Tribal officials toprovide meaningful and timely input inthe development of regulatory proposalscontaining significantintergovernmental mandates.

Under section 205 of the UnfundedMandates Act, the Agency must identifyand consider a reasonable number ofregulatory alternatives beforepromulgating a rule for which abudgetary impact statement must beprepared. The Agency must select fromthose alternatives the least costly, mostcost-effective, or least burdensomealternative, for State, local, and tribalgovernments and the private sector, thatachieves the objectives of the rule,unless the Agency explains why thisalternative is not selected or unless theselection of this alternative isinconsistent with law.

This rule is being developed underthe Federal Clean Air Act. The RIA,discussed in Unit II.A. above, containsan assessment of the costs and benefitsof this proposed rule. Federal funds areavailable to meet some of the largelyadministrative costs to State, local, andTribal governments through grantsprovided by EPA under the authority ofsection 105 of the Clean Air Act.

As reflected in the RIA, the rule isexpected to have a greater effect initiallyon the private sector in the westernUnited States than the eastern U.S.because certain emissions controlmeasures under the Clean Air Act acidrain program are already under way toreduce sulfur oxides emissions in theeastern U.S., a major precursor to sulfateparticles, the dominant fine particleconstituent in the eastern U.S. Phase IIof the acid rain trading program willcontinue through 2007. The rule is notexpected to have any disproportionatebudgetary effects on any State, local, ortribal government, or urban or rural orother type of community. The rule is notexpected to have a material effect on thenational economy.

In developing the proposed rule, EPAhas provided numerous opportunitiesfor consultation with interested parties,including State, local, and tribalgovernments. These opportunitiesinclude meetings and discussions underthe Clean Air Act Advisory Committee,Subcommittee on Ozone, ParticulateMatter, and Regional HazeImplementation Programs, and theGrand Canyon Visibility TransportCommission. The EPA’s considerationof the recommendations from these twogroups is discussed extensively in UnitI.C. of the preamble. The principalcomments of State, local, and Tribalgroups are also documented in the

Subcommittee’s Initial Report onSubcommittee Discussions (April 1997)and the GCVTC’s Recommendations onImproving Western Vistas. Beingcomprised of State and Tribalgovernments, the GCVTC issuedrecommendations on a wide range oftopics, including emission managementalternatives, technical findings, andareas for further research. The EPA alsowill have a public comment period of atleast 60 days on the proposed rule, aswell as a public hearing, in order toallow for additional meaningful inputinto the development of the regulation.

The Agency is considering two mainoptions for presumptive reasonableprogress targets in developing the rule.EPA believes that because the rule alsoincludes the flexibility for States topropose alternate reasonable progresstargets based on certain criteria, one ofwhich is the costs of compliance, theproposed rule meets the UMRArequirement in section 205 to select theleast costly and burdensome alternativein light of the statutory mandate to issueregulations that make reasonableprogress toward the national visibilityprotection goal. EPA also has provideda technical rationale in the preamble fordefining the presumptive reasonableprogress target rate equal to 1.0deciview improvement in the mostimpaired days over 10 or 15 years.

E. Environmental Justice

Executive Order 12898 requires thateach Federal agency make achievingenvironmental justice part of its missionby identifying and addressing, asappropriate, disproportionately highand adverse human health orenvironmental effects of its programs,policies, and activities on minoritiesand low-income populations. Theserequirements have been addressed tothe extent practicable in the RIA citedabove.


Environmental protection,Administrative practice and procedure,Air pollution control, Carbon monoxide,Intergovernmental relations, Nitrogendioxide, Ozone, Particulate matter,Reporting and recordkeepingrequirements, Sulfur oxides,Transportation, Volatile organiccompounds.

Dated: July 18, 1997.Carol M. Browner,Administrator.

For the reasons set forth in thepreamble, part 51 of chapter I of title 40of the Code of Federal Regulations isproposed to be amended as follows:


PART 51—REQUIREMENTS FORPREPARATION, ADOPTION, ANDSUBMITTAL OF IMPLEMENTATIONPLANS

1. The authority citation for part 51 isrevised to read as follows:

Authority: 42 U.S.C. 7410, 7414, 7421,7470–7479, 7491, 7492, 7601, and 7602.

Subpart P—Protection of Visibility

2. Section 51.300 is amended asfollows:

a. Adding a colon at the end of thewords ‘‘this subpart are’’ in paragraph(a) introductory text and adding asemicolon in place of the comma at theend of paragraph (a)(1).

b. Revising ‘‘§ 51.24’’ to read‘‘§ 51.166’’ in paragraph (a)(2);

c. Adding a sentence to the end ofparagraph (a)(2);

d. Adding a heading to paragraph(b)(1) and revising paragraph (b)(1)introductory text;

e. Revising paragraph (b)(2)introductory text;

f. Adding a new paragraph (b)(3), toread as follows:

§ 51.300 Purpose and applicability.(a) * * *(2) * * * This subpart sets forth

requirements addressing visibilityimpairment in its two principal forms:‘‘reasonably attributable’’ impairment(i.e., impairment attributable to a singlesource/small group of sources) andregional haze (i.e., widespread hazefrom a multitude of sources whichimpairs visibility in every direction overa large area).

(b) * * * (1) General applicability.The provisions of this subpartpertaining to implementation planrequirements for assuring reasonableprogress in preventing any future andremedying any existing visibilityimpairment are applicable to:* * * * *

(2) The provisions of this subpartpertaining to implementation plans toaddress reasonably attributable visibilityimpairment are applicable to thefollowing States:* * * * *

(3) The provisions of this subpartpertaining to implementation plans toaddress regional haze visibilityimpairment are applicable to all Statesas defined in section 302(d) of the CleanAir Act except Guam, Puerto Rico,American Samoa, and the NorthernMariana Islands.


a. Adding the words ‘‘(or theSecretary’s designee)’’ after the word‘‘area’’ to paragraph (g);

b. Revising ‘‘§ 51.24’’ to read‘‘§ 51.166’’ in paragraph (p);

c. Adding the words ‘‘lightextinction,’’ after the phrase ‘‘in termsof’’ in paragraph (q);

d. Adding the words ‘‘lightextinction,’’ to the beginning of theparenthetical ‘‘(visual range, contrast,coloration)’’ in paragraph (x);

e. Adding new paragraphs (z) through(cc), to read as follows:

§ 51.301 Definitions.

* * * * *(z) Reasonable progress target means

for the purposes of addressing regionalhaze visibility impairment: animprovement in the average of thetwenty percent most impaired days eachyear, equivalent to an improvement(decrease) of [Option A: 1.0 deciviewper 10 years or Option B: 1.0 deciviewper 15 years], and no degradation (lessthan 0.1 deciview increase) in theaverage of the twenty percent leastimpaired days each year.

(aa) Regional haze visibilityimpairment means any humanlyperceptible change in visibility (lightextinction, visual range, contrast,coloration) from that which would haveexisted under natural conditions that iscaused predominantly by a combinationof many sources, over a wide geographicarea. Such sources include, but are notlimited to, major and minor stationarysources, mobile sources, area sources,fugitive emissions, and forestry andagricultural practices.

(bb) Deciview (dv) means the metric,based on light extinction, used for anatmospheric haze index, such thatuniform changes in haziness correspondto the same metric increment across theentire range from pristine to highlyimpaired haze conditions. Deciviewvalues are calculated by multiplying by10 the natural logarithm of 1/10th of theatmospheric light extinction coefficientexpressed in units of inversemegameters.

(cc) State means State as defined insection 302(d) of the Clean Air Act.


a. Revising paragraph (a)(1);b. In paragraph (a)(2)(i) by revising

‘‘§ 51.4’’ to read ‘‘§ 51.102’’;c. Revising ‘‘§ 51.4’’ to read ‘‘§ 51.102’’

in paragraph (a)(2)(ii);d. Adding the word ‘‘revision’’ after

the word ‘‘plan’’ at the end of paragraph(a)(2)(ii);

e. Revising ‘‘§ 51.5’’ to read § 51.103’’in paragraph (a)(3);

f. Revising paragraph (b);g. Adding the words ‘‘reasonably

attributable’’ after the word ‘‘exists’’ inparagraph (c)(1);

h. Revising paragraph (c)(2)introductory text;

i. Adding the phrase ‘‘, including aschedule’’ after the word ‘‘measures’’ inparagraph (c)(2)(i);

j. Adding paragraphs (c)(2)(iv) and(c)(2)(v);

k. Adding the words ‘‘reasonablyattributable’’ after the phrase ‘‘For anyexisting’’ in paragraph (c)(4)introductory text;

l. Adding the words ‘‘or revision’’after the word ‘‘approval’’ at the end ofthe sentence in paragraph (c)(4)(iv);

m. Adding a new paragraph (c)(5), toread as follows:

§ 51.302 Implementation controlstrategies.

(a) * * *(1) (i) Each State identified in

§ 51.300(b)(2) must have submitted, notlater than September 2, 1981, animplementation plan revision meetingthe requirements of this subpartpertaining to reasonably attributablevisibility impairment.

(ii) Each State identified in§ 51.300(b)(3) must submit, by [date oneyear from publication of final rulerevisions to this subpart], animplementation plan revision meetingthe requirements set forth in thissubpart addressing regional hazevisibility impairment, includingprovisions for submittal of futureimplementation plan revisions inaccordance with § 51.306(c), with theexception of requirements related toreasonably attributable visibilityimpairment in paragraphs (c)(2)(iii) and(c)(4) of this section, § 51.304 and§ 51.305(a).* * * * *

(b) State and Federal Land Managercoordination. (1) The State mustidentify to the Federal Land Managers,in writing and by [date 30 days from thedate of publication of the final rulerevisions to this subpart], the title of theofficial to which the Federal LandManager of any mandatory Class IFederal area can submit arecommendation on the implementationof this subpart including but not limitedto:

(i) Identification of reasonablyattributable and regional haze visibilityimpairment in any mandatory Class IFederal area(s);

(ii) Identification of elements forinclusion in the visibility monitoringstrategy required by § 51.305; and

(iii) Identification of elements forinclusion in the long-term strategy andits periodic revisions required by§ 51.306.

(2) The State must provideopportunity for consultation, in person


and at least 60 days prior to holding anypublic comment on proposedimplementation plan revisions, with theFederal Land Manager on the proposedSIP revisions required by this subpart.This consultation must include theopportunity for the affected FederalLand Managers to discuss their:

(i) Recommendations on the methodsfor estimating natural conditions andlevels of impairment of visibility in anymandatory Class I Federal area; and

(ii) Recommendations on thedevelopment and implementation of thelong-term strategy.

(3) The plan or plan revisions mustprovide procedures for continuingconsultation between the State and theFederal Land Manager on theimplementation of the visibilityprotection program required by thissubpart.

(c) * * *(2) The implementation plan must

contain the following to addressreasonably attributable and regionalhaze visibility impairment:* * * * *

(iv) A monitoring strategy as requiredin § 51.305.

(v) A requirement for revision of theplan, including revisions to themonitoring strategy required in § 51.305and the long-term strategy required in§ 51.306, no later than four years fromthe date of the plan revision required inparagraph (a)(1)(ii) of this section, andno later than every 3 years thereafter.* * * * *

(5) Plan revisions for regional hazevisibility impairment. Theimplementation plan due pursuant toparagraph (a)(1)(ii) of this section by[date one year from the date of theFederal Register publication of the finalrule] must contain:

(i) A list of existing stationaryfacilities in the State, and a plan andschedule for evaluating, by [date 3 yearsfrom the date of Federal Registerpublication of the final rule], the bestavailable retrofit technology andcorresponding potential emissionreductions for those existing stationaryfacilities the State determines mayreasonably be anticipated to contributeto regional haze visibility impairment inany mandatory Class I Federal arealocated within or outside the State.

(ii) Revisions as necessary for theState to meet the requirements ofsection 110(a)(2) of the Clean Air Act asthey pertain to implementation ofmeasures to address regional hazevisibility impairment.


a. Revising the first sentence inparagraph (a) introductory text;

b. Redesignating existing paragraph(b) as paragraph (c);

c. Adding new paragraph (b), to readas follows:

§ 51.305 Monitoring.(a) For the purposes of addressing

reasonably attributable visibilityimpairment, each State containing amandatory Class I Federal area wherevisibility has been identified as animportant value (i.e., each Stateidentified in § 51.300(b)(2)) mustinclude in the plan a strategy forevaluating visibility in any mandatoryClass I Federal area by visualobservation or other appropriatemonitoring techniques. * * *

(b) For the purposes of addressingregional haze visibility impairment, theState must include in the plan requiredunder § 51.302(a)(1)(ii) a monitoringstrategy for characterizing regional hazevisibility impairment that isrepresentative of all mandatory Class IFederal areas within the State. Thestrategy must be revised no later thanfour years from the date of the planrevision required in § 51.302(a)(1)(ii),and no later than every three yearsthereafter. The strategy must becoordinated as appropriate with FederalLand Managers, other States, and EPA,and must take into account suchguidance as is provided by the Agency.

(1) The plan must provide forestablishment, within 12 months, of anyadditional monitoring sites needed toassess whether reasonable progresstargets are being achieved for allmandatory Class I Federal areas withinthe State.

(2) The plan must include arequirement to assess the relativecontribution to regional haze visibilityimpairment at each mandatory Class IFederal area in the State by emissionsfrom within and outside the State.

(3) A State required to submit a planunder § 51.302(a)(1)(ii) and having nomandatory Class I Federal areas mustinclude in its plan procedures by whichmonitoring data will be used todetermine the contribution of emissionsfrom within the State to regional hazevisibility impairment in any mandatoryClass I Federal area.

(4) The plan must provide for thereporting of all visibility monitoringdata to EPA at least annually for eachmandatory Class I Federal area in theState having such monitoring. The Stateshould follow reporting proceduresfound in applicable EPA guidance. Tothe extent possible, reporting ofvisibility monitoring data shall beaccomplished through electronic datatransfer techniques.* * * * *


a. Adding introductory text toparagraph (a);

b. Revising paragraph (a)(1);c. Revising paragraphs (c)

introductory text, (c)(1), (c)(2) and (c)(4);d. Redesignating paragraphs (d)

through (g) as new paragraphs (e)through (h);

e. Adding new paragraph (d);f. Amending the newly redesignated

paragraph (e) by adding the words ‘‘onreasonably attributable impairment andregional haze impairment’’ after theword ‘‘impacts’’ in the first sentence, byrevising ‘‘§ 51.24’’ to read ‘‘§ 51.166’’,and by revising ‘‘§ 51.18’’ to read‘‘§ 51.165’’;

g. Amending newly redesignatedparagraph (f)(5) by removing the word‘‘and’’ at the end of the paragraph;

h. Amending newly redesignatedparagraph (f)(6) by removing the periodat the end of the paragraph and adding‘‘, and’’ in its place;

i. Adding a new paragraph (f)(7);j. Revising newly redesignated

paragraph (g), to read as follows:

§ 51.306 Long-term strategy.(a) For the purposes of addressing

reasonably attributable visibilityimpairment and regional haze visibilityimpairment:

(1) Each plan required under§ 51.302(a)(1) (i) and (ii) must include along-term (10–15 years) strategy formaking reasonable progress toward thenational goal specified in § 51.300(a).This strategy must cover any existingreasonably attributable visibilityimpairment the Federal Land Managercertifies to the State at least 6 monthsprior to plan submission, or 6 monthsprior to the due date for subsequentlong-term strategy revisions as requiredby this section, unless the Statedetermines that this impairment is notreasonably attributable to a singlesource or small group of sources. Anyimpairment determined by the State notto be reasonably attributable impairmentmust be addressed as regional hazeimpairment according to the provisionsin this section. The long-term strategymust address any integral vista whichthe Federal Land Manager has adoptedin accordance with § 51.304.* * * * *

(c) The plan must provide for periodicrevision of the long-term strategy nolater than four years from the date of theplan revision required in§ 51.302(a)(1)(ii), and no later than everythree years thereafter. This process fordeveloping the periodic plan revisionmust include consultation with theappropriate Federal Land Managers, and


a State report to the public and theAdministrator on progress toward thenational goal, including:

(1) The progress achieved inremedying existing impairment ofvisibility in any mandatory Class IFederal area, including an evaluation ofwhether the reasonable progress targetwas achieved for each mandatory ClassI Federal area addressed by the plansince the last plan revision;

(2) The ability of the long-termstrategy to prevent future impairment ofvisibility in any mandatory Class IFederal area, including an evaluation ofwhether the reasonable progress targetwill be achieved for each mandatoryClass I Federal area addressed by theplan until the next plan revision;* * * * *

(4) Additional measures, includingthe need for SIP revisions, that may benecessary to assure reasonable progresstoward the national goal andachievement of the reasonable progresstarget for any mandatory Class I Federalarea;* * * * *

(d) Regional haze long-term strategy.The plan required under§ 51.302(a)(1)(ii) must include a long-term strategy that addresses regionalhaze visibility impairment for eachmandatory Class I Federal area withinthe State and for each mandatory ClassI Federal area located outside the Statewhich may be affected by emissionswithin the State, including provisionsrequiring the following:

(1) Not later than [date 12 monthsfrom the date of Federal Registerpublication of final rules] the State, inconsultation with the appropriateFederal Land Managers, must define theprocedure to be used for estimating thevisibility under natural conditionsexpressed in deciviews, in eachmandatory Class I Federal area, for theaverage of the twenty percent mostimpaired days and for the average of thetwenty percent least impaired days fora representative year. In the long-termstrategy revision due after determinationof the procedure, the State mustcomplete the procedure and establishthe natural conditions estimate. Foreach long-term strategy revision dueafter establishment of the naturalconditions estimate, the State shallconsider, in consultation with theFederal Land Manager, any new datasince the last long-term strategy revisionthat would alter the established estimateof natural conditions and proposeappropriate changes as part of the planrevision.

(2) Not later than [date 12 monthsfrom the date of Federal Register

publication of the final rules], the State,in consultation with the appropriateFederal Land Managers, must determinefor each mandatory Class I Federal areaa procedure for establishing currentvisibility conditions expressed indeciviews, for the average of twentypercent most impaired days each year,and for the average of the twentypercent least impaired days each yearusing the existing visibility monitoringnetwork taking into account themonitoring techniques described in EPAguidance. For mandatory Class I Federalareas without representative data, theplan shall identify procedures to befollowed to establish current visibilityconditions not later than [date 5 yearsfrom Federal Register publication offinal rules].

(3) No later than [date 5 years fromthe date of Federal Register publicationof final rules] and as part of each long-term strategy revision due thereafter, theState must:

(i) Identify visibility underrepresentative natural conditions for theaverage of the twenty percent most andleast impaired days for each mandatoryClass I Federal area;

(ii) For any mandatory Class I Federalarea where current conditions for theaverage of 20 percent most impaired or20 percent least impaired days exceednatural background by one deciview ormore, include, in the plan, emissionmanagement strategies to meet thereasonable progress target for the periodcovered by the long-term (10–15 years)strategy. At a minimum, these emissionmanagement strategies must include:

(A) Provisions to address the BARTrequirement for those existing stationaryfacilities determined to be causing orcontributing to regional haze visibilityimpairment, in accordance with§ 51.302(c)(4) (ii) through (v).

(B) Other measures necessary toobtain the portion of emissionreductions from sources located withinthe State, developed based upon allavailable information, to achieve thereasonable progress target for eachmandatory Class I Federal area in theState or affected by emissions from theState. These measures should beconsistent with strategies developed inconjunction with other States throughregional planning processes to addressrelated air quality issues and clearlyidentify the emissions changes expectedto occur that will produce the expectedimprovement in visibility. The portionof emissions contribution beingaddressed by a State’s plan revision andthe technical basis for theapportionment should be clearlyspecified.

(4) States not achieving the reasonableprogress target for any mandatory ClassI Federal area over the three year timeperiod since establishment of thestrategy or the prior plan revision (i.e.,State more than 10 percent deficient inmeeting the reasonable progress targetfor either the most or least impaireddays) must provide in the plan revisiona review of emissions reductionestimates relied on in the developmentof the prior long-term strategy revision.If expected emissions reductionsoccurred, then the State must at aminimum provide an assessment ofmeteorological conditions,completeness of emissions sourcessubject to strategies, and other factorsthat likely influenced the relationshipbetween emissions and visibilityconditions. If expected emissionsreductions were not achieved, the Stateshall revise emissions managementstrategies as appropriate to achieve thepresumptive reasonable progress target.

(5) For establishment of an alternatereasonable progress target for amandatory Class I Federal area, the Statemust provide a justification for thealternate target demonstrated to thesatisfaction of EPA. Any justification foran alternate reasonable progress targetmust address the following factors: theavailability of source controltechnology, the costs of compliancewith the reasonable progress target, theenergy and non-air qualityenvironmental impacts of compliance,the existing pollution control measuresin use at sources, the remaining usefullife of sources, the degree ofimprovement of visibility which mayreasonably be anticipated to result fromapplication of control technologies orother measures. In no event shall analternate progress target allow visibilityto degrade over the planning periodcovered. The State shall consult withthe Federal Land Managers and all otherStates the emissions from which mayreasonably be anticipated to cause orcontribute to visibility impairment inthe affected mandatory Class I Federalarea in considering development of analternate target.

(6) States preparing nonattainmentplans for fine particulate matter (PM2.5)may submit the plan requirementsunder paragraph (d)(3) of this section bybut no later than the required date forsubmittal of the State’s PM2.5 attainmentcontrol strategy plan.* * * * *

(f) * * *(7) The anticipated net effect on

visibility due to projected changes inpoint, area, and mobile sourceemissions over the next 10–15 years.


(g) The plan must explain why thefactors in paragraph (f) of this sectionand other reasonable measures were orwere not evaluated as part of the long-term strategy.* * * * *

§ 51.307 [Amended]8. Section 51.307 is amended as

follows:a. Revising ‘‘§ 51.24’’ to read

‘‘§ 51.166’’ in paragraph (a) introductorytext;

b. Revising ‘‘§ 51.24’’ to read‘‘§ 51.166’’ in paragraph (a)(2);

c. Revising ‘‘§ 51.24’’ to read‘‘§ 51.166’’ in paragraph (c).

9. In addition to the previousamendments, in the sections listed inthe first column remove the referencelisted in the middle column and add thereference listed in the third column inits place:

Section Remove Add

51.301(v) ................................................................................... section 303 ................................................................................ § 51.303.51.302(c)(2)(i) ............................................................................ section 305 ................................................................................ § 51.305.51.302(c)(2)(i) ............................................................................ section 306 ................................................................................ § 51.306.51.302(c)(2)(i) ............................................................................ section 300(a) ........................................................................... § 51.300(a).51.302(c)(4)(i) ............................................................................ section 304(b) ........................................................................... § 51.304(b).51.303(a)(1) ............................................................................... section 302 ................................................................................ § 51.302.51.303(c) ................................................................................... section 303 ................................................................................ § 51.303.51.303(d) ................................................................................... section 303 ................................................................................ § 51.303.51.303(g) ................................................................................... section 303 ................................................................................ § 51.303.51.303(h) ................................................................................... section 303 ................................................................................ § 51.303.51.304(c) ................................................................................... section 306(c) ........................................................................... § 51.306(c).51.306(c)(6) ............................................................................... section 303 ................................................................................ § 51.303.51.306(e) ................................................................................... section 307 ................................................................................ § 51.307.51.307(b)(1) ............................................................................... section 304 ................................................................................ § 51.304.51.307(b)(1) ............................................................................... section 304(d) ........................................................................... § 51.304(d).51.307(c) ................................................................................... section 300(a) ........................................................................... § 51.300(a).


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Part III

EnvironmentalProtection Agency40 CFR Part 131Water Quality Standards for Idaho; FinalRule



40 CFR Part 131

[FRL–5864–2]

Water Quality Standards for Idaho

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: EPA is promulgating waterquality standards applicable to thewaters of the United States in the Stateof Idaho. These standards supersedecertain aspects of Idaho’s water qualitystandards that EPA disapproved in1996. EPA disapproved those standardsafter concluding they were inconsistentwith the Clean Water Act and EPA’simplementing regulations. The proposalto this rulemaking was published in theFederal Register on April 28, 1997. EPAis promulgating new use designationsfor 5 specified waterbodies in the stateof Idaho, as well as a variance procedurethat may be used to obtain relief fromthose use designations. Today’s rulealso establishes temperature criteriaapplicable to bull trout spawning andrearing in specified waterbodies.Finally, EPA is promulgating a federalrule to supersede the state’s excludedwaters provision. EPA is notpromulgating certain other aspects ofthe proposed rule, due either to furtheranalysis by EPA or to state action whichaddressed these issues. These and otherchanges from the proposal are addressedin detail in the body of this preambleand in the response to commentsdocument included in theadministrative record for thisrulemaking.EFFECTIVE DATE: September 2, 1997.ADDRESSES: The administrative recordfor today’s final rule is available forpublic inspection at EPA Region 10,Office of Water, 1200 Sixth Avenue,Seattle, Washington, 98101, between8:00 a.m. to 4:30 p.m. For access to thedocket materials, call Lisa Macchio at206–553–1834 for an appointment. Areasonable fee may be charged forcopies.FOR FURTHER INFORMATION CONTACT: LisaMacchio at U.S. EPA Region 10, Officeof Water, 1200 Sixth Avenue, Seattle,Washington, 98101 (telephone: 206–553–1834), or William Morrow in U.S.EPA Headquarters at 202–260–3657.


Preamble Outline

A. Potentially Affected EntitiesB. Background

1. Statutory and Regulatory Authority

2. Factual Background3. Responses to Comments on Procedural

Issues4. Indian Country Issues

C. Unclassified Waters1. Proposal2. Recent Idaho Actions

D. Stream Segments With Specific BeneficialUse Designations

1. Primary Contact Recreationi. Proposalii. Commentsiii. Final Rule2. Cold Water Biotai. Proposalii. Recent Idaho Actionsiii. Commentsiv. Final Rule3. Salmonid Spawningi. Proposalii. Recent Idaho Actionsiii. Comments4. Waters Located in Indian Country

E. Temperature Criteria for Threatened andEndangered Species

1. Bull Trouti. Temperature Criteriaa. Proposalb. Recent Idaho Actionsc. Commentsd. Final RuleI. SpawningII. Egg IncubationIII. Juvenile Rearingii. Distributiona. Proposalb. Recent Idaho Actionsc. Response to Commentsd. Final Ruleiii. Modifications to Bull Trout Criteria and

Distribution2. Sturgeoni. Proposalii. Recent Idaho Actions3. Snailsi. Proposalii. Commentsiii. Final Rule

F. Antidegradation PolicyG. Mixing Zone Policy

1. Proposal2. Recent Idaho Actions

H. Excluded Waters Provision1. Proposal2. Comments3. Final Rule

I. Federal Variances1. Proposal2. Comments3. Final Rule

J. Executive Order 128661. Use Attainability2. Overview of Methodology to Estimate

Potential Costs Related to New UseDesignations

3. Results for Stream Segments WithSpecific Use Designation

4. Overview of Approach to EstimatePotential Costs Related to NewTemperature Criteria

5. Results for Stream Segments With NewTemperature Criteria

K. Regulatory Flexibility Act as Amended bythe Small Business RegulatoryEnforcement Fairness Act of 1996

L. Submission to Congress and the GeneralAccounting Office

M. Unfunded Mandates Reform ActN. Paperwork Reduction Act

A. Potentially Affected EntitiesCitizens concerned with water quality

in Idaho may be interested in this rule.Entities discharging pollutants to watersof the United States in Idaho could beindirectly affected by this rule sincewater quality standards are used indetermining National PollutantDischarge Elimination System (NPDES)permit limits. Categories and entitieswhich may ultimately be affectedinclude:

Category Examples of potentially af-fected entities

Industry .............. Industries discharging pol-lutants to surface watersin Idaho.

Municipalities ..... Publicly-owned treatmentworks discharging pollut-ants to surface waters inIdaho.

This table is not intended to beexhaustive, but rather provides a guidefor readers regarding entities likely to beaffected by this action. This table liststhe types of entities that EPA is nowaware could potentially be affected bythis action. Other types of entities notlisted in the table could also potentiallybe affected by this action. To determinewhether your facility is affected by thisaction, you should carefully examinethe applicability criteria in § 131.36 ofTitle 40 of the Code of FederalRegulations (CFR). If you have anyquestions regarding the applicability ofthis action to a particular entity, consultthe person listed in FOR FURTHERINFORMATION CONTACT section.

B. Background

1. Statutory and Regulatory AuthorityThe preamble to the April 28, 1997

proposal provided a general discussionof EPA’s statutory and regulatoryauthority to promulgate water qualitystandards. See 62 FR 23004–23005. EPAincorporates that discussion byreference here. Commenters questionedEPA’s authority to promulgate certainaspects of the proposal. EPA isresponding to those comments in theappropriate sections of this preamble,and in the response to commentsdocument included in theadministrative record for thisrulemaking. Where appropriate, EPA’sresponses expand upon the discussionof statutory and regulatory authorityfound in the proposal.

2. Factual BackgroundEPA also incorporates by reference

the factual background provided in the


preamble to the proposal, whichcovered Idaho’s 1994 submittal of itswater quality standards package, EPA’sdisapproval of certain aspects of thispackage, and the District Court’sdecision in ICL v. Browner ordering EPAto promulgate standards to supersedethose that had been disapproved. See 62FR 23005.

Shortly before the April 28, 1997proposal, Idaho submitted the results oftemporary rulemaking actions toaddress certain aspects of EPA’s June25, 1996 disapproval. This March 23,1997, submittal includes permanentrules that had been adopted by the StateBoard of Health and Welfare inNovember of 1996 (addressing, amongother things, antidegradation) andtemporary rules adopted February of1997 (addressing use designations forLindsay Creek and West Fork BlackbirdCreek). Because of the proximity of thissubmittal to EPA’s court-ordereddeadline for proposing federal waterquality standards, EPA was not able toact on this submission prior to proposal.On May 27, 1997, EPA approved theState’s new antidegradation policy andconditionally approved the usedesignations for Lindsay and West ForkBlackbird Creeks subject to completionof consultation required under section 7of the Endangered Species Act (ESA).For the Lindsay and West ForkBlackbird Creek designations, finalapproval is also contingent uponcompletion of steps necessary to convertthe state rulemaking from temporary topermanent status.

On June 19, 1997, Idaho adoptedanother temporary rule addressingunclassified waters, mixing zones,temperature criteria for bull trout, anduse designations for 29 specificwaterbodies that had been the subject ofEPA’s June 25, 1996 disapproval. OnJune 25, 1997, Idaho submitted apackage for EPA’s approval thatincluded these temporary rulemakings,as well as use attainability analyses forcertain other waterbodies addressed inthe June 25, 1996 disapproval. On July15, 1997, EPA issued a letterconditionally approving the unclassifiedwaters, mixing zone, and usedesignation aspects of the state’ssubmittal subject to both the completionof ESA section 7 consultation and thestate taking the steps necessary toconvert the rule from temporary topermanent status. Both the May 27,1997, and the July 15, 1997, approvalletters are included in the docket fortoday’s rulemaking. The rationales forthese approval actions are discussed indetail below.

3. Responses to Comments onProcedural Issues

EPA received comments on a numberof issues related to the proceduralaspects of this rulemaking. Becausethese comments relate to all aspects ofthe rule, they will be addressed first.

Comment: Many commenterscomplained about the brevity of thecomment period. Commenters requestedextensions of varying length, assertingthat the short public comment periodmeans that the proposed rule will notreceive the public review it deserves.Some commenters objected to the formof notice used by EPA, claiming thatpublication in the Federal Register isnot adequate.

Response: None of the commentsincluded a showing that the 30 dayscomment period provided wasinadequate as a matter of law. WhileEPA strives to accommodate requests forreasonable extensions to the extentpracticable, a 30 day extension was notfeasible here, given both the statutorydeadline for final promulgation and theCourt’s order requiring a final rule byJuly 21, 1997. The inflexible deadlinefor promulgation meant that anyextension of time for the commentperiod would necessarily shorten thetime available for EPA to reviewcomments received. Since commentsreceived from the public are onlymeaningful to the extent the Agency hastime to review them, EPA decided thata 30-day comment period was optimalin this case. EPA believes that thesignificant turnout at the public hearing,the volume of written comments, andthe diverse interests represented by thecommenters demonstrate thatmeaningful public review was availableon the proposal.

To maximize the utility of the 30 dayswhich EPA was able to provide, theagency issued an advance notice in theFederal Register that it planned topropose water quality standards toaddress the Idaho standards it haddisapproved in June 1996, issued pressstatements at the time of the advancenotice and the proposal, and put a copyof the proposal on the Internet. At thehearing, EPA also made available a factsheet which explained how to find theproposal on the Internet.

EPA acknowledges that thisrulemaking raised complicatedtechnical issues, and that it is likely thatinformation relevant to today’s rule willcontinue to surface. EPA has attemptedto provide streamlined mechanisms,such as the provisions for modificationof the bull trout temperature criterionand variance provisions for use

designations, that facilitate EPA’s abilityto address new information.

As to the assertion that a FederalRegister notice does not provideadequate notice, EPA notes that underthe Administrative Procedure Act, theFederal Register is the requiredmechanism for providing notices ofproposed rulemaking, and as a matter oflaw the public is deemed to be on noticeof matters which have been sopublished. However, to enhance publicawareness, EPA issued press statementsat critical times, and is aware of at leastone newspaper article publicizing thehearing.

Comment: The Idaho Department ofEnvironmental Quality (IDEQ)commented that despite numerousrequests by DEQ to EPA over the pastyear for EPA to identify which statewaters required more stringenttemperature criteria to protect bull trout,DEQ did not learn of the breadth ofEPA’s proposal to designate thousandsof waters in Idaho for bull trout untilpublication in the Federal Registernotice in late April. This, IDEQ claimed,did not allow sufficient time to respond.

Response: One of the two sources EPAused for identifying bull trout streamswas a list compiled by a state agency,Idaho Department of Fish and Game(IDFG). The waters in the other source,the data base complied by theinteragency Interior ColumbiaEcosystem Management Project,overlapped substantially with thewaters on the list. Accordingly,although the state may not have knownthe exact list to be proposed by EPAuntil it appeared in the FederalRegister, the state should have beengenerally aware of the potentialmagnitude of bull trout distribution inIdaho.

Comment: Commenters argued thatthere was inadequate opportunity fororal comment because EPA held onlyone hearing a mere two weeks afterpublication of notice in the FederalRegister.

Response: EPA held two sessions, oneduring the day, and one during theevening, to accommodate people withdifferent work and travel schedules.While the formal 2 week notice of thehearing was dictated by the extremelyshort schedule imposed by the DistrictCourt (a schedule which EPA soughtunsuccessfully to have modified), EPAdid take the extra steps described aboveto alert the public to the rulemaking.EPA scheduled the hearing at themiddle, rather than the end, of thepublic comment period in order toprovide an opportunity for the public toask questions about the rule to facilitatetheir final, written comments. The vast


majority of commenters at the publichearing later submitted more detailedwritten comments.

Comment: Commenters stated that theadministrative record should have beenmade available in Boise, as well asSeattle. Commenters recounted that, atone of the public hearings, an EPAemployee represented that a copy of therecord would be made available inBoise, and that an index of the recordwould be available to those whorequested it, but that no notice wasgiven to the public of such availability.This, the commenters claimed, violatedthe spirit, if not the letter, of theAdministrative Procedure Act. Thecommenters requested that EPA extendthe comment period to allow the publicto review the record in Boise.

Response: The administrative recordupon which the proposal was based wasassembled and available to the public inEPA’s Region X office in Seattle at thetime of publication of the proposed rulein the Federal Register. Region X is theEPA region which is responsible formatters involving the state of Idaho.There is nothing in the APA whichspecifies where an administrative recordmust be made available. Indeed, inmany EPA rulemakings, theadministrative record is maintained atEPA Headquarters in Washington, DC;where an EPA rulemaking concerns aparticular state or single location, therecord is typically maintained in theoffices of the regional office withresponsibility for that state.

In the present case, an EPA employeestated at the hearing that EPA wouldalso make a copy of the administrativerecord available in Boise shortly after. Inaccordance with that offer, a copy withan index was made available to thepublic in EPA’s Boise Operations Officeapproximately a week after the hearing.While EPA had indicated at the hearinga willingness to mail a copy of the indexin the meanwhile, it turned out that theadministrative record itself (includingan index) could be made available asquickly as an index could be mailed out,so there was no need to mail out theindex alone as an interim measure.

Comment: Commenters arguedbroadly that the proposed rulemakingviolates due process. A commenter alsoargued specifically that the proposedrulemaking does not comply with EPA’spublic participation rules (40 CFR part25).

Response: For the reasons statedabove, EPA believes that its rulemakingin this case provided ample notice,formal and informal, to the public ofwhat EPA was proposing, why it wasproposing, and the basis for the

proposal, and that it provided adequatetime for public comment.

EPA was required to shorten the timeperiods for public notice and commentfrom those cited by the commenterbecause of the Court’s order. As theproposal explained, EPA’s regulationsallow exceptions to the otherwiseapplicable time periods in suchcircumstances. See 40 CFR 25.2(d):‘‘Specific provisions of court orderswhich conflict with this part, such ascourt-established timetables, shall takeprecedence over the provisions of thispart.’’ While the commenter is correctthat the Court’s order did not itselfspecifically direct EPA to limit thepublic comment period, the order didestablish a specific timetable forproposal and promulgation whichindirectly required such a result. EPAnotes that the Court’s original February20, 1997, order directed EPA to issue afinal rule by April 21 and thus did notallow time for any comment period. Inresponse to EPA’s motion forreconsideration which sought anextension to allow development of aproposed rule and cited 40 CFR Part 25,the Court directed the agency to proposea rule by April 21, and to promulgate afinal rule by July 21, 1997. Within theconstraints of the schedule imposed bythe Court, EPA did take what steps itcould to enhance the public’s ability tocomment, through its advance noticeand the like. See responses to previouscomments.

4. Indian Country Issues

Today’s promulgation does not applyto waters in Indian country. Althoughthe proposal did not address theapplicability of designated uses or thebull trout temperature criteria to watersin Indian country, it was never EPA’sintent to establish such uses or criteriafor waters in Indian country by this rule.As explained in the discussion below,today’s rule clarifies that thetemperature criteria do not apply towaters located in Indian country.Regarding the use designations forspecific water bodies, EPA found afterthe proposal that certain proposed usedesignations would affect waters inIndian country. For the reasons set forthbelow, EPA has excluded these from thefinal rule.

C. Unclassified Waters

1. Proposal

On April 28, 1997, EPA proposed topromulgate a default use designation forunclassified waters for the state of Idahowhich provided for the protection andpropagation of fish, shellfish, andwildlife, and recreation in and on the

water. Specifically, EPA proposed coldwater biota and primary contactrecreation beneficial uses forunclassified waters. EPA proposed suchstandards because EPA had determinedthat Idaho’s designated beneficial usefor unclassified waters was incompleteand therefore inconsistent with theCWA and EPA’s implementingregulations at 40 CFR part 131 (see 62FR 23005).

2. Recent Idaho ActionsOn June 19, 1997, Idaho revised its

unclassified waters designatedbeneficial use to provide for theprotection of cold water biota andprimary or secondary contact recreation.(The revised provision also changes theterminology from ‘‘unclassified’’ to‘‘undesignated’’ for clarity.) On July 15,1997, EPA approved Idaho’s revisedbeneficial use for unclassified waters asbeing consistent with the CWA andEPA’s implementing regulations.

Idaho’s revised designated beneficialuse for unclassified waters provides thesame level of protection for aquatic lifethat EPA had proposed, cold waterbiota. This is consistent with EPA’sfindings that the majority of nativeIdaho fish are classified as cold waterspecies and the presence of thesespecies occurs throughout the entireState (62 FR 23006).

With respect to recreation, Idaho’srevised designated beneficial use forunclassified waters affords the statesome discretion as to whether to whichrecreational use—primary or secondarycontact recreation—to apply to anyspecific unclassified water. EPAdetermined this flexibility wasacceptable because Idaho’s bacteriacriteria for secondary contact recreationis equivalent to EPA’s bacteria criteriafor primary contact recreation. EPAbelieves that maintaining water qualitysufficient for primary contact recreationmeets the minimum requirements of theCWA regardless of whether or not awater body is actually designated forprimary contact recreation. Forexample, there may be situations whereprimary contact recreation isundesirable (e.g., streams used as asource for public drinking water) orunsafe (e.g., streams with high velocityand large rocks), yet the state may wantto maintain water quality sufficient forprimary contact (e.g., because incidentalswimming does occur or because adownstream segment is designated forprimary contact recreation.

In addition, Idaho established in itsunclassified waters beneficial usedesignation a process by which the statecan designate undesignated waters.Idaho’s process at IDAPA


16.01.02.101.01. b. and c. specifies thatthe state may reexamine relevant data tosubstantiate a specific use designationfor a specific water body whenreviewing activities for consistency withwater quality standards. This provisionessentially codifies the existing stateprocess for moving a water body fromthe undesignated waters category(16.01.02.101.) to the waters withspecific use designations (16.01.02.110–160) category. Idaho’s process forestablishing beneficial use designationsfor specific water bodies includes,among other things, publicparticipation, and a change to the state’swater quality standard. Whenever astate revises its water quality standards,those revisions are subject to EPAreview and approval. On July 15, 1997,EPA approved this aspect of Idaho’sunclassified waters beneficial usedesignation as being consistent with theCWA and EPA’s implementingregulations at 40 CFR part 131.

Because Idaho has adopted a revisedunclassified waters beneficial usedesignation which EPA has determinedto be in accordance with the Act, afederal designated beneficial use forunclassified waters is no longer requiredunder section 303(c)(4).

D. Stream Segments With SpecificBeneficial Use Designations

EPA had proposed to promulgate usedesignations for specific water bodysegments which lacked the ‘‘fishable/swimmable’’ goal uses established in theCWA. Specifically, EPA proposedcoldwater biota for 35 segments,salmonid spawning for 5 segments, andprimary contact recreation for 44segments. EPA proposed such usesbecause EPA had determined thatIdaho’s designated beneficial uses forthese water body segments wereincomplete and therefore inconsistentwith the CWA and EPA’s implementingregulations at 40 CFR part 131. See 62FR 23007 for a more detailed discussionof EPA’s proposal.

1. Primary Contact Recreation

i. Proposal

In EPA’s Proposed Rule (62 FR23003), primary contact recreation wasa proposed designated beneficial use for44 waterbody segments which werelacking a use designation of primarycontact recreation. The State hadalready designated secondary contactrecreation for those 44 water bodysegments. Although EPA haddetermined that Idaho’s water qualitycriteria for the protection of secondarycontact recreation are as stringent asEPA’s recommended criteria for the

protection of primary contact recreation(see EPA’s May 27, 1997, approvalletter), EPA proposed primary contactrecreation as it believed it was requiredto by the terms of the District Court’sorder. The proposal solicited commenton the option of accepting Idaho’ssecondary contact recreation use asprotective of swimming.

ii. CommentsSeveral commenters supported

promulgating primary contact recreationas the ‘‘swimmable’’ use in Idaho. Othercommenters objected to primary contactrecreation as a designation butsupported secondary as the‘‘swimmable’’ use. EPA believes thatwhere a state’s secondary contactrecreation criteria are stringent enoughto protect primary contact recreation,the choice between secondary andprimary contact recreation usedesignations should be left to the State’sdiscretion. Although section 510 of theCWA does not preclude states fromadopting standards which are morestringent than required by the Act,EPA’s implementing regulations do notrequire states to do so. EPA hasdetermined that in light of the state’sbacteriological criteria, Idaho’ssecondary contact recreation use issufficient and is consistent with theCWA.

iii. Final RuleEPA’s water quality standards

regulation at 40 CFR 131.11 requires, inpart, that in establishing criteria, Statesmust adopt criteria with sufficientcoverage of parameters and of adequatestringency to protect the designated use.States may adopt criteria published byEPA under section 304(a) of the CWA,criteria modified to reflect site specificconditions, or criteria based on otherscientifically defensible methods. Statesare not required to have criteria morestringent than section 304(a) criteriaunless it is determined that such criteriado not protect the designated uses.Except for fecal coliform bacteria, thesame criteria are applicable to primarycontact recreation and to secondarycontact recreation. EPA has determinedthat Idaho’s secondary contactrecreation bacteriological criteria are asstringent as the recommended section304(a) Guidance for the protection ofswimming, i.e., primary contactrecreation, and are consistent with theCWA and the requirements at 40 CFR131.11. Therefore, a federal designatedbeneficial use of primary contactrecreation for those waters alreadydesignated for secondary contactrecreation is no longer required underCWA section 303(c)(4). For these

reasons, EPA is not designating primarycontact recreation for those 44 waterbody segments identified in theproposed rule.

2. Cold Water Biota

i. Proposal

In June of 1996, EPA determined thatIdaho had not assigned an aquatic lifeuse for 35 waterbody segments (62 FR23008–23009). In EPA’s proposed rule,EPA proposed designating cold waterbiota as the appropriate beneficial use.EPA determined that a cold water biotause designation, as defined in the State’swater quality standards, is an aquaticlife use category appropriate for thosestreams. See 62 FR 23008 for a moredetailed discussion of EPA’s proposal.EPA solicited comment on whether thisheld true for the 35 specificwaterbodies.

ii. Recent Idaho Actions

To date, Idaho has revised thedesignated beneficial uses for themajority of the 35 waterbody segmentslacking cold water biota designations.On February 11, 1997, the state adopteda temporary rule designating cold waterbiota for West Fork Blackbird Creek(SB–4211). By letter dated June 25,1997, the State submitted to EPAadditional revised water qualitystandards which were adopted as atemporary rule by the Idaho Board ofHealth and Welfare and becameeffective on June 20, 1997. As part ofthis revised rule, the State designated 29of the 35 waterbody segments for coldwater biota. By letter dated May 27,1997, EPA conditionally approved thecold water biota uses for West ForkBlackbird Creek as being in accordancewith the CWA and EPA’s implementingregulations at 40 CFR 131.10. On July15, 1997, EPA likewise conditionallyapproved the June 20, 1997 temporaryrule addressing 29 segments. ThereforeEPA is not promulgating cold waterbiota for these segments.

Although these revisions meet thesubstantive requirements of 40 CFR part131, the State has not completed certainadministrative requirements (e.g., publicnotice and comment). In addition, theState’s Legislature must also review therevised water quality standards beforethe standards become final. If thesedesignated beneficial uses are adoptedas final without modification by theBoard or Legislature, EPA’s approvalwill become unconditional. If they aremodified, EPA’s approval will no longerbe applicable, and Idaho will have toresubmit the revised standard to EPA forreview and approval. Because EPA’sapproval is not yet unconditional, the


Agency is not withdrawing the proposalfor these segments.

Idaho’s June 25, 1997, submissionincluded a Use Attainability Analysis(UAA) for Soda Creek (BB 310) tosupport its decision not to designate anaquatic life use (cold water biota) forSoda Creek. Because of the expeditedschedule dictated by the court order,and because the UAA did not fullyexplain its conclusions EPA was unableto conclude its review of the State’sUAA. Therefore EPA is maintaining thecold water biota use designation intoday’s final rule. If after such review,EPA is able to conclude that the State’sUAA supports the unattainability ofaquatic life for this segment, EPA willinitiate rulemaking to withdraw thefederal use designation for Soda Creek.

iii. CommentsWhile EPA received some general

comments that cold water biota was notuniformly appropriate across the State,we received no data specific to ShieldsGulch, Canyon Creek, or Blackfoot Riverfor which a cold water biota beneficialuse is being designated. In addition theState commented that they had no waterquality data for Shields Gulch orBlackfoot River.

One commenter stated that cold waterbiota was not an ‘‘existing’’ use for theSouth Fork Coeur d’Alene River. EPAdefines existing uses at 40 CFR 131.3(g)as ‘‘those uses actually attained in thewaterbody on or after November 28,1975.’’ Information and data obtainedfrom the Idaho Division ofEnvironmental Quality supports coldwater biota as an existing use for theSouth Fork Coeur d’Alene River. EPAreceived no data to refute this. As forCanyon Creek, although EPA did notreceive information from anycommenters which would indicate thatcold water biota is unattainable is thiswater body segment, information EPAhad on water chemistry in CanyonCreek showed that some parameters areexceeded. However, based on thisinformation EPA was unable toconclude that cold water biota use isunattainable. An appropriate evaluationof use attainability considers physicaland biological as well as chemicalindicators.

In addition, none of the commentersspecifically contended that a cold waterbiota use was unattainable on any of thefive streams at issue on account ofcompliance costs. To the extent thatcommenters did raise cost concerns,EPA’s cost methodology indicates thatthe costs (which are not direct costs inany event) would be less than predictedby the commenters. See Section K of thepreamble.

iv. Final Rule

Because the State has designated coldwater biota for 29 of the waters in theproposed rule, EPA’s final ruleaddresses only 5 of the originalsegments proposed. As stated in theproposed rule, in designating beneficialuses, EPA is relying on the rebuttablepresumption implicit in the CWA andEPA’s regulations at 40 CFR part 131,that in the absence of data to thecontrary, ‘‘fishable’’ uses are attainable.As discussed above, the record supportsthe reasonableness of this presumption,and none of the comments rebutted itwith respect to any of the water bodiesfor which EPA is promulgatingdesignated uses. In the future, ifadditional data indicate that thepromulgated uses are not appropriate,EPA’s final rule can be revised and/orwithdrawn.

For the reasons described above, EPAis promulgating cold water biota as adesignated beneficial use for thefollowing 5 segments: Canyon Creek(below mining impact)—PB 121S, SouthFork Coeur d’Alene River (Daisy Gulchto mouth)—PB 140S, Shields Gulch(below mining impact)—PB 148S,Blackfoot River—USB 360, and SodaCreek—BB 310.

3. Salmonid Spawning

i. Proposal

In conferring with National MarineFisheries Service prior to EPA’s April28, 1997, proposed rule, EPA obtainedpreliminary data indicating that forWest Fork Blackbird Creek, GrasshopperCreek, Little Bear Creek, BlackbirdCreek and Panther Creek, salmonidspawning was an appropriatedesignated beneficial use to ensure‘‘fishable’’ water quality for these fivewater body segments. The dataindicated the presence of salmonids andtherefore EPA concluded salmonidspawning was an existing use. Based onthis information EPA proposedsalmonid spawning as a designatedbeneficial use for these segments.


On February 11, 1997, Idahodesignated salmonid spawning biota forWest Fork Blackbird Creek (SB–4211).By letter dated May 27, 1997, EPAconditionally approved this usedesignation. As part of Idaho’s June 20temporary rule (by letter dated June 25,1997) salmonid spawning was alsodesignated a beneficial use for LittleBear Creek, Blackbird Creek and PantherCreek. The State did not designateGrasshopper Creek for salmonidspawning as data it had for this creek

indicated that salmonid spawning wasnot an appropriate use.

With regard to Panther Creek, EPAunderstands that the State intended todesignate this creek for salmonidspawning but that, because of atypographical error, the chart in thetemporary rule did not reflect salmonidspawning for this segment. By letterdated July 10, 1997, Idaho explainedthat on July 22, 1997 the Idaho Board ofHealth and Welfare will be requested toamend the temporary rule to correct thiserror. This error is expected to becorrected shortly.

On July 15, 1997, EPA conditionallyapproved salmonid spawning usedesignation for Little Bear Creek andBlackbird Creek. Because EPA’sapproval is not yet unconditional, theAgency is not withdrawing the proposalfor these segments.

iii. CommentsEPA received additional information

since the proposed rule which indicatesthat salmonid spawning is not anappropriate use for Grasshopper Creek.EPA determined that althoughGrasshopper Creek may have thepotential to support salmonid spawningas a future designated beneficial use,insufficient data exist to justify this usedesignation at this time. Thereforeneither the State’s revisions nor EPA’sfinal rule designates salmonid spawningfor Grasshopper Creek.

4. Waters Located in Indian CountryAfter the proposal was published,

EPA ascertained that certain streamsthat EPA disapproved on June 25, 1997,were located in Indian country. EPA’sNational Indian Policy recognizes Tribalgovernments as the primary parties forsetting standards and for makingenvironmental policy decisionsaffecting their reservation environments,consistent with Agency standards andregulations. In a memorandum byPresident Clinton dated April 29, 1994,each executive agency is instructed tooperate within a government-to-government relationship with federallyrecognized tribal governments. EPA is toconsult, to the greatest extentpracticable and to the extent permittedby law, with tribal governments prior totaking actions that affect federallyrecognized tribal governments. ThePresident’s memorandum also statesthat executive departments and agenciesshall assure that tribal governmentrights and concerns are consideredduring the development of plans,programs, and activities affecting tribaltrust resources. EPA determined thatpromulgation of these designated usescould be viewed as such an action, and


so sought consultation beforeproceeding. After consultation with therelevant tribal governments, EPAdetermined that it would not beappropriate to proceed with thedesignation of uses for these streams atthis time.

In this case, the proposal to designateuses on streams wholly or partially inIndian country was unintentional andinadvertent, done without forethoughttowards either the desires of the tribalauthorities or how these designated useswould have functioned in the absence ofa complete set of water qualitystandards (e.g., accompanying criteria,an antidegradation policy). The tribalauthorities were unanimous in theirwish that EPA not proceed withdesignating these beneficial uses,preferring instead to approach the waterquality standards in a holistic mannerand within a time frame thataccommodates other tribal priorities.

As a result of this consultationprocess, portions of Hangman Creek (PB450S), Three Mile Creek (CB 1321),Cottonwood Creek (CB 1322), BlackfootRiver (USB 360) and Bannock Creek(USB 430), which are partially locatedin Indian country are being excludedfrom this rule, as well as the entirety ofPlummer Creek (PB 340S), CottonwoodCreek (CB 152) and Rock Creek (PB451S). If not in Indian country,Plummer Creek and Cottonwood Creek(CB 152) would have been excludedbecause the state has adopted acceptableuses for them.

E. Temperature Criteria for Threatenedand Endangered Species

1. Bull Trout

i. Temperature Criteriaa. Proposal. The temperature criteria

in Idaho’s 1994 submittal applicable tothe cold water biota use classification(22°C or less with a maximum dailyaverage of 19°C) and salmonid spawninguse classification (13°C or less with amaximum daily average of 9°C) does notprovide an adequate level of protectionfor bull trout. Therefore, on June 25,1996, EPA disapproved Idaho’stemperature criteria applicable withingeographic ranges where bull troutoccur.

EPA derived the proposedtemperature criteria for Idaho streamsdesignated as bull trout habitat usingEPA’s temperature criteria guidance(Temperature Criteria for FreshwaterFish: Protocol and Procedures; U.S.EPA, 1977). The EPA protocolrecommends expression of temperaturecriteria in two forms: (1) a short-termmaxima (protection against lethalconditions, usually for a duration of 24

hours), and (2) a mean temperaturevalue (expressed as the maximumweekly average temperature) that isdesigned to protect critical life stagefunctions such as spawning,embryogenesis, growth, maturation anddevelopment. Sufficient data wereavailable to derive temperature criteriaas maximum weekly averagetemperatures (MWAT) that EPAdetermined would be protective ofvarious bull trout life stages, includingspawning, egg incubation, juvenilerearing and adult migration. Because ofthe complex life history of bull trout,EPA proposed temperature criteriawhich would span a calendar year, butthat would vary depending on thepresence and thermal tolerances ofvarious bull trout life stages. See 62 FR23012 for a more detailed discussion ofEPA’s proposal.

b. Recent Idaho Actions. On June 20,1997, Idaho adopted a temporary rulewith revised temperature criteria forbull trout. The State’s rule established aseven-day moving average of 12°C basedon daily average water temperatures, orshall not exceed a seven-day movingaverage of 15°C based on dailymaximum water temperatures duringJuly, August and September.

Although Idaho has revised thetemperature criteria applicable to bulltrout, the State did not provideinformation explaining the scientificbasis for the criteria. The Water QualityStandards Regulations at 40 CFR131.11(a) state, in part, that states mustadopt criteria to protect designated usesand that such criteria must be based on‘‘sound scientific rationale.’’ EPA wasunable to determine, based on theState’s submission or other informationavailable to EPA, what the scientificrationale was for Idaho’s 1997temperature. Therefore, EPA was unableto determine that Idaho’s 1997temperature criteria are protective ofbull trout spawning and rearing.

Because EPA was unable to determinethat Idaho’s criteria are protective ofbull trout spawning and rearing, EPAdisapproved Idaho’s 1997 temperaturecriteria for bull trout on July 15, 1997.Therefore, EPA is proceeding with afederal promulgation of temperaturecriteria for bull trout as required by§ 303(c) of the CWA. If at a later date,Idaho submits a scientific rationale insupport of the 1997 criteria, and EPA isable to determine that the technicalbasis is consistent with 40 CFR 131.11,then EPA will initiate rulemaking towithdraw the federal criteria in today’srule.

c. Comments. Comment: Commentersasserted that EPA lacks authority todisapprove Idaho’s temperature criteria

as they relate to bull trout, and hencelacks authority to promulgate federaltemperature criteria for bull trout.According to these commenters, under40 CFR 131.5, EPA’s limited role inoverseeing state WQS is to ensure thatstates designate uses and establishcriteria to protect the designated uses.Because Idaho had designated a use of‘‘cold water biota,’’ and had criteriaprotective of that use, EPA lacksauthority to disapprove Idaho’stemperature criteria as they relate tobull trout. One commenter citedlanguage in the preamble to the 1983revisions to part 131 which thecommenter claimed evidenced that EPAdid not intend to second guess states ontheir choices of designated uses.Commenters argued that, in settingtemperature criteria for bull trout, EPAwas essentially creating a new beneficialuse, which would be a subcategory ofcold water biota, and that it is beyondEPA’s authority to designatesubcategories of uses. Commenters alsoasserted that it has been EPA’slongstanding position that protection ofspecific species within the fishable usedesignation is left solely to thediscretion of the state.

Response: EPA agrees that its role inreviewing state water quality criteria isto ensure the criteria are protective ofdesignated uses. However, EPA mustalso ensure that the state has designateduses consistent with the goals of theCWA, including the ‘‘fishable/swimmable’’ goals. EPA therefore doesnot agree with the commenters’’implication that a state has unfettereddiscretion in how it designates uses.Section 131.10(a) provides that ‘‘[e]achState must specify appropriate wateruses to be achieved and protected,’’taking into account the various goals ofthe CWA (emphasis added). It followsthat EPA must disapprove a state’s usedesignations if they are not appropriatein light of those goals.

The commenters’ argument that astate has absolute discretion concerningwhen to designate subcategories of usesmisconstrues the intent of EPA’sregulations. These commenters point to§ 131.10(c), which provides that‘‘[s]tates may adopt sub-categories of ause.’’ It is true that a state need notadopt subcategories. However, theregulations require a state to designateappropriate uses given the goals of theCWA, and to adopt criteria protective ofthose uses. So, for instance, if theweight of evidence shows that salmonidspawning is an appropriate use, a statemust adopt criteria protective of thatuse. In such a situation, a state maychoose whether to designatesubcategories of uses applicable to


particular waters, so that criteriaprotective of salmonid spawning can benarrowly targeted to those areas wherethey are needed, or in the alternative todesignate only one ‘‘fishable’’ use andapply it throughout the state. However,if it is the latter, the criteriaaccompanying that use would have tobe protective of salmonid spawning,because a state could not designate asingle ‘‘fishable’’ use and then adoptcriteria protective of some fish but notothers. For this reason, most states insuch a situation would be likely todesignate subcategories of uses eventhough not required to by EPA’sregulation. See also EPA’s response tothe next comment below.

As explained in EPA’s June 25, 1996disapproval letter, the state failed to doeither of these fully. While Idaho had asalmonid spawning subcategory withcriteria intended to be protective of bulltrout, it did not apply this subcategoryto all bull trout waters. At the sametime, cold water biota temperaturecriteria, which do apply to, among otherthings, all bull trout waters, were notstringent enough to protect bull trout.EPA is promulgating more stringenttemperature criteria to protect bull troutin those waters where they are present.It is clearly within EPA’s authority topromulgate standards meeting therequirements of the Act that supportthis use.

Regarding the assertion that it isEPA’s longstanding policy to defer tostate’s designation of uses, EPA believesthis is incorrect to the extent it impliesthat EPA will defer to use designationsthat do not meet the requirements of theCWA. EPA notes that these commentersdid not offer any specifics to supporttheir claim. In the preamble to the 1983revisions to 40 CFR Part 131 EPA statedthat, ‘‘for EPA to mandate certain levelsof aquatic life protection within a usewould override the primary authority ofthe state to adopt use classifications andsupporting criteria through publichearings.’’ 48 FR 51410. This and otherstatements were made in response tocomments urging EPA to adopt nationalminimum levels of protection for waterquality. EPA’s 1983 preamble responseis generally reflective of the structureand purpose of section 303, whichcontemplates that the duty to establishwater quality standards lies with thestate in the first instance. However, it isjust as apparent from the structure of theAct and EPA’s regulations that EPA’soversight role carries with it anobligation to act so that therequirements of the Act are met. Thecommenters’ argument that EPA mustalways defer to a state’s choicesregarding designation of uses and levels

of protection is clearly contrary to thisoversight responsibility.

Comment: A number of commentersquestioned EPA’s authority topromulgate temperature criteria for bulltrout. Several commenters pointed outthat, since bull trout have not yet beenlisted as endangered or threatened, EPAcould not rely on the authority of theESA to support its action. Commentersalso argued that, in setting temperaturecriteria for bull trout, EPA is attemptingto designate ‘‘critical habitat’’ under theESA without following proper ESAprocedures. Commenters noted anumber of alleged failures to followproper ESA procedure for bull trout.Commenters also argued that, the ESAaside, EPA lacks authority under theCWA to promulgate temperature criteriafor bull trout. These commentersasserted that the CWA does not requirestates to protect the most sensitivespecies under the ‘‘fishable’’ use, andthat likewise, the CWA does notauthorize EPA to promulgate criteriaprotective of the most sensitive speciesof fish.

Response: EPA acknowledges that theproposal’s explanation of statutoryauthority to promulgate temperaturecriteria focused on the ESA rather thanthe CWA, when it should have givenequal standing to both statutes. Thisconfusion occurred because two of thespecies being addressed, snails andsturgeon, have been listed pursuant tothe ESA. For bull trout, EPA is relyingon its CWA authority to promulgatecriteria protective of appropriate uses.Some commenters apparently inferredthis anyway, as several commentedextensively on the authority under theCWA to promulgate criteria protectiveof bull trout. Because EPA is relying onCWA authority for bull trout criteria, itfollows that adherence to ESAprocedures for bull trout are not at issuehere.

In developing criteria for bull trout,EPA has used the best availableinformation to determine the location ofbull trout spawning and rearing, and hasdeveloped temperature criteriaprotective of spawning and rearingbased upon its review of the literatureand the comments received. EPAbelieves this analysis, described indetail above, follows the mandate ofsection 131.11(a)(1) that water qualitystandards criteria ‘‘be based on soundscientific rationale and [ ] containsufficient parameters or constituents toprotect the designated uses.’’

EPA believes the CWA and EPA’sregulations require that criteria beprotective of the most sensitive specieswithin the ‘‘fishable’’ use. Protecting ause category such as ‘‘fishable,’’ or a

subcategory such as ‘‘cold water biota,’’plainly must mean protecting all of thespecies-specific activities that occurwithin that category, including the mostsensitive. The position advocated bycommenters—that not all species oractivities within a use category need tobe protected—would lead to results thatare obviously contrary to the goals of theAct. These commenters do not explainhow they would resolve the question ofwhich species within a use categorywould have to be protected and whichnot. Presumably, the commenters’sapproach would allow states to pick andchoose which species within a usecategory are deserving of protection. Itwould therefore allow a state toestablish criteria protective of only theleast sensitive aquatic species, whileignoring the rest. EPA believes, to thecontrary, that the only reasonablereading of the Act and EPA’s regulationsrequires that water quality standardsprotect for all aquatic life that arepresent or normally expected to bepresent, to the extent supported by thefactual record. Today’s promulgationhelps to fulfill this requirement byestablishing criteria protective of bulltrout to the extent supported by soundscientific rationale.

Comment: One commenter suggestedthat EPA’s criteria should be consistentwith the four-state region in which bulltrout are found, with specific referenceto Oregon’s recently adopted criteria.Other commenters also referencedOregon’s criteria as an acceptableoption.

Response: As EPA works with eachstate during the triennial reviewprocess, information on the approachesutilized by adjacent states is shared andconsidered. EPA reviewed Oregon’stemperature criteria and technicalsupport documents during thedevelopment of this rule. Followingfurther review of the literature, EPA isadopting a criteria equivalent to thatrecently adopted by the State of Oregon.

Comment: Several commenterschallenged EPA’s use of the maximumweekly average temperature (MWAT).These commenters asserted that thecriteria, measured as average dailytemperatures, was not adequatelyprotective. They indicated that byallowing a weekly mean it is feasiblethat the daily temperature regime couldbe 10°C +/¥5°C. One suggested that itwould be more biologically defensiblefor EPA to find a means to limitmaximum temperatures or dielfluctuations at the same time asensuring that MWAT does not exceedfixed limits. Several of the commenterssuggested using a 7-day average of dailymaximum temperatures, some


commenters favoring this approachbecause it would provide greaterprotection, others for the relative easeand practicality of implementation.

Response: EPA has revised itsproposal to account for potentialimpacts from diurnal fluctuations and ispromulgating a maximum weeklymaximum temperature (MWMT)criterion, based on an average of thedaily maximum for a movingconsecutive 7-day period. EPA’s criteriaguidance documents, which werefollowed in the development of theproposed criteria, recommend that aninstantaneous maxima be adopted inassociation with the MWAT to provide,in part, protection from diurnalfluctuations. EPA was unable todetermine from the literature and fielddata a fixed instantaneous maxima andtherefore did not include a maximacriterion in the proposed rule.Following consideration of commentsand the literature, it was determinedthat protection from maximumtemperatures was needed to protect thespecies. Therefore, EPA modified theproposed rule and is changing from theproposed MWAT approach to theMWMT adopted in this rule. TheMWMT is believed to provide greaterprotection over temperature maximacompared to the MWAT and isconsistent with other temperaturecriteria recommended for bull trout.

Comment: Several commenterssuggested that EPA needed to modifythe bull trout criteria to account fornatural conditions and the naturalvariability.

Response: In reviewing data ontemperature and bull trout presence/absence, EPA found streams supportingbull trout populations where summermaxima temperatures exceeded 10°Cand where summer maxima weresomewhat cooler. However, mostcommenters only provided data onpresence and absence of bull trout anddid not provide data on the health ofthese populations. EPA was thereforeunable to conclude based on this datathat bull trout are fully supported attemperatures above 10°C. Presence andabsence data may be best suited forestablishing the limits of bull troutdistribution. However, data on presenceand absence, without supportinginformation on abundance orpopulation health, does not enabledefinitive determinations of criteria thatwill be protective. Protection of optimalconditions is essential if a species is tobe protected with an adequate margin ofsafety, and is also desirable because bulltrout have been proposed to be listed asa ‘‘threatened species’’ under theEndangered Species Act. Maintenance

of optimal conditions is consideredimportant in the restoration of thepopulation.

Nevertheless, EPA acknowledges thedifficulties and uncertainty that existsin defining absolute, numerictemperature criteria that account for alltypes of natural and site-specificvariability in stream temperatures (bothspatially and temporally) found amongIdaho streams. For example, availabilityof cold water refugia may ameliorate theimpacts of suboptimal temperaturesunder some circumstances and mightresult in supporting bull troutpopulations. However, sufficient datawas not available to determine exactlyhow much cold water refugia must beavailable (and when and how long itmust be available) to support bull troutpopulations experiencing otherwisesuboptimal conditions. Thepromulgation of a single criterionnecessarily rests on assumptions aboutthe consistency of conditions amongIdaho streams. EPA believes theassumptions made here are reasonable,and are in any case unavoidable in thisinstance, due to the lack of site-specificdata. In addition, to address concernsabout the site-specific nature oftemperature criteria for bull trout, EPAhas included a provision in today’s ruleproviding a streamlined mechanism formodifying the promulgated criterion ona site-specific basis.

Comment: Several commentersrequested that EPA modify the criteriaand suggested summer criteria values of15°C, 12°C and 10°C, expressed as aseven-day average of daily maximumtemperatures (or in some cases seven-day average of daily averagetemperatures), as a more appropriatecriteria. Several of these commenterscited literature to support their case thatthe proposed criteria was either over-orunder-protective and that EPA shouldeither raise or lower the proposedcriteria.

Response: EPA has reviewed theliterature and available field data tosupport its derivation of appropriatetemperature criteria for bull trout. Basedon this review, EPA decided to modifyits proposed temperature criteria toreflect criteria for the protection ofspawning and juvenile rearing, bulltrout life stages considered most criticaland most at risk from thermal impacts.Based on temperatures judged to berequired for maintaining optimaljuvenile growth and rearing, and theinitiation of adult spawning, EPAestablished a criterion of 10°C expressedas a consecutive seven-day average ofdaily maximum temperatures for June,July, August and September. EPAacknowledges that juvenile bull trout

can be found in streams withtemperatures reported to be higher than10°C, but that available informationsuggests that temperatures approaching15°C reflect suboptimal conditions forjuvenile rearing and growth and thatoptimal conditions are closer to 10°C.Furthermore, available data indicatesthat temperatures at or below 9–10°C arerequired to initiate spawning, which canbegin in mid-to late-August.

Comment: Several commenterssuggested that EPA’s criterion shouldonly apply to those periods wheretemperature conditions are critical tobull trout; late summer and fall. Severalof these commenters suggested that, dueto the predictable pattern of streamtemperatures over a year in a givenchannel, that a standard whichaddresses stream temperatures at themost critical time of the year would alsoadequately address stream temperaturethroughout the rest of the year. Onecommenter suggested that such a changewas necessary to account for the naturalvariations which are present from yearto year.

Response: EPA agrees with thecommenters and is promulgating acriterion which is to be applied duringJune, July, August and September, asthese times are defined in the literatureas critical period for spawning andjuvenile rearing of bull trout. Suchcriteria enable greater flexibility due tonatural variability and focus on the lifestages considered most critical andvulnerable to high temperatures.

Comment: Several commenterssuggested that EPA should, to variousdegrees, rely on the Governor’s BullTrout Conservation Plan for theprotection and recovery of bull trout.Other commenters supported EPA innot relying on the Governor’s Bull TroutConservation Plan.

Response: EPA has reviewed theGovernor’s Bull Trout ConservationPlan and has determined that althoughthis plan sets forth a strategy towardsthe maintenance and restoration of thecomplex interacting groups of nativebull trout populations throughout Idahoit falls short of meeting the requirementsof section 303(c) of the Clean Water Act.Specifically, the plan does not adopt atemperature criterion protective of bulltrout nor does it specifically identifywaters in which bull trout are present.

Comment: One commenter suggestedthat the proposal was oversimplifiedand did not account for the migratorycharacteristics of bull trout or the needfor healthy riparian habitat. Severalother commenters also mentioned thatEPA should expand the scope of therule to also address the habitatrequirements of the bull trout.


Response: The only portion of Idaho’scriterion, relative to the protection ofbull trout, which was disapproved inEPA’s June 25, 1996 disapproval letterwas the temperature criteria in place toprotect bull trout. Since EPA’s authorityto promulgate is limited to those itemswhich are submitted to EPA for reviewand approval/disapproval and whichEPA disapproves, EPA does not havethe authority to promulgate habitatcriteria under this rule.

Comment: Two commenters suggestedthat the current cold water biota criteriaare not protective of the adult life stagesof bull trout and thus a temperaturecriteria applicable to adult life stagesshould also be promulgated. Onecommenter suggested that this criteriabe established at 12° C and anothersuggested an annual maximumtemperature criteria of 15° C.

Response: Available informationindicates that juvenile rearing and adultspawning are the life stages that mostlimit bull trout (and other salmonid)production. Available data also suggeststhat bull trout distribution is bestdefined by maximum summertemperatures and that these life stagesare currently most vulnerable toincreased temperatures in the summerand early fall. In general, lessinformation is known about thetemperature requirements and locationsof adult bull trout and migratorycorridors compared to other life stages.EPA concluded that the informationavailable was not sufficient to supportgoing forward with temperature criteriafor adult bull trout at this time.Therefore, given the importance ofjuvenile and spawning life stages to bulltrout production and EPA ispromulgating temperature criteriadesigned specifically for the protectionof natal juvenile rearing and spawningareas. EPA believes that if these criteriaare met, natural variability in streamtemperatures will result in attainment ofappropriate temperatures during othertimes of the year.

Comment: Several commenters notedthat the proposed criteria wereunrealistic and were not achievable.

Response: The bull trout temperaturecriteria adopted under this rule weredetermined based on EPA’s evaluationof the literature and available field data.EPA recognizes that there are streamswhere bull trout are present at highertemperatures than those adopted underthis rule but in most cases, informationwas not available to determine therelative health of these populations.However, because several factors can actto alter temperature impacts on bulltrout which can vary on a site-specificbasis (e.g., availability of cold water

refugia), EPA has provided astreamlined mechanism through whichcriteria for specific streams may bemodified. This mechanism shouldprovide relief in streams which dosupport bull trout populations yet thecriteria adopted under this rule areunachieveable.

d. Final Rule. In order to provide thelevel of protection required under theClean Water Act, EPA is promulgating asite-specific temperature criterion forthose waterbody segments where bulltrout spawn and juvenile bull trout rear.EPA’s action supersedes the State’stemperature criterion only for thespecific waterbodies listed in§ 131.33(a)(2) of the final rule.

As indicated in the rule languageitself, the bull trout temperaturecriterion does not apply to waterslocated in Indian country, to the extentany may be implicated in the waterslisted in § 131.33(a)(2). Although theproposal did not address thispossibility, it was never EPA’s intent topromulgate temperature criteria forwaters in Indian country. The purposeof this rulemaking is to promulgatestandards for waters that are outside ofIndian country and for which certainState standards were found to beinadequate. EPA has consulted with theappropriate tribal authorities. Allaffected tribal governments requestedthat EPA allow the Tribes to developtheir own standards for theirreservations and thus not include tribalwaters in today’s promulgation. Seesection D.4 above.

Because the data indicate there maybe aberrational segments where bulltrout have slightly different temperatureranges, and because future informationmay make it possible to refine the listof waterbodies where bull trout spawnand juvenile bull trout rear, the finalrule provides a mechanism for adjustingthe bull trout temperature criterion on asite-specific basis. This provision isdiscussed in more detail below.

This Rule establishes a maximumweekly maximum temperature (MWMT)criterion of 10 °C for the months of June,July, August and September for theprotection of bull trout spawning andjuvenile rearing in natal streams,expressed as an average of dailymaximum temperatures over aconsecutive 7-day period. This criterionare focussed on reproduction (adultspawning) and juvenile rearing lifestages because these have been cited ascritical life stages or ‘‘ecologicalbottlenecks’’ limiting the production ofsalmonids, including bull trout (Goetz,1989; McPhail and Murray, 1979).Furthermore, high temperatures duringsummer have most often been reported

as a factor limiting the distribution andabundance of bull trout, with juvenilerearing and adult spawning beingconsidered as the life stages most at riskfrom high summer and fall temperatures(Buchanan and Gregory, 1997; ORDEQ,1995; Shepard et al., 1984; Fraley andShepard, 1989; Goetz, 1989; Riehle,1993). EPA believes that these criteriaare adequately protective of bull trout inthat they provide explicit protection forthe most critical and vulnerable lifestages. Further, EPA believes that duringother times of the year, natural seasonalvariability in stream temperatures andtemperature controls established to meetsummer maximum criteria, if operated,will likely result in attainment ofadequate temperatures during theremainder of the year. These criteria arealso consistent with other temperaturecriteria that have been established orrecommended to protect bull trout(Buchanan and Gregory, 1997; ORDEQ,1995; and the U.S. Forest Service’sInland Native Fish Strategy).

For several reasons, EPA decided toexpress the final temperature criteria forbull trout as a consecutive seven-dayaverage of daily maximums (MWMT)rather than a consecutive seven-dayaverage of daily averages (MWAT) asoriginally proposed. Greater diurnalfluctuations around the mean dailytemperature can be one effect ofintensive watershed management (e.g.,loss of riparian vegetative cover). Forthis and other reasons, EPA’s Guidelinesfor deriving temperature criteriarecommend both longer-term averagecriteria (MWAT) and short-termmaximum criteria. However, afterreviewing the literature on bull trouttemperature requirements andconsidering comments on EPA’sproposed bull trout temperature criteria,EPA concludes that the available datawere insufficient to derive temperaturecriteria to be protective of short-termtemperature extremes (e.g., dailymaxima). As asserted by severalcommenters, use of a MWAT withoutsome control on the daily maxima mightnot adequately reflect such increases indiurnal variability where the meantemperatures do not changesubstantially. Therefore, EPA agrees thatgreater control over thermal maxima isdesired and that while use of the two-number criterion is most desirable (i.e.,weekly average and daily maximum), inthe face of insufficient data, use of aMWMT is appropriate. In addition, useof the MWMT is consistent with othertemperature criteria that have beenestablished or recommended to protectbull trout (Buchanan and Gregory, 1997;ORDEQ, 1995; and the U.S. Forest


Service’s Inland Native Fish Strategy).EPA’s expression of the criterion interms of a consecutive seven-dayaverage of daily maximums, however,will provide for a mean dailytemperature that are somewhat below(possibly several degrees) the maximum,depending upon stream hydrology andwatershed characteristics.

Maintenance of this criterion forspawning and juvenile bull trout rearingin their natal streams in the summermonths (June, July, August andSeptember) should result in attainmentof appropriate thermal conditions forother life stages (i.e., adult holding andmigration) during the remainder of theyear. The restrictions on lowering waterquality provided for in the Tier 2provisions of Antidegradation will serveas further insurance.

EPA has considered the commentsand data submitted, evaluated theliterature, and conferred with fisheriesscientists from the Idaho Department ofFish and Game, U.S. Fish and WildlifeService, U.S. Forest Service (USFS),U.S. Bureau of Land Management (BLM)and the Interior Columbia River BasinEcosystem Management Project (USFS,BLM) in revising the proposed criterionto be protective of bull trout spawningand juvenile rearing and meet the goalsof the Clean Water Act.

This revised criterion is within therange of maximum summertemperatures associated with optimaljuvenile bull trout rearing (higherdensities when known) in watersheds inIdaho, Oregon, Montana, BritishColumbia and Alberta. Protection ofoptimal conditions is desirable becauseColumbia River Basin bull troutpopulations have recently beenproposed by the U.S. Fish and WildlifeService for listing as a ‘‘threatenedspecies’’ under the Endangered SpeciesAct. It is recognized that some authorshave found sites with juvenile bull troutpresent, which have warmer summermaxima (Fraley and Shepard, 1989;Saffel and Scarnecchia, 1995; Adams,1994; Thurow and Schill, 1996), whileothers have noted sites with coolersummer maxima (McPhail and Murray,1979; Ratliff, 1992; Riehle, 1993). Inmany such studies, information onthermal conditions supporting optimaldensities is lacking.

The literature indicates that bull troutmay be one of the most intolerantspecies of salmonids to warmtemperatures. Buchanan and Gregory(1997) summarized that, to provideadequate protection for cold waterspecies like bull trout, watertemperature criteria must besubstantially lower than traditionalcriteria, and must accommodate

seasonal requirements of specific lifehistory stages. Also, they suggested thatslight increases in water temperaturecan tip the balance of competitiveinteractions to the detriment ofcoldwater species, even thoughtemperature criteria would be wellwithin the thermal requirements of thespecies. Rieman and McIntyre (1993)suggested that water temperature islikely to be an important and inflexiblehabitat requirement for bull trout.

Cavender (1977) noted that bull trouthave an affinity for cold waters fed bymountain glaciers and snowfields. Also,Rich (1996) found that bull trout weremore likely to occur in mountainstreams with northerly aspects. Riemanand McIntyre (1995) found juvenile bulltrout at elevations as low as 1520 m, butthe frequency of juvenile bull troutoccurrence increased sharply at about1600 m, from this observation theyassumed that 1600 m is the lower limitof spawning and initial juvenile rearingof bull trout in the Boise River, andsuggested that this was influenced bystream temperature.

Pratt (1992) also noted that watertemperature may be an importantfeature of juvenile bull trout habitat.Bull trout spawn in late summerthrough fall (late August–November)and have a long egg incubation period(typically lasting from early fall toApril). High temperatures, therefore, area concern for inhibiting spawning, aswell as limiting its success in the latesummer and early fall. Saffel andScarnecchia (1995) indicated that hightemperatures may be physiologicallyconstraining on juvenile bull trout.Shephard et al. (1984) found that fishgrowth decreased during the warmersummer months despite increasedprimary productivity.

EPA’s establishment of this criterionfor bull trout spawning and juvenilerearing is consistent with othertemperature management objectives andcriteria recently adopted by state andfederal natural resource managementagencies, as noted in the followingexamples:

(1) The State of Idaho, through theGovernor’s 1996 Bull TroutConservation Plan, recently recognizedthe unique temperature requirements forall life stages of bull trout. The Planindicated that bull trout requiretemperatures between 9 and 15°C, withspawning success increasing attemperatures less than 10°C andoptimum spawning temperatures being2 to 4°C.

(2) The U.S. Forest Service’s InlandNative Fish Strategy (1995) for itsIntermountain, Northern and PacificNorthwest Regions contains Interim

Riparian Management Objectives fordesired conditions for fish habitat ofinland native fish, which includes bulltrout. The interim objective for watertemperature is a maximum watertemperatures below 59°F (15°C) withinadult holding habitat and below 48°F(9°C) within spawning and rearinghabitats, measured as a 7-day movingaverage of daily maximumtemperatures. These temperatures wererecommended and supported by theU.S. Fish & Wildlife Service, a fullpartner in the development of theStrategy and its EnvironmentalAssessment.

(3) The Oregon Department ofEnvironmental Quality (ODEQ) recentlyconducted an extensive evaluation ofthe effect of water temperature on bulltrout in its Final Issue Paper—Temperature, 1992–1994 Water QualityStandards Review (ODEQ, 1995). TheState of Oregon adopted the following:

An absolute numeric criterion of 10°C(50°F) based on a 7-day average of themaximum daily temperature for waters ofOregon determined by Department ofEnvironmental Quality to support or to benecessary to maintain the viability of nativebull trout. If temperature exceed 10°C (50°F),the stream and riparian conditions would berequired to be restored or allowed to returnto the most unaltered condition feasible forthe purpose of attaining the coldest streamstemperature possible under naturalbackground conditions.

Buchanan and Gregory (1997), asmembers of the temperature technicalsubcommittee for the above waterquality standards revisions, found thatthe literature supported an optimaltemperature range for both bull troutspawning and juvenile rearing of 4–10°C. This was presented in Figure 2–3, Bull Trout Temperature Requirementsby Life History Stage and Time Periodas Reported in the General Literature,for the Final Issue Paper—Temperature(ODEQ, 1995).

I. Spawning.Based on EPA’s review of the

literature, a stream temperature range of4–10°C appears to be necessary tomaintain successful bull troutspawning, although it appears that bulltrout do seek out colder temperatures. Anumber of authors have noted thetemperature appears to be a criticalfactor with the initiation of spawningmigrations occurring at 9–10°C. Atemperature range of 6–8°C is believedto approximate the optimum spawningtemperatures of bull trout (IdahoDepartment of Fish and Game).

Heimer (1965) noted that areas withcooler water temperatures (9–10°C) inthe Clark Fork River, Idaho, attracted


bull trout during the spawning season,and that there was especially highspawning use in these areas withgroundwater upwelling. The averagedaily maximum temperature duringpeak redd construction in the FlatheadRiver, Montana tributaries was 8–9°C,although some spawning activity wasobserved in water temperatures as highas 12°C (Flathead River Basin SteeringCommittee, 1983). Fraley and Shephard(1989) found in the Flathead Riverdrainage that the initiation of spawningappeared to be related largely to watertemperatures of 9–10°C. Thistemperature was also described byMcPhail and Murray (1979) as thethreshold temperature for the initiationof spawning in Mackenzie Creek inBritish Columbia. Shepard et al. (1984)found that bull trout spawning activitybegan when maximum daily watertemperatures dropped below 9°C.

Swanberg (1996) suggested that bulltrout begin their upriver migrations inthe fall in the Blackfoot River, Montana,as a result of spikes in a fluctuatingtemperature regime, and that thesemigrations are done in order to seekrefuge in cooler tributaries. Otherauthors have made similar observationsin Rapid River, Idaho drainage wherebull trout initiated upriver migrations tospawn when water temperatures reach10°C or above (Elle et al., 1994; Elle,1995). Schill et al. (1994) also noted inRapid River that at the start of spawningseason pairing behavior began after theaverage water temperature droppedsharply from 10°C–6.5°C.

II. Egg Incubation.EPA has reviewed the literature and

examined temperature data from severalbull trout streams in Idaho, Oregon, andMontana and has found that, if summertemperatures, June to September, meetEPA’s temperature criterion, late falland winter temperatures should providefor successful bull trout egg incubation.Incubation of bull trout eggs requirestemperatures ranging from 1 to 6°C andoccurs at optimum temperatures ofapproximately 4°C (ODEQ, 1995;Weaver and White, 1985; McPhail andMurray, 1979; Carl, 1985).

Fraley and Shephard (1989) reportedwater temperatures of 1.2–5.4°C for thesuccessful incubation of bull troutembryos. McPhail and Murray (1979)noted that bull trout egg-to-fry survivalvaried with different water temperaturesof 0–20%, 60–90% and 80–95% of theeggs survived to hatching in watertemperatures of 8–10°C, 6°C and 2–4°C,respectively. Weaver and White (1985)report 4–6°C as being needed for eggincubation of bull trout embryos inMontana streams. Hatching of eggsgenerally occurs 100 to 145 days after

spawning, with bull trout alevinsrequiring at least 65 to 90 days afterhatching to absorb their yolk sacs (Pratt,1992). As such, incubation occurs fromlate fall to early spring, a period inwhich the temperatures in theheadwater streams in which bull troutspawn will be low due to naturalseasonal water temperature patterns.Weaver and White (1985) observedstream temperatures of 1.2 to 5.4°Cduring the incubation period of Octoberto March.

III. Juvenile Rearing.Goetz (1989) noted that the maximum

summer temperature is a controller ofjuvenile bull trout distribution.Temperatures less than 12°C appear tobe most suitable for juvenile rearing,with optimal conditions for rearing andgrowth occurring between 4 and 10°C(ODEQ, 1995). Based on fieldobservations of the presence of juvenilebull trout in Idaho streams, 12°C alsoappears to be a maximum temperaturewhere juveniles are found (IdahoDepartment of Fish and Game).

Pratt (1985) found juvenile bull troutpredominately in the upper and middlereaches of Lake Pend Oreille tributaries.Saffel and Scarnecchia (1995) observedthat the density of juvenile bull troutwas negatively related with themaximum summer temperature in sixtributaries of Lake Pend Oreille. Theyfound the highest number of juvenilebull trout in streams where the summermaxima ranged from 7.8 to 13.9°C.Juveniles will reside in their natalstreams for two to five years (Carl,1985).

Pratt (1984) observed only juvenilebull trout in habitats with temperaturesof 5–12°C influenced by cold springs(5°C). Shepard et al. (1984) alsoobserved the highest densities ofjuvenile bull trout in stream reaches inthe Flathead River basin which wereassociated with cold perennial springs.Bonneau and Scarnecchia (1996) foundthat juvenile bull trout predominately(94%) chose the coldest water available(8–9°C) in a plunge pool, whichcontained a strong side-to-side thermalgradient (8–15°C) at the confluence ofSullivan Springs and Granite Creek,tributary to Lake Pend Oreille. Thesejuvenile bull trout were observed toavoid the remaining pool habitat area(76%), which had temperatures of 9.1–15°C. Similarly, juvenile bull trout wereobserved only in the middle reach ofSun Creek, Oregon, where heavyinfluxes of groundwater more thandoubled the stream flow (Dambacher etal., 1992). The middle reach of SunCreek reported August temperaturesranging from 5.6–10°C.

Shepard et al. (1984) reported thehighest densities of bull trout inMontana streams at temperatures of12°C and below, some presence of bulltrout at 15–18°C, and complete absenceof bull trout in streams withtemperatures exceeding 19°C. Adams(1994) observed various life stages ofbull trout in four streams in the WeiserRiver, Idaho, drainage where the averagedaily temperatures were from 2–12°C,and summer maxima as high as 20°C,although some groundwater influxes didprovide cool water sanctuaries, but theextent was unknown. These hightemperatures were suggested to limitdownstream distribution for bull trout.

Fraley and Shepard (1989) noted thatjuvenile bull trout were rarely observedin streams with maximum watertemperatures at or above 15°C, and werefound close to the substrate at thosetemperatures. Also, they found thatjuvenile bull trout migrated upstream intheir natal stream to grow, and many ofthese upper stream reaches were notutilized by adult spawners. Thurow(1987) also found higher densities ofjuvenile bull trout in the headwater(colder) stream reaches of the SouthFork Salmon River, Idaho. Thurow andSchill (1996) did record summer watertemperatures of 9–13.5°C in ProfileCreek, tributary to the South ForkSalmon River, while observing the dielbehavior of juvenile bull trout. Elle(1995) observed in Rapid River that theout migration of juvenile bull troutoccurred when the stream temperaturesdropped below 10°C.

Based on the above, EPA hasdetermined that its final criterion forbull trout temperature is reasonable andreflects sound science.

ii. Distributiona. Proposal. At the time of EPA’s

disapproval action, EPA had notidentified the exact geographic areasinhabited by bull trout. In deriving a listof water bodies where revisedtemperature criteria are needed in orderto protect bull trout for the proposal,EPA relied upon bull trout distributiondata from the Interior Columbia BasinEcosystem Management Project(ICBEMP) as well as bull troutdistribution data from the IdahoDepartment of Fish and Game. See 62FR 23013 for a more detailed discussionof EPA’s proposal.

b. Recent Idaho Actions. On June 19,1997, Idaho adopted a temperaturecriteria for bull trout but did notindicate which water bodies the criteriaapply. On July 15, 1997, EPAdisapproved this new criteria becauseEPA was unable to determine that thecriteria was protective of bull trout


spawning and rearing. In order toprotect an aquatic life species, the waterquality criteria must have a point ofapplication. Idaho’s temperature criteriaspecified only that the criteria would beapplied to known bull trout spawningand juvenile rearing stream segments asidentified by the Department based onbest available data or as specificallydesignated under the Idaho WaterQuality Standards. The implementationcomponents of a criterion (e.g., point ofapplication) are considered along withthe numeric values themselves todetermine if the criteria as a whole aresufficient to protect the use (40 CFR131.11). To date, no stream segmentshave been specifically designated as abull trout spawning and juvenile rearingstream, nor has any reference to aspecific list of waters been provided toEPA. Therefore, in order to ensure thatbull trout spawning and rearing will beprotected, EPA has included a list ofstream segments as part of the bull troutcriteria in today’s rule (§ 131.33(a)(1)).

c. Response to Comments. Comment:Commenters objected to EPA’s approachto designating waterbodies where thetemperature criteria for bull troutspawning and rearing would apply. Thestrongest objectors took the view thatwater quality standards should not betied to specific stream segments. Rather,the applicability of designated usesshould be left to another process, suchas the Governor of Idaho’s bull troutplan. These commenters based theirpractical objection in part on the factthat, under the proposal, a rulemakingwould be required each time thetemperature criteria needs to bemodified to reflect new information.The more moderate objections pointedto the over inclusiveness of theproposal, and asserted that EPA can notapply temperature criteria towaterbodies where the presence of bulltrout has not been verified. Thesecommenters pointed out that, by its ownterms, the list encompasses ‘‘known,suspected and/or predicted’’ spawningand rearing areas, and argued that EPAcan not apply criteria to waters beyondthose that are ‘‘known’’ to host theseactivities. Commenters objected to thefact that the rule included migratorycorridors merely because EPA could notdetermine how to exclude these.Another commenter argued generallythat inclusion of waterbodies other thanheadwaters is inappropriate becausewaters at lower elevations have highernatural temperatures to which bull trouthave adapted.

Response: EPA disagrees with thecommenters who argue that waterbodiesdo not need to be specified for bull trouttemperature criteria. A water quality

standard cannot be implemented unlessit applies to a specified location.Moreover, the mechanism fordetermining where the criteria applymust have regulatory effect (e.g., cannotexist only in guidance), to be the basisfor imposing requirements throughsubsequent regulatory actions, such asissuance of an NPDES permit. EPA hasdone that here by naming in theregulation the specific waterbodieswhere the criteria apply, and providinga streamlined mechanism for modifyingthe list.

As described above, EPA hassubstantially modified its approach todesignating waterbodies where bulltrout temperature criteria will applyfrom that found in the proposal. Thishas occurred, in part, as a response tothe comments received. The proposalacknowledged that its approach toapplying bull trout temperature criteriamight be over inclusive to some extent.EPA believes this modified approachsubstantially reduces the likelihood thatwaters that do not contain bull troutwill be regulated by this rule. Inaddition, EPA has modified theproposal by adding a streamlinedprocedure for removing waterbodieswhere it can be shown that bull trout donot in fact exist. This responds to thosecommenters who wish to avoid futurerulemakings in the event newinformation becomes available.

Regarding the comment that EPA maynot designate waterbodies other thanthose where bull trout have beenconfirmed as present, EPA disagreesthat this is the only reasonable way todesignate applicable waters. EPA agreesthat it would be arbitrary and capriciousto designate waters merely on the basisof conjecture. However, the ICBEMPdata base relied upon by EPA in thisrulemaking to predict the presence ofbull trout spawning and rearing is basedon sound scientific methodology thatresults in a high degree of predictiveaccuracy. The ICBEMP data base focuseson a number of parameters known tocorrelate to the presence of bull trout,and predicts the presence of bull troutelsewhere only where those parametersare known to be present. EPA combinedthe ICBEMP data base with thatdeveloped by the Idaho Department ofFish and Game. The IDFG data base listswaters where bull trout are known to bepresent, and also includes waters wherebull trout are suspected to be presentbased on the best professionaljudgement of Department officials. EPAbelieves that since the Idaho Fish andGame Department is the agency with themost expertise and the most currentinformation regarding the location ofbull trout, it is appropriate to defer to its

judgement and to include waters where,according to the Department, bull troutare either known or suspected to bepresent.

If EPA were constrained to using amethod of designating waterbodies thatrelied only upon direct humanobservations of the presence of bulltrout spawning and rearing, the resultwould most certainly be underinclusive, and therefore underprotective of the species. EPA believesthe approach that is most reasonableand most consistent with the goals ofthe CWA is to identify thosewaterbodies where spawning andrearing have been observed to exist andthen expand upon this using accuratemodeling techniques or the bestprofessional judgement of officials foran agency such as the Idaho Fish andGame Department. When it can beshown this approach errs in thedirection of overprotection, thestreamlined procedures for deletingwaterbodies from the list shouldprovide an adequate correctivemechanism.

In the final rule, EPA believes it hassucceeded in excluding waterbodiesthat would be used only for migrationand not for spawning and rearing.Additionally, by excluding river mainstems, EPA has drastically reduced thenumber of low elevation waterbodiesaffected by this rule. This is responsiveto the comments suggesting thatspawning and rearing occur only inheadwaters.

Comment: Several commentersrequested that individual streams eitherbe removed from or added to the list ofstreams covered under this rule. Veryfew of these commenters submittedfactual data to support their request,although several noted that they haddata available or referred to sourceswhere the data may be available.

Response: Due to the short court-ordered time frame for development ofthis rule, EPA was unable to pursue theacquisition of data not provided directlyto EPA during the comment period.However, EPA has providedopportunity within the rule to modifythe list of streams to which the ruleapplies and encourages thesecommenters to pursue suchmodification where they have thefactual data to indicate presence/absence of bull trout in specific waters.Additionally, several of the streamswhich commenters requested beremoved from the list were removedduring our review and modification ofthe proposed list. These streams includethe Boise River below Lucky PeakReservoir and the Snake River nearLewiston.


d. Final Rule. The final rule includesa list of waterbodies for which site-specific temperature criterion areneeded to protect bull trout spawningand juvenile rearing. In deriving thislist, EPA has relied on bull troutdistribution data from the 1994–5Interior Columbia Basin EcosystemsManagement Project (ICBEMP) (Quigleyand Arbelbide, in press) ‘‘KeySalmonid’’ database for known andpredicted bull trout spawning andjuvenile rearing, and the updatedversion (April 1997) of the IdahoDepartment of Fish and Game (IDFG)Digital Bull Trout Distribution database.

The merging of these two databasesresulted in a list of streams designatedspecifically for bull trout spawning andjuvenile rearing, as well as some streamsutilized for all life stages, and otherstreams used only as migratorycorridors. In order to exclude thosestreams used only for life stages otherthan spawning and juvenile rearing (i.e.,migratory corridors, adult rearing, etc.),the following steps were taken tomodify the list of streams:

(1) The entire IDFG data set, whichaddresses all life stages, was overlaidwith certain portions of the ICBEMPdata set. The portions of the ICBEMPdatabase which were used included‘‘known’’ bull trout spawning andjuvenile rearing, ‘‘predicted’’ spawningand juvenile rearing, and ‘‘predictedpresent’’, i.e., migratory or seasonalhabitats that could include somespawning and juvenile rearing streams.Known migratory corridors were notincluded.

(2) Based on statements made by IDFGstaff, EPA concluded that the IDFG dataset on bull trout habitat containedrecently updated information that wasnot included in the ICBEMP data set.Therefore, EPA determined that themajority of the IDFG data set, especiallytributaries, should be retained in therule in order to utilize the most recentinformation.

(3) Those areas denoted by ICBEMP as‘‘predicted present’’ bull trout habitatused by all life stages which do notoverlap with areas listed by IDFG for alllife stages were assumed to have less ofa probability of being spawning andjuvenile rearing streams. Therefore,these waterbodies were deleted from thelist of streams to which the rule wouldapply.

(4) Based on the literature reviewedand comments received, EPA assumedthat bull trout do not use main stemriver systems for spawning and juvenilerearing habitat, because of elevatedwater temperatures and the lack ofappropriate spawning substrate. Themain stem rivers are utilized by bull

trout principally as migratory corridorsand adult holding habitat. This is due tothe naturally higher water temperaturesand greater food abundance. Bull troutare almost exclusively piscivorous.Therefore, only the headwater portionsof main stem rivers were retained in therule. All other segments of the mainstem rivers were deleted, regardless ofwhether they were denoted by either theIDFG, ICBEMP, or both.

The list represents EPA’s attempt tocompile a comprehensive list of streamsin Idaho utilized for bull trout spawningand juvenile rearing without includingwaters utilized only for adult migrationand rearing or streams in which bulltrout are not likely to occur. Theresulting list for which site-specifictemperature criteria are beingpromulgated can be found in subsection(a)(2) of today’s rule.

iii. Modifications to Bull Trout Criteriaand Distribution

Although the promulgated list ofwaterbodies where bull trouttemperature criteria apply representsthe best information now available, EPAbelieves it is appropriate to have somemeasure of flexibility to modify this listas new information on bull troutdistribution arises. This is important inlight of ongoing monitoring activities bythe State of Idaho and several Federalagencies. Therefore, EPA has modifiedthe proposal by adding a procedurewhereby listed waterbodies can beremoved or temperature criteriamodified through a determination of theRegion 10 Regional Administrator (RA).EPA believes this procedure can provideexpeditious relief from the requirementsof these temperature criteria when sucha change is supported by an adequatefactual record. Although the procedurefor making a determination underparagraph (a)(3) is not a rulemaking,each determination would be a finalagency action, and would therefore besubject to consultation pursuant tosection 7 of the ESA as appropriate.

Section 131.33(a)(3) sets forthprocedures for modifying, on a site-specific basis, either the temperaturecriterion in paragraph (a)(1) or the listof waterbodies in paragraph (a)(2).Paragraph (a)(3)(i) allows the RA toremove a waterbody, or a portion of awaterbody, from the list if a finding canbe made that bull trout spawning andrearing is not an existing use at aspecified location. Paragraph (a)(3)(ii)allows the RA to modify upwards thetemperature criterion of paragraph (a)(1)if a finding can be made that bull troutwould be fully supported at the highertemperature at a specific waterbody orportion thereof. EPA wishes to

emphasize that these findings must bebased on an adequate factual record.Since these determinations essentiallymodify a site-specific criterion, therecord must be complete andcompelling enough to support a site-specific criterion in the first instance,and must also effectively rebut whateverinformation was used to support today’spromulgation for the specificwaterbody. It is also important to notethat EPA expects any requests for amodification under section (a)(3) to beaccompanied by a complete andadequate supporting record that isconsistent with EPA’s existing policiesand procedures for developing site-specific criteria. This burden for acomplete and adequate supportingrecord falls upon the person requestingthe modification. EPA does not intendto supply information lacking from arequest, and will not act on any requestthat is missing critical information orotherwise deemed incomplete.

EPA expects that support for theremoval of a waterbody pursuant toparagraph (a)(3)(i) will normally consistof documentation that bull trout are notcurrently present. While bull trout mayconstitute an ‘‘existing use’’ if it hasbeen present since 1975, a requestorunder paragraph (a)(3)(i) will notnormally carry the burden ofdemonstrating that this is not the case.Unless there is information to thecontrary, EPA will assume that thecurrent absence of bull trout alsoindicates a historical absence. However,where there is information of ahistorical presence that qualifies as an‘‘existing use,’’ that information wouldhave to be rebutted.

The procedures of paragraph (a)(3) aredesigned to ensure that the public willhave adequate input on anydetermination. Paragraph (a)(3)(iii)provides that the public will have noticeof and an opportunity to comment onany proposed determination. If thisnotice can be combined with anotherconcurrent and related process, such asaction on an NPDES permit, EPA willendeavor to do so. Paragraph (a)(3)(iv)requires the RA to make publiclyavailable any proposed determinationand the factual record supporting it, andto make publicly available the record ofpast decisions.

EPA plans to develop a mailing list tofacilitate public awareness of finaldeterminations to modify stream listingor temperature criteria under theseprocedures. Persons wishing to benotified of such determinations shouldsend their names and addresses to LisaMacchio at U.S.EPA Region 10, Office ofWater, 1200 Sixth Avenue, Seattle,


Washington, 98101 (telephone: 206–553–1834).

The procedures in paragraph (a)(3)provide a mechanism for removing awaterbody from the list, or formodifying the temperature criterionupwards. That is, paragraph (a)(3) canonly be used to modify today’srulemaking in a less stringent direction.EPA recognizes that new informationmight also support, for instance, theaddition of a waterbody to the list.While it would have been desirable toprovide a similar streamlinedmechanism for modifying the list in amore stringent direction, EPA wasconcerned that a procedure that couldincrease the scope of today’spromulgation through a process lessrigorous than formal notice andcomment rulemaking might not beconsistent with the AdministrativeProcedures Act. However, paragraph(a)(3)(v) makes clear that EPA canpromulgate additional site-specificcriteria for bull trout throughrulemaking.

2. Sturgeon

i. Proposal

EPA proposed temperature criteria forthe Kootenai River from Bonners Ferryto Shorty’s Island to protect for criticalspawning and egg incubation life stagesfor white sturgeon. EPA proposed aminimum weekly average of 8 °Cfollowed by an 8-week time period(which was to begin no later than May21) where the maximum weekly averagedoes not exceed the upper spawningtemperature limit of 14 °C. Due to thelimited time available prior to theproposal, EPA was able to look at onlya small subset of the temperature datafor the Kootenai River. Based on thislimited analysis, as well as preliminarydiscussions with FWS and Army Corpsof Engineers (COE), EPA had concludedthat the 8 °C minimum could beattained by May 21 and that a 14 °Cmaximum temperature was reasonable.See 62 FR 23010 for a more detaileddiscussion of EPA’s proposal.


Idaho adopted revised water qualitystandards which were issued as atemporary rule by the Board of Healthand Welfare and became effective onJune 20, 1997. This revised ruleestablishes a 14•C maximum seven daymoving average water temperature(based on daily average temperatures)within the Kootenai River from BonnersFerry to Shorty’s Island from May 1through July 1.

EPA reviewed the state’s revisedcriteria, the scientific literature, and

additional temperature data for theKootenai River provided during thecomment period. EPA again conferredwith FWS in evaluating temperaturecriteria which would provide adequateprotection of sturgeon spawning.

EPA received comments from COEwhich indicated water temperature atBonners Ferry is controlled by severalfactors other than outflows at LibbyDam. These factors include tributaryinflow volume and temperature, waterdepth and local hydrometerologicalconditions. Consequently, these factorsand inputs may have a greater role incontrolling the onset of the timing ofsturgeon spawning than EPA originallybelieved. These factors along with themulti-agency efforts for the recovery ofKootenai River white sturgeon, whichincludes experimentation of flowreleases at Libby Dam by the COE, maydefine more precisely the optimalconditions needed for sturgeonspawning and egg incubation. Althoughavailable information suggests that 14°Cis a reasonable upper temperature limit,the current optimal conditions forKootenai River white sturgeon spawningand egg incubation, as well as thetemperature ranges and flow regimeswhich would provide for theseconditions, are not entirely certain.

The State’s 1997 standard establishesa 14°C maximum temperature criteriafor the two month spawning period.This time period and upper temperaturelimit is consistent with the literatureEPA has reviewed. Partly because of theuncertainty in defining optimalspawning conditions for Kootenai Riverwhite sturgeon, along with (1)influences other than flow releases atLibby Dam and (2) COE and FWS effortsin experimentation with operationalguidelines at Libby Dam, EPAdetermined that establishing a 14°Cmaximum criteria from May 1 throughJuly 1 without establishing a minimumtemperature criteria, would provide forthe necessary temperature (thermal)protection for spawning and eggincubation as well as temporalflexibility as over times when such lifestages can occur. EPA will continue totrack this issue as more informationbecomes available.

Therefore, by letter dated July 15,1997, EPA conditionally approved theState’s temporary temperature criteria asbeing in accordance with the CWA andEPA’s implementing regulations at 40CFR 131.11. EPA’s approval eliminatesthe need for federal criteria to protectsturgeon. Because EPA’s approval is notyet unconditional, the Agency is notwithdrawing the proposal for thesecriteria at this time.

3. Snails

i. ProposalEPA proposed a maximum daily

average temperature of 18°C in theMiddle Snake River from river mile 518to river mile 709. Given the limited timeEPA had to develop the proposed ruleand the limited data available at thetime, EPA’s proposed temperaturecriteria appeared to be reasonable. See62 FR 23011 for a more detaileddiscussion of EPA’s proposal.

ii. CommentsAlthough no additional data on the

temperature requirements for thesesnails was obtained during the commentperiod, EPA did receive severalcomments with regard to the proposedtemperature criteria for snails.

One commenter noted that the FWSrecovery plan recommends an annualaverage temperature of 18°C, and thatEPA was proposing a daily average. Thiscommenter questioned how EPAconverted a suggested 18°C annualaverage temperature to a maximumdaily average. EPA proposed thisbecause it had determined that anannual average temperature did notmake sense for the protection of thespecies since it would allow the lowwinter time temperatures to offset thehigh summer temperatures. Withoutfurther information at the time ofproposal, EPA’s sense of FWS’srecommendation for temperaturecriteria in the recovery plan, was theywere targeting a temperature lower thanthe current Idaho temperature criteriaapplicable to cold water biota. Thereforea daily average of 18°C was proposed.As discussed below, EPA has sinceconcluded that it could not beconfirmed that Idaho’s existingtemperature criteria are inadequate toprovide the temperature protectionrecommended in the recovery plan.

Another commenter questionedwhether it was reasonable andappropriate to establish an 18°Ctemperature criteria throughout asignificant portion of the river (rivermile518 to 709) because snails are isolatedin specific habitats within the river.Therefore the criteria should only applyto those specific portions where snailsare known to exist, not all segments asEPA proposed. Based on theinformation available, EPA is unable todetermine the precise locations of allsnail habitat. In addition, EPA hasdetermined that available data do notconfirm that Idaho’s existingtemperature criteria are inadequate toprotect snails.

Another commenter stated snailpopulations are more abundant than


first assumed in 1992 and goodpopulations of certain listed snails werefound in river and reservoir habitatswhere the proposed standard isexceeded during the summer. However,data was not provided to show thecorrelation between presence, health ofspecies and temperature requirements.Presence of snails does not necessarilyindicate temperature threshold foroptimal conditions of the species. Uponthe availability of relevant informationon snail requirements, EPA will furtherevaluate appropriate numeric criteria.

Several commenters stated that theybelieved the proposed 18°C standard isessential to the survival of the SnakeRiver mollusks but provided noadditional data to justify this. EPA doesnot have the information to determinewhether or not this may be true.

One commenter believed that untilfurther data are available, the standardfor the snails should be lowered to 14°Cto accommodate the Banbury Springslanx. EPA lacks the appropriate data tosupport lowering the temperaturecriteria to 14°C.

iii. Final Rule

After a more thorough evaluation ofavailable data and information on thetemperature requirements of thesesnails, EPA has been unable to confirmthat Idaho’s existing temperature criteriaare inadequate to protect the snails.Therefore EPA is withdrawing itsdisapproval of Idaho’s criteria and is notpromulgating final temperature criteriafor aquatic snails in the Middle SnakeRiver. EPA will continue to work withFWS on this issue as more informationbecomes available and will revisit thisissue in future triennial reviews.

F. Antidegradation Policy

EPA’s June 25, 1996 letterdisapproved part of Idaho’santidegradation policy because it didnot protect Tier III waters (OutstandingResource Waters) from point sources.The State revised its antidegradationpolicy to refer to point sources as wellas nonpoint sources, and submitted thisrevision to EPA. The commentersgenerally expressed the view that underthe circumstances a federalpromulgation was unnecessary. EPAapproved this revision on May 27, 1997as satisfying our objection and meetingthe requirements of the Clean WaterAct. Because section 303(c)(4) of theCWA does not require EPA topromulgate a standard in thesecircumstances, today’s final rule doesnot include an antidegradation policy.

G. Mixing Zone Policy

1. ProposalOn April 28, 1997, EPA proposed to

amend Idaho’s mixing zone policy forpoint source discharges. EPA haddetermined that Idaho’s exemption ofcertain narrative criteria from applyingto water quality within a mixing zonewas inconsistent with the CWA andEPA’s implementing regulations at 40CFR part 131 (see 62 FR 23014). EPA’sproposed amendment to Idaho’s mixingzone policy would apply Idaho’sexisting narrative surface water qualitycriteria at 16.01.02.200. to water qualitywithin a mixing zone.

2. Recent Idaho ActionsOn June 19, 1997, Idaho revised its

mixing zone policy to delete theexemption from narrative surface watercriteria at 16.01.02.200. EPA approvedIdaho’s revised mixing zone policy onJuly 15, 1997, because it addressedEPA’s objection and meets therequirements of the CWA and EPA’simplementing regulations at 40 CFR Part131. Therefore, a federal promulgationfor water quality within a mixing zoneis no longer necessary.

H. Excluded Waters Provision

1. ProposalIDAPA 16.01.02.101.03. of Idaho’s

standards excludes from water qualitystandards those unclassified waterswhich are ‘‘outside public lands butlocated wholly and entirely upon aperson’s land.’’ EPA disapproved thissection and proposed a modification toensure that any waters of the UnitedStates which fell within this exclusionwould be covered by the standardsapplicable to unclassified waters. EPAexplained that this modification wasnecessary because all waters of theUnited States must be protected bywater quality standards. It is possiblethat some waters ‘‘located wholly andentirely upon a person’s land’’ could bewaters of the United States. In suchinstances, those waters would beprotected by the CWA.

2. CommentsComment: A number of commenters

objected to the scope of EPA’s definitionof waters of the United States or askedfor clarification of the definition. Somesuggested that the statutory phrase‘‘navigable waters’’ be used instead.

Response: The CWA uses the term‘‘navigable waters’’ but defines that termin section 502 to mean ‘‘the waters ofthe United States, including theterritorial seas.’’ Because the phrase‘‘navigable waters,’’ taken out ofcontext, can be confusing and

erroneously imply that navigability isthe key to CWA jurisdiction, EPA choseto use the term ‘‘waters of the UnitedStates’’ for this rulemaking.

EPA’s regulations define waters of theUnited States to include isolated waters:

The use, degradation or destructive ofcould affect interstate or foreigncommerce including any such waters:

(i) Which are or could be used by interstateor foreign travelers for recreational or otherpurposes: or

(ii) From which fish or shellfish are orcould be taken and sold in interstate orforeign commerce; or

(iii) Which are used or could be used forindustrial purpose by industries in interstatecommerce * * *

The definition also provides thatwaste treatment systems are generallynot waters of the United States.

Because of questions about isolatedwaters, EPA published in the preambleto its section 404 state programregulations a fuller explanation of thispart of the definition {53 FR 20765 (June6, 1988)}. The discussion provides someadditional examples of the ways inwhich the interstate commercerequirement could be satisfied, i.e., ifwaters are or would be used as habitatby certain migratory birds, are or wouldbe used as habitat by endangeredspecies, or are used to irrigate crops soldin interstate commerce. (With respect tothe latter, as explained below, if suchirrigation waters are man-madewaterways, they are outside the scope oftoday’s rulemaking, even if waters of theUnited States, because they are notaddressed by the state’s excluded watersprovision but rather protected under adifferent state provision.)

EPA’s definition of waters of theUnited States has been in place insubstantially its current form forapproximately 20 years, and has beenupheld and applied by numerouscourts. Accordingly, EPA does notunderstand the commenters to be askingEPA to revise that definition but ratherto be seeking a better understanding ofthe overlap between waters of theUnited States and the waters which areexcluded under Idaho’s provision, thatis, a better understanding of the watersactually affected by EPA’s proposedrule.

An important starting place is thescope of the state’s ‘‘private waters’’exclusion. First, that section does notapply to man-made waterways, whichare instead addressed by Idaho16.01.02.101.02, which protects man-made waterways for the uses for whichthey are developed unless specificallydesignated in Idaho Sections 110.through 160. for other or additionaluses. Hence, man-made waterways are


not affected by EPA’s proposal, whetheror not they are waters of United States,because they were not part of the privatewaters exclusion from standards.Second, the Idaho exclusion onlyapplies to waters ‘‘located wholly andentirely upon a person’s land.’’ In otherwords, ponds which extend acrossproperty lines, or streams which flowacross property lines were neverexcluded from standards under the stateprovision, and thus are not affected byEPA’s proposal.

In short, the waters which might beaffected by EPA’s proposal are the verylimited subset of waters in Idaho which(1) are not man-made waterways, (2) areconfined entirely to a particularperson’s land and (3) satisfy thecommerce test for isolated waters underthe definition of waters of the UnitedStates.

Comment: The federal governmenthas no right, or need, to regulate thequality of waters on private land.Regulating downstream waters issufficient.

Response: Under the commerce clauseof the United States Constitution,Congress may regulate activities onprivate property in order to protectinterstate and foreign commerce. TheClean Water Act represents an exerciseof that authority.

One of the fundamental principles ofthe CWA is that water moves inhydrological cycles and that it isnecessary to control pollution at thesource to fully protect the nation’swaters. To exclude all waters on privateproperty from protection and instead toattempt to deal with polluted water afterit crosses the property line to publicland would be ineffective and contraryto the CWA’s principles.

On the other hand, where a waterbodyon private land is isolated and has noeffect on other waterbodies and does notitself have an interstate commercenexus, we agree that there is no need toregulate it, and indeed such waters arenot encompassed by the definition ofwaters of the United States norregulated under today’s rule.

Comment: The cold water biota usewhich EPA proposed for unclassifiedwaters is an inappropriate use for mostprivate waters.

Response: Idaho has since revised its‘‘unclassified waters’’ provision (nowdenominated ‘‘undesignated waters’’)and the revision has been approved byEPA. Therefore, today’s final rule doesnot contain a federal unclassified watersprovision. The revised Idaho provisionpresumes that most waters in the statesupport cold water biota and primaryand secondary recreation beneficialuses. However, the revised provision

also provides that during the review ofany new or existing activity on anundesignated water, the departmentmay examine all relevant data onbeneficial uses and, where thedepartment determines after publicnotice that uses other than cold waterbiota and primary or secondaryrecreation are appropriate, may use thenew information in making compliancedeterminations. Thus, to the extent thatany ‘‘private’’ waters are waters of theUnited States, and a regulated personhas information indicating that coldwater biota is not an appropriate use, hemay present information to the state andask for a determination that another useis more appropriate.

3. Final Rule

The state did not revise this provisionto address EPA’s concerns and, asdiscussed above, none of the commentsprovided a basis for withdrawing EPA’sobjection or modifying the proposal.Accordingly, EPA is promulgating thisprovision as proposed to ensure that allwaters of the United States are protectedby water quality standards.

I. Federal Variances

1. Proposal

The proposed rule authorized theRegional Administrator to grant federalWQS variances when subsequent datashowed that the uses that had beenpromulgated by EPA were unattainablein the near term for a particularpollutant. The proposal explained thatEPA has approved states’ grantingvariances from state water qualitystandards in such circumstances (i.e.,where removing a designated useentirely could have alternatively beenallowed). EPA expressed the view thatit was appropriate to provide acomparable federal process becauseEPA’s use designations relied (at least inpart) on a rebuttable presumption thatfishable/swimmable uses wereattainable. The proposed procedureslinked the variance application processto the NPDES permit process forefficiency, and set out the criteria forgranting or denying federal variances.See 62 FR 23015 for a more detaileddiscussion of EPA’s proposed varianceprocedure.

2. Comments

Comment: Variances should be usedinfrequently and cautiously to avoidundercutting water quality standards.

Response: EPA agrees. Under theproposed and final language, variancesmay be granted only when there is datademonstrating to the RegionalAdministrator’s satisfaction that the

requirements of 40 CFR 131.10(g) aremet and that granting the variance willnot jeopardize the continued existenceof listed species or destroy or adverselymodify their critical habitat, inaccordance with the EndangeredSpecies Act. In addition, any proposeddecision to issue a variance will besubject to public notice and comment.Moreover, the final rule includes usedesignations for only five segments, andthe variance provision only applies tothose use designations. Theserequirements and circumstances shouldlimit the use of variances to appropriatesituations.

Comment: To avoid adverse effects onlisted species, variances shouldconsider the needs of listed species andshould include mitigation plans.

Response: Because the granting of avariance under the procedure inquestion is a federal action, EPA willconsult with the FWS and/or NMFSpursuant to section 7 of the ESA wherea proposed variance may affect a listedspecies. Mitigation measures developedas part of such consultation may beincluded in the final variances asneeded.

Comment: The proposal is too narrowbecause it makes variances availableonly to NPDES applicants. Nonpointsources may also need variances;variances may be needed in the TMDLprocess.

Response: When first approved of byEPA, variances were conceived of as amechanism which allowed CWApermits to be written to assurecompliance with water qualitystandards, as required by section301(b)(1)(C), while providing temporaryrelief when the uses under the existingstandards were not presently attainable.EPA tied the proposal to the NPDESpermit process, because that is the onlyEPA regulatory program which requirescompliance with the applicable waterquality standards, and therefore themain context in which the need for asuch a variance would arise.

The comments concerned with theapplication of variances to non-pointsources seem to be based on anassumption that, without a variance,nonpoint sources unable to meet afederal standard (or TMDL) would bevulnerable to suit or similarenforcement action. However, the CWAdoes not make water quality standards(or TMDLs) directly enforceable; that is,EPA’s enforcement authority undersection 309 of the Act and citizen suitsunder section 505 cannot be used toenjoin or seek penalties from someonesimply because they are violating awater quality standard. Rather,enforcement actions are directed against


persons discharging without a permit orfailing to comply with a permit or anadministrative order.

As mentioned above, the final ruleestablishes use designations for onlyfive water body segments. None of thecomments singled out these segments asones where a variance would likely beneeded for non-NPDES activities.Persons who nonetheless see the needfor a variance in non-NPDES contexts,for example, an applicant for a CWAsection 404 permit to discharge dredgedand fill material who has data indicatingthat a designated use is unattainable,may of course petition EPA to revise awater quality standard, either byremoving a use entirely or by grantinga variance.

Comment: Under the proposal,variances may be granted only forstandards in paragraphs (a) and (b), thatis, beneficial uses for unclassifiedwaters and 53 specific water bodies.Variances should also be available forstreams subject to the bull trouttemperature criteria.

Response: The bull trout criteria onlyapply to streams where the bestavailable information shows that bulltrout actually spawn, incubate, or rear,in other words, streams where bull troutare an existing use. Variances may notbe used to modify such existing uses.However, as discussed in section E. ofthis preamble, if EPA determines thatbull trout are in fact not present in asegment of a listed bull trout stream, thebull trout criteria will not be applied tothat segment. In addition, if bull troutare present in a given location, but thedata indicates that less stringenttemperature criteria would fully protectthe bull trout there, paragraph (a)(3) ofthe final rule provides procedures for asite-specific temperature modification.These procedures are a moreappropriate means to provide the reliefsought by the commenters.

Comment: A discharger should beallowed to apply for a variance at anytime, not just when submitting anNPDES application. The circumstancesjustifying the variance may not arise, orbe apparent, until after the initialNPDES application.

Response: EPA agrees that greaterflexibility is appropriate, and is addinglanguage to the rule to allow laterapplications for variances if the need orfactual basis for the variance was notavailable when the NPDES applicationwas filed. This exception should beused only when necessary. EPA will bein the best position to process thevariance and NPDES permitapplications expeditiously if they arefiled concurrently.

One of the commenter’s examplesinvolved the situation where EPAreopens a permit to change permitconditions. This is unlikely to create theneed for a variance. Under 40 CFR122.62, a permit may be reopened toreflect new or revised water qualitystandards only at the permittee’srequest, unless there is a specificreopener clause in the permit providingotherwise.

Comment: One commenter asked thatthe expiration date of a variance be ableto extend past the 5 years in theproposal when the permit reflecting itremains in effect.

Response: It is not necessary to extendthe term of the variance itself in thesecircumstances. NPDES permits areissued for terms not to exceed 5 years.However, under the AdministrativeProcedures Act and 40 CFR 122.7,where a permittee files a timelyapplication for permit renewal, and EPAdoes not complete its decision by theexpiration of the original permit, theoriginal permit continues in effect untila decision is reached. Unless theoriginal permit had contained aschedule of compliance requiringcompliance with the underlyingstandard at some specified time, theoriginal permit would continue toreflect the variance until superseded bythe new permit. Whether the newpermit would reflect the variance woulddepend on whether a request for avariance renewal had been granted.

3. Final RuleFor the reasons above, the final

variance procedure is essentially thesame as the proposal, but modified toallow applications for variances to befiled after NPDES permit applicationsare filed in certain circumstances. EPAis making this procedural modificationbecause there are circumstances wherethe need or the factual basis for avariance may not be apparent at thetime the NPDES permit application isfiled. For example, the final permit maybe sufficiently more stringent than thedraft permit that the applicant candemonstrate that complying with thefinal limit would cause substantial andwidespread social and economicimpact. In addition, a discharger to astream affected by today’s promulgationmay have already filed an NPDESrenewal application. A discharger withan existing permit will not be subject topermit conditions reflecting today’sstandards until its permit is renewed(unless the discharger requests that itsexisting permit be reopened for thispurpose); such a discharger will be ableto submit any variance request with itsapplication for permit renewal.

J. Executive Order 12866

Under Executive Order 12866 (58 FR51735, October 4, 1993), EPA mustdetermine whether the regulatory actionis ‘‘significant’’ and therefore subject toOffice of Management and Budget(OMB) review and the requirements ofthe Executive 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 theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or Tribal governments orcommunities;

(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 the Executive Order.

It has been determined that this is nota ‘‘significant regulatory action’’ underthe terms of Executive Order (E.O.)12866, and is therefore not subject toOMB review. As explained more fullybelow in section L (RegulatoryFlexibility Act), EPA’s final rule doesnot itself establish any requirementsdirectly applicable to regulated entities.In addition, there is significantflexibility and discretion in how thefinal rule will be implemented withinthe National Pollutant DischargeElimination System (NPDES) permitprogram. While implementation oftoday’s rule may ultimately result insome new or revised permit conditionsfor some dischargers, EPA’s action todaydoes not impose any of these as yetunknown requirements on dischargers.Nonetheless, consistent with the intentof E.O. 12866, EPA has estimated(within the limits of these uncertainties)the possible indirect costs which mightultimately result from this rulemaking.The following is a summary of theregulatory impact analysis (RIA)prepared for this final rule. Furtherdiscussion is included in the full RIA,which is included in the docket for thisrulemaking.

Under the CWA, costs cannot be abasis for adopting water quality criteriathat will not be protective of designateduses. If a range of scientificallydefensible criteria that are protectivecan be identified, however, costs may beconsidered in selecting a particularcriterion within that range. As long as


existing uses are protected, costs may beconsidered in designating beneficialuses if the incremental controls wouldcause substantial and widespread socialand economic impact on the communitysuch that the uses are not attainable.EPA’s regulations also include otherfactors that may be considered indesignating uses (see 40 CFR 131.10(g)).

The designated uses and water qualitycriteria of today’s final rule are notenforceable requirements until separatesteps are taken to implement them.Therefore, this final rule does not havean immediate effect on dischargers orthe community. Until actions are takento implement these designated uses andcriteria, there will be no economic effecton any dischargers or the community.

In the short time prior to proposalEPA attempted to assess, to the best ofits ability, compliance costs for facilitiesthat could eventually be indirectlyaffected by the designated uses andwater quality criteria in the proposedrule. However, EPA was unable to findall of the information necessary toaccurately estimate these potentialcosts. Although the costs were notexpected to be significant, EPAdeveloped a methodology to estimatethe potential indirect cost impacts onfacilities discharging pollutants towaters subject to the numeric waterquality criteria and uses established bythe proposal.

Following proposal, EPA continued togather additional data and informationon the facilities and waters needed toevaluate use attainability and the costsattributable to the rule. In addition, asdiscussed in sections C, D, and E, theState of Idaho undertook several actionsthat significantly reduced the number ofwaters covered by this rulemaking and,subsequently, the scope of the RIA fortoday’s final rule. EPA also solicitedpublic comment and supporting data onthe facilities and waters it intended toevaluate as part of the RIA, and on themethodology it planned to use toestimate costs associated withimplementation of the rule. EPA hasreviewed the State actions and thecomments and data provided by thepublic as well as the information anddata it gathered during the publiccomment period, and has estimated thepotential costs to facilities as an indirectresult of attaining numeric water qualitycriteria and uses in the final rule. EPAhas included this information in therecord for today’s final rulemaking.

1. Use AttainabilityAs described for the proposal, in

order to properly assess the impact ofEPA’s new use designations in Idaho,EPA performed a preliminary evaluation

to determine if fishable/swimmable useswere attainable for all assessed waterbody stream segments affected by theproposal. For this analysis, EPAextracted chemical-specific data fromthe EPA Storage and Retrieval WaterQuality File (STORET) data base. If EPAfound that significant exceedances ofwater quality criteria (in terms ofrelative magnitude above the applicablecriteria, duration of exceedance abovethe criteria, and the number and typesof pollutants) has occurred, then anupgrade of designated uses may not beappropriate. Based on this preliminaryanalysis, EPA found periodicexceedances of water quality criteria forseveral water body stream segments forseveral specific parameters. However,due to the age of most of the data, andthe fact that data for all applicableparameters were not available, EPAcould not definitively conclude that adowngrade for any water body streamsegment affected by the proposed rulewas justified by stream condition.Therefore for purposes of estimating thecost of the proposed rule, EPAconservatively assumed that the newuse designation would apply to allaffected water bodies. This assumptionwas considered conservative because ifthe use of a particular water body couldnot be attained, then less stringentcriteria would apply to the water bodyand all discharges to the water body(and most likely lower potential costs).

For the proposal, EPA acknowledgedthat an appropriate evaluation of useattainability should consider physical,biological, and chemical indicators toproperly evaluate whether a use can beattained. EPA also requested data andinformation that would support useattainability analyses for the final rule.EPA received limited data as part of thepublic comments that could be used tosupport use attainability analyses for thefinal rule.

As described in section D, this finalrule designates cold water biotaprotection for five water body segments.Data and information was submitted aspart of the public comments for onlyone of the five water body segments(South Fork Coeur d’Alene). Inparticular, chemical-specificinformation was submitted for primarilymetal parameters. The informationshowed that exceedances of applicableEPA aquatic life water quality criteriaoccur for several metal parameters, andthat ambient metal levels in miningareas may be due in part to naturalmetal levels that occur in mineralizedareas (e.g., from natural seeps, etc.).However, EPA believes that elevatedlevels of metals may also be a result ofhistorical contamination from past

mining operations. Notwithstanding, asdiscussed in section D, theseexceedances alone, do not prevent thestream from supporting cold waterbiota. In addition, none of thecommenters specifically contended thata cold water biota use was unattainableon any of the five streams at issue onaccount of compliance costs. To theextent that the commenters did raisecost concerns, as shown below, EPA’scost methodology indicates that thecosts (which are not direct costs in anyevent) would be significantly less thanpredicted by many of the commenters.

EPA has considered this data in itsevaluation of the potential impact ofthis rulemaking to dischargers. Asdescribed in section K.2 below, EPAestimated a range of costs to account forthe flexibility and discretion related toimplementing water quality standardswithin the NPDES permit program.Particularly under the low-end, EPAassumed that dischargers would takeadvantage of the alternative regulatoryapproaches available, as opposed toinstalling costly controls to meet permitlimits. It is under this low-end scenariothat EPA acknowledged that backgrounddata exceeded water quality criteria, andassumed that dischargers would onlyincur costs related to pursuing analternative regulatory approach (e.g.,site-specific criteria). However, if thesealternative regulatory approaches werenot pursued or were not successful (e.g.,data to produce site-specific criteria didnot result in less stringent criteria), EPAestimated the costs under a high-endscenario. As such, the high-end scenariois considered a worst-case scenariobecause all facilities with effluentquality expected to exceed their permitlimits would require installation andoperation of additional control measureswith no possible opportunity to reducecosts using alternative regulatoryapproaches allowed for under thenational water quality standards andNPDES permit programs.

2. Overview of Methodology to EstimatePotential Costs Related to New UseDesignations

In general, the approach to derivingcosts for the final rule is the same as theapproach described for the proposal.However, due to the reduced scope ofthe final rule, as compared to theproposal, all NPDES permitteddischargers to the five water bodysegments were evaluated for potentialcosts.

As described in the proposal, the newuse designations being proposed byEPA, by themselves, will have noimpact or effect. However, when thewater quality criteria to protect these


uses are applied to dischargers throughthe NPDES permit program, then costsmay be incurred by regulated entities(i.e., point source dischargers) but thesecosts can vary significantly because ofthe wide range of control strategiesavailable to dischargers. Since EPA, asthe NPDES permitting authority, alsohas significant flexibility and discretionin how it chooses to implement waterquality criteria, analysis of potentialcosts would be difficult to perform forall potentially affected entities,especially within the time-frame topromulgate this rule. As a result, EPAestimated the potential costs attributableto the final rule by developing a rangeof detailed cost estimates for all NPDESpermitted point source dischargers thatdischarge to the five water bodysegments.

The actual impact of the final rulewill depend upon how the NPDESpermit is developed and on whichcontrol strategy the discharger selects inorder to bring the facility intocompliance. In writing NPDES permitsEPA determines the need for waterquality-based effluent limits (WQBELs)and, if WQBELs are required, deriveWQBELs from applicable water qualitycriteria. The implementation proceduresused to derive WQBELs for this analysiswere based on the methodsrecommended in the EPA TechnicalSupport Document for Water Quality-based Toxics Control (or TSD) (EPA/505/2–90–001; March 1991).Specifically, a projected effluent quality(PEQ) was calculated. A PEQ isconsidered an effluent value statisticallyadjusted for uncertainty to estimate amaximum value that may occur. ThePEQ for each selected pollutant wascompared to the projected WQBEL. Ifthe PEQ exceeded the projectedWQBEL, a reasonable potential existedto exceed the WQBEL. Pollutants witha reasonable potential to exceed thenwere analyzed to determine potentialcosts to achieve the projected WQBEL.

Prior to estimating compliance costs,an engineering analysis of how eachsample facility could comply with theprojected WQBEL was performed. Thecosts were then estimated based on thedecisions and assumptions made in theanalysis. To ensure consistency andreasonableness in estimating the generaltypes of controls that would benecessary for a facility to comply withthe final rule (assuming thatimplementation of the rule resulted inmore stringent requirements), as well asto integrate into the cost analysis theother alternatives available to regulatedfacilities, a costing decision matrix,described in more detail in the proposedrule, was used for each sample facility.

Specific rules were established in thematrix to provide the reviewingengineers with guidance in consistentlyselecting control options.

Since dischargers can request avariety of regulatory alternativeapproaches available within thenational water quality standards andNPDES permit programs (e.g., site-specific criteria, variances, complianceschedules, etc.), EPA also developed alow-end cost estimate assuming thatthese regulatory alternatives would beused to reduce costs under certainconditions. In particular, when theestimated costs to comply withWQBELs, based on new usedesignations, exceeded a cost-effectiveness trigger, then it wasassumed that the discharger wouldpursue a regulatory alternative option.The triggering methodology used forthis analysis was modeled after otherregulatory impact analyses prepared byEPA for other water quality standardsrulemakings.

Finally, for the five stream segmentswith specific use designation, once acost range was established for thefacilities EPA conducted a preliminaryanalysis of whether or not these uses areattainable. To make this determinationEPA evaluated limited biological andchemical information on the five streamsegments, the magnitude of theimplementation costs on the individualfacilities and the economic strength ofthe facilities that may incur costs as aresult of today’s rule.

3. Results for Stream Segments WithSpecific Use Designation

EPA identified 12 facilities thatpossess NPDES permits to discharge tothe five water body segments affected bythe final rule. To estimate costs for eachfacility, EPA obtained data from NPDESpermit files (permit application, permit,fact sheet or statement of basis),downloaded effluent monitoring datafrom EPA’s Permit Compliance System(PCS), and extracted ambientbackground data from EPA’s STORETsystem.

For each facility, EPA performed anevaluation of reasonable potential toexceed water quality-based effluentlimits (WQBELs) based on applicablewater quality criteria to protect new usedesignations (i.e., cold water biotaprotection). EPA considered anypollutant for which water qualitycriteria existed and for which data wereavailable. EPA assumed that reasonablepotential existed if a permit limit for thepollutant of concern was included inthe existing permit for the samplefacility. In the absence of a permit limit,but where monitoring data were

available, EPA evaluated reasonablepotential based on the monitoring dataand the procedures contained in theTSD (EPA 505/2–90–001; March 1991).

To calculate WQBELs, EPA used theTSD procedures to derive maximumdaily and monthly average limits.Background concentrations were basedon the average of data contained inSTORET for upstream monitoringstations (including nearby tributaries);in the absence of background data, EPAassumed zero. Critical low flows werecalculated from data contained in theUnited States Geological Survey (USGS)Daily Flow file data base for nearby gagestations; the 1-day, 10-year low flow(1Q10) was used for acute aquatic lifeprotection and the 7-day, 10-year lowflow (7Q10) was used for chronicaquatic life protection. In the absence ofstream flow data, EPA conservativelyassumed zero low flow.

Once WQBELs were derived, EPAderived cost estimates that represent thecost to remove the incremental amountof pollutant(s) to levels needed tocomply with WQBELs (based on theexisting effluent limit or reportedeffluent quality in the absence of alimit). This assessment was based on anevaluation of the performance ofexisting treatment system units, as wellas consideration of other possiblecontrol options (e.g., wasteminimization, additional new treatmentunits).

Based on evaluation of the facilitiesthat may be impacted, EPA estimatesthat the total potential cost resultingfrom new designation for the five waterbody segments will range from $1.2million to $10.5 million. Under the low-end, the costs for individual facilitiesranged from $0 (i.e., no projectedimpact) to just over $640,000. Under thelow-end, 3 facilities were assumed topursue alternative regulatoryapproaches. Under the high-end, thecosts for individual facilities rangedfrom $0 (i.e., no projected impact) to$5,700,000. Under the high-end, nofacilities were assumed to pursuealternative regulatory approaches.

The total baseline pollutant load forthe 12 facilities is just over 71,000 toxicpound-equivalents per year (pollutanttoxic weights were derived using theEPA criterion for copper, 5.6micrograms per liter, as thestandardization factor). The pollutantload reduction under the low-endscenario is 21 percent or 14,800 toxicpound-equivalents per year. Cadmium,lead, and mercury account for 87percent of the total pollutant loadreduction under the low-end. Under thehigh-end scenario, the pollutant loadreduction is 98 percent or 70,200 toxic


pound-equivalents per year. Lead,mercury, and silver account for over 80percent of the total pollutant loadreduction under this scenario.

Under the low-end scenario, capitaland operation and maintenance (O&M)costs accounted for over 66 percent ofthe annual costs; costs for pursuingregulatory alternatives accounted forjust under 34 percent of the total annualcosts. Consistent with the intent of thehigh-end scenario, capital and O&Mcosts account for 100 percent of the totalannual costs. Under the low- and high-end scenarios, cadmium, lead, and zincaccounted for approximately 74 and 69percent of the total annual costs,respectively.

While EPA was only able to gatherlimited economic information on theaffected facilities in the time allowed bythe Court for this rulemaking, thisinformation and EPA’s regulatoryimpact analysis did not support afinding that the uses in today’s rule arenot attainable. EPA’s analysis indicatedthat under the high-end scenario onefacility could potentially incurrelatively higher costs when comparedto the other 11 facilities subject totoday’s rule. However, EPA could notconclude based on the information inthe record that those costs would resultin widespread social and economicimpact because the facility is anabandoned mining operation designatedas a Superfund site with ongoingremediation. Should such informationbecome available for any of thefacilities, the Agency could considerthis information under the varianceprovision in today’s rule.

4. Overview of Approach to EstimatePotential Costs Related to NewTemperature Criteria

EPA received many comments relatedto EPA’s proposed temperature criteriato protect certain threatened andendangered species (Kootenai Riverwhite sturgeon, freshwater aquaticsnails, and bull trout). As described insection E, as a result of these commentsand associated State actions, this finalrule includes new temperature criteriaonly for the protection of bull trout ina limited number of water bodysegments (see § 131.33(a) of the finalrule).

Although the number of water bodysegments that are affected by EPA’s newtemperature criteria in the final rule hasbeen reduced from the proposal, certainfacilities may still be impacted by thefinal rule. Therefore, EPA assessed thepotential costs to comply with the newtemperature criteria for bull trout.

EPA’s approach to estimate costsincluded three steps. First, ambient

temperature data was collected for eachwater body segment impacted by thenew temperature criteria and comparedto the criteria contained in § 131.33(a).Due to the fact that many of the waterbody segments are small tributaries inthe headwater areas of the water body,limited ambient data existed. In theabsence of ambient data for a particularwater body, then temperature data forother water bodies within thehydrologic basin were used as asurrogate.

For any water body that hadbackground ambient temperaturesbelow the new temperature criteria, EPAidentified NPDES permitted dischargerson those segments and evaluated thereasonable potential for the discharge tocause an exceedance in the downstreamtemperature. If a reasonable potential toexceed was determined, then costs wereestimated to install controls that wouldreduce discharge temperatures.

Although EPA is projecting thepotential costs to point sources, EPAalso received several comments relatedto the potential large economic impactthat could occur as a result of the newtemperature criteria, particularly for theagricultural and forestry segments of theIdaho economy. As described earlier,the scope of the new temperaturecriteria has resulted in a limited numberof water body segments for whichrevised temperature criteria arerequired. However, EPA has onlyestimated costs to point source facilitiesthat are subject to numeric WQBELsincluded in NPDES permits. The pointsources included in this study onlyinclude those that discharge to waterswithin the State designated forprotection of bull trout. Under the CWA,EPA has direct authority regardingpermits issued under the NPDES. EPAdid not calculate costs for any programfor which it does not have enforceableauthority, such as agricultural andforestry-related nonpoint sources.

Further, agricultural and forestry-related nonpoint source discharges aretechnically difficult to model andevaluate for costing purposes becausethey are intermittent, highly variable,and occur under different hydrologic orclimatic conditions than continuousdischarges from industrial andmunicipal facilities, which areevaluated under critical low flow ordrought conditions. Thus, theevaluation of agricultural and forestry-related nonpoint source discharges andtheir effects on the environment arehighly site-specific and data intensive.

EPA predicted how the finaltemperature criteria for bull troutprotection may be implemented by theState through numeric effluent limits for

NPDES facilities and attempted topredict the actions these facilities mayneed to take in order to comply witheffluent limits based on the new criteria.EPA envisions that some of these costsmay involve efforts to defer new effluentlimits until studies are undertaken toallocate temperature reductionsthroughout a watershed and, whereappropriate, EPA has included the costsof these studies in the analysis.Although EPA has focused oncalculating costs to individual NPDESpermitted facilities, EPA believes that acomprehensive watershed approach thataddresses all significant sources of hightemperature discharges will oftenpresent more cost-effective approaches.EPA and the State may ask or requirethese sources to implement bestmanagement practices or participate ina comprehensive watershedmanagement planning approach.

5. Results for Stream Segments WithNew Temperature Criteria

There are 1877 water body segmentsfor which EPA has established newtemperature criteria for the protection ofbull trout. Based on data contained inPCS, EPA estimates that there are 37NPDES permitted facilities located onthese 1877 water body segments. Of the37 NPDES dischargers, eight facilitiesare classified as a major discharger, and29 are classified as minor dischargers.The largest categories of dischargers thatmake up the 37 dischargers are minesites (15 total; 6 majors and 9 minors),municipal wastewater treatment plants(9 total; 1 major and 8 minors), and fishhatcheries (6 total; 1 major and 5minors).

Of the 37 NPDES facilities, threefacilities (1 major mine, 1 majormunicipal wastewater treatment plant,and 1 minor municipal wastewatertreatment plant) contained permit limitsfor temperature discharges. Evaluationof these three facilities was conductedusing water quality data from STORET,three USGS data sets not contained inSTORET, and PCS monitoring data. TheUSGS data sets included the NationalWater Quality Assessment (NAWQA),the National Water Quality Networks(NQN), and a specific data request madeto the Idaho USGS for continuouslymonitored temperature. TheHydrological Unit Code (HUC) for eachof the three sample facilities(determined from PCS) was used togather data from STORET and the USGSdata sets. Flow and temperature datawere not found for any monitoringstations in STORET for the three HUCs.The three USGS data sets contained nomonitoring stations in the HUC thatcorresponded to each of the facilities.


Because of the lack of ambienttemperature and flow data for streams,data for flow was complied using USGSgauging stations.

As discussed in proposal for this rule,an accurate evaluation of the need forand cost for temperature controlsrequires extensive data for both ambientconditions (air and water) and theeffluent discharge. Since the specificdata was not readily available for thefinal rule analysis for any of the samplefacilities, the following discussiondescribes the potential range of coststhat could result from implementationof the final temperature criteria forprotection of bull trout.

If it is assumed that each of 37facilities were to pursue alternativeregulatory approaches to comply withthe temperature criteria, the total annualcosts are estimated to be just over $1million. Alternative regulatory reliefwould be considered feasible for afacility should ambient receiving waterconditions indicate that criteria can notbe achieved (e.g., habitat unsuitable forbull trout, natural backgroundtemperatures higher than criteria, etc.).In fact, EPA evaluated the limitedbackground ambient temperature datathat were available and found that somewaters (based on limited, historicaldata) may naturally exceed thetemperature to protect bull trout. Underthese circumstances, a facility couldpursue alternatives such as thederivation of a site-specific criterion.The cost for a facility to pursueregulatory alternatives was based onthose used in the Regulatory ImpactAnalysis prepared for the final GreatLakes Water Quality Guidance.

Alternatively, if it is assumed thateach of the 37 facilities were toconservatively incur costs to install andoperate temperature control equipment,the total annual costs are estimated to bejust under $9 million per year. Thishigh-end cost estimate is based upon theinstallation and operation of coolingtowers at each facility. This assumptionis considered a worst-case scenario forseveral reasons. First, not all types offacilities produce wastewater withelevated temperatures that wouldrequire reduction (e.g., fish hatcheries,mining sites that do not include millingoperations that require cooling waters,and minor municipal dischargers).Second, since many of the facilities thatdischarge to bull trout protectionstreams are classified as minordischargers, they are not expected todischarge wastewater at a volume or ata temperature that would effect thereceiving water quality. Finally, theincremental decrease in temperatureswould be expected to relatively small

for most discharges, with the possibleexception of cooling water discharges.As such, the use of cooling towers forall discharges is unrealistic and mostlikely not cost efficient (i.e., there areother relatively simple and inexpensivepractices such as cooling ponds thatcould be used in place of cooling towersto adequately reduce temperatures).Therefore, EPA believes that the totalannual costs to comply with thetemperature criteria in today’s final rulewill be at the lower end of the costrange.

K. Regulatory Flexibility Act asAmended by the Small BusinessRegulatory Enforcement Fairness Act of1996

The Regulatory Flexibility Act (RFA)provides that, whenever an agencypublishes a rule under 5 U.S.C. 553,after being required to publish a generalnotice of proposed rulemaking, anagency must prepare a regulatoryflexibility analysis unless the head ofthe agency certifies that the rule will nothave a significant economic impact ona substantial number of small entities. 5U.S.C. 604 and 605. The Administratoris today certifying, pursuant to section605(b) of the RFA, that this final rulewill not have a significant impact on asubstantial number of small entities.Therefore, the Agency did not prepare aregulatory flexibility analysis.

Under the CWA water qualitystandards program, States must adoptwater quality standards for their watersthat must be submitted to EPA forapproval. If the Agency disapproves aState standard, EPA must promulgatestandards consistent with the statutoryrequirements. These State standards (orEPA-promulgated standards) areimplemented through the NPDESprogram that limits discharges tonavigable waters except in compliancewith an EPA permit or permit issuedunder an approved State program. TheCWA requires that all NPDES permitsmust include any limits on dischargesthat are necessary to meet State waterquality standards.

Thus under the CWA, EPA’spromulgation of water quality standardswhere State standards are inconsistentwith statutory requirements establishesstandards that are implemented throughthe NPDES permit process byauthorized States, or, in the absence ofan approved State NPDES program, byEPA. EPA implements the NPDESprogram in Idaho. EPA and authorizedStates have discretion in deciding howto meet the water quality standards andin developing discharge limits asneeded to meet the standards. WhileState or EPA implementation of

federally-promulgated water qualitystandards may result in new or reviseddischarge limits being placed on smallentities, the standards themselves donot apply to any discharger, includingsmall entities.

Today’s final rule imposes obligationson EPA but, as explained above, doesnot itself establish any requirementsthat are applicable to small entities. Asa result of this action, EPA will need toensure that permits issued in the Stateof Idaho include any limitations ondischarges necessary to comply with thestandards in the final rule. EPA and theState have a number of discretionarychoices associated with permit writingand total maximum daily load (TMDL)calculations and waste load allocations(WLAs) which can affect the burden feltby any small entity as a result of EPAaction to implement the final rule.While implementation of the final rulemay ultimately result in some new orrevised permit conditions for somedischargers, including small entities,EPA’s action today does not impose anyof these as yet unknown requirementson small entities.

The RFA requires analysis of theimpacts of a rule on the small entitiessubject to the rules’ requirements. SeeUnited States Distribution Companies v.FERC, 88 F.3d 1105, 1170 (D.C. Cir.1996). Today’s final rule establishes norequirements applicable to smallentities, and so is not susceptible toregulatory flexibility analysis asprescribed by the RFA. (‘‘[N]o analysisis necessary when an agency determinesthat the rule will not have a significanteconomic impact on a substantialnumber of small entities that are subjectto the requirements of the rule,’ ’’ UnitedDistribution at 1170, quoting Mid-ThawsElec. Co-op v. FERC, 773 F.2d 327, 342(D.C. Cir. 1985) (emphasis added byUnited Distribution court).) The Agencyis thus certifying that today’s final rulewill not have a significant economicimpact on a substantial number of smallentities, within the meaning of the RFA.

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


M. Unfunded Mandates Reform Act

Title II of the Unfunded MandatesReform 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 theaggregate, or to the private sector, of$100 million or more in 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 rulean explanation why that alternative wasnot 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 the 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.

As noted above, this final rule islimited to water quality standards for alimited number of waters within theState of Idaho. EPA believes that today’sfinal rule contains no regulatoryrequirements that might significantly oruniquely affect small governments. EPAalso believes that this final rule does notcontain a Federal mandate that mayresult in expenditures of $100 million ormore for State, local, and Tribalgovernments, in the aggregate, or theprivate sector in any one year. Thus,today’s final rule is not subject to therequirements of sections 202 and 205 ofthe UMRA.

N. Paperwork Reduction Act

Today’s rulemaking imposes no newor additional information collectionactivities subject to the PaperworkReduction Act (44 U.S.C. 3501 et seq.).Therefore, no Information Collectionrequest will be submitted to the Officeof Management and Budget for reviewin compliance with the PaperworkReduction Act.


Environmental protection, Indians—lands, Intergovernmental relations,Water pollution control, Water qualitystandards.

Dated: July 21, 1997.Carol M. Browner,Administrator.

For the reasons set forth in thepreamble, 40 CFR part 131 is amendedas follows:

PART 131—WATER QUALITYSTANDARDS


Authority: 33 U.S.C. 1251 et seq.

Subpart D—[Amended]

2. Section 131.33 is added to read asfollows:

§ 131.33 Idaho.

(a) Temperature criteria for bull trout.(1) Except for those streams or portionsof streams located in Indian country, oras may be modified by the RegionalAdministrator, EPA Region X, pursuantto paragraph (a)(3) of this section, atemperature criterion of 10 °C,expressed as an average of dailymaximum temperatures over a seven-day period, applies to the waterbodiesidentified in paragraph (a)(2) of thissection during the months of June, July,August and September.

(2) The following waters are protectedfor bull trout spawning and rearing:

(i) BOISE-MORE BASIN: Devils Creek,East Fork Sheep Creek, Sheep Creek.

(ii) BROWNLEE RESERVOIR BASIN:Crooked River, Indian Creek.

(iii) CLEARWATER BASIN: BigCanyon Creek, Cougar Creek, FeatherCreek, Laguna Creek, Lolo Creek,Orofino Creek, Talapus Creek, WestFork Potlatch River.

(iv) COEUR D’ALENE LAKE BASIN:Cougar Creek, Fernan Creek, Kid Creek,Mica Creek, South Fork Mica Creek,Squaw Creek, Turner Creek.

(v) HELLS CANYON BASIN: DryCreek, East Fork Sheep Creek, GettaCreek, Granite Creek, Kurry Creek, LittleGranite Creek, Sheep Creek.

(vi) LEMHI BASIN: Adams Creek,Alder Creek, Basin Creek, Bear ValleyCreek, Big Eightmile Creek, Big SpringsCreek, Big Timber Creek, Bray Creek,Bull Creek, Cabin Creek, Canyon Creek,Carol Creek, Chamberlain Creek, ClearCreek, Climb Creek, Cooper Creek, DairyCreek, Deer Creek, Deer Park Creek, EastFork Hayden Creek, Eighteenmile Creek,Falls Creek, Ferry Creek, Ford Creek,Geertson Creek, Grove Creek, HawleyCreek, Hayden Creek, Kadletz Creek,Kenney Creek, Kirtley Creek, LakeCreek, Lee Creek, Lemhi River (aboveBig Eightmile Creek), Little EightmileCreek, Little Mill Creek, Little TimberCreek, Middle Fork Little Timber Creek,Milk Creek, Mill Creek, Mogg Creek,North Fork Kirtley Creek, North ForkLittle Timber Creek, Paradise Creek,Patterson Creek, Payne Creek, PoisonCreek, Prospect Creek, Rocky Creek,Short Creek, Squaw Creek, SquirrelCreek, Tobias Creek, Trail Creek, WestFork Hayden Creek, Wright Creek.

(vii) LITTLE LOST BASIN: BadgerCreek, Barney Creek, Bear Canyon, BearCreek, Bell Mountain Creek, Big Creek,Bird Canyon, Black Creek, BuckCanyon, Bull Creek, Cedar Run Creek,Chicken Creek, Coal Creek, CorralCreek, Deep Creek, Dry Creek, Dry CreekCanal, Firbox Creek, Garfield Creek,Hawley Canyon, Hawley Creek, HorseCreek, Horse Lake Creek, Iron Creek,Jackson Creek, Little Lost River (aboveBadger Creek), Mahogany Creek, MainFork Sawmill Creek, Massacre Creek,Meadow Creek, Mill Creek, MoffettCreek, Moonshine Creek, Quigley Creek,Red Rock Creek, Sands Creek, SawmillCreek, Slide Creek, Smithie Fork, SquawCreek, Summerhouse Canyon, SummitCreek, Timber Creek, Warm Creek, WetCreek, Williams Creek.

(viii) LITTLE SALMON BASIN:Bascum Canyon, Boulder Creek, BrownCreek, Campbell Ditch, Castle Creek,Copper Creek, Granite Fork Lake ForkRapid River, Hard Creek, Hazard Creek,Lake Fork Rapid River, Little SalmonRiver (above Hazard Creek), ParadiseCreek, Pony Creek, Rapid River, SquirrelCreek, Trail Creek, West Fork RapidRiver.

(ix) LOCHSA BASIN: Apgar Creek,Badger Creek, Bald Mountain Creek,Beaver Creek, Big Flat Creek, Big StewCreek, Boulder Creek, Brushy Fork,Cabin Creek, Castle Creek, Chain Creek,Cliff Creek, Coolwater Creek,Cooperation Creek, Crab Creek, CrookedFork Lochsa River, Dan Creek, DeadmanCreek, Doe Creek, Dutch Creek, EagleCreek, East Fork Papoose Creek, EastFork Split Creek, East Fork SquawCreek, Eel Creek, Fern Creek, Fire Creek,Fish Creek, Fish Lake Creek, Fox Creek,Gass Creek, Gold Creek, Ham Creek,


Handy Creek, Hard Creek, HaskellCreek, Heather Creek, Hellgate Creek,Holly Creek, Hopeful Creek, HungeryCreek, Indian Grave Creek, Jay Creek,Kerr Creek, Kube Creek, Lochsa River,Lone Knob Creek, Lottie Creek,Macaroni Creek, Maud Creek, MiddleFork Clearwater River, No-see-umCreek, North Fork Spruce Creek, NorthFork Storm Creek, Nut Creek, OtterSlide Creek, Pack Creek, Papoose Creek,Parachute Creek, Pass Creek, PedroCreek, Pell Creek, Pete King Creek,Placer Creek, Polar Creek, PostofficeCreek, Queen Creek, Robin Creek, RockCreek, Rye Patch Creek, Sardine Creek,Shoot Creek, Shotgun Creek, SkookumCreek, Snowshoe Creek, South ForkSpruce Creek, South Fork Storm Creek,Split Creek, Sponge Creek, SpringCreek, Spruce Creek, Squaw Creek,Storm Creek, Tick Creek, Tomcat Creek,Tumble Creek, Twin Creek, Wag Creek,Walde Creek, Walton Creek, WarmSprings Creek, Weir Creek, WendoverCreek, West Fork Boulder Creek, WestFork Papoose Creek, West Fork SquawCreek, West Fork Wendover Creek,White Sands Creek, Willow Creek.

(x) LOWER CLARK FORK BASIN:Cascade Creek, East Fork, East ForkCreek, East Forkast Fork Creek, GoldCreek, Johnson Creek, Lightning Creek,Mosquito Creek, Porcupine Creek, RattleCreek, Spring Creek, Twin Creek,Wellington Creek.

(xi) LOWER KOOTENAI BASIN: BallCreek, Boundary Creek, Brush Creek,Cabin Creek, Caribou Creek, CascadeCreek, Cooks Creek, Cow Creek, CurleyCreek, Deep Creek, Grass Creek, JimCreek, Lime Creek, Long Canyon Creek,Mack Creek, Mission Creek, MyrtleCreek, Peak Creek, Snow Creek, TroutCreek.

(xii) LOWER MIDDLE FORKSALMON BASIN: Acorn Creek, AlpineCreek, Anvil Creek, Arrastra Creek, BarCreek, Beagle Creek, Beaver Creek,Belvidere Creek, Big Creek, BirdseyeCreek, Boulder Creek, Brush Creek,Buck Creek, Bull Creek, Cabin Creek,Camas Creek, Canyon Creek, CastleCreek, Clark Creek, Coin Creek, CornerCreek, Coxey Creek, Crooked Creek, DoeCreek, Duck Creek, East Fork HolyTerror Creek, Fawn Creek, Flume Creek,Fly Creek, Forge Creek, Furnace Creek,Garden Creek, Government Creek,Grouse Creek, Hammer Creek, HandCreek, Holy Terror Creek, J Fell Creek,Jacobs Ladder Creek, Lewis Creek,Liberty Creek, Lick Creek, Lime Creek,Little Jacket Creek, Little Marble Creek,Little White Goat Creek, Little WoodtickCreek, Logan Creek, Lookout Creek,Loon Creek, Martindale Creek, MeadowCreek, Middle Fork Smith Creek,Monumental Creek, Moore Creek,

Mulligan Creek, North Fork SmithCreek, Norton Creek, Placer Creek, PoleCreek, Rams Creek, Range Creek,Routson Creek, Rush Creek, SawlogCreek, Sheep Creek, Sheldon Creek,Shellrock Creek, Ship Island Creek,Shovel Creek, Silver Creek, SmithCreek, Snowslide Creek, Soldier Creek,South Fork Camas Creek, South ForkChamberlain Creek, South Fork HolyTerror Creek, South Fork Norton Creek,South Fork Rush Creek, South ForkSheep Creek, Spider Creek, SplettsCreek, Telephone Creek, Trail Creek,Two Point Creek, West Fork BeaverCreek, West Fork Camas Creek, WestFork Monumental Creek, West ForkRush Creek, White Goat Creek, WilsonCreek.

(xiii) LOWER NORTH FORKCLEARWATER BASIN: Adair Creek,Badger Creek, Bathtub Creek, BeaverCreek, Black Creek, Brush Creek, BuckCreek, Butte Creek, Canyon Creek,Caribou Creek, Crimper Creek, DipCreek, Dog Creek, Elmer Creek, FallsCreek, Fern Creek, Goat Creek, IsabellaCreek, John Creek, Jug Creek, JungleCreek, Lightning Creek, Little Lost LakeCreek, Little North Fork ClearwaterRiver, Lost Lake Creek, Lund Creek,Montana Creek, Mowitch Creek,Papoose Creek, Pitchfork Creek, RockyRun, Rutledge Creek, Spotted LouisCreek, Triple Creek, Twin Creek, WestFork Montana Creek, Willow Creek.

(xiv) LOWER SALMON BASIN: BearGulch, Berg Creek, East Fork John DayCreek, Elkhorn Creek, Fiddle Creek,French Creek, Hurley Creek, John DayCreek, Kelly Creek, Klip Creek, LakeCreek, Little Slate Creek, Little VanBuren Creek, No Business Creek, NorthCreek, North Fork Slate Creek, NorthFork White Bird Creek, Partridge Creek,Slate Creek, Slide Creek, South ForkJohn Day Creek, South Fork White BirdCreek, Warm Springs Creek.

(xv) LOWER SELWAY BASIN:Anderson Creek, Bailey Creek, BrownsSpring Creek, Buck Lake Creek, ButteCreek, Butter Creek, Cabin Creek, CedarCreek, Chain Creek, Chute Creek, DentCreek, Disgrace Creek, Double Creek,East Fork Meadow Creek, East ForkMoose Creek, Elbow Creek, FivemileCreek, Fourmile Creek, Gate Creek,Gedney Creek, Goddard Creek, HorseCreek, Indian Hill Creek, Little BoulderCreek, Little Schwar Creek, MattesonCreek, Meadow Creek, MonumentCreek, Moose Creek, Moss Creek,Newsome Creek, North Fork MooseCreek, Rhoda Creek, Saddle Creek,Schwar Creek, Shake Creek, SpookCreek, Spur Creek, Tamarack Creek,West Fork Anderson Creek, West ForkGedney Creek, West Moose Creek,Wounded Doe Creek.

(xvi) MIDDLE FORK CLEARWATERBASIN: Baldy Creek, Big Cedar Creek,Browns Spring Creek, Clear Creek,Middle Fork Clear Creek, Pine KnobCreek, South Fork Clear Creek.

(xvii) MIDDLE FORK PAYETTEBASIN: Bull Creek, Middle Fork PayetteRiver (above Fool Creek), Oxtail Creek,Silver Creek, Sixteen-to-one Creek.

(xviii) MIDDLE SALMON-CHAMBERLAIN BASIN: Arrow Creek,Bargamin Creek, Bat Creek, Bay Creek,Bear Creek, Bend Creek, Big ElkhornCreek, Big Harrington Creek, BigMallard Creek, Big Squaw Creek, BleakCreek, Bronco Creek, Broomtail Creek,Brown Creek, Cayuse Creek, CenterCreek, Chamberlain Creek, Cliff Creek,Colt Creek, Corn Creek, Crooked Creek,Deer Creek, Dennis Creek,Disappointment Creek, Dismal Creek,Dog Creek, East Fork Fall Creek, EastFork Horse Creek, East Fork NobleCreek, Fall Creek, Filly Creek, FishCreek, Flossie Creek, Game Creek, GapCreek, Ginger Creek, Green Creek,Grouse Creek, Guard Creek, HamiltonCreek, Horse Creek, Hot Springs Creek,Hotzel Creek, Hungry Creek, IodineCreek, Jack Creek, Jersey Creek, KitchenCreek, Lake Creek, Little Horse Creek,Little Lodgepole Creek, Little MallardCreek, Lodgepole Creek, MayflowerCreek, McCalla Creek, Meadow Creek,Moose Creek, Moose Jaw Creek, MuleCreek, Mustang Creek, No Name Creek,Owl Creek, Poet Creek, Pole Creek,Porcupine Creek, Prospector Creek, PupCreek, Queen Creek, Rainey Creek,Ranch Creek, Rattlesnake Creek, RedTop Creek, Reynolds Creek, Rim Creek,Ring Creek, Rock Creek, Root Creek,Runaway Creek, Sabe Creek, SaddleCreek, Salt Creek, Schissler Creek,Sheep Creek, Short Creek, Shovel Creek,Skull Creek, Slaughter Creek, SlideCreek, South Fork Cottonwood Creek,South Fork Chamberlain Creek, SouthFork Kitchen Creek, South Fork SalmonRiver, Spread Creek, Spring Creek,Starvation Creek, Steamboat Creek,Steep Creek, Stud Creek, Warren Creek,Webfoot Creek, West Fork ChamberlainCreek, West Fork Rattlesnake Creek,West Horse Creek, Whimstick Creek,Wind River, Woods Fork Horse Creek.

(xix) MIDDLE SALMON-PANTHERBASIN: Allen Creek, Arnett Creek,Beaver Creek, Big Deer Creek, BlackbirdCreek, Boulder Creek, Cabin Creek,Camp Creek, Carmen Creek, Clear Creek,Colson Creek, Copper Creek, CorralCreek, Cougar Creek, Cow Creek,Deadhorse Creek, Deep Creek, EastBoulder Creek, Elkhorn Creek, FawnCreek, Fourth Of July Creek, FreemanCreek, Homet Creek, Hughes Creek, HullCreek, Indian Creek, Iron Creek, JackassCreek, Jefferson Creek, Jesse Creek, Lake


Creek, Little Deep Creek, Little HatCreek, Little Sheep Creek, McConnCreek, McKim Creek, Mink Creek,Moccasin Creek, Moose Creek, MoyerCreek, Musgrove Creek, Napias Creek,North Fork Hughes Creek, North ForkIron Creek, North Fork Salmon River,North Fork Williams Creek, Opal Creek,Otter Creek, Owl Creek, Panther Creek,Park Creek, Phelan Creek, Pine Creek,Pony Creek, Porphyry Creek, PruvanCreek, Rabbit Creek, Rancherio Creek,Rapps Creek, Salt Creek, Salzer Creek,Saw Pit Creek, Sharkey Creek, SheepCreek, South Fork Cabin Creek, SouthFork Iron Creek, South Fork MoyerCreek, South Fork Phelan Creek, SouthFork Sheep Creek, South Fork WilliamsCreek, Spring Creek, Squaw Creek, TrailCreek, Twelvemile Creek, Twin Creek,Weasel Creek, West Fork BlackbirdCreek, West Fork Iron Creek, WilliamsCreek, Woodtick Creek.

(xx) MOYIE BASIN: Brass Creek,Bussard Creek, Copper Creek, DeerCreek, Faro Creek, Keno Creek, KreistCreek, Line Creek, McDougal Creek,Mill Creek, Moyie River (above SkinCreek), Placer Creek, Rutledge Creek,Skin Creek, Spruce Creek, West BranchDeer Creek.

(xxi) NORTH AND MIDDLE FORKBOISE BASIN: Abby Creek, ArrastraCreek, Bald Mountain Creek, BallentyneCreek, Banner Creek, Bayhouse Creek,Bear Creek, Bear River, Big Gulch, BigSilver Creek, Billy Creek, BlackwarriorCreek, Bow Creek, Browns Creek, BuckCreek, Cabin Creek, Cahhah Creek,Camp Gulch, China Fork, Coma Creek,Corbus Creek, Cow Creek, CrookedRiver, Cub Creek, Decker Creek, DutchCreek, Dutch Frank Creek, East ForkRoaring River, East Fork SwanholmCreek, East Fork Yuba River, FlintCreek, Flytrip Creek, Gotch Creek,Graham Creek, Granite Creek, GraysCreek, Greylock Creek, Grouse Creek,Hot Creek, Hungarian Creek, Joe DaleyCreek, Johnson Creek, Kid Creek, KingCreek, La Mayne Creek, Leggit Creek,Lightening Creek, Little Queens River,Little Silver Creek, Louise Creek, LynxCreek, Mattingly Creek, McKay Creek,McLeod Creek, McPhearson Creek,Middle Fork Boise River (above RoaringRiver), Middle Fork Corbus Creek,Middle Fork Roaring River, Mill Creek,Misfire Creek, Montezuma Creek, NorthFork Boise River (above Bear River),Phifer Creek, Pikes Fork, Quartz Gulch,Queens River, Rabbit Creek, RightCreek, Roaring River, Robin Creek, RockCreek, Rockey Creek, Sawmill Creek,Scenic Creek, Scotch Creek, Scott Creek,Shorip Creek, Smith Creek, Snow Creek,Snowslide Creek, South Fork CorbusCreek, South Fork Cub Creek, SpoutCreek, Steamboat Creek, Steel Creek,

Steppe Creek, Swanholm Creek, TimpaCreek, Trail Creek, Trapper Creek,Tripod Creek, West Fork Creek, WestWarrior Creek, Willow Creek, YubaRiver.

(xxii) NORTH FORK PAYETTEBASIN: Gold Fork River, North ForkGold Fork River, Pearsol Creek.

(xxiii) AHSIMEROI BASIN: BabyCreek, Bear Creek, Big Creek, Big Gulch,Burnt Creek, Christian Gulch, Dead CatCanyon, Ditch Creek, Donkey Creek,Doublespring Creek, Dry Canyon, DryGulch, East Fork Burnt Creek, East ForkMorgan Creek, East Fork PahsimeroiRiver, East Fork Patterson Creek,Elkhorn Creek, Falls Creek, GoldbergCreek, Hillside Creek, Inyo Creek, LongCreek, Mahogany Creek, Mill Creek,Morgan Creek, Morse Creek, MulkeyGulch, North Fork Big Creek, North ForkMorgan Creek, Pahsimeroi River (aboveBig Creek), Patterson Creek, Rock SpringCanyon, Short Creek, Snowslide Creek,South Fork Big Creek, Spring Gulch,Squaw Creek, Stinking Creek, TaterCreek, West Fork Burnt Creek, WestFork North Fork Big Creek.

(xxiv) PAYETTE BASIN: SquawCreek, Third Fork Squaw Creek.

(xxv) PEND OREILLE LAKE BASIN:Branch North Gold Creek, Cheer Creek,Chloride Gulch, Dry Gulch, DyreeCreek, Flume Creek, Gold Creek, GraniteCreek, Grouse Creek, Kick Bush Gulch,North Fork Grouse Creek, North GoldCreek, Plank Creek, Rapid LightningCreek, South Fork Grouse Creek, StrongCreek, Thor Creek, Trestle Creek, WestBranch Pack River, West Gold Creek,Wylie Creek, Zuni Creek.

(xxvi) PRIEST BASIN: AbandonCreek, Athol Creek, Bath Creek, BearCreek, Bench Creek, Blacktail Creek,Bog Creek, Boulder Creek, Bugle Creek,Canyon Creek, Caribou Creek, CedarCreek, Chicopee Creek, Deadman Creek,East Fork Trapper Creek, East River,Fedar Creek, Floss Creek, Gold Creek,Granite Creek, Horton Creek, HughesFork, Indian Creek, Jackson Creek, JostCreek, Kalispell Creek, Kent Creek,Keokee Creek, Lime Creek, Lion Creek,Lost Creek, Lucky Creek, Malcom Creek,Middle Fork East River, MuskegonCreek, North Fork Granite Creek, NorthFork Indian Creek, Packer Creek, RockCreek, Ruby Creek, South Fork GraniteCreek, South Fork Indian Creek, SouthFork Lion Creek, Squaw Creek, TangoCreek, Tarlac Creek, The Thorofare,Trapper Creek, Two Mouth Creek, UledaCreek, Priest R. (above Priest Lake), ZeroCreek.

(xxvii) SOUTH FORK BOISE BASIN:Badger Creek, Bear Creek, Bear Gulch,Big Smoky Creek, Big Water Gulch,Boardman Creek, Burnt Log Creek,Cayuse Creek, Corral Creek, Cow Creek,

Edna Creek, Elk Creek, Emma Creek,Feather River, Fern Gulch, Grape Creek,Gunsight Creek, Haypress Creek,Heather Creek, Helen Creek, JohnsonCreek, Lincoln Creek, Little CayuseCreek, Little Rattlesnake Creek, LittleSkeleton Creek, Little Smoky Creek,Loggy Creek, Mule Creek, North ForkRoss Fork, Pinto Creek, RattlesnakeCreek, Ross Fork, Russel Gulch, SaltCreek, Shake Creek, Skeleton Creek,Slater Creek, Smokey Dome Canyon,South Fork Ross Fork, Three ForksCreek, Tipton Creek, Vienna Creek,Weeks Gulch, West Fork Big SmokyCreek, West Fork Salt Creek, West ForkSkeleton Creek, Willow Creek.

(xxviii) SOUTH FORK CLEARWATERBASIN: American River, Baker Gulch,Baldy Creek, Bear Creek, Beaver Creek,Big Canyon Creek, Big Elk Creek, BlancoCreek, Boundary Creek, Box Sing Creek,Boyer Creek, Cartwright Creek, ColeCreek, Crooked River, Dawson Creek,Deer Creek, Ditch Creek, East ForkAmerican River, East Fork CrookedRiver, Elk Creek, Fivemile Creek, FlintCreek, Fourmile Creek, Fox Creek,French Gulch, Galena Creek, GospelCreek, Hagen Creek, Hays Creek, JohnsCreek, Jungle Creek, Kirks ForkAmerican River, Little Elk Creek, LittleMoose Creek, Little Siegel Creek, LoonCreek, Mackey Creek, Meadow Creek,Melton Creek, Middle Fork Red River,Mill Creek, Monroe Creek, MooresCreek, Moores Lake Creek, Moose ButteCreek, Morgan Creek, Mule Creek,Newsome Creek, Nuggett Creek,Otterson Creek, Pat Brennan Creek, PilotCreek, Quartz Creek, Queen Creek,Rabbit Creek, Rainbow Gulch, RedRiver, Relief Creek, Ryan Creek, SallyAnn Creek, Sawmill Creek, SchoonerCreek, Schwartz Creek, Sharmon Creek,Siegel Creek, Silver Creek, SixmileCreek, Sixtysix Creek, Snoose Creek,Sourdough Creek, South Fork Red River,Square Mountain Creek, Swale Creek,Swift Creek, Taylor Creek, TenmileCreek, Trail Creek, Trapper Creek, TroutCreek, Twentymile Creek, Twin LakesCreek, Umatilla Creek, West Fork BigElk Creek, West Fork Crooked River,West Fork Gospel Creek, West ForkNewsome Creek, West Fork Red River,West Fork Twentymile Creek, WhiskeyCreek, Whitaker Creek, Williams Creek.

(xxix) SOUTH FORK PAYETTEBASIN: Archie Creek, Ash Creek, BaronCreek, Basin Creek, Bear Creek, BeaverCreek, Big Spruce Creek, Bitter Creek,Blacks Creek, Blue Jay Creek, BurnCreek, Bush Creek, Camp Creek, CanyonCreek, Casner Creek, Cat Creek,Chapman Creek, Charters Creek, ClearCreek, Coski Creek, Cup Creek, DeadMan Creek, Deadwood River, DeerCreek, East Fork Deadwood Creek, East


Fork Warm Springs Creek, Eby Creek,Elkhorn Creek, Emma Creek, Fall Creek,Fence Creek, Fern Creek, FivemileCreek, Fox Creek, Garney Creek, GatesCreek, Goat Creek, Grandjem Creek,Grouse Creek, Habit Creek, HelendeCreek, Horse Creek, Huckleberry Creek,Jackson Creek, Kettle Creek, KirkhamCreek, Lake Creek, Lick Creek, LittleTenmile Creek, Logging Gulch, LongCreek, MacDonald Creek, MeadowCreek, Middle Fork Warm SpringsCreek, Miller Creek, Monument Creek,Moulding Creek, Ninemile Creek, NoMan Creek, No Name Creek, North ForkBaron Creek, North Fork Canyon Creek,North Fork Deer Creek, North ForkWhitehawk Creek, O’Keefe Creek,Packsaddle Creek, Park Creek, PassCreek, Pinchot Creek, Pine Creek,Pitchfork Creek, Pole Creek, RichardsCreek, Road Fork Rock Creek, RockCreek, Rough Creek, Scott Creek, SilverCreek, Sixmile Creek, Smith Creek,Smokey Creek, South Fork BeaverCreek, South Fork Canyon Creek, SouthFork Clear Creek, South Fork PayetteRiver (above Rock Creek), South ForkScott Creek, South Fork Warm SpringCreek, Spring Creek, Steep Creek,Stratton Creek, Topnotch Creek, TrailCreek, Wapiti Creek, Warm SpringCreek, Warm Springs Creek,Whangdoodle Creek, Whitehawk Creek,Wild Buck Creek, Wills Gulch, WilsonCreek, Wolf Creek.

(xxx) SOUTH FORK SALMONBASIN: Alez Creek, Back Creek, BearCreek, Bishop Creek, Blackmare Creek,Blue Lake Creek, Buck Creek, BuckhornBar Creek, Buckhorn Creek, BurgdorfCreek, Burntlog Creek, Cabin Creek, CalfCreek, Camp Creek, Cane Creek, CatonCreek, Cinnabar Creek, Cliff Creek, ClyCreek, Cougar Creek, Cow Creek, CoxCreek, Curtis Creek, Deep Creek, DollarCreek, Dutch Creek, East Fork SouthFork Salmon River, East Fork ZenaCreek, Elk Creek, Enos Creek, FallsCreek, Fernan Creek, Fiddle Creek,Fitsum Creek, Flat Creek, FourmileCreek, Goat Creek, Grimmet Creek,Grouse Creek, Halfway Creek, HansonCreek, Hays Creek, Holdover Creek,Hum Creek, Indian Creek, JeanetteCreek, Johnson Creek, Josephine Creek,Jungle Creek, Knee Creek, Krassel Creek,Lake Creek, Landmark Creek, LickCreek, Little Buckhorn Creek, LittleIndian Creek, Lodgepole Creek, LoonCreek, Maverick Creek, Meadow Creek,Middle Fork Elk Creek, Missouri Creek,Moose Creek, Mormon Creek, NastyCreek, Nethker Creek, Nick Creek, NoMans Creek, North Fork Bear Creek,North Fork Buckhorn Creek, North ForkCamp Creek, North Fork Dollar Creek,North Fork Fitsum Creek, North Fork

Lake Fork, North Fork Lick Creek, NorthFork Riordan Creek, North Fork Six-bitCreek, Oompaul Creek, Paradise Creek,Park Creek, Peanut Creek, Pepper Creek,Phoebe Creek, Piah Creek, Pid Creek,Pilot Creek, Pony Creek, PorcupineCreek, Porphyry Creek, Prince Creek,Profile Creek, Quartz Creek, ReevesCreek, Rice Creek, Riordan Creek,Roaring Creek, Ruby Creek, RusticanCreek, Ryan Creek, Salt Creek, SandCreek, Secesh River, Sheep Creek, SilverCreek, Sister Creek, Six-Bit Creek, SouthFork Bear Creek, South Fork BlackmareCreek, South Fork Buckhorn Creek,South Fork Cougar Creek, South ForkElk Creek, South Fork Fitsum Creek,South Fork Fourmile Creek, South ForkSalmon River, South Fork ThreemileCreek, Split Creek, Steep Creek, SugarCreek, Summit Creek, Tamarack Creek,Teepee Creek, Threemile Creek, TrailCreek, Trapper Creek, Trout Creek,Tsum Creek, Two-bit Creek, TyndallCreek, Vein Creek, Victor Creek,Wardenhoff Creek, Warm Lake Creek,Warm Spring Creek, West ForkBuckhorn Creek, West Fork Elk Creek,West Fork Enos Creek, West Fork ZenaCreek, Whangdoodle Creek, WillowBasket Creek, Willow Creek, ZenaCreek.

(xxxi) ST. JOE R. BASIN: Bad BearCreek, Bean Creek, Bear Creek, BeaverCreek, Bedrock Creek, Berge Creek, BirdCreek, Blue Grouse Creek, BoulderCreek, Broadaxe Creek, Bruin Creek,California Creek, Cherry Creek, ClearCreek, Color Creek, Copper Creek, DollyCreek, Dump Creek, Eagle Creek, EastFork Bluff Creek, East Fork Gold Creek,Emerald Creek, Fishhook Creek, FloatCreek, Fly Creek, Fuzzy Creek, GoldCreek, Heller Creek, Indian Creek,Kelley Creek, Malin Creek, MarbleCreek, Medicine Creek, Mica Creek, MillCreek, Mosquito Creek, North Fork BeanCreek, North Fork Saint Joe River, NorthFork Simmons Creek, Nugget Creek,Packsaddle Creek, Periwinkle Creek,Prospector Creek, Quartz Creek, RedCross Creek, Red Ives Creek, RubyCreek, Saint Joe River (above SiwashCreek), Setzer Creek, Sherlock Creek,Simmons Creek, Siwash Creek,Skookum Creek, Thomas Creek, ThornCreek, Three Lakes Creek, Timber Creek,Tinear Creek, Trout Creek, TumbledownCreek, Wahoo Creek, Washout Creek,Wilson Creek, Yankee Bar Creek.

(xxxii) UPPER COEUR D’ALENEBASIN: Brown Creek, Falls Creek,Graham Creek.

(xxxiii) UPPER KOOTENAI BASIN:Halverson Cr, North Callahan Creek,South Callahan Creek, West Fork KeelerCreek

(xxxiv) UPPER MIDDLE FORKSALMON BASIN: Asher Creek,

Automatic Creek, Ayers Creek, BaldwinCreek, Banner Creek, Bear Creek, BearValley Creek, Bearskin Creek, BeaverCreek, Bernard Creek, Big Chief Creek,Big Cottonwood Creek, Birch Creek,Blue Lake Creek, Blue Moon Creek,Boundary Creek, Bridge Creek,Browning Creek, Buck Creek, BurnCreek, Cabin Creek, Cache Creek, CampCreek, Canyon Creek, Cap Creek, CapeHorn Creek, Casner Creek, Castle Fork,Casto Creek, Cat Creek, ChokeboreCreek, Chuck Creek, Cliff Creek, ColdCreek, Collie Creek, Colt Creek, CookCreek, Corley Creek, Cornish Creek,Cottonwood Creek, Cougar Creek,Crystal Creek, Cub Creek, Cultus Creek,Dagger Creek, Deer Creek, Deer HornCreek, Doe Creek, Dry Creek, DuffieldCreek, Dynamite Creek, Eagle Creek,East Fork Elk Creek, East Fork IndianCreek, East Fork Mayfield Creek, ElkCreek, Elkhorn Creek, Endoah Creek,Fall Creek, Fawn Creek, Feltham Creek,Fir Creek, Flat Creek, Float Creek,Foresight Creek, Forty-five Creek, Forty-four Creek, Fox Creek, Full Moon Creek,Fuse Creek, Grays Creek, Grenade Creek,Grouse Creek, Gun Creek, Half MoonCreek, Hogback Creek, HoneymoonCreek, Hot Creek, Ibex Creek, IndianCreek, Jose Creek, Kelly Creek, KerrCreek, Knapp Creek, Kwiskwis Creek,Lime Creek, Lincoln Creek, Little BeaverCreek, Little Cottonwood Creek, LittleEast Fork Elk Creek, Little Indian Creek,Little Loon Creek, Little Pistol Creek,Lola Creek, Loon Creek, Lucinda Creek,Lucky Creek, Luger Creek, Mace Creek,Mack Creek, Marble Creek, MarlinCreek, Marsh Creek, Mayfield Creek,McHoney Creek, McKee Creek, MerinoCreek, Middle Fork Elkhorn Creek,Middle Fork Indian Creek, Middle ForkSalmon River (above Soldier Creek),Mine Creek, Mink Creek, MoonshineCreek, Mowitch Creek, Muskeg Creek,Mystery Creek, Nelson Creek, NewCreek, No Name Creek, North Fork ElkCreek, North Fork Elkhorn Creek, NorthFork Sheep Creek, North Fork SulphurCreek, Papoose Creek, Parker Creek,Patrol Creek, Phillips Creek, PiersonCreek, Pinyon Creek, Pioneer Creek,Pistol Creek, Placer Creek, Poker Creek,Pole Creek, Popgun Creek, Porter Creek,Prospect Creek, Rabbit Creek, RamsHorn Creek, Range Creek, Rapid River,Rat Creek, Remington Creek, RockCreek, Rush Creek, Sack Creek, SafetyCreek, Salt Creek, Savage Creek, ScratchCreek, Seafoam Creek, Shady Creek,Shake Creek, Sheep Creek, Sheep TrailCreek, Shell Creek, Shrapnel Creek, SiahCreek, Silver Creek, Slide Creek,Snowshoe Creek, Soldier Creek, SouthFork Cottonwood Creek, South ForkSheep Creek, Spike Creek, Springfield


Creek, Squaw Creek, Sulphur Creek,Sunnyside Creek, Swamp Creek,Tennessee Creek, Thatcher Creek,Thicket Creek, Thirty-two Creek,Tomahawk Creek, Trail Creek, TrapperCreek, Trigger Creek, Twenty-two Creek,Vader Creek, Vanity Creek, VelvetCreek, Walker Creek, Wampum Creek,Warm Spring Creek, West Fork ElkCreek, West Fork Little Loon Creek,West Fork Mayfield Creek, White Creek,Wickiup Creek, Winchester Creek,Winnemucca Creek, Wyoming Creek.

(xxxv) UPPER NORTH FORKCLEARWATER BASIN: Adams Creek,Avalanche Creek, Bacon Creek, BallCreek, Barn Creek, Barnard Creek,Barren Creek, Bear Creek, Beaver DamCreek, Bedrock Creek, Bill Creek,Bostonian Creek, Boundary Creek, BurnCreek, Butter Creek, Camp GeorgeCreek, Canyon Creek, Cayuse Creek,Chamberlain Creek, Clayton Creek, CliffCreek, Coffee Creek, Cold Springs Creek,Collins Creek, Colt Creek, Cool Creek,Copper Creek, Corral Creek, CougarCreek, Craig Creek, Crater Creek, CubCreek, Davis Creek, Deadwood Creek,Deer Creek, Dill Creek, Drift Creek,Elizabeth Creek, Fall Creek, Fire Creek,Fix Creek, Flame Creek, Fly Creek,Fourth of July Creek, Fro Creek, FrogCreek, Frost Creek, Gilfillian Creek,Goose Creek, Grass Creek, Gravey Creek,Grizzly Creek, Hanson Creek, HeatherCreek, Henry Creek, Hidden Creek,Howard Creek, Independence Creek,Jam Creek, Japanese Creek, JohnaganCreek, Johnny Creek, Junction Creek,Kelly Creek, Kid Lake Creek, KodiakCreek, Lake Creek, Laundry Creek,Lightning Creek, Little Moose Creek,Little Weitas Creek, Liz Creek, LongCreek, Marten Creek, Meadow Creek,Middle Creek, Middle North Fork KellyCreek, Mill Creek, Mire Creek, MonroeCreek, Moose Creek, Negro Creek, NettleCreek, Niagra Gulch, North ForkClearwater River (Fourth of July Creek),Nub Creek, Osier Creek, Perry Creek,Pete Ott Creek, Placer Creek, PolarCreek, Post Creek, Potato Creek, QuartzCreek, Rapid Creek, Rawhide Creek,Roaring Creek, Rock Creek, Rocky RidgeCreek, Ruby Creek, Saddle Creek, SalixCreek, Scurry Creek, Seat Creek, ShortCreek, Shot Creek, Siam Creek, SilverCreek, Skull Creek, Slide Creek, SmithCreek, Snow Creek, South Fork KellyCreek, Spud Creek, Spy Creek, StolenCreek, Stove Creek, Sugar Creek, SwampCreek, Tinear Creek, Tinkle Creek,Toboggan Creek, Trail Creek, VanderbiltGulch, Wall Creek, Weitas Creek,Williams Creek, Windy Creek, WolfCreek, Young Creek.

(xxxvi) UPPER SALMON BASIN:Alder Creek, Alpine Creek, Alta Creek,Alturas Lake Creek, Anderson Creek,

Aspen Creek, Basin Creek, BayhorseCreek, Bear Creek, Beaver Creek, BigBoulder Creek, Block Creek, BlowflyCreek, Blue Creek, Boundary Creek,Bowery Creek, Broken Ridge Creek,Bruno Creek, Buckskin Creek, CabinCreek, Camp Creek, Cash Creek, ChallisCreek, Chamberlain Creek, ChampionCreek, Cherry Creek, Cinnabar Creek,Cleveland Creek, Coal Creek, CrookedCreek, Darling Creek, Deadwood Creek,Decker Creek, Deer Creek, Dry Creek,Duffy Creek, East Basin Creek, East ForkSalmon River, East Fork Valley Creek,East Pass Creek, Eddy Creek, EightmileCreek, Elevenmile Creek, Elk Creek,Ellis Creek, Estes Creek, First Creek,Fisher Creek, Fishhook Creek, FivemileCreek, Fourth of July Creek, FrenchmanCreek, Garden Creek, Germania Creek,Goat Creek, Gold Creek, GooseberryCreek, Greylock Creek, Hay Creek, HellRoaring Creek, Herd Creek, HuckleberryCreek, Iron Creek, Job Creek, JordanCreek, Juliette Creek, Kelly Creek,Kinnikinic Creek, Lick Creek, LightningCreek, Little Basin Creek, Little BeaverCreek, Little Boulder Creek, Little WestFork Morgan Creek, Lodgepole Creek,Lone Pine Creek, Lost Creek, MacRaeCreek, Martin Creek, McKay Creek,Meadow Creek, Mill Creek, MorganCreek, Muley Creek, Ninemile Creek,Noho Creek, Pack Creek, Park Creek, PatHughes Creek, Pig Creek, Pole Creek,Pork Creek, Prospect Creek, RainbowCreek, Redfish Lake Creek, Road Creek,Rough Creek, Sage Creek, SagebrushCreek, Salmon River (Redfish LakeCreek), Sawmill Creek, Second Creek,Sevenmile Creek, Sheep Creek, ShortCreek, Sixmile Creek, Slate Creek,Smiley Creek, South Fork East ForkSalmon River, Squaw Creek, StanleyCreek, Stephens Creek, Summit Creek,Sunday Creek, Swimm Creek, TaylorCreek, Tenmile Creek, Tennel Creek,Thompson Creek, Three Cabins Creek,Trail Creek, Trap Creek, Trealor Creek,Twelvemile Creek, Twin Creek, ValleyCreek, Van Horn Creek, Vat Creek,Warm Spring Creek, Warm SpringsCreek, Washington Creek, West BeaverCreek, West Fork Creek, West Fork EastFork Salmon River, West Fork HerdCreek, West Fork Morgan Creek, WestFork Yankee Fork, West Pass Creek,Wickiup Creek, Williams Creek, WillowCreek, Yankee Fork.

(xxxvii) UPPER SELWAY BASIN:Basin Creek, Bear Creek, Burn Creek,Camp Creek, Canyon Creek, Cliff Creek,Comb Creek, Cooper Creek, Cub Creek,Deep Creek, Eagle Creek, Elk Creek, FallCreek, Fox Creek, Goat Creek, Gold PanCreek, Granite Creek, Grass Gulch,Haystack Creek, Hells Half Acre Creek,Indian Creek, Kim Creek, Lake Creek,

Langdon Gulch, Little Clearwater River,Lodge Creek, Lunch Creek, Mist Creek,Paloma Creek, Paradise Creek, PeachCreek, Pettibone Creek, Running Creek,Saddle Gulch, Schofield Creek, SelwayRiver (above Pettibone Creek), SouthFork Running Creek, South Fork SaddleGulch, South Fork Surprise Creek,Spruce Creek, Squaw Creek, StripeCreek, Surprise Creek, Set Creek, TepeeCreek, Thirteen Creek, Three LakesCreek, Triple Creek, Wahoo Creek,White Cap Creek, Wilkerson Creek,Witter Creek.

(xxxviii) WEISER BASIN: AndersonCreek, Bull Corral Creek, Dewey Creek,East Fork Weiser River, Little WeiserRiver, above Anderson Creek, SheepCreek, Wolf Creek.

(3) Procedures for site specificmodification of listed waterbodies ortemperature criteria for bull trout.

(i) The Regional Administrator may,in his discretion, determine that thetemperature criteria in paragraph (a)(1)of this section shall not apply to aspecific waterbody or portion thereoflisted in paragraph (a)(2) of this section.Any such determination shall be madeconsistent with § 131.11 and shall bebased on a finding that bull troutspawning and rearing is not an existinguse in such waterbody or portionthereof.

(ii) The Regional Administrator may,in his discretion, raise the temperaturecriteria in paragraph (a)(1) of thissection as they pertain to a specificwaterbody or portion thereof listed inparagraph (a)(2) of this section. Anysuch determination shall be madeconsistent with § 131.11, and shall bebased on a finding that bull trout wouldbe fully supported at the highertemperature criteria.

(iii) For any determination madeunder paragraphs (a)(3)(i) or (a)(3)(ii) ofthis section, the Regional Administratorshall, prior to making such adetermination, provide for public noticeof and comment on a proposeddetermination. For any such proposeddetermination, the RegionalAdministrator shall prepare and makeavailable to the public a technicalsupport document addressing eachwaterbody or portion thereof that wouldbe deleted or modified and thejustification for each proposeddetermination. This document shall bemade available to the public not laterthan the date of public notice.

(iv) The Regional Administrator shallmaintain and make available to thepublic an updated list of determinationsmade pursuant to paragraphs (a)(3)(i)and (a)(3)(ii) of this section as well asthe technical support documents foreach determination.


(v) Nothing in this paragraph (a)(3)shall limit the Administrator’s authorityto modify the temperature criteria inparagraph (a)(1) of this section or the listof waterbodies in paragraph (a)(2) of thissection through rulemaking.

(b) Use designations for surfacewaters. In addition to the State adopeduse designations, the following waterbody segments in Idaho are designatedfor cold water biota: Canyon Creek (PB121)—below mining impact; South ForkCoeur d’Alene River (PB 140S)—DaisyGulch to mouth; Shields Gulch (PB148S)—below mining impact; BlackfootRiver (USB 360)—Equalizing Dam tomouth, except for any portion in Indiancountry; Soda Creek (BB 310)—source tomouth.

(c) Excluded waters. Lakes, ponds,pools, streams, and springs outsidepublic lands but located wholly andentirely upon a person’s land are notprotected specifically or generally forany beneficial use, unless such watersare designated in Idaho 16.01.02.110.through 160., or, although not sodesignated, are waters of the UnitedStates as defined at 40 CFR 122.2.

(d) Water quality standard variances.(1) The Regional Administrator, EPARegion X, is authorized to grantvariances from the water qualitystandards in paragraph (b) of thissection where the requirements of thisparagraph (d) are met. A water qualitystandard variance applies only to thepermittee requesting the variance andonly to the pollutant or pollutantsspecified in the variance; the underlyingwater quality standard otherwiseremains in effect.

(2) A water quality standard varianceshall not be granted if:

(i) Standards will be attained byimplementing effluent limitationsrequired under sections 301(b) and 306

of the CWA and by the permitteeimplementing reasonable bestmanagement practices for nonpointsource control; or

(ii) The variance would likelyjeopardize the continued existence ofany threatened or endangered specieslisted under section 4 of the EndangeredSpecies Act or result in the destructionor adverse modification of such species’critical habitat.

(3) Subject to paragraph (d)(2) of thissection, a water quality standardsvariance may be granted if the applicantdemonstrates to EPA that attaining thewater quality standard is not feasiblebecause:

(i) Naturally occurring pollutantconcentrations prevent the attainment ofthe use; or

(ii) Natural, ephemeral, intermittentor low flow conditions or water levelsprevent the attainment of the use, unlessthese conditions may be compensatedfor by the discharge of sufficient volumeof effluent discharges without violatingState water conservation requirementsto enable uses to be met; or

(iii) Human caused conditions orsources of pollution prevent theattainment of the use and cannot beremedied or would cause moreenvironmental damage to correct than toleave in place; or

(iv) Dams, diversions or other types ofhydrologic modifications preclude theattainment of the use, and it is notfeasible to restore the waterbody to itsoriginal condition or to operate suchmodification in a way which wouldresult in the attainment of the use; or

(v) Physical conditions related to thenatural features of the waterbody, suchas the lack of a proper substrate, cover,flow, depth, pools, riffles, and the likeunrelated to water quality, preclude

attainment of aquatic life protectionuses; or

(vi) Controls more stringent thanthose required by sections 301(b) and306 of the CWA would result insubstantial and widespread economicand social impact.

(4) Procedures. An applicant for awater quality standards variance shallsubmit a request to the RegionalAdministrator not later than the date theapplicant applies for an NPDES permitwhich would implement the variance,except that an application may be filedlater if the need for the variance arisesor the data supporting the variancebecomes available after the NPDESpermit application is filed. Theapplication shall include all relevantinformation showing that therequirements for a variance have beensatisfied. The burden is on the applicantto demonstrate to EPA’s satisfaction thatthe designated use is unattainable forone of the reasons specified inparagraph (d)(3) of this section. If theRegional Administrator preliminarilydetermines that grounds exist forgranting a variance, he shall publishnotice of the proposed variance. Noticeof a final decision to grant a varianceshall also be published. EPA willincorporate into the permittee’s NPDESpermit all conditions needed toimplement the variance.

(5) A variance may not exceed 5 yearsor the term of the NPDES permit,whichever is less. A variance may berenewed if the applicant reapplies anddemonstrates that the use in question isstill not attainable. Renewal of thevariance may be denied if the applicantdid not comply with the conditions ofthe original variance.


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Part IV

FederalCommunicationsCommission47 CFR Part 90Future Development of SMR Systems inthe 800 MHz Frequency Band; FinalRules



47 CFR Part 90

[PR Docket No. 93–144; FCC 97–223]

Future Development of SMR Systemsin the 800 MHz Frequency Band


SUMMARY: This Second Report andOrder resolves issues raised in theSecond Further Notice of ProposedRulemaking and completes the processby establishing technical andoperational rules for the lower 230 800MHz channels. Specifically, this orderestablishes the U.S. Department ofCommerce Bureau of EconomicAnalysis Economic Areas (EAs) as therelevant geographic service area forlicensing these channels and defines therights of incumbent SMR licenseesalready operating on the lower 230channels. It also provides further detailsconcerning the mandatory relocationrules adopted in the 800 MHz Reportand Order, and establishes rules forpartitioning and disaggregation of EAlicenses. Coupled with the rulesadopted in the 800 MHz Report andOrder, the decisions reached in thisorder complete the process ofconverting to new rules for the 800 MHzSMR service and enable us tocommence geographic area licensing ofthe service. These rule revisions notonly eliminate a cumbersome andoutdated regulatory regime, they willpromote competition and provide SMRlicensees with flexibility to deploymultiple technologies in response to achanging marketplace, and they furtherthe Congressionally mandated goal ofestablishing regulatory symmetrybetween 800 MHz SMR licensees andother competing providers ofCommercial Mobile Radio Services(CMRS).EFFECTIVE DATE: September 29, 1997.FOR FURTHER INFORMATION CONTACT:Shaun Maher or Michael Hamra, Policyand Rules Branch, Commercial WirelessDivision, Wireless TelecommunicationsBureau at (202) 418–0620 or Alice Elder,Auctions and Industry AnalysisDivision, Wireless TelecommunicationsBureau at (202) 418–0660.SUPPLEMENTARY INFORMATION: ThisSecond Report and Order in PR DocketNo. 93–144, GN Docket No. 93–252, andPP Docket No. 9–253, adopted June 23,1997, and released July 10, 1997, isavailable for inspection and copyingduring normal business hours in the

FCC Dockets Branch, Room 230, 1919 MStreet, NW., Washington, DC. Thecomplete text may be purchased fromthe Commission’s copy contractor,International Transcription Service,Inc., 2100 M Street, NW., Suite 140,Washington, DC 20037 (telephone (202)857–3800).

I. Background1. As described in the 800 MHz

Report and Order in PR Docket 93–144,61 FR 6138 (February 16, 1996), theCommission formerly used a site-by-sitelicensing approach for 800 MHz SMRchannels, which were primarily used toprovide dispatch radio service. In recentyears, however, a number of SMRlicensees have expanded the geographicscope of their services, aggregatedchannels, and developed digitalnetworks to enable them to provide atype of service comparable to thatprovided by cellular and PersonalCommunications Service (PCS)operators. This trend led us to rethinkour site-by-site licensing procedures,which were very cumbersome forsystems comprised of several hundredsites because licensees were required toreceive individual Commissionapproval for each site. We wereconcerned that site-by-site licensingprocedures also impaired an SMRlicensee’s ability to respond to changingmarket conditions and consumerdemand. We concluded that grantinglicenses through waivers and other case-by-case mechanisms wasadministratively burdensome and hadresulted in a licensing regime thatlacked uniformity. Accordingly, weinitiated this proceeding to transition toa geographic area licensing approach forthe 800 MHz SMR service. At the sametime, we emphasized the need toconsider the interests of incumbentSMR licensees, many of whom continueto provide traditional dispatch serviceand do not seek to develop servicescomparable to cellular or PCS.

2. In the 800 MHz Report and Order,the Commission established an EA-based licensing procedure for the upper200 channels in the 800 MHz SMRband. That procedure will enable an EAlicensee to, among other things,construct facilities at any available sitewithin its EA and to add, remove orrelocate sites within the EA withoutprior Commission approval. The newrules also give the EA licenseeflexibility to determine thechannelization of available spectrumwithin the authorized channel block,the right to use any spectrum within itsEA block that is recovered by theCommission from an incumbentlicensee (i.e., the incumbent’s license is

terminated for some reason), andestablishes a presumption thatassignments from incumbents to therelevant EA licensee are in the publicinterest. In addition, the 800 MHzReport and Order adopted a 10-yearlicense term, and a five-yearconstruction period with three-year andfive-year coverage requirements for EAlicensees on the upper 200 channels.We also created a mechanism forrelocation of incumbent licensees on theupper 200 channels, delineated theparameters of unrelocated incumbents’expansion rights, and reallocated theformer General Category channels to the800 MHz SMR service. Finally, weestablished competitive biddingprocedures for 525 EA licenses in theupper 200 channel block.

3. In the Second Further Notice ofProposed Rulemaking, in PP Docket 93–253, 61 FR 6212 (February 16, 1996), wesought comment on additional servicerules for the upper 200 channels, and oninstituting geographic area licensing forthe lower 230 800 MHz SMR channels.With respect to the upper 200 channels,we asked commenters to addresswhether EA licensees should bepermitted to partition and disaggregatetheir spectrum blocks. We also proposedadditional procedures and clarificationsregarding mandatory relocation ofincumbent licensees from the upper 200channels. With respect to the lower 230channels, we proposed geographic arealicensing procedures and auction rulessimilar to those adopted for the upper200 channels. We declined to propose amandatory relocation plan forincumbents on the lower 230 channels,however, and we proposed to adoptoperating parameters for incumbentsthat would give them a reasonableopportunity to expand their businesses.We further proposed to establishcompetitive bidding rules for licensingthe General Category and lower 80channels with special provisions toencourage participation by designatedentities in the auction of that spectrum.

4. Sixty-five parties filed initialcomments and fifty-eight parties filedreply comments in response to theSecond Further Notice of ProposedRulemaking. Numerous written ex partepresentations also have supplementedthe record. Notably, in reply comments,AMTA, SMR WON and Nextel offered aproposal (‘‘Industry Proposal’’) forlicensing the lower 230 channelsthrough a pre-auction process thatwould allow incumbents to obtain rightsto unlicensed spectrum throughsettlement agreements with one another.The parties submit that the IndustryProposal represents a consensus of theSMR industry and takes into account


the interests of wide-area licensees aswell as site-by-site incumbents.

II. Discussion

A. Service Rules for the Lower 230Channels

1. Geographic Area Licensing5. We adopt geographic area licensing

for the lower 230 channels. Geographicarea licensing will increase theflexibility afforded to licensees tomanage their spectrum, and will reduceadministrative burdens and operatingcosts by allowing licensees to modify,move, or add to their facilities withinspecified geographic areas without needfor prior Commission approval.Geographic area licensing will alsoensure that licensees on these channelshave operational flexibility similar tothat afforded to SMR licensees on theupper 200 channels as well as tocellular and PCS licensees.

6. We reject the view that the heavyuse of the lower 230 channels byincumbents renders geographic arealicensing impractical. To the contrary,incumbents benefit from geographicarea licensing because it will make it fareasier for them to fill in gaps in theircurrent systems, make modifications tomeet shifting market demands, andexpand into unserved areas. Even wherea licensee’s ability to expand is limitedby the presence of adjacent systems,geographic licensing is preferable tosite-specific licensing because it affordsthe same degree of protection frominterference but allows licensees greaterflexibility within their existing serviceareas. We also do not agree with theview that the prospective relocation ofSMR incumbents from the upper 200channels to the lower 230 is an obstacleto geographic licensing. Upon moving tothe lower 230 channels, relocatedlicensees will be able to take advantageof the flexibility in our rules to the sameextent as other licensees.

7. We also disagree with UTC andother commenters who contend thatgeographic area licensing isinappropriate because of the presence ofnon-SMRs on the lower 230 channels.While non-SMR operators may notrequire geographic licenses to operatesystems designed for internalcommunications, geographic arealicensing remains the most efficient andlogical licensing approach for themajority of licensees in the band. We arenot persuaded that we should forego thebenefits of geographic licensing toaccommodate the interests of a smallminority of systems. In any event,systems that are not SMR systems willremain fully protected under ourgeographic licensing rules. In addition,

non-SMRs can obtain spectrum to suittheir internal communications needs byforming joint bidding consortia or byentering into partitioning anddisaggregation agreements with EAlicensees.

2. Service Areas

8. We adopt EAs as the basis forgeographic licensing of the lower 230channels. EAs are generally recognizedby the SMR industry as being optimallysized for geographic licensing in thisband, because EAs approximate thecoverage of most SMR systems exceptthe largest wide-area operations. As westated in the 800 MHz Report and Order,EAs will encourage a diverse group ofprospective bidders, because they aresmall enough that licensees seeking toserve small markets can bid on areasthey wish to serve, but are large enoughthat they can also form the basis forwide-area systems. By encouraging morediverse bidders in the auction, webelieve we will fulfill the mandate ofsection 309(j)(3)(B) & (4)(C) of theCommunications Act to disseminatelicenses among a wide variety ofapplicants and to ensure economicopportunities for a wide variety ofapplicants. In addition, having the samegeographic area licenses for the upper200 and lower 230 channels makes iteasier for licensees to develop systemsthat use both upper 200 and lower 230channels in a common licensing area.

3. Channel Blocks

a. Lower 80 Channels

9. We adopt our proposal to licensethe lower 80 channels in five-channelblocks. The non-contiguous nature ofthese channels makes it impractical toimpose any other channel plan. Thisapproach will also provideopportunities for incumbents andapplicants that base their systems ontrunking of non-contiguous channels, inkeeping with the mandate of section309(j)(4)(C) of the Communications Actto make equitable distribution oflicenses and provide economicopportunities for a wide variety ofentities. Furthermore, we find that thiswill be the less disruptive method forsmaller incumbent licensees since theyhave acquired their channels in fivechannel increments. Therefore, we willlicense the lower 80 channels in sixteenfive-channel blocks as set forth in§ 90.617(d) of our rules.

b. General Category Channels

10. We understand the needs of thoseproviders who want contiguousspectrum to implement frequency re-usetechnology, and those that want non-

contiguous spectrum because thespectrum is highly encumbered, orbecause it suits their current technology.If we were to adopt very largecontiguous blocks of spectrum wewould preclude smaller entities fromparticipating in the auction becausepresumably bigger blocks of spectrumwould require larger bids to acquirethan smaller blocks of spectrum. On theother hand, if we were to auction EAson a channel-by-channel basis, assuggested by Fresno, it would bedifficult to accumulate contiguousspectrum and would require alllicensees interested in accumulatingspectrum to keep track of 150 auctionsat one time. If one entity wanted toacquire five channel blocks in threeEAs, the licensee would have topotentially keep track of 450simultaneous auctions.

11. To accommodate licensees whowant contiguous as well as thoselicensees that want large blocks ofspectrum, we will adopt the IndustryProposal and allot three contiguous 50-channel blocks. We expect a significantamount of the former General Categorychannels to continue to be used fortraditional SMR systems and retainingthe contiguity of these channels willpermit alternative offerings that mayrequire multiple, contiguous channels.In addition, we find that allotting 50channel blocks will allow bidders toaggregate even larger contiguous blocksof spectrum. We find that adopting sucha channel plan strikes a balancebetween licensees with differentspectrum allocation needs and allowslicensees with different goals to pursuespectrum in the General Category. Onceagain, this fulfills the mandate ofsection 309(j)(4)(C) of theCommunications Act that we distributelicenses in such a way so as to ensureeconomic opportunities for a widevariety of entities. While we do notadopt Fresno’s or Sierra’s proposals,small system licensees will have theopportunity to acquire smaller amountsof spectrum compatible with theirexisting technology through the newly-created disaggregation rules we adoptherein. Meanwhile licensees seeking todeploy contiguous spectrum technologywill have the opportunity to acquire a100 or 150 channel block of contiguousspectrum. Adopting this channel planaddresses the competing demands oftrunked systems and wide-area systemsthat require contiguous spectrum.

4. Channel Aggregation Limits12. We conclude that no aggregation

limit is necessary for the lower 230channels. In both the CMRS ThirdReport and Order and the 800 MHz


Report and Order, we observed that the800 MHz SMR service is just one ofmany competitive services in the CMRSmarketplace. If a single licensee were toacquire all 230 channels in a singlemarket, it would hold an aggregated11.5 MHz of spectrum, not all of whichwould be contiguous. Even if a singlelicensee combined this spectrum withspectrum from the upper 200 channels,it would fall well short of the 45 MHzspectrum cap, and would have lessspectrum than PCS and cellularproviders in the same market. The totalpotential aggregation of spectrum in the800 MHz SMR service, combined withthe General Category, is 21.5 MHz ofspectrum, not all of which iscontiguous. We do not believe that thislevel of aggregation would enable anSMR licensee to have ananticompetitive effect on the CMRSmarket. Moreover, we are concernedthat limiting the ability of SMRproviders to aggregate spectrum couldhandicap their efforts to compete withother services. As a practical matter, thepresence of numerous incumbents onthe lower 230 channels reduces thelikelihood that significant aggregation ofthis spectrum will occur. However, weconclude that the marketplace, not ourrules, should determine whether thesechannels will be used on an aggregatedor disaggregated basis.

13. We also decline to limit SMRapplicants on the lower 230 channels toobtaining one channel block at a time.This is inconsistent with our approachto licensing of other CMRS, includingcellular, PCS, 900 MHz SMR, and theupper 200 channels in the 800 MHzband. In addition, the use of competitivebidding to resolve mutually exclusivegeographic area licenses on the lower230 channels provides a strongincentive for licenses to utilize thechannels.

5. Licensing in the Mexican andCanadian Border Areas

14. In the 800 MHz Report and Order,we acknowledged that in the Canadianand Mexican border areas, some upper200 channels would not be available orwould be subject to power and heightrestrictions. Nevertheless, we did notdistinguish between border and non-border areas for the upper 200 channelsin our EA licensing plan, because weconcluded that EA applicants could bestdetermine the effect of such restrictionson the value of the spectrum. We adoptthe same approach for the lower 230channels as well. Thus, EA licensees onthe lower 230 channels of EAs that areadjacent to Canada or Mexico will beentitled to use any available channelswithin their spectrum blocks, except

where use of such channels is restrictedby international agreement.

15. In addition, we clarify that SMRand General Category channels assignedto non-SMR pools in the border areasare not available for use by EA licenseesin those regions. Thus, non-SMRlicensees operating on those channels inborder areas may continue to operateand will not be subject to relocation.Moreover, EA licensees must afford fullinterference protection to non-SMRlicensees operating on these channels.We admonish potential applicants forEA licenses to carefully evaluate theselimitations on spectrum availabilitywhen determining their biddingstrategies for blocks of spectrumadjacent to the Mexican and Canadianborders.

16. Finally, we note that there aresome non-SMR channels in the non-border areas that in the Canadian andMexican border areas are available soleyto SMR eligibles. These channels will beassociated with specific SMR andGeneral Category spectrum blocks inthese border areas. Prospective bidderson EAs near the Canadian and Mexicanborders should be aware that thesechannels, which are not available tothem anywhere else except in the borderregions, will be assigned for their use inthe Canadian and Mexican borderregions. EA licensees must also affordfull interference protection to non-SMRlicensees operating in adjacent areas onthese channels.

6. Construction and CoverageRequirements for the Lower 230Channels

a. Requirements for EA Licensees17. We adopt the construction

requirements proposed in the SecondFurther Notice of Proposed Rulemakingfor the lower 230 channels. We believethat adoption of such flexibleconstruction requirements will enhancethe rapid deployment of newtechnologies and services and willexpedite service to rural areas. Wedisagree with those commenters thatcontend that adoption of stricterconstruction requirements for the lower230 channels will better serve the publicinterest. We find that more flexibleconstruction requirements will allowEA licensees in the encumbered lower230 channels to respond to marketdemands for service and thus eliminatethe need for an EA licensee to meetconstruction requirements based onpopulation alone. We disagree withthose commenters that believe that strictconstruction requirements are necessaryto deter speculation and warehousing.We believe that, by participating in theauction, licensees will have shown that

they are genuinely interested inacquiring spectrum to utilize and notwarehouse. At the same time, wecontinue to believe that licenseesshould be held to some type ofconstruction requirement in order toencourage expedited construction andfoster service to rural areas. Therefore,EA licensees in the lower 230 channelblocks, just as their counterparts in theupper 200 channels, will be required toprovide coverage to one-third of thepopulation within three years of thelicense grant, and to two-thirds of thepopulation within five years of thelicense grant. However, in thealternative, EA licensees in the lower230 channel block may provide‘‘substantial service’’ to the geographiclicense area within five years of licensegrant. ‘‘Substantial service’’ will bedefined as service that is sound,favorable, and substantially above alevel of mediocre service, which wouldbarely warrant renewal. For example, alicensee may demonstrate that it isproviding a technologically innovativeservice or that it is providing service tounserved or underserved areas. Thisflexibility will allow EA licensees toexpedite service to rural areas that mayhave a higher service demand than aheavily populated urban area with lessdemand. As we proposed in the SecondFurther Notice of Proposed Rulemaking,we will not adopt a channel usagerequirement for licensees in the lower230 channel block. In addition, wedecline to adopt PCIA’s proposal torequire that construction requirementsbe met on a ‘‘per-channel’’ basis. Webelieve EA licensees should have theflexibility to respond to market-baseddemands for service and that adoptinga ‘‘per-channel’’ constructionrequirement would greatly interferewith licensees’ ability to respond tosuch demands.

18. The failure to meet theseperformance requirements will result inautomatic termination of the geographicarea license. This is consistent with ourrules for broadband PCS, 900 MHz SMRservices, Multipoint DistributionServices (MDS), and most recently forpaging. We will individually license anyincumbent facilities that wereauthorized, constructed, and operatingat the time of termination of thegeographic area license.

b. Requirements for Site-BasedLicensees

19. As a result of our decision toconvert to EA-based licensing of thelower 230 channels, the only instancesin which future site-based applicationswill be necessary are those fewinstances where site approval continues


to be required, e.g., for sites atenvironmentally sensitive locations thatrequire Commission approval underNEPA. In such instances, we willrequire incumbent licensees to constructfacilities and commence service within12 months in accordance with ourproposal. EA licensees that are requiredto seek separate approval forenvironmentally sensitive locationswithin their geographic areas will bepermitted to include those sites in theirgeographic area license and will not besubject to the 12 month constructiondeadline.

20. We also take this opportunity toclarify two points. First, we note theapplicability of the 12-monthconstruction requirement to incumbentson the lower 230 channels holding site-based authorizations with constructionperiods that have not yet expired. Ingeneral, SMR licensees with site specificauthorizations have 12 months from thegrant date to complete construction andcommence service, unless theauthorization is part of a system that hasreceived an extended implementationgrant. Pursuant to the new rules weadopt herein, interior sites added withinan incumbent’s existing footprint willnot be subject to constructionrequirements because they do notrequire separate authorizations.

c. Transfers and Assignments ofUnconstructed Site-Specific Licenses

21. We agree with SMR WON andDigital that temporary waiver of ourrestrictions against assignment ortransfer of unconstructed site-specificSMR licenses would facilitate therelocation process and geographiclicensing. We believe that there is goodcause to support waiver of the rule inthis case. The special circumstances thatexist with this innovative approach tolicensing support temporary waiver of§ 90.609(b) of the rules. That rule wasdesigned to prevent trafficking in site-specific licenses and spectrumwarehousing by taking back unusedspectrum. However, in this proceeding,we seek to encourage rapid migration ofincumbents, preferably throughvoluntary negotiations, from the upper200 channels to lower band 800 MHzchannels. If we were to rigidly apply§ 90.609(b) in such circumstances,licensees holding unconstructed site-specific licenses on the lower channelswould not be able to transfer theirauthorizations for relocation purposesunless they had constructed them first.Therefore, it is more efficient to waivethe rule and allow licensees who haveunconstructed lower channels suitablefor relocation of upper channelincumbents to transfer them without

prior construction, so that the relocatedlicensees can construct facilitiessuitable to their needs.

22. In addition, relaxing our transferrestrictions facilitates geographiclicensing of the lower channelsthemselves. We expect that in manyinstances, incumbents on the lowerchannels will bid for EA licenses onthose channels to consolidate theirexisting holdings. However, because weare adopting new channel blocks forgeographic licensing, particularly in theGeneral Category, incumbents may findit advantageous to their bidding strategyto modify their holdings in advance ofthe auction through transfers or channelswaps. In addition, allowing transfer ofunconstructed as well as constructedspectrum provides an opportunity fornew entrants to position themselves forthe auction by acquiring existinglicenses in areas where they intend tobid.

23. Therefore, to facilitate relocationand geographic licensing, we willtemporarily waive the prohibition onassignment or transfer of unconstructedauthorizations on the lower 80 andGeneral Category channels. Thus,licensees on these channels may applyto transfer or assign their authorizationsregardless of construction. Whereunconstructed spectrum is transferred,the assignee or transferee will be subjectto the same construction deadline as thetransferor/assignor. We will, however,allow licensees with extendedimplementation authority to apply theirsystem-wide construction deadlines tolicenses acquired by transfer that arewithin their pre-existing footprint. Thiswaiver will remain in effect until sixmonths after the conclusion of theupper band EA auction. We believe thisperiod will provide sufficient time forlicensees to identify suitable lower bandspectrum for transfer as part ofvoluntary relocation agreements, and forpotential bidders in the lower bandauction to negotiate transfers as part oftheir pre-auction strategy.

24. We will extend this waiver to allholders of unconstructed spectrum onthe lower 80 and General Categorychannels, including both SMR and non-SMR licensees. We will also allow theselicensees to transfer or assign theirauthorizations to any eligible entity.Although Nextel argues that suchtransfers should be allowed only if theyare between wide-area SMR incumbentsand EA licensees, we believe suchrestrictions are unnecessary and undulyrestrictive. First, we see no reason toallow only wide-area licensees totransfer unconstructed spectrum. Thepurpose of this policy is to facilitate therapid assignment of all lower band

spectrum—not just spectrum held bywide-area licensees—to those who aremost likely to use it. Similarly, we willnot restrict holders of unconstructedspectrum to dealing with EA licensees.Although we expect that many transferswill in fact be to EA licensees, we donot believe that incumbents should beprevented from negotiating transfers toother parties who value the spectrum. Inany event, such a restriction wouldprevent incumbents from negotiatingtransfers prior to the conclusion of theauction because EA winners will not beidentified until then.

25. We recognize that relaxing transferrestrictions makes it more difficult totake action against speculators whohave not constructed facilities on theirspectrum but instead have sought towarehouse spectrum for profit.However, we believe that the benefits ofthis approach for relocation and futuregeographic licensing in this serviceoutweigh the potential cost. First, not all800 MHz licensees who have failed toconstruct are necessarily speculators:our application freeze and uncertaintycaused by the lengthy pendency of thisproceeding have also made it difficultfor legitimate licensees to develop theirsystems. Moreover, even in the case oflicensees who acquired spectrumthrough application mills, allowingunconstructed spectrum to betransferred rapidly and efficiently tothose who value it most allowsdevelopment of the service to proceedand provides potential benefits toprospective bidders in the auction. Thisapproach will also not compromise theobjectives of geographic area licensing:because only currently licensedspectrum can be transferred, there is noimpact on unlicensed spectrum that willbe awarded to EA licensees. In addition,EA licensees are not obliged by thispolicy to negotiate with incumbentsthey believe have no intention ofconstructing facilities; if an incumbentfails to construct and commenceoperations within the period requiredby its license, the unused spectrumreverts to the EA licensee.

B. Rights and Obligations of EALicensees in the Lower 230 Channels

1. Operational Restrictions26. Except for using the 18 dBµV/m

contour to define the interferenceprotection obligations of EA licenseeswith respect to lower 230 incumbents(discussed in § IV–B–3–b, infra.), wewill apply the same operational rules toEA licensees on the lower 230 channelsthat are applicable to the upper 200channels. No commenter has suggestedthat EA licensees on the lower 230channels should not have the right to


modify their facilities without priorCommission approval, and we see noreason to treat the lower 230 channelsdifferently in this regard. We also adoptthe same notification requirementsapplicable to the upper 200 channelswith respect to system additions,deletions, and modifications.

2. Spectrum Management Rights—Acquisition and Recovery of ChannelsWithin Spectrum Blocks

27. In light of our decision to extendEA licensing to the lower 230 channels,we adopt the same rules for thesechannels with respect to recovery ofunused spectrum and transfers andassignments of spectrum fromincumbents to EA licensees. For thesame reasons, we dismiss all wait-listedapplications for these channels. Ouraction today will not apply to anyapplication that is currently pendingthat includes a request for waiver of theprocessing freeze. We shall resolvethose applications by separate action.

3. Treatment of Incumbents

a. Mandatory Relocation of LowerChannel Incumbents

28. We will not adopt mandatoryrelocation procedures for either SMR ornon-SMR incumbents on the lower 230channels. The record supports ourtentative conclusion that requiringincumbents to migrate off this spectrumwould be impractical because there isno identifiable alternative spectrum toaccommodate such migration. Inaddition, it is likely that many of theincumbents who will operate on thesechannels will have relocated from theupper 200 channels, and we havealready determined that such relocateesshould not be required to relocate morethan once. Therefore, EA licensees onthe lower 230 channels will not havethe right to move incumbents off of theirspectrum blocks unless the incumbentvoluntarily agrees to move.

b. Incumbent Operations

i. Expansion and Flexibility Rights ofLower Channel Incumbents

29. In the Further Notice of ProposedRulemaking in this proceeding, werecognized that the geographic licensingscheme we designed for the upper 200channels could result in someincumbent licensees remaining in thischannel block, despite our mandatoryrelocation provisions. To avoidinterference between these incumbentlicensees and the new EA licensees inthe upper 200 channel block, weconcluded in our 800 MHz Report andOrder that it was necessary to limit theability of incumbent licensees to expand

their systems after geographic licensinghad occurred. At the same time, weconcluded that incumbents should beafforded operational flexibility to addsites or make system modificationswithin those areas already licensed tothem. We concluded that, for the upper200 channel block, incumbent licenseeswould be allowed to makemodifications within their current 22dBµV/m interference contour and wouldbe allowed to add new transmitters intheir existing service areas without priornotification to the Commission.However, incumbents would berequired to notify the Commission ofany changes in technical parameters oradditional stations constructed,including agreements with an EAlicensee to expand beyond their signalstrength contour, through a minormodification of their license.

30. In the Second Further Notice ofProposed Rulemaking, weacknowledged that transitioning to ageographic licensing scheme in thelower 230 channels raises similar issueswith respect to the rights of incumbents.We proposed to limit expansion rightsof incumbent SMR licensees in thelower 230 channels in the same manneras we did in the upper 200 channelblock. Under our proposal, incumbentlicensees on the lower 230 channelswould be allowed to modify or addtransmitters in their existing servicearea without prior notification to theCommission, so long as they did notexpand their 22 dBµV/m interferencecontour. We proposed that incumbentswould not be allowed to expand beyondthe 22 dBµV/m contour and into thegeographic area licensee’s territorywithout obtaining the prior consent ofthe geographic area licensee or unlessthe incumbent is the geographic arealicensee for the relevant channel. Wesought comment on this proposal andasked commenters to discuss whether abasis other than the 22 dBµV/minterference contour should be used todetermine an incumbent’s service area.

31. We agree with the supporters ofthe Industry Proposal that the publicinterest would be served by givingincumbents on the lower 230 channelssome flexibility to expand beyond their22 dBµV/m contours. However, wedecline to adopt the Industry Proposalin its entirety. The settlement conceptwould, in essence, allow incumbents todivide all remaining unlicensedspectrum on the lower 230 channelsamong themselves, with no opportunityfor new entrants to obtain or evencompete for such spectrum. As set forthbelow, this raises both statutory andpolicy concerns that prevent us fromendorsing the proposal.

32. First, by restricting the settlementprocess to incumbents, the IndustryProposal would foreclose new entrantsfrom obtaining spectrum on any of thelower 230 channels that are subject to asettlement among incumbents. In anymarket where all of the channels in anEA were allocated by such settlements,the result would be that noopportunities for geographic licensingwould be available to new entrants. TheIndustry Proposal would also precludecompetition in the licensing process andrestrict the number of potentialapplicants who can obtain licenses.Thus, it could yield a higherconcentration of licenses than wouldresult if non-incumbents were allowedto compete for the spectrum at the sametime. We conclude that allowing onlyincumbent licensees to obtain rights toan entire EA while foreclosingopportunities for new entrants would beat odds with our goals of promotingeconomic competition in the 800 MHzSMR service and avoiding an undueconcentration of licenses. The approachwe adopt herein, unlike the IndustryProposal, would encourage participationof new entrants, including smallbusinesses, and, therefore, promotevigorous economic competition andavoid excessive concentration oflicenses.

33. Furthermore, the IndustryProposal provides no method for theCommission to recover a portion of thevalue of public spectrum pursuant tosection 309(j)(3)(C) of theCommunications Act. Instead,incumbent licensees who negotiateexpansion rights among themselvescould obtain a windfall by obtainingrights to an entire EA without having topay for such expanded rights. Wedisagree with commenters who attemptto justify this potential windfall byarguing that the proposed settlementprocedure complies with the directivein section 309(j)(6)(E) for theCommission to avoid mutual exclusivitythrough ‘‘engineering solutions,negotiation, threshold qualifications,service regulations, and other means’’section 309(j)(6)(E) requires us to adoptsuch methods where we find them to be‘‘in the public interest.’’ We do notbelieve it is in the public interest to‘‘resolve’’ the competing claims ofincumbents and non-incumbents forspectrum by establishing a settlementmechanism that is limited toincumbents and excluding non-incumbents from the process.

34. The Industry Proposal would alsobe inconsistent with the approach wehave adopted in other services wherewe have converted from site-by-sitelicensing to geographic area licensing.


In our 900 MHz SMR proceeding andour recent paging proceeding, forexample, we adopted similar rules forlicensing on a geographic basis whileprotecting the existing operations ofincumbent operators. In neither instancedid we give incumbents the unrestrictedright to obtain available spectrumthrough a pre-auction settlementprocess that excluded non-incumbents.We also rejected this and similaralternatives for the upper 200 channelsof the 800 MHz band. For all of thesereasons, we conclude that the IndustryProposal would not serve the publicinterest.

35. While we reject the specificsettlement procedure described in theIndustry Proposal, we note that many ofthe positive aspects of the proposal canstill be accomplished through theauction process we are establishing forthe lower 230 channels. For example,incumbents on these channels are freeto enter into partnerships, jointventures, or consortia for purposes ofapplying for EA licenses on the lower230 channels in the areas where theycurrently operate. Incumbents may alsonegotiate transfers, swaps, partitioningarrangements, or similar agreementswith respect to spectrum that iscurrently licensed to them. In someinstances, taking these steps may resultin only one entity applying for a givenEA license. Where that occurs, noauction will be necessary because therewill be no mutually exclusiveapplications to resolve. At the sametime, providing all parties, incumbentsand non-incumbents alike, with theopportunity to compete for EA licenseswill ensure that the spectrum isawarded to the party that values it themost.

36. We also conclude that whilegeographic licensing is appropriate forthe lower 230 channels, some additionalflexibility is appropriate for incumbentson these channels to facilitatemodifications and limited expansion oftheir systems. First, allowing incumbentlicensees on the lower 230 channelssuch flexibility will facilitate therelocation of incumbent licensees on theupper 200 channels. Licensees who arefaced with relocation will have asignificant incentive to relocate rapidlyand voluntarily if they know they willhave greater flexibility to modify andexpand their systems on the channels towhich they are relocating. This willpromote our objectives for enabling EAlicensees on the upper 200 channels tomake flexible use of their spectrum,while also protecting the interests ofincumbents who relocate.

37. In addition, affording greaterflexibility to lower 230 incumbents is

appropriate because these channels aresubject to an application freeze andgeographic licensing of these channelswill not occur until after the upper 200channel auction is concluded andincumbents have had an opportunity torelocate to the lower channels. Becausethe upper 200 channels will be licensedfirst, EA winners on these channels willobtain the ability to expand within theirgeographic areas earlier than lowerchannel licensees. Allowing lowerchannel incumbents limited flexibilityto expand prior to the auction will helpto compensate for the fact that upper200 licensees will obtain the benefits ofgeographic licensing sooner.

38. Therefore, we adopt our proposalto allow incumbents on the lower 230channels to make system modificationswithin their interference contourswithout prior Commission approval.Incumbent licensees who currentlyutilize the 40 dBu signal strengthcontour for their service area contourand 22 dBu signal strength contour fortheir interference contour will bepermitted to utilize their existing 18dBu signal strength contour for theirinterference contour as long as theyobtain the consent of all affected partiesto do so. See § IV–B–4–a. Thus, anincumbent licensee, with theconcurrence of all affected incumbents,that desires to make modifications to itsexisting system will be able to makesuch modifications such as adding newtransmitters, and altering its coveragearea, so long as such incumbent doesnot expand the 18 dBu interferencecontour of its system. Moreover,licensees who do not receive theconsent of all incumbent affectedlicensees, will be able to make similarmodifications within their 22 dBu signalstrength interference contour. Licenseesthat do not desire to make modificationsmay also continue to operate with theirexisting systems. We find that thisapproach will not only enableincumbents to fill in ‘‘dead spots’’ incoverage or to reconfigure their systemsto increase capacity, but will also allowfor some incremental expansion of theirsystems.

39. In the 800 MHz Report and Order,some commenters stated that smallerSMR entities only need to make smallerincremental changes to their serviceareas to better serve their customers. Webelieve that adopting the 18 dBustandard will allow such entities tomake the incremental changes theydesire. At the same time, we find thatthe 18 dBu standard is superior to theIndustry Proposal because it preservesopportunities for new entrants in areasthat are currently unserved and that arenot reasonably proximate to existing

facilities. The 18 dBu standard is moreflexible than the 22 dBu standard andwill thereby increase opportunities forlower 230 incumbents to modify theirexisting operations to meettechnological changes and marketdemands for service. This additionalflexibility will also facilitate therelocation of incumbent SMR licenseesfrom the upper 200 to the lower 230channels by providing these licenseeswith more flexibility to modify theirexisting systems than they wouldpossess if they remained on the upper200 channels.

40. Because our prior rules governingseparation of 800 MHz facilities arebased on a 40/22 dBµV/m standard, werecognize that the 18 dBµV/m standardadopted here may have little practicalsignificance in portions of the UnitedStates areas where incumbents arealready operating in close proximity toone another, e.g., most markets east ofthe Mississippi. Therefore, as discussedin § IV–B–4–a, we will continue to usethe current separation tables and short-spacing rules based on the 40/22 dBµV/m ratio to define the interferenceprotection rights of incumbents againstother incumbents, except whereincumbents consent to the use of a morerelaxed standard. In less denselypopulated areas, however, we expect the18 dBµV/m standard to be beneficial toincumbent systems seeking greateroperational flexibility. In addition, asdiscussed in § IV–B–4–b, we will usethe incumbent’s 36 dBµV/m as opposedto 40 dBµV/m contour as the basis forprotection from interference by adjacentEA licensees.

ii. Converting Site-Specific Licenses toGeographic Licenses

41. We will allow lower 230 channelincumbents to combine their site-specific licenses into single geographiclicenses as proposed. This option willprovide incumbents with the sameflexibility and reduced administrativeburden that geographic licensing affordsto EA licensees, and will simplify thelicensing process for the Commission.Because we have adopted the 18 dBucontour rather than the 22 dBu contour,where the incumbent licensee hasobtained the consent of all affectedparties, as the benchmark for definingan incumbent licensee’s protectedservice area, we will use the contiguousand overlapping 18 dbu contours of theincumbent’s previously authorized sitesto define the scope of the incumbent’sgeographic license. Therefore, after theauction of the lower 230 channels hasbeen completed, incumbents in thelower 230 channels may convert theircurrent multiple site licenses to a single


license. Incumbents seeking suchreissued licenses must make a one-timefiling of specific information for each oftheir external base station sites toupdate our database. Such filingsshould be made on FCC Form 600 andshould include a detailed map of thearea the system will cover. We also willrequire evidence that such facilities areconstructed and placed in operation.Once the geographic license has beenissued, facilities that are later added ormodified that do not extend thelicensees’ 18 dBu interference contourwill not require prior approval orsubsequent notification under thisprocedure. Such facilities should notreceive interference because they will beprotected by the presence of thelicensee’s external co-channel stations.Licensees who do not receive theconsent of all affected parties may alsofollow the same process utilizing their22 dBu signal strength interferencecontour, rather than the 18 dBu contour.

4. Co-Channel Interference Protection

a. Incumbent SMR Systems42. Our interference protection

proposals in the Second Further Noticeof Proposed Rulemaking assumed thatwe would use the 22 dBµV/m contouras the basis for determining the area inwhich lower 230 incumbents couldoperate. As noted in § IV–B–3–b, supra,we have decided instead to allow allincumbents on the lower 230 channelsto use the 18 dBµV/m contour as thebasis for modifying and expanding theirsystems, provided that they obtain theconsent of all co-channel incumbentspotentially affected by the use of thisstandard. Because the 18 dBµV/mstandard gives incumbents greaterflexibility to expand, we must applystricter interference protection criteriato EA licensees to ensure that they donot interfere with incumbent operations.Specifically, we will require EAlicensees either: (1) to locate theirstations at least 173 km (107 miles) fromthe licensed coordinates of anyincumbent, or (2) to comply with co-channel separation standards based on a36/18 dBµV/m standard rather than thepreviously applicable 40/22 dBµV/mstandard. The 36 dBµV/m desired signalstrength contour is determined from theR–6602, F(50,50) curves for Channels 7–13 in § 73.699 of the Commission’s rules(Figure 10), with a 9 dB correction factorfor antenna height differential. The 18dBµV/m undesired signal strengthcontour is calculated using the R–6602,F(50,10) curves for Channels 7–13 foundin § 73.699 of the Commission’s rules(Figure 10a), with a 9 dB correctionfactor for antenna height differential. In

PR Docket No. 93–60, the Commissiondetermined that a protection ratio of 18dB would result in co-channel stationspacings that provide reasonableprotection from co-channel interferenceand, at the same time, provide forefficient reuse of valuable spectrum.Thus, EA licensees are required toensure that the 18 dBµV/m undesiredsignal strength contour of a proposedstation does not encroach upon the 36dBµV/m desired signal strength contourof an existing incumbent station.Furthermore, in the opposite situation,EA licensees will have their 36 dBµV/m desired signal strength contourprotected with an 18 dB ratio, since theundesired signal strength contour limitfor incumbents that have reachedconsent of all other affected parties shallbe 18 dBµV/m.

43. We emphasize that this revisedinterference standard protectsincumbents only against EA licensees,not against other incumbents. As notedabove, incumbents who seek to use the18 dBµV/m standard must obtain theconsent of other affected incumbents todo so. In the absence of such consent,the protection that one incumbent mustafford another continues to be governedby § 90.621(b) of the Commission’srules, i.e., incumbents must locate theirstations at least 113 km (70 miles) fromthe facilities of any other incumbent orcomply with the co-channel separationstandards based on the 40/22 dBµV/mstandard set forth in our prior short-spacing rules.

b. Adjacent EA Licensees44. We adopt the same interference

protection standards for the lower 230channels that we previously adopted forthe upper 200 channels. Thus, EAlicensees on the lower 230 channelsmust limit their signal strength at theirEA borders to 40 dBµV/m, unlessaffected adjacent EA licensees agree tohigher signal strength. We emphasizethat this rule applies only to resolvinginterference issues between EAlicensees. Thus, an EA licensee whocomplies with this rule maynevertheless be required to limit itsoperations further in order to complywith the rules governing protection ofincumbents (see § IV–B–4–a, infra).

c. Emission Masks45. In response to a request for

reconsideration from Ericcson, againsupported by Motorola, we are furthermodifying our emission mask rule forthe upper 200 channels in theaccompanying Memorandum Opinionand Order. We conclude that this rule,as modified, should also be applied tothe lower 230 channels. Use of a

common emission standard throughoutthe 800 MHz SMR band will facilitateuse of common equipment and make iteasier for licensees to combine upper200 and lower 230 channels in theirsystems. As in the case of the upper 200channels, application of the emissionmask rule to the lower 230 channelswill apply only to ‘‘outer’’ channelsused by the licensee, i.e., to channelsthat are creating out-of-band emissionsthat affect another licensee. Thus, theemission mask rules do not apply to‘‘interior’’ channels in a spectrum blockthat do not create out-of-band emissionsoutside that block or on channels in theblock that are used by incumbents.

5. Regulatory Classification of EALicensees on the Lower 230 Channels

46. We adopt our proposal withrespect to SMR applicants who obtainEA licensees on the lower 230 channels,but modify it with respect to non-SMRapplicants for EA licenses. Weanticipate that most applicants for EAlicenses on these channels will be SMRapplicants who seek to provideinterconnected service, thus meeting thestatutory definition of CMRS. Therefore,we will presumptively classify SMRwinners of EA licenses as CMRSproviders. However, we will allow SMRapplicants and licensees to overcomethis presumption by demonstrating thattheir service does not meet the CMRSdefinition. This is consistent with ourapproach to broadband PCS and otherservices. We reject Genesee’s contentionthat we have illegitimately used CMRSclassification as a basis for auctioningthe lower 230 channels. In fact, theissue of regulatory classification undersection 332 of the Act is irrelevant to theissue of auctionability, which turns onthe factors enumberated in section309(j) of the Act. We address the issueof auctionability elsewhere in this orderand decline to revisit it here.

47. In the Memorandum Opinion andOrder adopted today, we determine thatnon-SMRs as well as SMRs will beeligible to obtain EA licenses on the 150General Category channels. While weexpect most EA licenses to be sought bySMR providers, we agree with E.F.Johnson that where an EA license isobtained by a non-SMR operator, theCMRS presumption is inapplicable.Thus, in the event that EA licenses areawarded to Public Safety, Industrial/Land Transportation, or Businesslicensees, such licensees will beclassified as PMRS providers. AlthoughBusiness Radio licensees below 800MHz may be classified as CMRS,Business Radio licensees above 800MHz are precluded from providing for-


profit service, and therefore areclassified as PMRS.

C. Relocation of Incumbents From theUpper 200 Channels

1. Comparable Facilities

48. We adopt our proposed definitionof ‘‘comparable’’ facilities, with certainclarifications discussed below. Ingeneral, we define comparable facilitiesas facilities that will provide the samelevel of service as the incumbent’sexisting facilities. We also agree withcommenters that being provided withcomparable facilities requires that thechange be transparent to the end user tothe fullest extent possible. However, ourdefinition does not require an EAlicensee to upgrade the incumbent’sfacilities. As we proposed, EA licenseeswill not be required to replace existinganalog equipment with digitalequipment when there is an acceptableanalog alternative that satisfies thecomparable facilities definition. Thus,under these circumstances the costobligation of the EA licensee will be theminimum cost the incumbent wouldincur if it sought to replace, but notupgrade, its system.

49. We agree with many ofcommenters’ suggestions for furtherrefining the factors that are used todefine comparable facilities. Weconclude that the determination ofwhether facilities are comparableshould be made from the perspective ofthe end user. To this end, we identifyfour factors—system, capacity, qualityof service, and operating costs—that arerelevant to this determination. Weemphasize that these factors are onlyrelevant to determining what facilitiesthe EA licensee must provide to meetthe requirements for mandatoryrelocation; we reiterate that incumbentsand EA licensees are free to negotiateany mutually agreeable alternativearrangement.

a. System

50. To meet the comparable facilitiesrequirement, an EA licensee mustprovide the relocated incumbent with acomparable system. We believe the term‘‘system’’ should be definedfunctionally from the end user’s point ofview, i.e., a system is comprised of basestation facilities that operate on anintegrated basis to provide service to acommon end user, and all mobile unitsassociated with those base stations.System comparability includes stationslicensed on a secondary, non-protectedbasis. An incumbent that is licensed ona secondary basis at the time ofnotification must receive at least theequivalent type of license. We agree

with SMR WON that this definition caninclude multiple-licensed facilities thatshare a common switch or are otherwiseoperated as a unitary system, providedthat an end user has the ability to accessall such facilities. However, ourdefinition does not extend to facilitiesthat are operationally separate. Forexample, if a subscriber on one systemhas the ability to roam on a neighboringsystem, we would not define the twofacilities as part of a common ‘‘system.’’In addition, our definition does notinclude managed systems that arecomprised of individual licenses. Wealso agree with SMR WON and AMTAthat a ‘‘system’’ may cover more thanone EA if its existing geographiccoverage extends beyond the EAborders. We reject Nextel andPittencrief’s suggestions that we define‘‘system’’ more narrowly. In our view, anarrower definition would impair theflexibility of incumbents to continuemeeting their customer’s needs.

b. Capacity51. To meet the comparable facilities

requirement, an EA licensee mustrelocate the incumbent to facilities thatprovide equivalent channel capacity.We define channel capacity as the samenumber of channels with the samebandwidth that is currently available tothe end user. For example, if anincumbent’s system consists of five 50kHz (two 25 kHz paired frequencies)channels, the replacement system mustalso have five 50 kHz channels. If adifferent channel configuration is used,it must have the same overall capacityas the original configuration. We agreewith commenters that comparablechannel capacity requires equivalentsignaling capability, baud rate, andaccess time. In addition, the geographiccoverage of the channels must becoextensive with that of the originalsystem.

c. Quality of Service52. Comparable facilities must

provide the same quality of service asthe facilities being replaced. We definequality of service to mean that the enduser enjoys the same level ofinterference protection on the newsystem as on the old system. Inaddition, where voice service isprovided, the voice quality on the newsystem must be equal to the currentsystem. Finally, we consider reliabilityof service to be integral to definingquality of service. We measurereliability as the degree to whichinformation is transferred accuratelywithin the system. Reliability is afunction of equipment failures (e.g.transmitters, feed lines, antennas,

receivers, battery back-up power, etc.)and the availability of the frequencychannel due to propagationcharacteristics (e.g. frequency, terrain,atmospheric conditions, radio-frequencynoise, etc.) For digital data systems, thiswill be measured by the percent of timethe bit error rate exceeds the desiredvalue. For analog or digital voicetransmissions, we will measure thepercent of time that audio signal qualitymeets an established threshold. If analogvoice system is replaced with a digitalvoice system the resulting frequencyresponse, harmonic distortion, signal-to-noise ratio, and reliability will beconsidered.

d. Operating Costs

53. Another factor in determiningwhether facilities are comparable isoperating costs. We define operatingcosts as costs that affect the delivery ofservices to the end user. If the EAlicensee provides facilities that entailhigher operating cost than theincumbent’s previous system, and thecost increase is a direct result of therelocation, the EA licensee mustcompensate the incumbent for thedifference. We anticipate that costsassociated with the relocation processwill fall into several categories. First,the incumbent must be compensated forany increased recurring costs associatedwith the replacement facilitates (e.g.additional rental payments, increasedutility fees). Second, increasedmaintenance costs must be taken intoconsideration when determiningwhether operating costs are comparable.For example, maintenance costsassociated with analog systems may behigher than the costs of digitalequipment because manufacturers areproducing mostly digital equipment andanalog replacement parts can bedifficult to find.

54. While we conclude that EAlicensees should be responsible forincreased operating costs caused byrelocation, we note that identifyingwhether increased costs are attributableto relocation becomes more difficultover time. Therefore, we will notimpose this obligation indefinitely, butwill end the EA licensee’s obligation topay increased costs five years afterrelocation has occurred. We believe thisappropriately balances the interests ofEA licensees and relocated incumbents.

2. Cost-Sharing

a. Sharing Relocation Costs on a ProRata Basis

55. We adopt an approach that issimilar to our PCS microwave relocationrules. We conclude that, absent an


agreement among EA licensees who areprepared to relocate the incumbent, allEA licensees who benefit from therelocation of the incumbent must sharethe relocation costs on a pro rata basis.Although several commenters believethat the Commission should adoptdetailed rules for sharing relocationcosts among multiple EA licensees, wedo not believe that detailed rules arenecessary since all EA licensees will belicensed at approximately the sametime. However, we do not believe thatall EA licensees will notify incumbentsof their intention to relocate within 90days of the release of the Public Noticeannouncing the commencement of thevoluntary negotiation period becausethey may not be ready or capable ofrelocating an incumbent and, thereforewill not participate in the relocationprocess. Those non-notifying EAlicensees, however may subsequentlydetermine that those channels relocatedout of their EA by other EA licensees arenecessary for their use. Therefore, EAlicensees who relocate the incumbentwill obtain a right to reimbursementfrom non-notifying EA licensees whowant to benefit from the relocation. Webelieve that allowing all EA licenseeswho relocate the incumbent a right toreimbursement is necessary to avoid a‘‘free-rider’’ problem by those EAlicensees who did not providenotification, but subsequently benefitfrom the relocation. We also believe thatreimbursement rights will ensure thatthe incumbent is relocated as a wholeand not on a piece-meal basis.

56. The pro rata formula will be basedon the number of channels beingrelocated out of each EA. Severalcommenters support this proposal,because the relocation process is likelyto involve multiple EA licensees andone incumbent. The pro rata formularequires those EA licensees whoparticipate in the relocation process toshare the costs for relocating thosechannels that are located in a non-notifying licensee’s EA. Therefore, thecost-sharing formula will determine thecosts for relocating the incumbent’ssystem out of each EA. We believe thatdetermining the relocation costs foreach EA will allow those EA licenseeswho participate in the relocationprocess to easily determine their costobligation and their reimbursementshare from later entrant EA licenseeswho did not participate. We believe thatsuch a formula will negate the need fora complicated plan. The new formula is:

Ci TcChi

TCh= ×

Ci equals the amount ofreimbursement

Tc equals the actual cost of relocatingthe incumbent

TCh equals the total number ofchannels that are being relocated

Chj equals the number of channels thateach respective EA licensee willbenefit from

57. We believe the formula providesan effective and straightforward meansof determining a participating EAlicensee’s cost obligation and thereimbursement shares for later entrantEA licensees. This formula is essentialto make cost-sharing administrativelyfeasible and fair for those EA licenseeswho participate in the relocationprocess and those who choose not to.

58. The formula is similar to theformula adopted for sharing therelocation costs of microwaveincumbents, but it does not take intoaccount depreciation for the costs ofreimbursing EA licensees whoparticipated in the relocated process.Instead, non-notifying EA licensees whosubsequently decide to use the channelsor area of their EA that an incumbentwas relocated out of must fullyreimburse those participating EAlicensees prior to testing. Similar to ourdecision in the microwave relocationproceeding, EA licensees who relocatechannels that benefit other EA licenseesand are fully outside of their market,should be entitled to full reimbursementof compensable costs for relocating thatportion of the incumbent that are eitherfully outside their market area orlicensed EA. However, because werealize that a non-notifying EA licenseemay not decide to use those channels orserve the area of their EA that was onceoccupied by an incumbent, we concludethat ten years from the date of the PublicNotice commencing the voluntarynegotiation period, reimbursementrights will sunset.

59. The following is an example ofhow the formula will work: In October1997, EA licensees A, B, and C eachnotify the incumbent in a timely mannerthat they are prepared to relocate theincumbent. EA licensee D does notprovide notification to the incumbent.The incumbent decides to compelsimultaneous negotiations among EAlicensees A, B, and C. As a result, EAlicensees A, B, and C fully relocate theincumbent. The total costs for relocatingthe incumbent is $100,000. There were60 channels that EA licensees A, B, C,and D can use as a result of therelocation. The channels located in eachEA are as follows: EA A has 25channels; EA B has 15 channels; EA Chas 10 channels; and EA D has 10

channels. For this example, we willcalculate the formula for determiningthe costs share of EA licensee B. As aresult, Chj=25, because that is thenumber of channels that EA licensee Bwill benefit from. The total number ofchannels that were relocated is 60 and,therefore TCh=60. In addition, Tc equals$100,000, because that is the total costsof relocating the incumbent. Thecalculation of licensee B’sreimbursement payment is as follows:

$25, $100,000 00025

60= ×

Thus, licensee B pays $25,000.Licensee A would pay $41,666.66,licensee C would pay $16,666.66 andlicensee D would pay $16,666.66.Therefore, licensee D will be obligatedto reimburse licensees A, B, and C$16,666.66 if licensee D subsequentlydecides to use the channels in EA D.This amount must be equally dividedamong EA licensees A, B, and C. Allthree licensees will trigger a right toreimbursement from licensee D and willhave the right to collect their share ofthe costs prior to licensee Dcommencing with testing.

60. We decline to adopt the proposalsof commenters that would allow EAlicensees who relocate the incumbent tostep into the shoes of the incumbent.We realize that not all EA licensees willprovide notice, even though there aresufficient incentives to do so. However,we do not believe it would beappropriate to allow an EA licensee whois prepared to relocate the incumbent tosucceed to all of the rights andobligations of that incumbent. Inessence, succeeding to the rights andobligations of the incumbent wouldallow EA licensees to attain a de factolicense for parts of an EA that they werenot the high bidder for at auction.Therefore, we believe that all EAlicensees who benefit initially orsubsequently from the relocation of anincumbent should share the costs of therelocation on a pro rata basis. Toaccomplish this, EA licensees whorelocate the incumbent will obtain aright to reimbursement from non-notifying EA licensees whosubsequently decide to use the channelsthat were relocated. Therefore, we havedesigned a two-step process that willallow a participating EA licensee toobtain a reimbursement right and collectthe initial costs for relocating channelsoutside of their EA.

b. Triggering a Reimbursement Right61. Commenters, although supportive

of the Commission’s proposal to allowEA licensees who negotiate a relocation


agreement the right to reimbursementfrom EA licensees who benefitted, didnot specifically address how such rightshould be created. We believe that aright to reimbursement can easily betriggered by the procedures we adoptedin the First Report and Order.

62. In the First Report and Order, wedeveloped a notification procedure thatrequires an EA licensee to file a copy ofthe relocation notice and proof of theincumbent’s receipt of the notice to theCommission within ten days of receipt.Because notification affects an EAlicensee’s right to relocate anincumbent, we believe that suchnotification should also be the first stepin triggering an EA licensee’sreimbursement right. We believe thesecond step of triggering areimbursement right is signing arelocation agreement with theincumbent. Thus, if an EA licenseetimely notifies an incumbent of itsintention to relocate, and subsequentlynegotiates and signs a relocationagreement with the incumbent, the EAlicensee will have triggered its right toreimbursement from EA licensees whobenefitted.

63. In addition, because notification isthe first step in establishing areimbursement right for an EA licensee,we believe that such notification shouldalso establish an obligation for those EAlicensees who benefited from therelocation. We believe that an EAlicensee who is sincere about using thechannels in its EA will provide noticeto the incumbent of its intention torelocate the incumbent. We agree withAMTA that EA licensees who do notparticipate in the relocation processshould be prohibited from invokingmandatory negotiations or any of theprovisions of the Commission’smandatory relocation guidelines.

64. Therefore, if an EA licensee timelynotifies an incumbent of its intention torelocate, but during the voluntarynegotiation period decides not toparticipate in the relocation process,such EA licensee will be obligated toreimburse those EA licensees who havetriggered a reimbursement right. EAlicensees who do not provide notice tothe incumbent, but subsequently decideto use the channels in the EA will berequired to reimburse, outside of theCommission’s mandatory relocationguidelines, those EA licensees who haveestablished a reimbursement right. Webelieve that this procedure strikes a fairbalance between EA licensees whorelocate incumbents and those EAlicensees who decide not to relocateincumbents.

c. Compensable Costs65. We agree with those commenters

who believe that premium paymentsshould not be reimbursable andtherefore adopt our proposal thatreimbursable costs will be limited to theactual costs of relocating the incumbent.We believe that EA licensees who havean incentive to be first to market willhave a need to accelerate the relocationprocess. We agree with thosecommenters that believe other EAlicensees will not receive the sameadvantage and therefore should not berequired to contribute to premiumpayments. Therefore, we conclude thatreimbursement rights will only apply toactual relocation costs.

66. In the Second Further Notice ofProposed Rulemaking, we tentativelyconcluded that actual relocation costswill include, but not be limited to: SMRequipment; towers and/ormodifications; back-up powerequipment; engineering costs;installation; system testing; FCC filingcosts; site acquisition and civil works;zoning costs; training; disposal of oldequipment; test equipment; spareequipment; project management; andsite lease negotiation. Commentersgenerally supported the list proposed,but were concerned that the list did notaddress other cost factors related torelocation. We agree with thosecommenters who argue that there areother factors related to the relocationprocess and therefore conclude that thislist should be illustrative, and notexhaustive. However, because we wantto encourage a fast relocation processfree of disputes, we believe that the bulkof compensable costs should be tied asclosely as possible to actual equipmentcosts. Based on this goal, we believe thatsubsequent EA licensees should only berequired to reimburse EA relocators forincumbent transaction expenses that aredirectly attributable to the relocation,subject to a cap of two percent of the‘‘hard costs’’ involved. Hard costs aredefined as the actual costs associatedwith providing a replacement system,such as equipment and engineeringexpenses. This restriction on thereimbursement of transaction feescorresponds to the restriction weadopted with respect to PCSreimbursement of incumbenttransaction expenses for cost-sharingduring any time period—voluntary,mandatory, or involuntary. Therefore,we adopt the same restriction forpurposes of this cost-sharing plan.However, EA licensees are not requiredto pay for transaction costs incurred byEA licensees during the voluntary ormandatory periods once the involuntary

period is initiated, or for fees thatcannot be legitimately tied to theprovision of comparable facilities.

67. In addition, we believe that actualcosts should also include costs directlyrelated to a seamless transition. In theFirst Report and Order, we concludedthat during the involuntary negotiationperiod, the EA licensee must conductthe relocation in such a fashion thatthere is a ‘‘seamless’’ transition from theincumbents ‘‘old’’ frequency to its‘‘new’’ frequency. We agree with ITAand SMR Systems that it may benecessary to operate the old system andthe new system simultaneously toensure a seamless transition. We want toencourage EA licensees and incumbentsto exercise flexibility when negotiatinga relocation agreement, but we alsowant to ensure that the incumbent ismade whole, and is relocated without asubstantial disruption in service. Wealso recognize that alternative meansmay be agreed upon to avoid asubstantial disruption in service.Therefore, we will require that any costsdirectly associated with a seamlesstransition will be considered actualcosts and, therefore reimbursable.

d. Payment Issues68. We partially agree with Genessee

and conclude that reimbursementpayments should be due when thefrequencies of the incumbent have beencleared. We also agree with Fresno thatan EA licensee may choose not to usethe frequencies in a particular EA.Therefore, it is the EA licensee whomust, within 90 days of the release ofthe Public Notice announcing thecommencement of the voluntarynegotiation period, decide whether theyintend to participate in the mandatoryrelocation process.

69. We believe that an EA licenseewho provides notification is sincere ofits intention to use the frequencies inthe EA and therefore, concluded supra,that once an EA licensee notifies anincumbent of its intention to relocatethe incumbent, the EA licensee will beobligated to pay its share ofreimbursement. However, EA licenseeswho have triggered an obligation shouldnot be required to submit payment untilthe channels they have been licensed forare available for use. Therefore, weconclude that payments will not be dueuntil the incumbent has been fullyrelocated and the frequencies are freeand clear. We believe this procedurestrikes a clear balance between those EAlicensees who negotiate a relocationagreement and those EA licensees whowant the use of the frequencies, butdecide not to negotiate a relocationagreement.


70. Because non-notifying EAlicensees will not receive the benefit ofthe Commission’s relocation guidelines,they will be required to reimburse thoseEA licensees who have triggered areimbursement right. Therefore, weconclude that non-notifying EAlicensees who subsequently decide touse the channels, should be required tosubmit payment to those EA licenseeswho have triggered a reimbursementright prior to commencing testing oftheir system. We believe this strikes afair balance between the EA licenseewho has benefited a non-notifying EAlicensee and the non-notifying EAlicensees right to use those channelswithin its licensed EA. In addition, webelieve that this will create an incentivefor both parties to expedite negotiationsamong themselves.

3. Resolution of Disputes that AriseDuring Relocation

71. Commenters strongly support theCommission’s proposal to use ADRprocedures when disputes arise as to theamount of reimbursement required andthe relocation negotiations (includingdisputes over comparability of facilitiesand the requirement to negotiate in goodfaith). We agree with those commenterswho believe that the use of ADRprocedures will help resolve disputes ina timely fashion, while conservingCommission resources. In addition, webelieve that the rapid resolution ofdisputes will speed the development ofwide-area systems, and therefore willultimately benefit the public. Therefore,to the extent that disputes cannot beresolved among the parties, we stronglyencourage parties to use expedited ADRprocedures. ADR procedures provideseveral alternative methods such asbinding arbitration, mediation, or otherADR techniques. Because we areencouraging parties to use ADRprocedures, we do not need to designatean arbiter to resolve the disputes assome commenters suggest. As severalcommenters pointed out, the choice ofarbiter should be a decision left to theparties.

72. We encourage parties to use ADRprocedures prior to seeking Commissioninvolvement and caution that entireresolution of disputes by theCommission will be time consumingand costly to the parties. In addition, weemphasize that parties who neglect theirobligation to satisfy a reimbursementright will be subject to the full realm ofCommission enforcement mechanisms.

4. Administration of the Cost-SharingPlan

73. We believe that the cost-sharingplan we have adopted for 800 MHz SMR

does not require us to designate anadministrator. We believe that anadministrator was necessary toadminister the cost-sharing plan underthe microwave relocation proceduresbecause of the complexity of the plan.We do not believe that the cost-sharingplan we have adopted for 800 MHz SMRis as complex and therefore decline todesignate a clearinghouse to administerthe cost-sharing plan. However, we willnot prohibit an industry supported, not-for-profit clearinghouse from beingestablished for purposes ofadministering the cost-sharing planunder the 800 MHz relocationprocedures.

D. BETRS Eligibility on the Upper 200Channels

74. As we did in our Paging SecondReport and Order, 62 FR 11616 (March12, 1997), we do not believe it isnecessary to continue separate primarylicensing of BETRS facilities on 800MHz SMR frequencies. Under the rulesadopted in our CMRS Flex Report andOrder, 61 FR 45336 (August 29, 1996),all CMRS providers, including SMRs,may provide fixed services of the typeprovided by BETRS licensees. Inaddition, entities seeking to offer BETRSon 800 MHz SMR frequencies will beable to obtain spectrum throughgeographic area licensing. We see nobasis for distinguishing BETRS fromother services that use 800 MHz SMRspectrum to provide commercialcommunications service to subscribers.

75. As we noted in our Paging SecondReport and Order, we recognize thatBETRS primarily serves rural,mountainous, and sparsely populatedareas that might not otherwise receivebasic telephone service. However,according to our records, there are fewBETRS facilities licensed on 800 MHzSMR frequencies. According to ourlicensing records, as of November 13,1996, there were only eleven BETRSauthorizations in the 800 MHz service,and all of them were located in the Stateof Alaska. Furthermore, our recordsshow no BETRS facilities licensed inPuerto Rico. Therefore, we disagree withPRTC that eliminating separate primarylicensing of BETRS facilities on 800MHz SMR frequencies will negativelyaffect phone penetration in Puerto Rico.More importantly, concerns about thedelivery of service to rural and otherhigh cost areas are currently beingaddressed in our ongoing rulemakingproceeding examining universal serviceissues. We also note that BETRS hasother frequencies available to it underpart 22. In light of the limited demandfor these channels by BETRS licensees,and the alternatives available for

providing telecommunications servicein sparsely populated areas, weconclude that continued licensing of800 MHz channels to BETRS on a co-primary basis is not necessary.

76. We will, however, allow BETRSlicensees to obtain new sites andchannels in the 800 MHz band on asecondary basis. If any EA licenseesubsequently notifies the BETRSlicensee that a secondary facility mustbe shut down because it may causeinterference to the EA licensee’s existingor planned facilities, the BETRSlicensee must discontinue use of theparticular channel at that site no laterthan six months after such notice.

E. Partitioning and Disaggregation for800 MHz and 900 MHz Licensees

1. Partitioning

a. Eligibility77. We adopt our tentative conclusion

and further extend partitioning to allincumbent licensees and eligible SMRlicensees on all SMR channel blocks.We agree with commenters thatpartitioning will provide SMR licenseeswith increased flexibility and result inmore efficient spectrum management. Inthe broadband PCS proceeding, weeliminated the existing restriction thatlimited partitioning of broadband PCSlicenses to only rural telcos. Weconcluded that allowing more entities toacquire partitioned broadband PCSlicenses would: ‘‘(1) Remove potentialbarriers to entry thereby increasingcompetition in the PCS marketplace; (2)encourage parties to use PCS spectrummore efficiently; and (3) speed service tounserved and underserved areas.’’ Weconclude that the very same importantgoals will be met by allowing more openpartitioning in the SMR service.Eliminating the existing rural telcorestriction on SMR partitioning will: (1)Allow new entities, such as smallbusinesses, to acquire SMR licenses andthus increase competition and foster thedevelopment of new technologies andservices; (2) encourage existing SMRlicensees to use their spectrum moreefficiently; and (3) ensure the fasterdelivery of SMR service to rural areas.We also believe that allowing moreflexible partitioning will provide analternative to the relocation ofincumbent licensees.

78. Under our rules, SMR licenseesare required to meet performancerequirements based on substantialservice, which may be fulfilled byproviding population-based coverage.As some of the 900 MHz commentersnoted, these requirements encourageSMR licensees to initially focus theirattention on the more populated, urban


portions of their markets, in order tomeet the construction requirements,while leaving the less-populated, ruralareas unserved. With the present ruraltelco restriction in place, SMR licenseesare not permitted to partition the morerural portions of the their markets toanother entity, unless that entity is aqualified rural telco. In those caseswhere no rural telco is present in themarket or where the rural telco does notdesire to provide SMR service, theremay be a delay in the delivery of serviceto the rural portions of the MTA.Allowing SMR licensees to partitionportions of their markets to otherentities more interested in providingservice to those niche areas not onlyallows those other entities anopportunity to enter the SMRmarketplace but also increases the oddsthat the less populated, rural portions ofmarkets receive higher quality SMRservice. Therefore, we are eliminatingthe existing rural telco restriction onboth 800 MHz and 900 MHz SMRpartitioning.

79. We do not find that retaining therural telco restriction will result inhigher quality service to rural areas. Wefind that allowing more openpartitioning in the 900 MHz SMRservice will mean that additional, highlyqualified wireless operators, includingincumbent SMR operators, will bepermitted to provide 900 MHz SMRservice which may result in betterservice and increased competitionwhich may result in lower prices forservice. We also do not find thatallowing more open partitioning of 900MHz SMR licenses is inconsistent withthe mandate of section 309(j)(3)(B) ofthe Communications Act to ensure thatlicenses are disseminated among a widevariety of applicants including ruraltelcos. RTG argues that partitioning isthe only preference that has beendevised to ensure that rural telcos areafforded economic opportunities toparticipate in the provision of new andinnovative services. We disagree. Ruraltelcos are able to take advantage of thespecial provisions for small businessesadopted for the 900 MHz SMR auction.Furthermore, sections 309(j)(3) (A), (B),and (D) of the Communications Actdirect the Commission to further therapid deployment of new technologiesfor the benefit of the public includingthose residing in rural areas, to promoteeconomic opportunity and competition,and to ensure the efficient use ofspectrum. While encouraging rural telcoparticipation in 900 MHz SMR serviceofferings is an important element inmeeting these goals, Congress did notdictate that this should be the sole

method of ensuring the rapiddeployment of service in rural areas.Allowing more open partitioning willfurther the goals of section 309(j)(3) byallowing 900 MHz SMR licensees topartition their licenses to multipleentities rather than to a limited numberof rural telcos. In addition, we find that,because they possess the existinginfrastructure and local marketingknowledge in rural areas, rural telcoswill be able to compete with otherparties to obtain partitioned 900 MHzSMR licenses.

80. We decline to adopt SMR WON’sproposal to restrict non-incumbent 800MHz SMR licensees from partitioninguntil they have relocated all incumbentlicensees from their band. We agreewith those 800 MHz commenters thatbelieve that the auctions processobviates the need for restrictingpartitioning. While we acknowledgeSMR WON’s concerns that partitioningcould be used as a method for avoidingresponsibility for relocation ofincumbents, we believe that such arestriction would unfairly discouragepartitioning without any correspondingpublic interest benefit. We note thatpartitionees will be permitted to acquirepartitioned license areas from EAlicensees but will not be permitted tooperate on channels that werepreviously cleared by other EA licenseesuntil they have satisfied the relocationreimbursement requirements under ourrules. EA licensees and partitionees arefree to negotiate among themselves as towho will be responsible for paying thereimbursement costs, and we willrequire that parties seeking approval fora partitioning arrangement in the 800MHz SMR service certify which partywill be responsible for suchreimbursement. We believe that such acertification is a more flexible approachto ensuring that partitioning is not usedas a means to circumvent ourreimbursement requirements.

b. Available License Area81. In the broadband PCS and WCS

proceedings, we allowed partitioningalong any service area defined by thepartitioner and partitionee. We foundthat, by providing such flexibility tolicensees for determining partitionedbroadband PCS license areas, we wouldpermit the market to decide the mostsuitable services areas. We find that thesame rationale holds true in the SMRservice. Restricting the partitioning ofSMR licenses to geopolitical boundaries,as originally proposed in the SecondFurther Notice of Proposed Rulemakingand by AMTA, may inhibit partitioningand may not allow licensees to respondto market demands for service. We find

that allowing unrestricted partitioningof SMR licenses is preferable, as long asthe parties submit information in theirpartial assignment applications thatdescribes the partitioned license area.

82. We will require that applicationsseeking approval to partition an SMRlicense will be required to submit, asseparate attachments to the partialassignment application, a description ofthe partitioned service area and, whereapplicable, a calculation of thepopulation of the partitioned servicearea and licensed market. Thepartitioned service area must be definedby coordinate points at every 3 degreesalong the partitioned service area agreedto by both parties, unless either (1) anFCC-recognized service area is utilized(i.e., Major Trading Area, Basic TradingArea, Metropolitan Statistical Area,Rural Service or Economic Area) or (2)county lines are followed. Applicantsneed only define that portion of thepartitioned service area that is notencompassed by an FCC-recognizedservice area or county line. For example,if the partitioned service area consistedof five counties and three additionaltownships, the applicant must onlydefine that portion of the partitionedservice area comprised of the additionaltownships. These geographicalcoordinates must be specified indegrees, minutes and seconds to thenearest second of latitude andlongitude, and must be based upon the1927 North American Datum (NAD27).Applicants may also supplygeographical coordinates based on 1983North American Datum (NAD83) inaddition to those required based onNAD27. This coordinate data should besupplied as an attachment to the partialassignment application, and maps neednot be supplied. In cases where an FCCrecognized service area or county linesare being utilized, applicants need onlylist the specific area(s) (through use ofFCC designations) or counties that makeup the newly partitioned area. Forexample, if a licensee desires topartition its license only for the servicearea needed by a rural telco, it willsimply provide coordinate data points ateach 3 degree data point extending fromthe center of the service area (i.e, at the3 degree, 6 degree, 9 degree, 12 degree,etc. azimuth points with respect to truenorth).

83. We note that this rule will alsoapply to incumbent 800 MHz SMRlicensees seeking partial assignments oflicense. Incumbent licensees arecurrently licensed on a site-by-site basisand currently must seek a partialassignment of license under our existingrules if they desire to assign a portionof their licensed transmitter sites to


another entity. Under our new rules,incumbent 800 MHz SMR licenseesmust follow the same procedures as allother licensees and must include thenecessary description of the‘‘partitioned license area.’’ Forincumbent 800 MHz SMR licensees, the‘‘partitioned license area’’ will meanthat area encompassed by the protectedservice contours of all of the transmittersites being assigned.

2. Disaggregation

a. Eligibility

84. We conclude that all SMRlicensees should be allowed todisaggregate portions of their spectrumto any party that is qualified for thespectrum’s underlying channel block.We find that disaggregation will provideSMR licensees greater flexibility tomanage their spectrum more efficientlyand, in the 800 MHz band, will facilitatethe coexistence of geographic arealicensees and incumbents by allowinggeographic licensees to subdivide theirspectrum holdings and assign or transferparts of their spectrum to other eligibleentities or incumbents. We further findthat disaggregation will increasecompetition by encouraging a broaderrange of SMR participants; foster abroader range of services offered bythose participants as they seek nichemarkets and services; expedite theprovision of SMR service to areas thatmay not otherwise receive CMRSservice; and, allow the marketplace todetermine who and by whom thespectrum will be used. Moreover,allowing SMR disaggregation will helpestablish regulatory symmetry withsimilar services, such as PCS, asmandated by the 1993 Budget Act. Onceagain, we find that allowingdisaggregation will provide a lessdisruptive alternative for the relocationof incumbent licensees.

85. As we did with partitioning, wedecline to adopt SMR WON’s proposalto restrict non-incumbent 800 MHz SMRlicensees’ ability to disaggregate. Weagree with commenters that concludethat the market should determine whenand how much spectrum todisaggregate.

b. Amount of Spectrum to Disaggregate

86. We agree with commenters thatwe should not limit the amount of SMRspectrum that can be disaggregated. Wefind that the marketplace should decidethe amount of SMR spectrum to bedisaggregated and that there is no needto set a minimum disaggregationamount. As we did for broadband PCSand WCS, we seek to provide flexibilityto the parties to decide the amount of

spectrum they need. This will permitmore efficient use of spectrum anddeployment of a wider range of serviceofferings. Requiring a minimumdisaggregation amount for SMR mayinterfere with parties intend use ofspectrum and may foreclose someparties from using disaggregation as ameans of obtaining SMR spectrum toprovide their unique service offerings.We note that parties acquiringdisaggregated SMR spectrum willcontinue to be subject to all of ourtechnical and operating requirements.

1. Construction, Coverage and ChannelUsage Requirements

87. We agree that SMR licenseesshould not be able to use partitioningand disaggregation as a means ofcircumventing our performancerequirements and that some version ofthese requirements should apply toparties obtaining licenses through thesemeans. By adopting such requirementswe seek to ensure that spectrum is usedto the same degree that it would havebeen used had the partitioning ordisaggregation transaction not takenplace.

88. Therefore, we will adopt flexiblecoverage and channel usagerequirements for partitioning anddisaggregation in the 800 MHz and 900MHz SMR services that are consistentwith the underlying requirements inthose services. We find that granting theparties flexibility to devise a scheme formeeting these requirements willincrease the viability and value ofpartitioned licenses and disaggregatedspectrum and will facilitate partitioningand disaggregation for the SMR service.

89. With respect to incumbentlicensees, we believe that it would beinappropriate to subject entities thatobtain partitioned licenses ordisaggregated spectrum from incumbentSMR licensees to additionalperformance requirements when nosuch requirements currently exist forthese licensees. However, to preventincumbent licensees from usingpartitioning or disaggregation as ameans of circumventing our one-yearconstruction requirement, we will holdpartitionees and disaggregatees to theoriginal construction deadline(s) foreach of the partitioned facilities theyacquire. These deadlines may varydepending on when the facility wasoriginally licensed. In any case, apartitionee or disaggregatee that obtainsa portion of an incumbent SMRlicensees’ facilities or spectrum withonly a few months remaining before theexpiration of the construction deadline,will be required to have these facilitiesconstructed and providing ‘‘service to

subscribers’’ by each individualconstruction deadline. Failure to meetthe individual construction deadline fora specific facility will result inautomatic termination of that facility’sauthorization. We believe that such arequirement is a fair balance betweenallowing incumbent SMR licensees theopportunity to utilize the helpfulspectrum management tools ofpartitioning and disaggregation whileensuring continued compliance withour performance requirements.

90. Geographic Area Licensees—Partitioning. Because the coveragerequirements differ for licensees in the800 MHz and 900 MHz bands, we willadopt coverage requirements that areconsistent with the licensees’underlying requirements. In the 900MHz band and in the lower 230channels of the 800 MHz band,licensees are required to provide‘‘substantial service’’ to their marketswithin five years of the grant of theirinitial licensees. As such, we willpermit parties seeking to partitionlicenses in those bands to meet one ofthe following performancerequirements. Under the first option, thepartitioner and partitionee can eachagree to meet the ‘‘substantial service’’requirement for their respective portionsof the market. If a partitionee fails tomeet the ‘‘substantial service’’requirement for its portion of themarket, the license for the partitionedarea will automatically cancel withoutfurther Commission action. Under thesecond option, if the original geographicarea licensee certifies that it has alreadymet or will meet the ‘‘substantialservice’’ requirement for the entiremarket by providing coverage to at leastone-third of the population of the entire(pre-partitioned) market within threeyears of the grant of its license and atleast two-thirds of the marketpopulation within five years, then thepartitionee not be subject toperformance requirements except forthose necessary to obtain renewal.

91. In the upper 200 channels of the800 MHz band, licensees must meetspecific coverage benchmarks byproviding coverage to at least one-thirdof the population of their market withinthree years of the grant of their initiallicense and coverage to at least two-thirds of the population within fiveyears. For licensees in the upper 200channels of the 800 MHz band, we willadopt flexible coverage requirementssimilar to those we adopted in thebroadband PCS proceeding. Under thefirst option, we will require that thepartitionee certify that it will meet thesame coverage requirement as theoriginal licensee for its partitioned


market. If the partitionee fails to meet itscoverage requirement, the license for thepartitioned area will automaticallycancel without further Commissionaction. Under the second option, theoriginal licensee certifies that it hasalready met or will meet its three-yearcoverage requirement and that it willmeet the five-year constructionrequirement for the entire geographicarea market. In that case, the partitioneewill not be subject to performancerequirements except for those necessaryto obtain renewal.

92. Geographic Area Licensees—Disaggregation. Licensees in the upper200 channels of the 800 MHz band arerequired to meet a channel usagerequirement. Consistent with that rule,we will require that disaggregatees inthe upper 200 channels of the 800 MHzband meet a channel usage requirementfor the spectrum they acquire. However,consistent with our approach forpartitioning and to provide flexibility tothe parties to facilitate disaggregation inthe upper 200 channels, we will permitthe parties to negotiate amongthemselves the responsibility formeeting the channel usage requirement.Each party may agree to separately meetits channel usage requirement for itsportion of the disaggregated spectrum orthe original licensee may certify that ishas or will meet the channel usagerequirement for the entire spectrumblock. Similar to our approach forpartitioning, one party’s failure to meetits agreed-to channel usage requirementshall result in that party’s licenseautomatically reverting to theCommission and shall not affect theother party’s license.

93. There are no channel usagerequirements in the 900 MHz SMR bandor in the lower 230 channels of the 800MHz band. We believe it would beinconsistent with our existingconstruction requirements to imposeseparate performance requirements onboth the disaggregator and disaggregateein those bands. However, we wish toensure that parties do not usedisaggregation to circumvent ourunderlying performance requirements.Therefore, we will adopt an approachsimilar to the one adopted forpartitioning: we will retain theunderlying ‘‘substantial service’’requirement for the spectrum as a wholebut allow either party to meet therequirements on its disaggregatedportion. Therefore, a licensee in eitherthe 900 MHz band or the lower 230channels of the 800 MHz band thatdisaggregates a portion of its spectrummay elect to retain responsibility formeeting the ‘‘substantial service’’requirement, or it may negotiate a

transfer of this obligation to thedisaggregatee. In either case, the rulesensure that the spectrum will bedeveloped to at least the same degreethat was required prior todisaggregation.

94. To ensure compliance with ourrules, we will require that partiesseeking Commission approval ofdisaggregation agreement in the 900MHz band or the lower 230 channels ofthe 800 MHz band include acertification as to which party will beresponsible for meeting the applicable‘‘substantial service’’ requirements.Parties may also propose to share theresponsibility for meeting therequirement. As part of our publicinterest review under section 310(d), wewill review each transaction to ensurethat the party designated as responsiblefor meeting the performancerequirements is bona fide and has theability to meet these requirements. Inthe event that only one party agrees totake responsibility for meeting theperformance requirement and later failsto do so, that party’s license will besubject to forfeiture, but the otherparty’s license will not be affected.Should both parties agree to share theresponsibility for meeting theperformance requirements and eitherparty later fail to do so, both parties’licenses will be subject to forfeiture.

95. We note also that disaggregateesthat already hold an SMR license orother CMRS license in the samegeographic market will be subject to thesame performance requirements asdisaggregatees who do not hold otherlicenses for disaggregated spectrum. Inaddition, as we noted above, we willrequire that parties to partitioning anddisaggregation agreements involving 800MHz licensees certify in theirapplications which party will beresponsible for relocating incumbentlicensees located in the partitionedlicense area or the disaggregatedspectrum block. The parties are free tonegotiate among themselves whichparty will be responsible for incumbentrelocation.

2. Matters Related to Designated EntityLicensees

96. Geographic area licensees in boththe 800 MHz and 900 MHz bands thatqualify as a ‘‘small business’’ (otherwisereferred to generally as ‘‘designatedentity’’ licensees) may receive a biddingcredit to reduce the amount of theirwinning auction bid. Entities withaverage gross revenues of not more than$3 million for the preceding three yearsmay receive a 35 percent bidding credit.Entities with average gross revenues ofnot more than $15 million for the

preceding three years may receive a 25percent bidding credit. While 900 MHzlicensees may repay their winningauction bid pursuant to installmentpayments, pursuant to ourMemorandum Opinion and Orderreleased today, installment payments for800 MHz licensees in the upper 200channels have been eliminated and wedecline to adopt such a provision for thelower 230 channels. There are twolevels of installment payments availableto small business EA licensees in theupper 200 channels while only onelevel of installment payments isavailable to small business EA licenseesin the lower 230 channels. Therefore,we must only concern ourselves withthe question of installment paymentswith respect to 900 MHz licensees.

97. Whenever an geographic area 800MHz or 900 MHz SMR licensee, thatreceived a bidding credit at auction,transfers its entire license to an entitythat would not have qualified for sucha bidding credit or would have qualifiedfor a lower bidding credit, thegeographic area licensee is required torepay some or all of its bidding credit.If the transfer occurs in the first twoyears, 100 percent of the bidding creditmust be repaid; if it occurs in year three,75 percent; in year four, 50 percent; andin year five, 25 percent. After the fifthyear, no unjust enrichment penalty isimposed.

98. Similarly, if a 900 MHz geographicarea licensee, that is paying its winningbid through installment payments,transfers its license to entire an entitythat would not have qualified for suchinstallment payments or, in the case ofthe upper 200 channels, for a lessfavorable installment payment plan, thegeographic area licensee must make fullpayment of the remaining unpaidprincipal and interest accrued throughthe date of assignment or transfer. Asimilar rule has been adopted for thelower 230 channels, however, only onelevel of installment payments inavailable to EA licensees in the lower230 channels.

99. We conclude that the above-outlined unjust enrichmentrequirements shall apply if licensee,that received one of these special smallbusiness benefits, partitions ordisaggregates to an entity that would notqualify for the benefit. We will followthe approach adopted in both thebroadband PCS and WCS proceedingsand apply all such unjust enrichmentrequirements on a pro rata basis usingpopulation to calculate the relativevalue of the partitioned area andamount of spectrum disaggregated tocalculate the relative value of thedisaggregated spectrum. We disagree


with PCIA that these measures will slowthe assignment process or encourage thefiling of frivolous petitions to deny. Wefind that such measures will provide anobjective method for calculating therelative values of partitioned areas anddisaggregated spectrum. We note thatpopulation will be calculated basedupon the latest census data. Parties mayuse the latest census data when it isavailable.

100. With respect to installmentpayments, we will follow theprocedures established in the broadbandPCS proceeding and require that a 900MHz SMR geographic area licensee,making installment payments, andseeking to partition or disaggregate to anentity that does not meet the applicableinstallment payment eligibilitystandards, make a payment of principaland interest calculated on aproportional basis as set forth above. Ifa geographic area licensee makinginstallment payments, partitions ordisaggregates to an entity that wouldqualify for less favorable installmentpayments, we will require the licenseeto reimburse the government for thedifference between the installmentpayment paid by the licensee and theinstallment payments for which thepartitionee or disaggregatee is eligiblecalculated on a proportional basis as setforth above.

101. We will separate the paymentobligations using the same proceduresadopted for broadband PCS. When a 900MHz SMR geographic area licensee withinstallment payments partitions ordisaggregates to a party that would notqualify for installment payments underour rules or to an entity that does notdesire to pay for its share of the licensewith installment payments, we willrequire, as a condition of grant of thepartial assignment application, that thepartitionee/disaggregatee pay its entirepro rata amount within 30 days ofPublic Notice conditionally granting thepartial assignment application. Thepartitioner or disaggregator will receivenew financing documents (promissorynote and security agreement) with arevised payment obligation, based onthe remaining amount of time on theoriginal installment payment schedule.A default on an obligation will onlyaffect that portion of the market areaheld by the defaulting party.

102. Where both parties to the 900MHz SMR partitioning or disaggregationarrangement qualify for installmentpayments under our rules, we will againfollow the procedures established in thebroadband PCS proceeding and permitthe partitionee/disaggregatee to makeinstallment payments on its portion ofthe remaining government obligation.

Partitionees/disaggregatees are free,however, to make a lump sum paymentof all or some of their pro rata portionof the remaining government obligationwithin 30 days of the Public Noticeconditionally granting the partialassignment application. Should apartitionee/disaggregatee choose tomake installment payments, we willrequire, as a condition to approval of thepartial assignment application, that bothparties execute financing documents(promissory note and securityagreement) agreeing to pay the U.S.Treasury their pro rata portion of thebalance due (including accrued andunpaid interest on the date the partialassignment application is filed) basedupon the installment payment terms forwhich they would qualify. Each partywill receive a license for its portion ofthe market area and each party’sfinancing documents will provide that adefault on its obligation would onlyaffect their portion of the market area.These payments to the U.S. Treasury arerequired notwithstanding any additionalterms and conditions agreed to betweenor among the parties.

3. Related Matters103. We asked commenters in the

Second Further Notice of ProposedRulemaking to discuss the conditions bywhich partitioning and disaggregationshould be allowed for 800 MHzlicensees. In addition, AMTA raisedrelated matters in its Petition. We adoptthe following rules with respect to theabove-outlined matters similar to thosewe have adopted for the broadband PCSservice.

a. Combined Partitioning andDisaggregation

104. In the broadband PCSproceeding, we found that allowingentities to propose combinedpartitioning and disaggregationtransactions would provide addedflexibility and would facilitate sucharrangements. We believe the samerationale would apply to partitioningand disaggregation in the SMR service.Therefore, we will allow licensees topropose combined partitioning anddisaggregation transactions. We believethat the goals of providing competitiveserve offering, encouraging new marketentrants, and ensuring quality service tothe public will be advanced by allowingsuch combined transactions. We furtherconclude that in the event that there isa conflict in the application of thepartitioning and disaggregation rules,the partitioning rules should prevail.For the purpose of applying our unjustenrichment requirements and/or forcalculating obligations under

installment payment plans, when acombined 900 MHz SMR partitioningand disaggregation is proposed, we willuse a combination of both population ofthe partitioned area and amount ofspectrum disaggregated to make thesepro rata calculations.

b. License Term and RenewalExpectancy

105. In the broadband PCSproceeding, we concluded that entitiesacquiring a license through partitioningand disaggregation should hold theirlicense for the remainder of the originallicensee’s license term. We found thatthis approach was consistent with theapproach we had adopted for theMultipoint Distribution Service and wasthe easiest to administer. We found thatallowing licensees to ‘‘re-start’’ thelicense term from the date of the grantof the partial assignment of licenseapplication could invite parties tocircumvent our license term rules andunnecessarily delay service to theaffected areas.

106. We find the same to be true withrespect to the SMR service. Limitingpartitionees and disaggregatees in theSMR service to the remainder of theoriginal licensee’s license term (whetherit be five years for incumbent licenseesor ten years for geographic arealicensees) will ensure that there will bethe maximum incentive for parties topursue available spectrum as quickly aspracticable, thus expediting delivery ofservice to the public.

107. We will also adopt renewalexpectancy provisions for SMRpartitionees and disaggregatees thatobtain their licenses from geographicarea licensees similar to those adoptedin the broadband PCS proceeding.Partitionees and disaggregateesobtaining license areas or spectrum fromgeographic area licensees may earn arenewal expectancy on the same basis asother geographic area licensees.

c. Licensing108. In order to provide added

flexibility, we will not adopt theprocedures set forth in the SecondFurther Notice of Proposed Rulemakingand, instead, adopt procedures similarto those proposed by AMTA and thosedevised for broadband PCS partitioningand disaggregation. We will require thatparties seeking approval for an SMRpartitioning or disaggregationtransaction follow the existing partialassignment procedures for the SMRservice. Such applications will beplaced on Public Notice and will besubject to petitions to deny. Thelicensee will be required to file an FCCForm 490 that is signed by both the


licensee and the qualifying entity. Thequalifying entity will also be required tofile an FCC Form 430 unless a currentFCC Form 430 is already on file with theCommission. An FCC Form 600 must befiled by the qualifying entity to receiveauthorization to operate in the marketarea being partitioned or for thedisaggregate spectrum and to modify theexisting license of the qualifying entityto include the new/additional marketarea being partitioned or the spectrumbeing disaggregated. Any requests for apartitioned license or disaggregatedspectrum must contain the FCC Forms490, 430, and 600 and be filed as onepackage under cover of the FCC Form490. We note that the 45 MHz CMRSspectrum cap contained in § 20.6 of therules applies to partitioned license areasand disaggregated spectrum in the SMRservice. In the context of partitioning,we will determine compliance with thespectrum cap based on the post-partitioning populations of eachlicensees’ partitioned market. Thismeans that neither the partitioner northe partitionee may count thepopulation in the other’s party’s portionof the market in determining its owncompliance with the spectrum cap.Furthermore, by signing FCC Forms 490and 600, the parties will certify thatgrant of the partial assignmentapplication would not cause either partyto be in violation of the spectrumaggregation limit contained in § 20.6 ofthe rules.

F. Competitive Bidding Issues of Lower80 and General Category Channels

1. Auction of Lower 80 and GeneralCategory Channels

109. In previous proceedings, weconcluded generally that we should use‘‘competitive bidding procedures toselect from among mutually exclusiveCMRS applications where we have theauthority to do so and where we findsuch processing to be in the publicinterest.’’ Upon consideration of therecord in this proceeding, we concludethat auctioning the Lower 80 channelsand the General Category channelsmeets the criteria set forth in section309(j) of the Communications Act andwill further the public interest. Nextel,AMTA, and SMR Won generallysupport competitive bidding for thesechannels.

110. Southern and ITA argue that theCommission lacks the authority toauction this spectrum on the groundthat under section 309(j) theCommission is obligated to use existingmeans (i.e. engineering solutions,negotiations, threshold qualifications) toavoid mutual exclusivity in application

and license proceedings. We note as aninitial matter that the CommunicationsAct only requires the Commission to useother such existing means when it is inthe public interest. After carefulanalysis of this spectrum, we concludethat the likelihood of mutuallyexclusive applications in the 800 MHzSMR band is considerable and that notall potential conflicts will be eliminatedthrough negotiations or other existingmeans. We therefore conclude that thepublic interest will be served by usingcompetitive bidding to license thesechannels.

111. Some commenters contend thatthe General Category and Lower 80 arenot auctionable because the channelsare heavily licensed leaving few or nochannels or space available for newlicensing. Further, these commenterscontend that those channels that areopen will be used for mandatoryrelocation of incumbents from the upper10 MHz channels. These commentersalso contend that there is little to begained by adopting geographic licensingbecause geographic areas that alreadyhave any value are licensed and therewill be no increase in spectrumefficiency. Further, commenters arguethat because there is little open spaceand no mandatory relocation proposalfrom the Lower 80 or General Categorychannels, EA licensees will not be ableto expand and these licensees could befurther frustrated by relocatees from theupper 200 channels.

112. We reject those arguments forseveral reasons. We do not believe thepurported dearth of channels in someareas or the potential risk of relocateesfrom the upper 200 channels render thecompetitive bidding processinapplicable. In this Order, we includeprovisions for licensees to aggregatelicenses within a geographic area, whichwill enable them to expand thegeographic coverage of their systemsand potentially enhance the commercialviability of these licenses, as well as usethis spectrum efficiently. As notedabove, there is a high likelihood thatmutually exclusive applications will befiled for these channels. The resolutionof these applications by comparativehearings or other means willunnecessarily delay the processing ofthese applications, contrary to thepublic interest and to the Congressionalobjectives under section 309(j)(3). Underthe licensing scheme for these channels,i.e., on a geographic area basis (as withthe upper 200 channels, EAs will beused for the lower 80 channels), therewill be competitive opportunities toprovide SMR service in this frequencyband and the application process forthese channels will be open to any

qualified applicant. Furthermore, theuse of competitive bidding to selectamong these applicants will ensure thatthe qualified applicants who place thehighest value on the available spectrumwill prevail in the selection process.Additionally, as we concluded in theFirst Report and Order, by using thesame service area definition for thelower 80 and General Category channelsas we used for the upper 200 channels,we will realize greater administrativeefficiency in the licensing of thesechannels.

113. A few commenters contend thatthey cannot afford to participate in theauction. Some commenters believe thatthe auction procedure heavily favorslarge entities over smaller ones, thatthese larger entities will hurtcompetition and delay provision ofservices while the auction takes place.As noted below, to ensure smallbusiness participation in the Lower 80and General Category channel auctions,the Commission has adopted biddingcredits. Furthermore, contrary to claimsthat auctions will delay the deploymentof services, we believe that the use ofcompetitive bidding will enhancecompetition and serve to streamline theadministrative process, thereby allowinglicenses to provide service more quicklythan alternative licensing procedures.

114. Several commenters argue thatthe government should be concernedwith the safety and welfare of citizenseven when such concerns prevent itfrom raising revenues. Somecommenters believe that this spectrumshould be reserved for public safetyentities and that PMRS licensees needaccess to additional spectrum. Motorolabelieves that PMRS providers play animportant role in public safety andprivate industry and that PMRS’sconcerns should be taken into account.We addressed these concerns fully inthe Second Further Notice of ProposedRulemaking. We stated that existinglicensees will not be required to relocatetheir public safety radio systems andgeographic licensees will be required toprovide protection to all co-channelsystems that are constructed andoperating within their service area. Inaddition, an advisory committee hasbeen established to address the concernsof public safety users. Therefore, theCommission’s rules will allow both theefficient use of the spectrum and thepreservation of public safety.

2. Competitive Bidding Design

a. Bidding Methodology

115. Based on the record in thisproceeding and our successfulexperience conducting simultaneous


multiple round auctions for otherservices, we believe a simultaneousmultiple round auction design is thepreferred competitive bidding design forthese channels. Commenters generallysupport the use of this methodology, onthe grounds that there isinterdependency among the licenses. Nocommenter advocated the use ofsequential multiple round auctions. Wealso note, as discussed below, that wewill adopt regional groupings for theLower 80 and General Category EAlicenses. The aggregation of licensesinto these regional groupings createsstronger interdependencies between thelicenses, further warranting the use ofthis auction methodology.

b. License Grouping

116. To expedite the process ofauctioning the Lower 80 and GeneralCategory EA licenses, we will auctionthese licenses using the five regionalgroups that were used for the regionalnarrowband PCS auction: Northeast,South, Midwest, Central, and West. Webelieve that by grouping the licensesand auctioning them regionally, wereduce the burden on small businesseswhich choose to participate in theauction process. Each entity will need toparticipate only in those regionalauctions in which it is interested inwinning licenses. Additionally, byholding regional auctions and therebylimiting the number of licensesavailable, we will decrease theadministrative burden of the auction onthe participants, and further enable theauction to conclude at an earlier time.Finally, we believe that this groupingwill make it easier for incumbents tosecure spectrum that complements thelicenses they currently hold whileallowing them to expand their systems.

c. Bidding Procedures

i. Bid Increments

117. We will adopt our minimum bidincrement proposal, but delegateauthority to the Bureau to vary theminimum bid increment. While webelieve our proposal is appropriate, ourexperience with other auctions indicatesthat flexibility is necessary to setappropriate bidding levels to accountfor the pace of the auction, the needs ofthe bidders, and the value of thespectrum. Commenters generallysupport a minimum bid incrementbased upon a percentage of the bid fromthe previous round. E.F. Johnson, on theother hand, argues that minimum bidincrements should be reduced oreliminated to facilitate small businessparticipation in the auction. There is noevidence that a minimum bid increment

will deter small business participationin the auction. Rather, as we previouslynoted, an appropriate minimum bidincrement is important to thefunctioning of the auction as it speedsthe process of the auction and helps toensure that it comes to closure within areasonable period of time. Moreover, asnoted below, we have adoptedprovisions to encourage small businessparticipation. We will follow thepractice that we have used for otherauctions and, consistent with § 1.2104of the Commission’s Rules, announce byPublic Notice prior to the auction thegeneral guidelines for bid increments.

ii. Stopping Rules118. In view of our decision to

aggregate licenses on a regional basis,we believe that a simultaneous stoppingrule is appropriate for both the Lower 80and the General Category licenses. Thus,bidding will remain open on all licensesin an auction until bidding stops onevery license. Based on the success ofour prior broadband PCS and 900 MHzSMR auctions, Nextel agrees that thereshould be a simultaneous stopping rule.AMTA and Nextel also claim that thisrule is appropriate because of theinterdependencies between the markets.SMR Won supports the market-by-market stopping rule, suggesting that itwill deter speculators and reduceartificial inflation of auction prices. Weconclude that bidding should remainopen on all licenses in an auction untilbidding stops on every license. Webelieve that allowing simultaneousclosing for all licenses will affordbidders the flexibility to pursue back-upstrategies without the risk that bidderswill refrain from bidding until the finalrounds. In any event, we will retain thediscretion to change the stopping rulesduring the course of the auction, anddelegate authority to the Bureau toexercise that discretion.

iii. Activity Rules119. In accordance with § 1.2104 of

the Commission’s Rules and theguidelines we adopted in theCompetitive Bidding Second Report andOrder, we will employ the Milgrom-Wilson activity rule for both the Lower80 and General Category auctions. Aswe noted in the Competitive BiddingSecond Report and Order, the Milgrom-Wilson activity rule is the preferredactivity rule where a simultaneousstopping rule is used. We believe thatthe Milgrom-Wilson approach bestachieves the Commission’s goal ofaffording bidders flexibility to pursuebackup strategies, while at the sametime ensuring that simultaneousauctions are concluded within a

reasonable period of time. Specifically,under the Milgrom-Wilson rules, theauction is divided into three stages andthe minimum required activity level,measured as a fraction of the bidder’seligibility in the current round, willincrease during the course of theauction. For purposes of this auction,we will adopt the minimum requiredactivity levels at each stage that recentlywere adopted for the D, E, and FBroadband PCS auction.

120. As in previous auctions, wereserve the discretion to set and, byannouncement before or during theauction, vary the level of the requisiteminimum activity levels (and associatedeligibility calculations) for each auctionstage. We believe that retaining thisflexibility will improve theCommission’s ability to control the paceof the auction and help ensure that theauction is completed within areasonable period of time. We delegateto the Bureau the authority to set or varythe minimum activity levels ifcircumstances warrant a modification.The Bureau will announce any suchmodification by Public Notice. For thepurposes of this auction, we also willuse the general transition guidelinesthat were used for the D, E, and FBroadband PCS auctions. The auctionwill start in Stage One and move toStage Two when the auction activitylevel is below ten percent for threeconsecutive rounds in Stage One. Theauction will move from Stage Two toStage Three when the auction activitylevel is below ten percent for threeconsecutive rounds in Stage Two. Underno circumstances can the auction revertto an earlier stage. However, the Bureauwill retain the discretion to determineand announce during the course of anauction when, and if, to move from oneauction stage to the next.

121. To avoid the consequences ofclerical errors and to compensate forunusual circumstances that might delaya bidder’s bid preparation or submissionin a particular round, we will providebidders with five activity rule waiversthat may be used in any round duringthe course of the auction. The Bureauwill retain the discretion to issueadditional waivers during the course ofan auction for circumstances beyond abidder’s control, and also retain theflexibility to adjust, by Public Noticeprior to an auction, the number ofwaivers permitted, or to institute a rulethat allows one waiver during aspecified number of bidding rounds orduring specified stages of the auction.

iv. Duration of Bidding Rounds122. We will retain the discretion to

vary the duration of bidding rounds and


the intervals at which bids are accepted.In simultaneous multiple roundauctions, bidders may need a significantamount of time to evaluate back-upstrategies. AMTA requests that we allowonly one round of an auction per daybecause many of its members who willparticipate in the auction do not havesufficient staff to monitor the auction ifthere is more than one round per day.Genesee requests that for the first fiverounds of the auction only one round ofbids per day be allowed. Genesee doesnot provide any rationale for itsproposal. We do not believe theseproposed limitations are necessary. Wenote that we have adopted regionallicense groupings that are intended tominimize for small entity participantsthese burdens in participating andmonitoring the auctions. Therefore, wedelegate authority to the Bureau to varythe bidding rounds or the interval atwhich bids are accepted in order tomove the auction toward closure morequickly or as circumstances warrant.The Bureau will announce any changesto the duration of and intervals betweenbidding rounds, whether by PublicNotice prior to the auction or byannouncement during the auction.

d. Rules Prohibiting Collusion123. We adopt the rules prohibiting

collusive conduct for use in the Lower80 and General Category auctions. Theserequirements, as set forth in §§ 1.2105and 1.2107 of our Rules, operate alongwith existing antitrust laws as asafeguard to prevent collusion in thecompetitive bidding process. Inaddition, where specific instances ofcollusion in the competitive biddingprocess are alleged during the petitionto deny process, we may conduct aninvestigation or refer such complaints tothe U.S. Department of Justice forinvestigation. Bidders who are found tohave violated the antitrust laws or theCommission’s rules in connection withtheir participation in the auctionprocess may be subject to a variety ofsanctions, including the forfeiture oftheir down payment or their full bidamount, revocation of their licenses,and possible prohibition fromparticipation in the auctions. Geneseesupports our proposal on the groundsthat these same rules were effective inthe 900 MHz SMR auctions. CoralGables, in contrast, requests that publicsafety radio service providers under part90, or those proposing to provide suchservices, should be exempt from thecollusion rules when they arenegotiating with other public safetyservice providers. We reject CoralGable’s position. First, the specificneeds of public safety entities are the

subject of, and will be addressed in, aseparate Commission proceeding. Inaddition, we believe that continuednegotiation past the short-form filingdate by any segment of bidders mayimpact the valuation of the licenses andjeopardize the integrity of the auctionprocess. We note that prior to the short-form filing date, public safety radioservice providers, like other auctionparticipants, are free to negotiate witheach other to the extent permitted by theantitrust laws.

e. Procedural and Payment Issues

i. Pre-Auction Application Procedures

124. We will generally use theapplications and payment proceduresset forth in part 1 of our rules, withcertain modifications for the 800 MHzSMR service. A Public Noticeannouncing the auction will specify thelicenses to be auctioned and the timeand place of the auction in the eventthat mutually exclusive applications arefiled. The Public Notice will alsospecify the method of competitivebidding to be used, applicable bidsubmission procedures, stopping rules,activity rules, the short-form filingdeadline, and the upfront paymentamounts.

125. Prior to the auction, the WirelessTelecommunications Bureau will alsoprovide information about incumbentlicensees for applicants planning toparticipate in the auction. We encourageall potential bidders to examine theserecords carefully and do their ownindependent investigation regardingexisting licensees’ operations in eachlicense area on which they intend to bidin order to maximize their success inthe auction.

126. Section 309(j)(5) provides that noparty may participate in an auction‘‘unless such bidder submits suchinformation and assurances as theCommission may require to demonstratethat such bidder’s application isacceptable for filing.’’ We adopt ourproposal to require all applicants for800 MHz SMR licenses to submit FCCForm 175 in order to participate in theauction. As we indicated in theCompetitive Bidding Second Report andOrder, if we receive only oneapplication that is acceptable for filingfor a particular license, and thus thereis no mutual exclusivity, we will issuea Public Notice canceling the auction forthat license and establish a date for thefiling of a long-form application.

ii. Amendments and Modifications

127. We will apply the provisions setforth in part 1 of our rules governingamendments to and modifications of

short-form application to the 800 MHzSMR service. The only commenter onthis issue, Genesee, supports theCommission’s proposal. Upon reviewingthe short-form applications, we willissue a Public Notice listing all defectiveapplications. Applicants with minordefects in their applications will begiven an opportunity to cure them andresubmit a corrected version.

iii. Upfront Payments128. We will adopt our upfront

payment proposal, particularly becausethe majority of commenters support it.Fresno states that the upfront paymentshould be high enough to discouragefrivolous bidders but flexible enough toreflect the lower value of the channels.As we previously noted, a substantialupfront payment requirement isnecessary to ensure that only seriousqualified bidders participate inauctions, thereby ensuring thatsufficient funds are available to satisfyany bid withdrawal or default paymentsthat may be incurred. We thus rejectCoral Gables’ claim that bidders thatprovide public safety radio servicesunder part 90 of the Commission’s Rulesshould not be required to make anupfront payment or, alternatively, thatthey should have a reduced upfrontpayment. We believe that making theseexceptions to the upfront paymentrequirement would jeopardize theintegrity of the auction process. AsFresno suggests, we recognize thestandard upfront payment formula mayyield too high a payment as comparedto the value of these licenses.Accordingly, we delegate authority tothe Bureau to vary the minimumupfront payment when it determines thegeneral formula of $0.02 per MHz-pop isan unreasonably high upfront payment.The Bureau will announce any suchmodification by Public Notice.

iv. Down Payment and Full Payment129. We conclude that we should

require all winning bidders tosupplement their upfront paymentswith down payments sufficient to bringtheir total deposits up to 20 percent ofthe winning bid(s). Genesee, the solecommenter to address this issue,supports our proposal. If the upfrontpayment already tendered by a winningbidder, after deducting any bidwithdrawal and default payments due,amounts to 20 percent of its winningbids, no additional deposit will berequired. If the upfront payment amounton deposit is greater than 20 percent ofthe winning bid amount after deductingany bid withdrawal and defaultpayments due, the additional monieswill be refunded.


130. We will require winning biddersto submit the required down payment toour lock-box bank within ten businessdays following release of a Public Noticeannouncing the close of bidding. Allauction winners will be required tomake full payment of the balance oftheir winning bids within ten businessdays following Public Notice that theCommission is prepared to award thelicense. The Commission generally willgrant uncontested licenses within tenbusiness days after receiving fullpayment.

131. We believe that small businessesshould also be subject to a 20 percentdown payment requirement. We believethat such a requirement is consistentwith ensuring that winning biddershave the financial capability of buildingout their systems and will provide us astrong assurance against default.Increasing the amount of the bidder’sfunds at risk in the event of defaultdiscourages insincere bidding andtherefore increases the likelihood thatlicenses are awarded to parties who arebest able to serve the public. We alsobelieve that a 20 percent down paymentshould cover the required payments inthe unlikely event of default. In view ofour decision to defer the issue ofinstallment payments to the part 1proceeding, we will also defer ourdecision as to when small businessesmust make their down payment to thepart 1 proceeding.

v. Bid Withdrawal, Default, andDisqualification

132. To prevent insincere bidding wewill apply our general bid withdrawal,default, and disqualification rules, as setforth in § 1.2104(g) of the Commission’sRules, to the Lower 80 and GeneralCategory auctions. Genesee, the solecommenter to address these issues,supports this proposal. Any bidder thatwithdraws a high bid before theCommission declares bidding closedwill be required to reimburse theCommission in the amount of thedifference between its high bid and theamount of the winning bid the next timethe license is offered by the Commissionif this subsequent winning bid is lowerthan the withdrawn bid. If a bidder haswithdrawn a bid or defaulted, but theamount of the withdrawal or defaultpayment cannot yet be determined, thebidder will be required to make adeposit of up to 20 percent on theamount bid on such licenses. When itbecomes possible to calculate and assessthe payment, any excess deposit will berefunded.

133. In the event an auction winnerdefaults on its initial down payment,the Commission must exercise our

discretion to decide whether to hold anew auction or offer the licenses to thesecond highest bidder. In exercising ourdiscretion, the Commission willevaluate the particular facts andcircumstances of the specific case. Inthe unlikely event that there is morethan one bid withdrawal on the samelicenses, we will hold each withdrawingbidder responsible for the differencebetween its withdrawn bid and theamount of the winning bid the next timethe license is offered by theCommission.

vi. Long-Form Applications andPetitions to Deny

134. In the Second Further Notice ofProposed Rulemaking we proposed toadopt the general procedures for filinglong-form applications to the 800 MHzSMR auctions. In addition, we proposedthat the petition to deny procedures thatwere adopted in the CMRS Third Reportand Order should apply to theprocessing of applications for the 800MHz SMR service. Genesee, the solecommenter on this issue, supports ourproposal. Therefore, we adopt ourproposals regarding petitions to deny. Aparty filing a petition to deny against an800 MHz SMR license application willbe required to demonstrate standing andmeet all other applicable filingrequirements. The restrictions in§ 90.162 were established to prevent thefiling of speculative applications andpleadings (or threats of the same)designed to extract money from 800MHz license applicants. Thus, we willlimit the consideration that a winningbidder or an individual or entity filinga petition to deny is permitted to receivefor agreeing to withdraw an applicationor a petition to deny to the legitimateand prudent expenses of thewithdrawing applicant or petitioner. Wenote also that we recently amended§ 90.162 to reflect the fact thatdiscussions regarding withdrawal ofshort-form applications are subject to§ 1.2105(c) of our Rules.

vii. Transfer Disclosure Requirements135. In section 309(j) of the

Communications Act, Congress directedthe Commission to ‘‘require suchtransfer disclosures and anti-traffickingrestrictions and payment schedules asmay be necessary to prevent unjustenrichment as a result of the methodsemployed to issue licenses andpermits.’’ Therefore, we imposed atransfer disclosure requirement onlicenses obtained through thecompetitive bidding process, whetherby designated entity or not. Wetentatively concluded in the SecondFurther Notice of Proposed Rulemaking

that the transfer disclosure requirementsshould apply to all 800 MHz SMRlicenses obtained through thecompetitive bidding process. Genesee,again the sole commenter on this issue,supports the Commission’s tentativeconclusion. We will adopt the transferdisclosure requirements contained in§ 1.2111(a) of our rules to auctions forthe Lower 80 and General Category. Wewill give particular scrutiny to auctionwinners who have not yet beguncommercial service and who seekapproval for a transfer of control orassignment of their licenses within threeyears after the initial license grant, sothat we may determine if anyunforeseen problems relating to unjustenrichment outside the designatedentity context have arisen. Theseparticular transfer disclosurerequirements are in addition to theunjust enrichment provisions discussedinfra.

3. Treatment of Designated Entities

a. Overview and Objectives136. In authorizing the Commission to

use competitive bidding, Congressmandated that the Commission ‘‘ensurethat small businesses, rural telephonecompanies, and businesses owned bymembers of minority groups and womenare given the opportunity to participatein the provision of spectrum-basedservices.’’ The statute required theCommission to ‘‘consider the use of taxcertificates, bidding preferences andother procedures’’ in order to achievethis congressional goal. In addition,section 309(j)(3)(B) provided that inestablishing eligibility criteria andbidding methodologies the Commissionshall promote ‘‘economic opportunityand competition * * * by avoidingexcessive concentration of licenses andby disseminating licenses among a widevariety of applicants, including smallbusinesses, rural telephone companies,and businesses owned by members ofminority groups and women.’’ Section309(j)(4)(A) provides that to promotethese objectives, the Commission shallconsider alternative payment schedules,including installment payments.

137. We have employed a wide rangeof special provisions and eligibilitycriteria designed to meet the statutoryobjectives of providing opportunities todesignated entities in other spectrum-based services. The measuresconsidered for each service wereestablished after closely examining thespecific characteristics of the serviceand determining whether any particularbarriers to accessing capital stood in theway of designated entity opportunities.For example, in narrowband PCS we


provided installment payments forsmall businesses and bidding credits forminority-owned and women-ownedbusinesses. In 900 MHz SMR, weadopted bidding credits and installmentpayment plans for small businesses.

138. In the Second Further Notice ofProposed Rulemaking, we soughtcomment on the type of designatedentity provisions that should beincorporated into our competitivebidding procedures for the Lower 80and General Category channels. Werequested comment on the possibilitythat, in addition to small businessprovisions, separate provisions forwomen- and minority-owned entitiesshould be adopted for the Lower 80 andGeneral Category channels. Werequested commenters to discusswhether the capital requirements of the800 MHz SMR service pose a barrier toentry by minorities and women andwhether overcoming such a barrier, if itexists, would constitute a compellinggovernmental interest. In particular, wesought comment on the actual costsassociated with the acquisition,construction, and operation of an 800MHz SMR system with a service areabased on a pre-defined geographic areaas well as the proportion of existing 800MHz SMR businesses that are owned bywomen and minorities. We also urgedthe parties to submit evidence aboutpatterns or actual cases ofdiscrimination in the 800 MHz SMRindustry or in related communicationsservices.

b. Eligibility for Designated EntityProvisions

139. At this time, we have notdeveloped a record sufficient to sustainrace-based measures in the Lower 80and General Category licenses based onthe standard established by the Adaranddecision. In addition, we believe thatthe record is insufficient to support anygender-based provisions under theintermediate scrutiny standardestablished in the VMI decision. Fresnourges the Commission to design aregulatory scheme that will provideopportunities for businesses owned bywomen and minorities to comply withthe congressional mandate set out insection 309(j). Fresno, however, doesnot provide any evidence of pastdiscrimination. Conversely, Nextelstates that there is no evidence thatminorities and women have beenhistorically discriminated against in theSMR industry. Based upon the record inthis proceeding, we will adopt biddingcredits solely for applicants qualifyingas small businesses. We believe theseprovisions will provide smallbusinesses with a meaningful

opportunity to obtain licenses for theLower 80 and General Categorychannels. Moreover, many women- andminority-owned entities are smallbusinesses and will therefore qualify forthese provisions. As such, theseprovisions will meet Congress’ goal ofpromoting wide dissemination oflicenses in this spectrum. We havedetermined that no special provisionsfor rural telephone companies arewarranted but we note that ruraltelephone companies may takeadvantage of the geographic partitioningand disaggregation provisions and, tothe extent that they fall within thedefinition of small businesses, they cantake advantage of the designated entityprovisions too.

i. Small Businesses Definition140. Based upon the record in this

proceeding, we conclude that specialprovisions for small businesses areappropriate for 800 MHz SMR services.We will adopt a two-tiered definition ofsmall business. We will define a smallbusiness as an entity that, together withits affiliates and controlling principals,has average gross revenues for the threepreceding years that do not exceed $15million; we will define a very smallbusiness as an entity that, together withaffiliates and controlling principals, hasaverage gross revenues for the precedingthree years of that do not exceed $3million. Bidding credits will bedetermined, as discussed infra, basedupon this two-tiered approach.

141. In determining whether anapplicant qualifies as a small business atany level, we will consider the grossrevenues of the small business applicantand its affiliates. Specifically, forpurposes of determining small businessstatus, we will follow the procedurerecently adopted for auctions involvingother services and will attribute thegross revenues of affiliates of theapplicant. We thus choose not to imposespecific equity requirements on thecontrolling principals that meet oursmall business definition, as suggestedby SMR WON and Genesee. We willstill require, however, that in order foran applicant to qualify as a smallbusiness, qualifying small businessprincipals must maintain ‘‘control’’ ofthe applicant. The term ‘‘control’’ wouldinclude both de facto and de jurecontrol of the applicant. For thispurpose, we will borrow from certainSBA rules that are used to determinewhen a firm should be deemed anaffiliate of a small business. Typically,de jure control is evidenced byownership of 50.1 percent of an entity’svoting stock. De facto control isdetermined on a case-by-case basis. An

entity must demonstrate at least thefollowing indicia of control to establishthat it retains de facto control of theapplicant: (1) The entity constitutes orappoints more than 50 percent of theboard of directors or partnershipmanagement committee; (2) the entityhas authority to appoint, promote,demote and fire senior executives thatcontrol the day-to-day activities of thelicensees; and (3) the entity plays anintegral role in all major managementdecisions. While we are not imposingspecific equity requirements on thesmall business principals, the absenceof significant equity could raisequestions about whether the applicantqualifies as a bona fide small business.

ii. Bidding Credits142. We believe that bidding credits

are appropriate as a special provisionfor designated entities in the Lower 80and General Category licenses. Whilebidding credits do not guarantee thesuccess of small businesses, we believethat they at least provide such bidderswith an opportunity to successfullycompete against larger, well-financedbidders. We also conclude that it isappropriate to adopt tiered biddingcredits for 800 MHz SMR auctionparticipants based on the size of thesmall businesses. Such an approach, webelieve, furthers our mandate undersection 309(j) of the CommunicationsAct to disseminate licenses to a varietyof applicants. Consistent with the tieredsmall business definition that we adopttoday, we will give small businessesthat, together with affiliates andcontrolling principals, have averagegross revenues for the preceding threeyears that do not exceed $3 million, a35 percent bidding credit. We will givesmall businesses that, together withaffiliates and controlling principals,have average gross revenues for thepreceding three years that do not exceed$15 million, a 25 percent bidding credit.Consistent with our approach in theupper 200 channels, we believe thatthese tiered bidding credits take intoaccount the difficulties smallerbusinesses have in accessing capital andtheir differing business strategies.

iii. Installment Payments143. We will defer the decision

regarding whether to adopt installmentpayments in the lower 80 and GeneralCategory channels to our part 1proceeding. We do not disagree with thecontention of Genesee and AMTA thatsmall businesses benefit from the abilityto pay for their licenses in installments.Nonetheless, in the part 1 proceeding,we sought comment on whether thereare better alternatives to help small


businesses, such as offering higherbidding credits in lieu of installmentpayments for qualified winning bidders.

144. Finally, we do not see a reasonto adopt an alternative payment plan forpublic safety auction winners, assuggested by Coral Gables. Coral Gablesargues that there is a greater publicinterest value to use these channels forpublic safety purposes and that specialinstallment payment provisions shouldbe made in the auction rules for publicsafety auction winners. We decline toprovide this benefit for several reasons.First, Coral Gables will not be forced torelocate to other channels and will notbe required to participate in the auctionto retain the spectrum for which it iscurrently licensed. Second, we aregranting Coral Gables’ request to allowdisaggregation of channels bygeographic area license winners whichshould enable public safety entities tosecure more frequencies from auctionwinners. Also, as noted above, theCommission is engaged in a separateproceeding dedicated to the issue ofspectrum allocation for public safetyentities.

iv. Reduced Upfront Payment145. In view of the favorable bidding

credits adopted herein, we do not see aneed to adopt reduced upfrontpayments in order to ensure smallbusiness participation in the auction, asadvocated by Genesee. Rather, webelieve that the standard upfrontpayment is appropriate for allparticipants and will help guard againstdefaults. In addition, reduced upfrontpayments impose heavy administrativeburdens on the Commission and aremore confusing to auction participants.We do note that the standard upfrontpayment amount of $.02/MHz-pop willbe discounted on a uniform basis by theBureau to account for incumbency onthis spectrum. The Bureau willannounce by Public Notice the amountof this discount.

v. Set-Aside Spectrum146. We will not adopt an

entrepreneurs’ block for the Lower 80and General Category channels forseveral reasons. First, contrary to thecontention of some commenters that anentrepreneurs’ block is required toensure small businesses will be able toobtain licenses, we believe that smallbusinesses will have significantopportunity to compete for licensesgiven the bidding credits we adoptherein. Second, as noted by at least twocommenters, the establishment of anentrepreneurs’ block could unfairlyexclude some incumbent operators fromparticipation in the auction because

some incumbents on these channels arelarger companies. Finally, we agree withthe argument of one commenter thatadoption of an entrepreneurs’ block forthese channels would contravene thegoal of regulatory parity since there isno set-aside in the cellular service andonly one-third of the broadband PCSspectrum was set aside for smallbusinesses.

vi. Unjust Enrichment Provisions

147. To ensure that large businessesdo not become the unintendedbeneficiaries of measures meant forsmaller firms, we adopt unjustenrichment provisions similar to thoseadopted for narrowband PCS and 900MHz SMR services. No comments werereceived on this issue. Licensees seekingto transfer their licenses to entitieswhich do not qualify as smallbusinesses, as a condition to approval ofthe transfer, must remit to thegovernment a payment equal to aportion of the total value of the benefitconferred by the government. Theamount of this payment will be reducedover time as follows: a transfer in thefirst two years of the license term willresult in a forfeiture of 100 percent ofthe value of the bidding credit; in yearthree of the license term the paymentwill be 75 percent; in year four thepayment will be 50 percent and in yearfive the payment will be 25 percent,after which there will be no payment.These assessments will have to be paidto the U.S. Treasury as a condition ofapproval of the assignment or transfer.Thus, a small business that receivedbidding credits seeking transfer orassignment of a license to an entity thatdoes not qualify as a small business willbe required to reimburse thegovernment for the amount of thebidding credit before the transfer will bepermitted.

148. Also, if an investor subsequentlypurchases an interest in a smallbusiness licensee and, as a result, thegross revenues of the business exceedthe applicable financial caps, the unjustenrichment provision will apply. Wewill apply these payment requirementsfor the entire license term to ensure thatsmall businesses will look first to othersmall businesses when deciding totransfer their licenses. While smallbusiness licensees must abide by theseunjust enrichment provisions whentransferring their licenses to entities thatwould not qualify under our smallbusiness definitions, we will not imposea holding period or other transferrestrictions on small businesses.

III. Conclusion149. We believe that the service and

auction rules we adopted herein in thisSecond Report and Order are necessaryto continue our implementation of anew licensing scheme for the 800 MHzand 900 MHz SMR services. We furtherbelieve that the rules will facilitate therapid implementation of wide-arealicensing in the SMR service, thusadvancing the public interest byfostering economic growth ofcompetitive new services via efficientspectrum use. The rules also will allowthe public to recover a portion of thevalue of the public spectrum andpromote expeditious access to 800 MHzSMR services by consumers, and rapiddeployment of 800 MHz SMR byexisting licensees and potential newentrants. We also believe that thetechnical rules proposed and adoptedherein strike the proper balancebetween the rights of incumbentlicensees in the 800 MHz SMR spectrumand new EA licensees.

IV. Procedural Matters

A. Regulatory Flexibility Act: (SecondReport and Order and MemorandumOpinion and Order on Reconsideration)

150. As required by the RegulatoryFlexibility Act, 5 U.S.C. 603 (RFA), anInitial Regulatory Flexibility Analysis(IRFA) was incorporated in the SecondFurther Notice of Proposed Rulemakingin PR Docket No. 93–144. TheCommission sought written publiccomment on the proposals in theSecond Further Notice of ProposedRulemaking, including the IRFA. ThisFinal Regulatory Flexibility Analysis toaccompany final rules in both theSecond Report and Order and theaccompanying Memorandum Opinionand Order on Reconsideration conformsto the RFA, amended by the ContractWith America Advancement Act of1996.

151. Need for and Purpose of thisAction: In this Second Report andOrder, the Commission establishes aflexible regulatory scheme for the 800MHz Specialized Mobile Radio (SMR)service to promote efficient licensingand enhance the service’s competitivepotential in the commercial mobileradio marketplace. The rules adopted inthe Second Report and Order alsoimplement Congress’s goal of regulatorysymmetry in the regulation ofcompeting commercial mobile radioservices as described in sections 3(n)and 332 of the Communications Act of1934, as amended, 47 U.S.C. 153(n), 332(Communications Act), as amended byTitle VI of the Omnibus BudgetReconciliation Act of 1993 (Budget Act).


The Commission also adopts rulesregarding competitive bidding for theremaining 800 MHz SMR spectrumbased on section 309(j) of theCommunications Act, 47 U.S.C. 309(j),which delegates authority to theCommission to use auctions to selectamong mutually exclusive initialapplications in certain services,including 800 MHz SMR.

152. Summary of Issues Raised inResponse to the Initial RegulatoryFlexibility Analysis: No comments weresubmitted in response to the IRFA.However, there were several commentsconcerning the potential impact of someof the Commission’s proposals on smallentities, especially on certain incumbent800 MHz SMR licensees.

153. The Commission adoptedgeographic area licensing for the lower230 800 MHz SMR channels in order tofacilitate the evolution of larger 800MHz SMR systems covering wider areasand offering commercial services torival other wireless telephony services.Some licensees that were not SMRlicensees opposed this plan arguing thatit was unsuitable to the needs ofsmaller, private systems, which do notseek to cover large geographic areas inthe manner of commercial serviceproviders.

154. The Commission adopted aportion of a proposal set forth by anumber of incumbent 800 MHz SMRlicensees (‘‘Industry Proposal’’) andallotted three contiguous 50-channelblocks from the former General Categoryblock of channels. Some commentersargued that allotting such largecontiguous blocks would not suit theneeds of smaller SMR systems, whichtypically trunk smaller numbers of non-contiguous channels. These commentersargued that large blocks of contiguouschannels could be prohibitivelyexpensive to bid for at auction, therebylimiting the opportunities for smalleroperators to take advantage ofgeographic area licensing.

155. The Commission adopted aproposal to allow incumbent licenseesin the lower 230 channels to makesystem modifications within theirinterference contours without priorCommission approval, so long as theydo not expand the 18 dBµV/minterference contour of their systems.Proponents of the Industry Proposalargued for an alternative plan to limitincumbent expansion rights on thelower 230 channels. The IndustryProposal called for the Commission topermit incumbent licensees in the lower230 channels to negotiate expansionrights within each EA through asettlement process. The proposedsettlement process would occur on a

channel-by-channel basis prior to theauction of the lower 230 channels, butafter incumbents on the upper 200channels had an opportunity to relocateor retune to the lower 230 channels. Foreach channel, incumbents licensed onthe channel within the EA wouldnegotiate among themselves to allocaterights to the channel within the EA. Ifall incumbents on the single channelnegotiated an agreement for use of thatchannel within the EA (e.g., by forminga partnership, joint venture, orconsortium), they would then receive anEA license for that channel. If only oneincumbent operated on the channelwithin an EA, it would receive an EAlicense for that channel automatically. Ifincumbents on a channel were unable toreach a settlement, the channel wouldbe included in the auction of the lower230 channels. The Industry Proposalcalled for non-settling channels in thelower 80 channels to be auctioned infive-channel blocks and the 150 GeneralCategory channels to be auctioned inthree 50-channel blocks.

156. Commenters argued, inter alia,that the Industry Proposal wouldprovide significant opportunities forsmall businesses. Although commentersacknowledged that auctions are a fastand generally efficient means oflicensing new spectrum, they arguedthat small businesses will ‘‘have nochance of succeeding in gaining thespectrum they need for future growth ifthey must compete against largerentities with deeper pockets.’’ Thecommenters contended that, in the caseof non-SMR licensees, the provision ofcommunications services is not theirprimary business and they will not bein the position to compete withcommercial operators at auction.

157. The Commission adopted rulesallowing all 800 MHz SMR licensees topartition their market areas and todisaggregate their spectrum.Commenters generally supported thesenew rules arguing that partitioning anddisaggregation will result in moreparticipation in the marketplace bysmall entities and allow coalitions ofsmaller entities to bid at auction.

158. The Commission adopted aproposal to auction the Lower 80channels and the General Categorychannels. Some commenters argued thatthere is little space in the Lower 80 andGeneral Categories and that there wasno mandatory relocation proposal forincumbents in these channels. Thesecommenters argue that the combinationof these factors will further frustrateincumbent licensees in these channelswhen incumbents from the Upper 200channels are relocated. Several othercommenters argue that they are not

financially capable of participating inthe auction of the Lower 80 channelsand General Category. Thesecommenters believe that the auctionprocess favors large entities and that thelarge entities an effectively stiflecompetition in the auction processincluding the delaying the conclusion ofthe auction.

159. The Commission adopted itsproposal for a minimum bid incrementof the greater of $.01 per MHz-pop, or5% percent of the high bid from theprevious round. E.F. Johnson arguedthat minimum bid increments should bereduced or eliminated to facilitate smallbusiness participation in the auction.

160. The Commission adopted a two-tiered small business definition. Inorder to be eligible for designated entityprovisions, an applicant must qualify asa ‘‘small business,’’ where an entitymust have had average gross revenues ofnot more than $15 million for thepreceding three years or as ‘‘very smallbusiness,’’ where a company must havehad average gross revenues of not morethan $3 million for the preceding threeyears.

161. The Commission adoptedbidding credit amounts that weretailored to the Commission’s smallbusiness definition. Specifically, smallbusinesses with average gross revenuesof not more than $15 million for thepreceding three years will receive a 10percent bidding credit and those entitieswith average gross revenues of not morethan $3 million for the preceding threeyears will receive a 15 percent biddingcredit. Some commenters expressedconcern that the proposed biddingcredits were too low. Coral Gablesargued that the bidding credits forpublic safety entities should be set at adifferent level than non-public safetyentities.

162. The Commission did not adoptan entrepreneurs’ block for the Lower 80and General Category channels. Somecommenters argued that by establishingan entrepreneurs’ block, someincumbents could be unfairly excludedfrom participation in the auctionbecause some incumbents in thesechannels are larger companies. Nextelargued that the adoption of anentrepreneurs’ block would contravenethe goal of regulatory parity since thereis no set-aside in the cellular serviceand only one-third of the broadbandPCS spectrum was set aside for smallbusinesses.

163. Description and Number ofSmall Entities Involved: The rulesadopted will apply to current 800 MHzSMR operators and new entrants intothe 800 MHz SMR market. Under theserules, Economic Area (EA) licenses will


be granted on a market area basis,instead of site-by-site, and mutuallyexclusive applications will be resolvedthrough competitive biddingprocedures. In order to ensure the moremeaningful participation of smallbusiness entities in the auction formutually exclusive geographic area 800MHz SMR licenses, the Commission, asnoted, has adopted a two-tier definitionof small businesses. A very smallbusiness will be defined for thesepurposes as an entity that, together withits affiliates and controlling principals,has average gross revenues for the threepreceding years of not more than $3million. A small business will bedefined as an entity that, together withaffiliates and controlling principals, hasaverage gross revenues for the threepreceding years of not more than $15million. The Small BusinessAdministration (SBA) has approvedthese definitions for 800 MHz SMRservices.

164. The Commission anticipates thata total of 3,325 EA licenses will beauctioned in the lower 230 channelblocks of the 800 MHz SMR service.This figure is derived by multiplying thetotal number of EAs (175) by thenumber of channel blocks (19) in thelower 230 channels. The lower 80channels were divided into 16 blocks of5 channels each and the GeneralCategory channels were divided into 3blocks of 50 channels each. This resultsin 19 channels blocks available forauction in each of the 175 EAs.Auctions of 800 MHz SMR licenses havenot yet been held, and there is no basisto determine the number of lower 230channel licenses that will be awarded tosmall entities. However, theCommission assumes, for purposes ofthe evaluations and conclusions in thisFinal Regulatory Flexibility Analysis,that all the auctioned 3,325 geographicarea 800 MHz SMR licenses in the lower230 channels will be awarded to smallentities, as that term is defined by theSBA.

165. Summary of Projected Reporting,Recordkeeping and Other ComplianceRequirements: Geographic area 800MHz SMR licensees may be required toreport information concerning thelocation of their transmission sitesunder some circumstances, althoughgenerally they will not be required tofile applications on a site-by-site basis.Additionally, geographic area licenseapplicants will be subject to reportingand recordkeeping requirements tocomply with the competitive biddingrules. Specifically, applicants will applyfor 800 MHz SMR licenses by filing ashort-form application (FCC Form 175).Winning bidders will file a long-form

application (FCC Form 600) at theconclusion of the auction. Additionally,entities seeking treatment as smallbusinesses will need to submitinformation pertaining to the grossrevenues of the small business applicantand its affiliates and controllingprincipals. Such entities will also needto maintain supporting documentationat their principal place of business.

166. Section 309(j)(4)(E) of theCommunications Act directs theCommission to ‘‘require such transferdisclosures and anti-traffickingrestrictions and payment schedules asmay be necessary to prevent unjustenrichment as a result of the methodsemployed to issue licenses andpermits.’’ The Commission adoptedsafeguards designed to ensure that therequirements of this section aresatisfied, including a transfer disclosurerequirement for 800 MHz SMR licensesobtained through the competitivebidding process. An applicant seekingapproval for a transfer of control orassignment of a license within threeyears of receiving a new license througha competitive bidding procedure must,together with its application for transferof control or assignment, file with theCommission a statement indicating thatits license was obtained throughcompetitive bidding. Such applicantmust also file with the Commission theassociated contracts for sale, optionagreements, management agreements, orother documents disclosing the totalconsideration that the applicant wouldreceive in return for the transfer orassignment of its license.

167. With respect to small businesses,we have adopted unjust enrichmentprovisions to deter speculation andparticipation in the licensing process bythose who do not intend to offer serviceto the public, or who intend to use thecompetitive bidding process to obtain alicense at a lower cost than they wouldotherwise have to pay and to later sellit at a profit, and to ensure that largebusinesses do not become theunintended beneficiaries of measuresmeant to help small firms. Smallbusiness licensees seeking to transfertheir licenses to entities which do notqualify as small businesses (or whichqualify for a lower bidding credit), as acondition of approval of the transfer,must remit to the government a paymentequal to a portion of the value of thebenefit conferred by the government.

168. The Second Report and Orderalso adopts rules for 800 MHz SMRpartitioning and disaggregation rules.These rules contain informationrequirements that will be used todetermine whether the licensee is aqualifying entity to obtain a partitioned

license or disaggregated spectrum. Thisinformation will be a one-time filing byany applicant requesting such a license.The information will be submitted onthe FCC Form 490 (or 430 and/or 600filed as one package under cover of theForm 490) which are currently in useand have already received OMBclearance. The Commission estimatesthat the average burden on the applicantis three hours for the informationnecessary to complete these forms. TheCommission estimates that 75 percent ofthe respondents (which may includesmall businesses) will contract out theburden of responding. The Commissionestimates that it will take approximately30 minutes to coordinate informationwith those contractors. The remaining25 percent of respondents (which mayinclude small businesses) are estimatedto employ in-house staff to provide theinformation. Applicants (includingsmall businesses) filing the packageunder cover of FCC Form 490electronically will incur a $2.30 perminute on-line charge. On-line timewould amount to no more than 30minutes. The Commission estimates that75 percent of the applicants may fileelectronically. The Commissionestimates that applicants contracting outthe information would use an attorneyor engineer (average of $200 per hour)to prepare the information.

169. Steps Taken to Minimize AnySignificant Economic Burdens on SmallEntities: Section 309(j)(3)(B) of theCommunications Act provides that inestablishing eligibility criteria andbidding methodologies the Commissionshall, inter alia, promote economicopportunity and competition and ensurethat new and innovative technologiesare readily accessible by avoidingexcessive concentration of licenses andby disseminating licenses among a widevariety of applicants, including smallbusinesses, rural telephone companies,and businesses owned by members ofminority groups and women. Section309(j)(4)(A) provides that in order topromote such objectives, theCommission shall consider alternativepayment schedules and methods ofcalculation, including lump sums orguaranteed installment payments, withor without royalty payments, or otherschedules or methods. In awardinggeographic area 800 MHz licenses in thelower 230 channels, the Commission iscommitted to meeting the statutoryobjectives of promoting economicopportunity and competition, ofavoiding excessive concentration oflicenses, and of ensuring access to newand innovative technologies bydisseminating licenses among a wide


variety of applicants, including smallbusinesses, rural telephone companies,and businesses owned by members ofminority groups and women. TheCommission finds that it is appropriateto establish special provisions in the800 MHz SMR rules for the lower 230channels for competitive bidding bysmall businesses. The Commissionbelieves that small businesses applyingfor these licenses should be entitled tobidding credits.

170. In order to ensure the moremeaningful participation of smallbusiness entities in the 800 MHzauctions, the Commission has adopted atwo-tier definition of small businesses.This approach will give qualifying smallbusinesses bidding flexibility. A smallbusiness will be defined as an entitythat, together with its affiliates andcontrolling principals, has average grossrevenues for the three preceding yearsthat do not exceed $3 million. A verysmall business will be defined as anentity that, together with affiliates andcontrolling principals, has average grossrevenues for the three preceding yearsthat do not exceed $15 million. TheCommission will require that in orderfor an applicant to qualify as a smallbusiness, qualifying small businessprincipals must maintain control of theapplicant. The Commission willestablish bidding credits consistent withthe two-tiered definition of a smallbusiness. Small businesses that, togetherwith affiliates and controllingprincipals, have average gross revenuesfor the three preceding years that do notexceed $3 million, will receive a 35percent bidding credit. Small businessesthat, together with affiliates andcontrolling principals, have averagegross revenues for the three precedingyears that do not exceed $15 million,will receive a bidding credit of 25percent.

171. The Commission is alsoextending geographic partitioning anddisaggregation to all entities eligible tobe 800 MHz and 900 MHz SMRlicensees. The Commission believes thatthis provision will allow SMR licenseesto tailor their business strategies andallow them to use the spectrum moreefficiently, will allow more entities toparticipate in the provision of SMRservices, and will facilitate market entryby small entities that have the ability toprovide service only to a limitedpopulation.

172. Significant AlternativesConsidered and Rejected: TheCommission considered a number ofalternative channelization plans forlicensing the 150 General Category 800MHz SMR channels. The threealternatives were: (a) a 120-channel

block, a 20-channel block and a 10-channel block; (b) six 25-channelblocks; or (c) fifteen 10-channel blocks.

173. Some commenters argued thatallotting large contiguous blocks wouldnot suit the needs of smaller SMRsystems, which typically trunk smallernumbers of non-contiguous channels.These commenters argued that largeblocks of contiguous channels could beprohibitively expensive to bid for atauction, thereby limiting theopportunities for smaller operators totake advantage of geographic arealicensing.

174. In order to accommodatelicensees who wanted contiguous aswell as those that wanted large blocksof spectrum, the Commission adoptedthe Industry Proposal and alloted threecontiguous 50-channel blocks. As forthe concerns of smaller entities thatsuch blocks may be too large, theCommission found that such entitieswill have the opportunity to acquiresmaller amounts of spectrumcompatible with their existingtechnology through the newly-createddisaggregation rules.

175. The Commission adopted aproposal to allow incumbent licenseesin the lower 230 channels to makesystem modifications within theirinterference contours without priorCommission approval, so long as theydo not expand the 18 dBµV/minterference contour of their systems. Asnoted above, the Industry Proposalcalled for the Commission to permitincumbent licensees in the lower 230channels to negotiate expansion rightswithin each EA through a settlementprocess. The Commission rejected thisapproach finding that it would not servethe public interest. The Commissionfound that the Industry Proposal wouldforeclose new entrants from obtainingspectrum on any of the lower 230channels that are subject to a settlement.In any market where all of the channelsin an EA were allocated by suchsettlements, the result would be that noopportunities for geographic licensingwould be available to new entrants. TheCommission also found that theIndustry Proposal would precludecompetition in the licensing process andrestrict the number of potentialapplicants who can obtain licenses.Thus, it could yield a higherconcentration of licenses than wouldresult if non-incumbents were allowedto compete for the spectrum at the sametime. The Commission also found thatthe Industry Proposal would also beinconsistent with the approach it hasadopted in other services where it hasconverted from site-by-site licensing togeographic area licensing.

176. The Commission adoptedbidding credits qualified small businessentities in the lower 230 channelauctions. Coral Cables sought to haveeligibility for, and percentage of,bidding credits set at different levels forpublic safety entities. The Commissionfound that its rules were reasonable andmet the concerns of commenters andthat the bidding credits took intoaccount the fact that different smallbusinesses will pursue differentstrategies.

177. The Commission declined toadopt rules to allow licensees whoqualify as small businesses in ageographic area 800 MHz SMR licenseauction for the lower 230 channels topay their winning bid amount ininstallments over the term of thelicense. The Commission found that abetter alternative to help smallbusinesses, as well as ensure newservices to the public is to offer a higherlevel of bidding credit.

178. Finally, the Commissiondeclined to set aside a special block of800 MHz SMR channels forentrepreneurs. The Commission foundthat small businesses will havesignificant opportunity to compete forlicenses given the special bidding creditprovisions it had adopted.

179. Report to Congress: TheCommission shall send a copy of thisFinal Regulatory Flexibility Analysis,along with this Second Report andOrder, in a report to Congress pursuantto the Small Business RegulatoryEnforcement Fairness Act of 1996, 5U.S.C. 801(a)(1)(A). A copy of this FinalRegulatory Flexibility Analysis will alsobe published in the Federal Register.

B. Authority180. Authority for issuance of this

Second Report and Order is containedin the Communications Act, sections4(i), 7, 303(c), 303(f), 303(g), 303(r), and332, 47 U.S.C. 154(i), 157, 303(c), 303(f),303(g), 303(r), 332, as amended.

C. Ordering Clauses181. Accordingly, IT IS ORDERED

that, pursuant to authority of sections4(i), 303(r), and 309(j) of theCommunications Act of 1934, asamended, 47 U.S.C. 154(i), 303(r), and309(j), Part 90 of the Commission’sRules, 47 CFR part 90 IS AMENDED asset forth below.

182. IT IS FURTHER ORDERED thatthe rule changes made herein WILLBECOME EFFECTIVE September 29,1997. This action is taken pursuant tosections 4(i), 303(r), and 309(j) of theCommunications Act of 1934, asamended, 47 U.S.C. 154(i), 303(r), and309(j).


183. IT IS FURTHER ORDERED thatthe Regulatory Flexibility Analysis, asrequired by section 604 of theRegulatory Flexibility Act is ADOPTED.

184. IT IS FURTHER ORDERED thatall waiting lists for the lower 230channels of 800 MHz SMR spectrumARE ELIMINATED and all applicationscurrently on waiting lists for suchfrequencies ARE DISMISSED, effectiveJuly 10, 1997.

D. Further Information

185. For further informationconcerning this proceeding, contactShaun A. Maher or Michael Hamra,Policy and Rules Branch, CommercialWireless Division, WirelessTelecommunications Bureau at (202)418–0620 or Alice Elder, Auctions andIndustry Analysis Division, WirelessTelecommunications Bureau at (202)418–0660.


Radio, Specialized mobile radioservices.

Federal Communications Commission.

William F. Caton,Acting Secretary.

Rule Changes

Part 90 of chapter I of title 47 of theCode of Federal Regulations is amendedas follows:

PART 90—PRIVATE LAND MOBILERADIO SERVICES


Authority: 47 U.S.C. 154, 303, and 332,unless otherwise noted.

2. Section 90.210 is amended byrevising footnote 3 in the table in theintroductory paragraph to read asfollows:

§ 90.210 Emission masks.

* * * * *

APPLICABLE EMISSION MASKS

* * * * *3 Equipment used in this band licensed to

EA or non-EA systems shall comply with theemission mask provisions of § 90.691.

* * * * *3. Section 90.615 is revised to read as

follows:

§ 90.615 Spectrum blocks available in theGeneral Category for 800 MHz SMR GeneralCategory.

TABLE 1.—806–821/851–866 MHZBAND CHANNELS (150 CHAN-NELS)

Spectrum block Channel Nos.

D ................................ 1 through 50.E ................................ 51 through 100.F ................................ 101 through 150.

4. Section 90.617 is amended byrevising paragraph (d) and Table 4A toread as follows:

§ 90.617 Frequencies in the 809.750–824/854.750–869 MHz, and 896–901/935–940MHz bands available for trunked orconventional system use in non-borderareas.

* * * * *(d) The channels listed in Tables 4A

and 4B are available only to eligibles inthe SMR category which consists ofSpecialized Mobile Radio (SMR)stations and eligible end users. Thefrequencies listed in Table 4A areavailable to SMR eligibles desiring to beauthorized for EA-based service areas inaccordance with § 90.681. SMRlicensees licensed on Channels 401–600on or before March 3, 1996, maycontinue to utilize these frequencieswithin their existing service areas,subject to the mandatory relocationprovisions of § 90.699. This paragraphdeals with the assignment of frequenciesonly in areas farther than 110 km (68.4miles) from the U.S./Mexico border andfarther than 140 km (87) miles from theU.S./Canada border. See § 90.619 for theassignment of SMR frequencies in theseborder areas. For stations located within113 km (70 miles) of Chicago, channels401–600 will be assigned in blocks asoutlined in Table 4C.

TABLE 4A.—SMR CATEGORY 806–821/851–866 MHZ BAND CHAN-NELS (280 CHANNELS)


A ................................ 401 through 420.B ................................ 421 through 480.C ................................ 481 through 600.G ............................... 201–241–281–321–

361.H ................................ 202–242–282–322–

362.I ................................. 203–243–283–323–

363.J ................................ 204–244–284–324–

364.K ................................ 205–245–285–325–

365.L ................................ 206–246–286–326–

366.

TABLE 4A.—SMR CATEGORY 806–821/851–866 MHZ BAND CHAN-NELS (280 CHANNELS)—Contin-ued


M ............................... 207–247–287–327–367.

N ................................ 208–248–288–328–368.

O ............................... 221–261–301–341–381.

P ................................ 222–262–302–342–382.

Q ............................... 223–263–303–343–383.

R ................................ 224–264–304–344–384.

S ................................ 225–265–305–345–385.

T ................................ 226–266–306–346–386.

U ................................ 227–267–307–347–387.

V ................................ 228–268–308–348–388.

* * * * *5. Section 90.619 is amended by

revising paragraphs (a)(5) and Table 4A,(b)(8) Table 12, (b)(9) Table 16, (b)(10)Table 20, and (b)(11) Table 24 to readas follows:

§ 90.619 Frequencies available for use inthe U.S./Mexico and U.S./Canada borderareas.

(a) * * *(5) Tables 4A and 4B list the channels

that are available for assignment for theSMR Category (consisting of SpecializedMobile Radio systems as defined in§ 90.7).

These channels are not available forinter-category sharing.

TABLE 4A.—UNITED STATES-MEXICOBORDER AREA, SMR AND GENERALCATEGORIES 806–821/851–866MHZ BAND (95 Channels)

Spectrum block Offset channel Nos.

EA-Based SMR Category (83 Channels)

A ................................ 398–399–400.B ................................ 429–431–433–435–

437–439–469–471–473–475–477–479.

C ................................ 509–511–513–515–517–519–549–551–553–555–557–559–589–591–593–595–597–599.

G ............................... 229–272–349.H ................................ 230–273–350.I ................................. 231–274–351.J ................................ 232–278–352.K ................................ 233–279–353.L ................................ 234–280–354.M ............................... 235–309–358.N ................................ 236–310–359.


TABLE 4A.—UNITED STATES-MEXICOBORDER AREA, SMR AND GENERALCATEGORIES 806–821/851–866MHZ BAND (95 Channels)—Contin-ued

Spectrum block Offset channel Nos.

O ............................... 237–311–360.P ................................ 238–312–389.Q ............................... 239–313–390.R ................................ 240–314–391.S ................................ 269–318–392.T ................................ 270–319–393.U ................................ 271–320–394.V ................................ 228–268–308–348–

388.

General Category (12 Channels)

D ................................ 275–315–355–395.E ................................ 276–316–356–396.F ................................ 277–317–357–397

(b) * * *(8) * * *

TABLE 12.—SMR AND GENERALCATEGORIES—95 CHANNELS

(Regions 1, 4, 5, 6)

Spectrum blockChannel Nos.

EA-Based SMR Category (90 Channels)

A ................................ None.B ................................ 463 through 480.C ................................ 493 through 510, 523

through 540, 553through 570, 583through 600.

G through V .............. None.


D ................................ 30.E ................................ 60 and 90.F ................................ 120 and 150.

(9) * * *

TABLE 16.—SMR AND GENERALCATEGORIES—60 CHANNELS

(Region 2)


SMR Category (55 Channels)

A ................................ None.B ................................ None.C ................................ 518 through 528, 536

through 546, 554through 564, 572through 582, 590through 600.



D 18 and 36..E ................................ 54–72–90.

TABLE 16.—SMR AND GENERAL CAT-EGORIES—60 CHANNELS—Contin-ued

(Region 2)


F ................................ None.

(10) * * *

TABLE 20.—SMR AND GENERALCATEGORIES (135 CHANNELS)

(Region 3)



A ................................ 417 through 420.B ................................ 421 through 440, 457

through 480.C ................................ 497 through 520, 537

through 560, 577through 600.



D ................................ 38–39–40–158–159.E ................................ 78–79–80–160–198.F ................................ 118–119–120–199–

200.

(11) * * *

TABLE 24.—(REGIONS 7, 8) SMR ANDGENERAL CATEGORIES—190 CHAN-NELS



A ................................ 389 through 400.B ................................ 425 through 440, 465

through 480.C ................................ 505 through 520, 545

through 560, 585through 600.

G ............................... 155–229–269–309–349.

H ................................ 156–230–270–310–350.

I ................................. 157–231–271–311–351.

J ................................ 158–232–272–312–352.

K ................................ 159–233–273–313–353.

L ................................ 160–234–274–314–354.

M ............................... 195–235–275–315–355.

N ................................ 196–236–276–316–356.

O ............................... 197–237–277–317–357.

P ................................ 198–238–278–318–358.

Q ............................... 199–239–279–319–359.

TABLE 24.—(REGIONS 7, 8) SMR ANDGENERAL CATEGORIES—190 CHAN-NELS—Continued


R ................................ 200–240–280–320–360.

S ................................ 225–265–305–345–385.

T ................................ 226–266–306–346–386.

U ................................ 227–267–307–347–387.

V ................................ 228–268–308–348–388.


D ................................ 35 through 40.E ................................ 75 through 80.F ................................ 115 through 120.

* * * * *6. Section 90.621 is amended by

revising paragraphs (b) introductorytext, (b)(1) and (b)(3) introductory text toread as follows:

§ 90.621 Selection and assignment offrequencies.* * * * *

(b) Stations authorized on frequencieslisted in this subpart, except for thosestations authorized pursuant toparagraph (g) of this section and EA-based and MTA-based SMR systems,will be afforded protection solely on thebasis of fixed distance separationcriteria. For Channel Blocks A, throughV, as set forth in § 90.917(d), theseparation between co-channel systemswill be a minimum of 113 km (70 mi)with one exception. For incumbentlicensees in Channel Blocks D throughV, that have received the consent of allaffected parties to utilize an 18 dBµV/m signal strength interference contour(see § 90.693), the separation betweenco-channel systems will be a minimumof 173 km (107 mi). The followingexceptions to these separations shallapply:

(1) Except as indicated in paragraph(b)(4) of this section, no station inChannel Blocks A through V shall beless than 169 km (105 mi) distant froma co-channel station that has beengranted channel exclusivity andauthorized 1 kW ERP on any of thefollowing mountaintop sites: SantiagoPeak, Sierra Peak, Mount Lukens,Mount Wilson (California). Except asindicated in paragraph (b)(4) of thissection, no incumbent licensee inChannel Blocks D through V that havereceived the consent of all affectedparties to utilize an 18 dBµV/m signalstrength interference contour shall beless than 229 km (142 mi) distant froma co-channel station that has been


granted channel exclusivity andauthorized 1 kW ERP on any of thefollowing mountaintop sites: SantiagoPeak, Sierra Peak, Mount Lukens,Mount Wilson (California).* * * * *

(3) Except as indicated in paragraph(b)(4) of this section, stations in ChannelBlocks A through V that have beengranted channel exclusivity and arelocated in the State of Washington at thelocations listed below shall be separatedfrom co-channel stations by a minimumof 169 km (105 mi). Except as indicatedin paragraph (b)(4) of this section,incumbent licensees in Channel BlocksD through V that have received theconsent of all affected parties to utilizean 18 dBµV/m signal strengthinterference contour, have been grantedchannel exclusivity and are located inthe State of Washington at the locationslisted below shall be separated from co-channel stations by a minimum of 229km (142 mi). Locations within one mileof the geographical coordinates listed inthe table below will be considered to beat that site.* * * * * * *

7. Subpart S is amended by revisingthe undesignated center headingfollowing § 90.671 to read as follows:

POLICIES GOVERNING THE LICENSINGAND USE OF EA-BASED SMR SYSTEMS INTHE 806–821/851–866 BAND

8. Section 90.681 is revised to read asfollows:

§ 90.681 EA-based SMR service areas.EA licenses in Spectrum Blocks A

through V band listed in Table 4A of§ 90.617(d) are available in 175Economic Areas (EAs) as defined in§ 90.7.

9. Section 90.683(a) introductory textis revised to read as follows:

§ 90.683 EA-Based SMR systemoperations.

(a) EA-based licensees authorized inthe 806–821/851–866 MHz bandpursuant to § 90.681 may construct andoperate base stations using any of thebase station frequencies identified intheir spectrum block anywhere withintheir authorized EA, provided that:* * * * *


§ 90.685 Authorization, construction andimplementation of EA licenses.

(a) EA licenses in the 806–821/851–866 MHz band will be issued for a termnot to exceed ten years. Additionally,EA licensees generally will be affordeda renewal expectancy only for thosestations put into service after August 10,1996.

(b) EA licensees in the 806–821/851–866 MHz band must, within three yearsof the grant of their initial license,construct and place into operation asufficient number of base stations toprovide coverage to at least one-third ofthe population of its EA-based servicearea. Further, each EA licensee mustprovide coverage to at least two-thirdsof the population of the EA-basedservice area within five years of thegrant of their initial license.Alternatively, EA licensees in Channelblocks D through V in the 806–821/851–866 MHz band must provide substantialservice to their markets within fiveyears of the grant of their initial license.Substantial service shall be defined as:‘‘Service which is sound, favorable, andsubstantially above a level of mediocreservice.’’

(c) Channel Use Requirement. Inaddition to the population coveragerequirements described in this section,we will require EA licensees in Channelblocks A, B and C in the 816–821/861–866 MHz band to construct 50 percentof the total channels included in theirspectrum block in at least one locationin their respective EA-based service areawithin three years of initial license grantand to retain such channel usage for theremainder of the construction period.

(d) An EA licensee’s failure to meetthe population coverage requirements ofparagraphs (b) and (c) of this section,will result in forfeiture of the entire EAlicense. Forfeiture of the EA license,however, would not result in the loss ofany constructed facilities authorized tothe licensee prior to the date of thecommencement of the auction for theEA licenses.


§ 90.687 Special provisions regardingassignments and transfers ofauthorizations for incumbent SMRlicensees in the 806–821/851–866 MHzband.

An SMR licensee initially authorizedon any of the channels listed in Table4A of § 90.617 may transfer or assign itschannel(s) to another entity subject tothe provisions of §§ 90.153 and90.609(b). If the proposed transferee orassignee is the EA licensee for thespectrum block to which the channel isallocated, such transfer or assignmentpresumptively will be deemed to be inthe public interest. However, suchpresumption will be rebuttable.


§ 90.689 Field strength limits.

(a) For purposes of implementing§§ 90.689 through 90.699, predicted 36

and 40 dBµV/m contours shall becalculated using Figure 10 of § 73.699 ofthis chapter with a correction factor of¥9 dB, and predicted 18 and 22 dBµV/m contours shall be calculated usingFigure 10a of § 73.699 of this chapterwith a correction factor of ¥9 dB.* * * * *


§ 90.693 Grandfathering provisions forincumbent licensees.

(a) General Provisions. Theseprovisions apply to ‘‘incumbentlicensees’’, all 800 MHz SMR licenseeswho obtained licenses or filedapplications on or before December 15,1995.

(b) Spectrum Blocks A through V. Anincumbent licensee’s service area shallbe defined by its originally-licensed 40dBµV/m field strength contour and itsinterference contour shall be defined asits originally-licensed 22 dBµV/m fieldstrength contour. Incumbent licenseesare permitted to add, remove or modifytransmitter sites within their original 22dBµV/m field strength contour withoutprior notification to the Commission solong as their original 22 dBµV/m fieldstrength contour is not expanded andthe station complies with theCommission’s short-spacing criteria in§§ 90.621(b)(4) through 90.621(b)(6).The incumbent licensee must, however,notify the Commission within 30 daysof the completion of any changes intechnical parameters or additionalstations constructed through a minormodification of their license. Suchnotification must be made by submittingan FCC Form 600 and must include theappropriate filing fee, if any. Theseminor modification applications are notsubject to public notice and petition todeny requirements or mutuallyexclusive applications.

(c) Special Provisions for SpectrumBlocks D through V. Incumbentlicensees that have received the consentof all affected parties to utilize an 18dBµV/m signal strength interferencecontour shall have their service areadefined by their originally-licensed 36dBµV/m field strength contour and itsinterference contour shall be defined astheir originally-licensed 18 dBµV/mfield strength contour. Incumbentlicensees are permitted to add, removeor modify transmitter sites within theiroriginal 18 dBµV/m field strengthcontour without prior notification to theCommission so long as their original 18dBµV/m field strength contour is notexpanded and the station complies withthe Commission’s short-spacing criteriain §§ 90.621(b)(4) through 90.621(b)(6).The incumbent licensee must, however,


notify the Commission within 30 daysof the completion of any changes intechnical parameters or additionalstations constructed through a minormodification of their license. Suchnotification must be made by submittingan FCC Form 600 and must include theappropriate filing fee, if any. Theseminor modification applications are notsubject to public notice and petition todeny requirements or mutuallyexclusive applications.

(d) Consolidated License. (1)Spectrum Blocks A through V.Incumbent licensees operating atmultiple sites may, after grant of EAlicenses has been completed, exchangemultiple site licenses for a singlelicense, authorizing operationsthroughout the contiguous andoverlapping 40 dBµV/m field strengthcontours of the multiple sites.Incumbents exercising this licenseexchange option must submit specificinformation for each of their externalbase sites after the close of the 800 MHzSMR auction.

(2) Special Provisions for SpectrumBlocks D through V. Incumbentlicensees that have received the consentof all affected parties to utilize an 18dBµV/m signal strength interferencecontour operating at multiple sites may,after grant of EA licenses has beencompleted, exchange multiple sitelicenses for a single license. This singlesite license will authorize operationsthroughout the contiguous andoverlapping 36 dBµV/m field strengthcontours of the multiple sites.Incumbents exercising this licenseexchange option must submit specificinformation for each of their externalbase sites after the close of the 800 SMRauction.


§ 90.699 Transition of the upper 200channels in the 800 MHz band to EAlicensing.

In order to facilitate provision ofservice throughout an EA, an EAlicensee may relocate incumbentlicensees in its EA by providing‘‘comparable facilities’’ on otherfrequencies in the 800 MHz band. Suchrelocation is subject to the followingprovisions:

(a) EA licensees may negotiate withincumbent licensees as defined in§ 90.693 operating on frequencies inSpectrum Blocks A, B, and C for thepurpose of agreeing to terms underwhich the incumbents would relocatetheir operations to other frequencies inthe 800 MHz band, or alternatively,would accept a sharing arrangementwith the EA licensee that may result in

an otherwise impermissible level ofinterference to the incumbent licensee’soperations. EA licensees may alsonegotiate agreements for relocation ofthe incumbents’ facilities withinSpectrum Blocks A, B or C in which allinterested parties agree to the relocationof the incumbent’s facilities elsewherewithin these bands. ‘‘All interestedparties’’ includes the incumbentlicensee, the EA licensee requesting andpaying for the relocation, and any EAlicensee of the spectrum to which theincumbent’s facilities are to berelocated.

(b) The relocation mechanism consistsof two phases that must be completedbefore an EA licensee may proceed torequest the involuntary relocation of anincumbent licensee.

(1) Voluntary Negotiations. There is aone year voluntary period during whichan EA licensee and an incumbent maynegotiate any mutually agreeablerelocation agreement. The Commissionwill announce the commencement ofthe first phase voluntary period byPublic Notice. EA licensees must notifyincumbents operating on frequenciesincluded in their spectrum block oftheir intention to relocate suchincumbents within 90 days of therelease of the Public Notice thatcommences the voluntary negotiationperiod. Failure on the part of the EAlicensee to notify the incumbentlicensee during this 90 period of itsintention to relocate the incumbent willresult in the forfeiture of the EAlicensee’s right to request involuntaryrelocation of the incumbent at any timein the future.

(2) Mandatory Negotiations. If noagreement is reached by the end of thevoluntary period, a one-year mandatorynegotiation period will begin duringwhich both the EA licensee and theincumbent must negotiate in ‘‘goodfaith.’’ Failure on the part of the EAlicensee to negotiate in good faithduring this mandatory period will resultin the forfeiture of the EA licensee’sright to request involuntary relocation ofthe incumbent at any time in the future.

(c) Involuntary Relocation Procedures.If no agreement is reached during eitherthe voluntary or mandatory negotiatingperiods, the EA licensee may requestinvoluntary relocation of theincumbent’s system. In such a situation,the EA licensee must:

(1) Guarantee payment of relocationcosts, including all engineering,equipment, site and FCC fees, as well asany legitimate and prudent transactionexpenses incurred by the incumbentlicensee that are directly attributable toan involuntary relocation, subject to acap of two percent of the hard costs

involved. Hard costs are defined as theactual costs associated with providing areplacement system, such as equipmentand engineering expenses. EA licenseesare not required to pay incumbentlicensees for internal resources devotedto the relocation process. EA licenseesare not required to pay for transactioncosts incurred by incumbent licenseesduring the voluntary or mandatoryperiods once the involuntary period isinitiated, or for fees that cannot belegitimately tied to the provision ofcomparable facilities;

(2) Complete all activities necessaryfor implementing the replacementfacilities, including engineering andcost analysis of the relocation procedureand, if radio facilities are used,identifying and obtaining, on theincumbents’ behalf, new frequenciesand frequency coordination; and

(3) Build the replacement system andtest it for comparability with theexisting 800 MHz system.

(d) Comparable Facilities. Thereplacement system provided to anincumbent during an involuntaryrelocation must be at least equivalent tothe existing 800 MHz system withrespect to the following four factors:

(1) System. System is definedfunctionally from the end user’s point ofview (i.e., a system is comprised of basestation facilities that operate on anintegrated basis to provide service to acommon end user, and all mobile unitsassociated with those base stations). Asystem may include multiple-licensedfacilities that share a common switch orare otherwise operated as a unitarysystem, provided that the end user hasthe ability to access all such facilities.A system may cover more than one EAif its existing geographic coverageextends beyond the EA borders.

(2) Capacity. To meet the comparablefacilities requirement, an EA licenseemust relocate the incumbent to facilitiesthat provide equivalent channelcapacity. We define channel capacity asthe same number of channels with thesame bandwidth that is currentlyavailable to the end user. For example,if an incumbent’s system consists of five50 kHz (two 25 kHz paired frequencies)channels, the replacement system mustalso have five 50 kHz channels. If adifferent channel configuration is used,it must have the same overall capacityas the original configuration.Comparable channel capacity requiresequivalent signaling capability, baudrate, and access time. In addition, thegeographic coverage of the channelsmust be coextensive with that of theoriginal system.

(3) Quality of Service. Comparablefacilities must provide the same quality


of service as the facilities beingreplaced. Quality of service is defined tomean that the end user enjoys the samelevel of interference protection on thenew system as on the old system. Inaddition, where voice service isprovided, the voice quality on the newsystem must be equal to the currentsystem. Finally, reliability of service isconsidered to be integral to definingquality of service. Reliability is thedegree to which information istransferred accurately within thesystem. Reliability is a function ofequipment failures (e.g., transmitters,feed lines, antennas, receivers, batteryback-up power, etc.) and the availabilityof the frequency channel due topropagation characteristics (e.g.,frequency, terrain, atmosphericconditions, radio-frequency noise, etc.)For digital data systems, this will bemeasured by the percent of time the biterror rate exceeds the desired value. Foranalog or digital voice transmissions,this will be measured by the percent oftime that audio signal quality meets anestablished threshold. If analog voicesystem is replaced with a digital voicesystem the resulting frequency response,harmonic distortion, signal-to-noiseratio, and reliability will be considered.

(4) Operating Costs. Operating costsare those costs that affect the delivery ofservices to the end user. If the EAlicensee provides facilities that entailhigher operating cost than theincumbent’s previous system, and thecost increase is a direct result of therelocation, the EA licensee mustcompensate the incumbent for thedifference. Costs associated with therelocation process can fall into severalcategories. First, the incumbent must becompensated for any increasedrecurring costs associated with thereplacement facilitates (e.g., additionalrental payments, increased utility fees).Second, increased maintenance costsmust be taken into consideration whendetermining whether operating costs arecomparable. For example, maintenancecosts associated with analog systemsmay be higher than the costs of digitalequipment because manufacturers areproducing mostly digital equipment andanalog replacement parts can bedifficult to find. An EA licensee’sobligation to pay increased operatingcosts will end five years after relocationhas occurred.

(e) If an EA licensee cannot providecomparable facilities to an incumbentlicensee as defined in this section, theincumbent licensee may continue tooperate its system on a primary basis inaccordance with the provisions of thisrule part.

(f) Cost-Sharing Plan for 800 MHzSMR EA licensees. EA licensees arerequired to relocate the existing 800MHz SMR licensee in these bands ifinterference to the existing incumbentoperations would occur. All EAlicensees who benefit from the spectrumclearing by other EA licensees mustcontribute, on a pro rata basis to suchrelocation costs. EA licensees maysatisfy this requirement by entering intoprivate cost-sharing agreements oragreeing to terms other than thosespecified in this section. However, EAlicensees are required to reimburseother EA licensees that incur relocationcosts and are not parties to thealternative agreement as defined in thissection.

(1) Pro Rata Formula. EA licenseeswho benefit from the relocation of theincumbent must share the relocationcosts on a pro rata basis. For purposesof determining whether an EA licenseebenefits from the relocation of anincumbent, benefitted will be defined asany EA licensee that:

(i) Notifies incumbents operating onfrequencies included in their spectrumblock of their intention to relocate suchincumbents within 90 days of therelease of the Public Notice thatcommences the voluntary negotiationperiod; or

(ii) Fails to notify incumbentsoperating on frequencies included intheir spectrum block of their intentionto relocate such incumbents within 90days of the release of the Public Noticethat commences the voluntarynegotiation period, but subsequentlydecides to use the frequencies includedin their spectrum block. EA licenseeswho do not participate in the relocationprocess will be prohibited frominvoking mandatory negotiations or anyof the provisions of the Commission’smandatory relocation guidelines. EAlicensees who do not provide notice tothe incumbent, but subsequently decideto use the frequencies in their EA willbe required to reimburse, outside of theCommission’s mandatory relocationguidelines, those EA licensees who haveestablished a reimbursement rightpursuant to paragraph (f)(3) of thissection.

(2) Triggering a ReimbursementObligation. An EA licenseesreimbursement obligation is triggeredby:

(i) Notification (i.e., files a copy of therelocation notice and proof of theincumbent’s receipt of the notice to theCommission within ten days of receipt),to the incumbent within 90 days of therelease of the Public Noticecommencing the voluntary negotiation

period of its intention to relocate theincumbent; or

(ii) An EA licensee who does notprovide notification within 90 days ofthe release of the Public Noticecommencing the voluntary negotiationperiod, but subsequently decides to usethe channels that were relocated byother EA licensees.

(3) Triggering a Reimbursement Right.In order for the EA licensee to trigger areimbursement right, the EA licenseemust notify (i.e., files a copy of therelocation notice and proof of theincumbent’s receipt of the notice to theCommission within ten days of receipt),the incumbent of its intention torelocate the incumbent within 90 daysof the release of the Public Noticecommencing the voluntary negotiationperiod, and subsequently negotiate andsign a relocation agreement with theincumbent. An EA licensee whorelocates a channel outside of itslicensed EA (i.e., one that is in anotherfrequency block or outside of its marketarea), is entitled to pro ratareimbursement from non-notifying EAlicensees who subsequently exercisetheir right to the channels based on thefollowing formula:

Ci TcChj

TCh= ×

Ci equals the amount ofreimbursement

Tc equals the actual cost of relocatingthe incumbent

TCh equals the total number ofchannels that are being relocated

Chj equals the number of channels thateach respective EA licensee willbenefit from

(4) Payment Issues. EA licensees whobenefit from the relocation of theincumbent will be required to submittheir pro rata share of the relocationexpense to EA licensees who havetriggered a reimbursement right andhave incurred relocation costs asfollows:

(i) For an EA licensee who, within 90days of the release of the Public Noticeannouncing the commencement of thevoluntary negotiation period, providesnotice of its intention to relocate theincumbent, but does not participate orincur relocation costs in the relocationprocess, will be required to reimbursethose EA licensees who have triggereda reimbursement right and haveincurred relocation costs during therelocation process, its pro rata sharewhen the channels of the incumbenthave been cleared (i.e., the incumbenthas been fully relocated and thechannels are free and clear).


(ii) For an EA licensee who does not,within 90 days of the release of thePublic Notice announcing thecommencement of the voluntarynegotiation period, provide notice to theincumbent of its intention to relocateand does not incur relocation costsduring the relocation process, butsubsequently decides to use thechannels in its EA, will be required tosubmit its pro rata share payment tothose EA licensees who have triggereda reimbursement right and haveincurred relocation costs during therelocation process prior to commencingtesting of its system.

(5) Sunset of Reimbursement Rights.EA licensees who do not trigger areimbursement obligation as set forth inparagraph (f)(2) of this section, shall notbe required to reimburse EA licenseeswho have triggered a reimbursementright as set forth in paragraph (f)(3) ofthis section ten (10) years after thevoluntary negotiation period begins forEA licensees (i.e., ten (10) years after theCommission releases the Public Noticecommencing the voluntary negotiationperiod).

(6) Resolution of Disputes that AriseDuring Relocation. Disputes arising outof the costs of relocation, such asdisputes over the amount ofreimbursement required, will beencouraged to use expedited ADRprocedures. ADR procedures provideseveral alternative methods such asbinding arbitration, mediation, or otherADR techniques.

(7) Administration of the Cost-SharingPlan. We will allow for an industrysupported, not-for-profit clearinghouseto be established for purposes ofadministering the cost-sharing planadopted for the 800 MHz SMRrelocation procedures.


§ 90.813 Partitioned licenses anddisaggregated spectrum.

(a) Eligibility. Parties seeking approvalfor partitioning and disaggregation shallrequest an authorization for partialassignment of a license pursuant to§ 90.153(c).

(b) Technical Standards. (1)Partitioning. In the case of partitioning,requests for authorization for partialassignment of a license must include, asattachments, a description of thepartitioned service area and acalculation of the population of thepartitioned service area and the licensedgeographic service area. The partitionedservice area shall be defined bycoordinate points at every 3 degreesalong the partitioned service area unlessan FCC recognized service area is

utilized (i.e., Major Trading Area, BasicTrading Area, Metropolitan ServiceArea, Rural Service Area or EconomicArea) or county lines are followed. Thegeographic coordinates must bespecified in degrees, minutes, andseconds to the nearest second of latitudeand longitude and must be based uponthe 1927 North American Datum(NAD27). Applicants may supplygeographical coordinates based on 1983North American Datum (NAD83) inaddition to those required (NAD27). Inthe case where an FCC recognizedservice area or county lines are utilized,applicants need only list the specificarea(s) (through use of FCC designationsor county names) that constitute thepartitioned area.

(2) Disaggregation. Spectrum may bedisaggregated in any amount.

(3) Combined Partitioning andDisaggregation. The Commission willconsider requests for partial assignmentof licenses that propose combinations ofpartitioning and disaggregation.

(c) Unjust Enrichment. (1) InstallmentPayments. Licensees that qualifiedunder § 90.812 to pay the net auctionprice for their licenses in installmentpayments that partition their licenses ordisaggregate their spectrum to entitiesnot meeting the eligibility standards forinstallment payments, will be subject tothe provisions concerning unjustenrichment as set forth in § 90.812(b).

(2) Bidding Credits. Licensees thatqualified under § 90.810 to use abidding credit at auction that partitiontheir licenses or disaggregate theirspectrum to entities not meeting theeligibility standards for such a biddingcredit, will be subject to the provisionsconcerning unjust enrichment as setforth in § 90.810(b).

(3) Apportioning Unjust EnrichmentPayments. Unjust enrichment paymentsfor partitioned license areas shall becalculated based upon the ratio of thepopulation of the partitioned licensearea to the overall population of thelicense area and by utilizing the mostrecent census data. Unjust enrichmentpayments for disaggregated spectrumshall be calculated based upon the ratioof the amount of spectrum disaggregatedto the amount of spectrum held by thelicensee.

(d) Installment Payments. (1)Apportioning the Balance onInstallment Payment Plans. When awinning bidder elects to pay for itslicense through an installment paymentplan pursuant to § 90.812, and partitionsits licensed area or disaggregatesspectrum to another party, theoutstanding balance owed by thelicensee on its installment payment plan(including accrued and unpaid interest)

shall be apportioned between thelicensee and partitionee ordisaggregatee. Both parties will beresponsible for paying theirproportionate share of the outstandingbalance to the U.S. Treasury. In the caseof partitioning, the balance shall beapportioned based upon the ratio of thepopulation of the partitioned area to thepopulation of the entire original licensearea calculated based upon the mostrecent census data. In the case ofdisaggregation, the balance shall beapportioned based upon the ratio of theamount of spectrum disaggregated to theamount of spectrum allocated to thelicensed area.

(2) Parties Not Qualified ForInstallment Payment Plans. (i) When awinning bidder elects to pay for itslicense through an installment paymentplan pursuant to § 90.812, and partitionsits license or disaggregates spectrum toanother party that would not qualify foran installment payment plan or electsnot to pay for its share of the licensethrough installment payments, theoutstanding balance owed by thelicensee (including accrued and unpaidinterest) shall be apportioned accordingto paragraph (d)(1) of this section.

(ii) The partitionee or disaggregateeshall, as a condition of the approval ofthe partial assignment application, payits entire pro rata amount within 30days of Public Notice conditionallygranting the partial assignmentapplication. Failure to meet thiscondition will result in a rescission ofthe grant of the partial assignmentapplication.

(iii) The licensee shall be permitted tocontinue to pay its pro rata share of theoutstanding balance and shall receivenew financing documents (promissorynote, security agreement) with a revisedpayment obligation, based on theremaining amount of time on theoriginal installment payment schedule.These financing documents will replacethe licensee’s existing financingdocuments which shall be marked‘‘superseded’’ and returned to thelicensee upon receipt of the newfinancing documents. The originalinterest rate, established pursuant to§ 1.2110(e)(3)(i) of this chapter at thetime of the grant of the initial license inthe market, shall continue to be appliedto the licensee’s portion of theremaining government obligation. Wewill require, as a further condition toapproval of the partial assignmentapplication, that the licensee executeand return to the U.S. Treasury the newfinancing documents within 30 days ofthe Public Notice conditionally grantingthe partial assignment application.Failure to meet this condition will result


in the automatic cancellation of thegrant of the partial assignmentapplication.

(iv) A default on the licensee’spayment obligation will only affect thelicensee’s portion of the market.

(3) Parties Qualified For InstallmentPayment Plans. (i) Where both parties toa partitioning or disaggregationagreement qualify for installmentpayments, the partitionee ordisaggregatee will be permitted to makeinstallment payments on its portion ofthe remaining government obligation, ascalculated according to paragraph (d)(1)of this section.

(ii) Each party will be required, as acondition to approval of the partialassignment application, to executeseparate financing documents(promissory note, security agreement)agreeing to pay their pro rata portion ofthe balance due (including accrued andunpaid interest) based upon theinstallment payment terms for whichthey qualify under the rules. Thefinancing documents must be returnedto the U.S. Treasury within thirty (30)days of the Public Notice conditionallygranting the partial assignmentapplication. Failure by either party tomeet this condition will result in theautomatic cancellation of the grant ofthe partial assignment application. Theinterest rate, established pursuant to§ 1.2110(e)(3)(i) of this chapter at thetime of the grant of the initial license inthe market, shall continue to be appliedto both parties’ portion of the balancedue. Each party will receive a license fortheir portion of the partitioned marketor disaggregated spectrum.

(iii) A default on an obligation willonly affect that portion of the marketarea held by the defaulting party.

(iv) Partitionees and disaggregateesthat qualify for installment paymentplans may elect to pay some of their prorata portion of the balance due in alump sum payment to the U.S. Treasuryand to pay the remaining portion of thebalance due pursuant to an installmentpayment plan.

(e) License Term. The license term fora partitioned license area and fordisaggregated spectrum shall be theremainder of the original licensee’slicense term as provided for in§ 90.665(a).

(f) Construction Requirements. (1)Requirements for Partitioning. Partiesseeking authority to partition must meetone of the following constructionrequirements:

(i) The partitionee may certify that itwill satisfy the applicable constructionrequirements set forth in § 90.665 for thepartitioned license area; or

(ii) The original licensee may certifythat it has or will meet the constructionrequirements set forth in § 90.665 for theentire market. In that case, thepartitionee must only meet therequirements for renewal of its licensefor the partitioned license area.

(iii) Applications requesting partialassignments of license for partitioningmust include a certification by eachgeographic area 800 MHz SMR licensesin the lower 230 channels will beawarded to small entities, as that termis defined by the SBA.

(iv) Partitionees must submitsupporting documents showingcompliance with the respectiveconstruction requirements within theappropriate time frames set forth in§ 90.665.

(v) Failure by any partitionee to meetits respective performance requirementswill result in the automatic cancellationof the partitioned or disaggregatedlicense without further Commissionaction.

(2) Requirements for Disaggregation.Parties seeking authority to disaggregatemust submit with their partialassignment application a certificationsigned by both parties stating which ofthe parties will be responsible formeeting the construction requirementsfor the market as set forth in § 90.665.Parties may agree to share responsibilityfor meeting the constructionrequirements. Parties that acceptresponsibility for meeting theconstruction requirements and later failto do so will be subject to licenseforfeiture without further Commissionaction.


§ 90.901 800 MHz SMR spectrum subjectto competitive bidding.

Mutually exclusive initialapplications for Spectrum Blocks Athrough V in the 800 MHz band aresubject to competitive biddingprocedures. The general competitivebidding procedures provided in 47 CFRpart 1, subpart Q will apply unlessotherwise indicated in this subpart.


§ 90.902 Competitive bidding design for800 MHz SMR licensing.

The Commission will employ asimultaneous multiple round auctiondesign when selecting from amongmutually exclusive initial applicationsfor EA licenses for Spectrum Blocks Athrough V in the 800 MHz band, unlessotherwise specified by the WirelessTelecommunications Bureau before theauction.

17. Section 90.903 is amended byrevising paragraphs (a) and (b) andadding paragraph (f) to read as follows:

§ 90.903 Competitive bidding mechanisms.

(a) Sequencing. The WirelessTelecommunications Bureau willestablish and may vary the sequence inwhich 800 MHz SMR licenses forSpectrum Blocks A through V will beauctioned.

(b) Grouping. (1) Spectrum Blocks Athrough C. All EA licenses for SpectrumBlocks A through C will be auctionedsimultaneously, unless the WirelessTelecommunications Bureauannounces, by Public Notice prior to theauction, an alternative competitivebidding design.

(2) Spectrum Blocks D through V. AllEA licenses for Spectrum Blocks Dthrough V will be auctioned by thefollowing Regions:

(i) Region 1 (Northeast): TheNortheast Region consists of thefollowing MTAs: Boston-Providence,Buffalo-Rochester, New York,Philadelphia, and Pittsburgh.

(ii) Region 2 (South): The SouthRegion consists of the following MTAs:Atlanta, Charlotte-Greensboro-Greenville-Raleigh, Jacksonville,Knoxville, Louisville-Lexington-Evansville, Nashville, Miami-FortLauderdale, Richmond-Norfolk, Tampa-St. Petersburg-Orlando, andWashington-Baltimore; and, Puerto Ricoand United States Virgin Islands.

(iii) Region 3 (Midwest): The MidwestRegion consists of the following MTAs:Chicago, Cincinnati-Dayton, Cleveland,Columbus, Des Moines-Quad Cities,Detroit, Indianapolis, Milwaukee,Minneapolis-St. Paul, and Omaha.

(iv) Region 4 (Central): The CentralRegion consists of the following MTAs:Birmingham, Dallas-Fort Worth, Denver,El Paso-Albuquerque, Houston, KansasCity, Little Rock, Memphis-Jackson,New Orleans-Baton Rouge, OklahomaCity, San Antonio, St. Louis, Tulsa, andWichita.

(v) Region 5 (West): The West Regionconsists of the following MTAs:Honolulu, Los Angeles-San Diego,Phoenix, Portland, Salt Lake City, SanFrancisco-Oakland-San Jose, Seattle(including Alaska), and Spokane-Billings; and, American Samoa, Guam,and the Northern Mariana Islands.* * * * *

(f) Duration of Bidding Rounds. TheWireless Telecommunications Bureauretains the discretion to vary theduration of bidding rounds or theintervals at which bids are accepted.



§ 90.904 Aggregation of EA licenses.The Commission will license each

Spectrum Block A through V in the 800MHz band separately. Applicants mayaggregate across spectrum blocks withinthe limitations specified in § 20.6 of thischapter.


§ 90.906 Bidding application (FCC Form175 and 175–S Short-form).

All applicants to participate incompetitive bidding for 800 MHz SMRlicenses in Spectrum Blocks A throughV must submit applications on FCCForms 175 and 175-S pursuant to theprovisions of § 1.2105 of this chapter.The Wireless TelecommunicationsBureau will issue a Public Noticeannouncing the availability of these 800MHz SMR licenses and, in the eventthat mutually exclusive applications arefiled, the date of the auction for thoselicenses. This Public Notice also willspecify the date on or before whichapplicants intending to participate in a800 MHz SMR auction must file theirapplications in order to be eligible forthat auction, and it will containinformation necessary for completion ofthe application as well as otherimportant information such as thematerials which must accompany theForms, any filing fee that mustaccompany the application or anyupfront payment that will need to besubmitted, and the location where theapplication must be filed. In addition toidentifying its status as a small businessor rural telephone company, eachapplicant must indicate whether it is aminority-owned entity and/or a women-owned entity, as defined in § 90.912(e).


§ 90.907 Submission of upfront paymentsand down payments.

(a) Upfront Payments. Bidders in a800 MHz SMR auction for SpectrumBlocks A through V will be required tosubmit an upfront payment prior to thestart of the auction. The amount of theupfront payment for each licenseauctioned and the procedures forsubmitting it will be set forth by theWireless Telecommunications Bureau ina Public Notice in accordance with§ 1.2106 of this chapter.

(b) Down Payments. Winning biddersin a 800 MHz SMR auction for SpectrumBlocks A through V must submit a downpayment to the Commission in anamount sufficient to bring their totaldeposits up to 20 percent of theirwinning bids within ten (10) businessdays after the auction closes. Winningbidders will be required to make full

payment of the balance of their winningbids ten (10) business days after PublicNotice announcing that the Commissionis prepared to award the license.

21. Section 90.909 is amended byrevising the section heading to read asfollows:

§ 90.909 License grant, denial, default, anddisqualification.

* * * * *22. Section 90.910 is revised to read

as follows:

§ 90.910 Bidding credits.(a) A winning bidder that qualifies as

a very small business or a consortium ofvery small businesses, as defined in§§ 90.912(b)(2) and (b)(5), may use abidding credit of 35 percent to lower thecost of its winning bid on SpectrumBlocks A through V. A winning bidderthat qualifies as a small business or aconsortium of small businesses, asdefined in §§ 90.912(b)(1) or (b)(4), mayuse a bidding credit of 25 percent tolower the cost of its winning bid onSpectrum Blocks A through V.

(b) Unjust Enrichment. (1) If a smallbusiness or very small business (asdefined in §§ 90.912(b)(1) and90.912(b)(2), respectively) that utilizes abidding credit under this section seeksto assign or transfer control of anauthorization to an entity that is not asmall business or very small business,or seeks to make any other change inownership that would result in thelicensee losing eligibility as a smallbusiness or very small business, thesmall business or very small businessmust seek Commission approval andreimburse the government for thedifference between the amount of thebidding credit obtained by the licenseeand the bidding credit for which theassignee, transferee, or licensee iseligible under this section as a conditionof the approval of such assignment,transfer, or other ownership change.

(2) If a very small business (as definedin § 90.912(b)(2)) that utilizes a biddingcredit under this section seeks to assignor transfer control of an authorization toa small business meeting the eligibilitystandards for a lower bidding credit, orseeks to make any other change inownership that would result in thelicensee qualifying for a lower biddingcredit under this section, the licenseemust seek Commission approval andreimburse the government for thedifference between the amount of thebidding credit obtained by the licenseeand the bidding credit for which theassignee, transferee, or licensee iseligible under this section as a conditionof the approval of such assignment,transfer, or other ownership change.

(3) The amount of payments madepursuant to paragraphs (b)(1) and (b)(2)of this section will be reduced over timeas follows: a transfer in the first twoyears of the license term will result ina forfeiture of 100 percent of the valueof the bidding credit (or the differencebetween the bidding credit obtained bythe original licensee and the biddingcredit for which the post-transferlicensee is eligible); in year three of thelicense term the payment will be 75percent; in year four the payment willbe 50 percent; and in year five thepayment will be 25 percent, after whichthere will be no assessment.


§ 90.911 Partitioned licenses anddisaggregated spectrum

(a) Eligibility. Parties seeking approvalfor partitioning and disaggregation shallrequest an authorization for partialassignment of a license pursuant to§ 90.153(c).

(b) Technical Standards. (1)Partitioning. In the case of partitioning,requests for authorization for partialassignment of a license must include, asattachments, a description of thepartitioned service area and acalculation of the population of thepartitioned service area and the licensedgeographic service area. The partitionedservice area shall be defined bycoordinate points at every 3 degreesalong the partitioned service area unlessan FCC recognized service area isutilized (i.e., Major Trading Area, BasicTrading Area, Metropolitan ServiceArea, Rural Service Area or EconomicArea) or county lines are followed. Thegeographic coordinates must bespecified in degrees, minutes, andseconds to the nearest second of latitudeand longitude and must be based uponthe 1927 North American Datum(NAD27). Applicants may supplygeographical coordinates based on 1983North American Datum (NAD83) inaddition to those required (NAD27). Inthe case where an FCC recognizedservice area or county lines are utilized,applicants need only list the specificarea(s) (through use of FCC designationsor county names) that constitute thepartitioned area.

(2) Disaggregation. Spectrum may bedisaggregated in any amount.

(3) Combined Partitioning andDisaggregation. The Commission willconsider requests for partial assignmentof licenses that propose combinations ofpartitioning and disaggregation.

(c) Unjust Enrichment. (1) BiddingCredits. Licensees that qualified under§ 90.910 to use a bidding credit atauction that partition their licenses or


disaggregate their spectrum to entitiesnot meeting the eligibility standards forsuch a bidding credit, will be subject tothe provisions concerning unjustenrichment as set forth in § 90.910(b).

(2) Apportioning Unjust EnrichmentPayments. Unjust enrichment paymentsfor partitioned license areas shall becalculated based upon the ratio of thepopulation of the partitioned licensearea to the overall population of thelicense area and by utilizing the mostrecent census data. Unjust enrichmentpayments for disaggregated spectrumshall be calculated based upon the ratioof the amount of spectrum disaggregatedto the amount of spectrum held by thelicensee.

(d) License Term. The license term fora partitioned license area and fordisaggregated spectrum shall be theremainder of the original licensee’slicense term as provided for in§§ 90.629(a), 90.665(a) or 90.685(a).

(e) Construction and Channel UsageRequirements—Incumbent Licensees.Parties seeking to acquire a partitionedlicense or disaggregated spectrum froman incumbent licensee will be requiredto construct and commence ‘‘service tosubscribers’’ all facilities acquiredthrough such transactions within theoriginal construction deadline for eachfacility as set forth in §§ 90.629 and90.683. Failure to meet the individualconstruction deadline will result in theautomatic termination of the facility’sauthorization.

(f) Construction and Channel UsageRequirements—EA Licensees.

(1) Licensees in Channel Blocks A, Band C. (i) Requirements for Partitioning.(A) The partitionee may certify that itwill satisfy the applicable constructionrequirements set forth in § 90.685(c) forthe partitioned license area; or

(B) The original licensee may certifythat it has or will meet the three and fiveyear construction requirements set forthin § 90.685(c) for the entire market.

(C) Applications requesting partialassignments of license for partitioningmust include a certification by eachparty as to which of the above optionsthey select.

(D) Partitionees must submitsupporting documents showingcompliance with the respectiveconstruction requirements within theappropriate time frames set forth in§ 90.685(c).

(E) Failure by any partitionee to meetits respective construction requirementswill result in the automatic cancellationof the partitioned license withoutfurther Commission action.

(ii) Requirements for Disaggregation.Parties seeking authority to disaggregatespectrum from an EA licensee in

Spectrum Blocks A, B and C must meetone of the following channel userequirements:

(A) The partitionee may certify that itwill satisfy the channel usagerequirements set forth in § 90.685(d) forthe disaggregated spectrum; or

(B) The original licensee may certifythat it has or will meet the channelusage requirements as set forth in§ 90.685(d) for the entire spectrumblock. In that case, the disaggregateemust only satisfy the requirements for‘‘substantial service,’’ as set forth in§ 90.685(c), for the disaggregatedspectrum within five years of the licensegrant.

(C) Applications requesting partialassignments of license fordisaggregation must include acertification by each party as to whichof the above options they select.

(D) Disaggregatees must submitsupporting documents showingcompliance with the respective channelusage requirements within theappropriate time frames set forth in§ 90.685(c).

(E) Failure by any disaggregatee tomeet its respective channel usagerequirements will result in theautomatic cancellation of thedisaggregated license without furtherCommission action.

(2) Licensees in Channel Blocks Dthrough V. (i) Requirements forPartitioning. Parties seeking authority topartition an EA license must meet oneof the following constructionrequirements:

(A) The partitionee may certify that itwill satisfy the applicable constructionrequirements set forth in § 90.685(c) forthe partitioned license area; or

(B) The original licensee may certifythat it has or will meet the constructionrequirements set forth in § 90.685(c) forthe entire market.

(C) Applications requesting partialassignments of license for partitioningmust include a certification by eachparty as to which of the above optionsthey select.

(D) Partitionees must submitsupporting documents showingcompliance with the respectiveconstruction requirements within theappropriate time frames set forth in§ 90.685(c).

(E) Failure by any partitionee to meetits respective construction requirementswill result in the automatic cancellationof the partitioned license withoutfurther Commission action.

(ii) Requirements for Disaggregation.Parties seeking authority to disaggregatemust submit with their partialassignment application a certificationsigned by both parties stating which of

the parties will be responsible formeeting the construction requirementsfor the market as set forth in § 90.685.Parties may agree to share responsibilityfor meeting the constructionrequirements. Parties that acceptresponsibility for meeting theconstruction requirements and later failto do so will be subject to licenseforfeiture without further Commissionaction.

(g) Certification ConcerningRelocation of Incumbent Licensees.Parties seeking approval of apartitioning or disaggregation agreementpursuant to this section must include acertification with their partialassignment of license application as towhich party will be responsible formeeting the incumbent relocationrequirements set forth at § 90.699.


§ 90.912 Definitions.(a) Scope. The definitions in this

section apply to §§ 90.910 and 90.911,unless otherwise specified in thosesections.

(b) Small Business; Very SmallBusiness; Consortium of SmallBusinesses; Consortium of Very SmallBusinesses. (1) A small business is anentity that together with its affiliatesand controlling principals, has averagegross revenues that do not exceed $15million for the three preceding years; or

(2) A very small business is an entitythat together with its affiliates andcontrolling principals, has average grossrevenues that do not exceed $3 millionfor the three preceding years.

(3) For purposes of determiningwhether an entity meets the $3 millionor $15 million average annual grossrevenues size standard set forth inparagraph (b)(1) of this section, the grossrevenues of the entity, its affiliates, andcontrolling principals shall beconsidered on a cumulative basis andaggregated.

(4) A consortium of small business isa conglomerate organization formed as ajoint venture between or amongmutually-independent business firms,each of which individually satisfies thedefinition of a small business inparagraphs (b)(1) of this section. In aconsortium of small businesses, eachindividual member must establish itseligibility as a small business, asdefined in this section.

(5) A consortium of very smallbusiness is a conglomerate organizationformed as a joint venture between oramong mutually-independent businessfirms, each of which individuallysatisfies the definition of a very smallbusiness in paragraph (b)(2) of this


section. In a consortium of smallbusinesses, each individual membermust establish its eligibility as a verysmall business, as defined in thissection.

(c) Gross Revenues. Gross revenuesshall mean all income received by anentity, whether earned or passive, beforeany deductions are made for costs ofdoing business (e.g., cost of goods sold).Gross revenues are evidenced byaudited financial statements for therelevant number of calendar or fiscalyears preceding the filing of theapplicant’s short-form application (FCCForm 175). If an entity was not inexistence for all or part of the relevantperiod, gross revenues shall beevidenced by the audited financialstatements of the entity’s predecessor-in-interest or, if there is no identifiablepredecessor-in-interest, unauditedfinancial statements certified by theapplicant as accurate. When anapplicant does not otherwise useaudited financial statements, its grossrevenues may be certified by its chieffinancial officer or its equivalent.

(d) Affiliate. (1) Basis for Affiliation.An individual or entity is an affiliate ofan applicant if such individual or entity:

(i) Directly or indirectly controls orhas the power to control the applicant,or

(ii) Is directly or indirectly controlledby the applicant, or

(iii) Is directly or indirectly controlledby a third party or parties who alsocontrol or have the power to control theapplicant, or

(iv) Has an ‘‘identity of interest’’ withthe applicant.

(2) Nature of control in determiningaffiliation. (i) Every business concern isconsidered to have one or more partieswho directly or indirectly control orhave the power to control it. Controlmay be affirmative or negative and it isimmaterial whether it is exercised solong as the power to control exists.

Example for paragraph (d)(2)(i) of thissection. An applicant owning 50 percent ofthe voting stock of another concern wouldhave negative power to control such concernsince such party can block any action of theother stockholders. Also, the bylaws of acorporation may permit a stockholder withless than 50 percent of the voting stock toblock any actions taken by the otherstockholders in the other entity. Affiliationexists when the applicant has the power tocontrol a concern while at the same timeanother person, or persons, are in control ofthe concern at the will of the party or partieswith the power of control.

(ii) Control can arise through stockownership; occupancy of director,officer, or key employee positions;contractual or other business relations;

or combinations of these and otherfactors. A key employee is an employeewho, because of his/her position in theconcern, has a critical influence in orsubstantive control over the operationsor management of the concern.

(iii) Control can arise throughmanagement positions if the votingstock is so widely distributed that noeffective control can be established.

Example for paragraph (d)(2)(iii) of thissection. In a corporation where the officersand directors own various size blocks ofstock totaling 40 percent of the corporation’svoting stock, but no officer or director has ablock sufficient to give him/her control or thepower to control and the remaining 60percent is widely distributed with noindividual stockholder having a stockinterest greater than 10 percent, managementhas the power to control. If persons withsuch management control of the other entityare controlling principals of the applicant,the other entity will be deemed an affiliateof the applicant.

(3) Identity of interest between andamong persons. Affiliation can arisebetween or among two or more personswith an identity of interest, such asmembers of the same family or personswith common investments. Indetermining if the applicant controls oris controlled by a concern, persons withan identity of interest will be treated asthough they were one person.

(i) Spousal Affiliation. Both spousesare deemed to own or control or havethe power to control interests owned orcontrolled by either of them, unless theyare subject to a legal separationrecognized by a court of competentjurisdiction in the United States.

(ii) Kinship Affiliation. Immediatefamily members will be presumed toown or control or have the power tocontrol interests owned or controlled byother immediate family members. Inthis context ‘‘immediate familymember’’ means father, mother,husband, wife, son, daughter, brother,sister, father- or mother-in-law, son- ordaughter-in-law, brother- or sister-in-law, step-father or -mother, step-brotheror -sister, step-son or -daughter, half-brother or -sister. This presumption maybe rebutted by showing that:

(A) The family members areestranged,

(B) The family ties are remote, or(C) The family members are not

closely involved with each other inbusiness matters.

Example for paragraph (d)(3)(ii) of thissection. A owns a controlling interest inCorporation X. A’s sister-in-law, B, has acontrolling interest in an SMR application.Because A and B have a presumptive kinshipaffiliation, A’s interest in Corporation X isattributable to B, and thus to the applicant,

unless B rebuts the presumption with thenecessary showing.

(4) Affiliation through stockownership. (i) An applicant is presumedto control or have the power to controla concern if he/she owns or controls orhas the power to control 50 percent ormore of its voting stock.

(ii) An applicant is presumed tocontrol or have the power to control aconcern even though he/she owns,controls, or has the power to control lessthan 50 percent of the concern’s votingstock, if the block of stock he/she owns,controls, or has the power to control islarge as compared with any otheroutstanding block of stock.

(iii) If two or more persons each owns,controls or has the power to control lessthan 50 percent of the voting stock of aconcern, such minority holdings areequal or approximately equal in size,and the aggregate of these minorityholdings is large as compared with anyother stock holding, the presumptionarises that each one of these personsindividually controls or has the powerto control the concern; however, suchpresumption may be rebutted by ashowing that such control or power tocontrol, in fact, does not exist.

(5) Affiliation arising under stockoptions, convertible debentures, andagreements to merge. Stock options,convertible debentures, and agreementsto merge (including agreements inprinciple) are generally considered tohave a present effect on the power tocontrol the concern. Therefore, inmaking a size determination, suchoptions, debentures, and agreementswill generally be treated as though therights held thereunder had beenexercised. However, neither an affiliatenor an applicant can use such optionsand debentures to appear to terminateits control over another concern beforeit actually does so.

Example 1 for paragraph (d)(5) of thissection. If company B holds an option topurchase a controlling interest in companyA, who holds a controlling interest in anSMR application, the situation is treated asthough company B had exercised its rightsand had become owner of a controllinginterest in company A. The gross revenues ofcompany B must be taken into account indetermining the size of the applicant.

Example 2 for paragraph (d)(5) of thissection. If a large company, BigCo, holds70% (70 of 100 outstanding shares) of thevoting stock of company A, who holds acontrolling interest in an SMR application,and gives a third party, SmallCo, an optionto purchase 50 of the 70 shares owned byBigCo, BigCo will be deemed to be an affiliateof company A, and thus the applicant, untilSmallCo actually exercises its options topurchase such shares. In order to preventBigCo from circumventing the intent of the


rule, which requires such options to beconsidered on a fully diluted basis, theoption is not considered to have presenteffect in this case.

Example 3 for paragraph (d)(5) of thissection. If company A has entered into anagreement to merge with company B in thefuture, the situation is treated as though themerger has taken place.

(6) Affiliation under voting trusts. (i)Stock interests held in trust shall bedeemed controlled by any person whoholds or shares the power to vote suchstock, to any person who has the solepower to sell such stock, and to anyperson who has the right to revoke thetrust at will or to replace the trustee atwill.

(ii) If a trustee has a familial, personalor extra-trust business relationship tothe grantor or the beneficiary, the stockinterests held in trust will be deemedcontrolled by the grantor or beneficiary,as appropriate.

(iii) If the primary purpose of a votingtrust, or similar agreement, is to separatevoting power from beneficial ownershipof voting stock for the purpose ofshifting control of or the power tocontrol a concern in order that suchconcern or another concern may meetthe Commission’s size standards, suchvoting trust shall not be consideredvalid for this purpose regardless ofwhether it is or is not recognized withinthe appropriate jurisdiction.

(7) Affiliation through commonmanagement. Affiliation generally ariseswhere officers, directors, or keyemployees serve as the majority orotherwise as the controlling element ofthe board of directors and/or themanagement of another entity.

(8) Affiliation through commonfacilities. Affiliation generally ariseswhere one concern shares office spaceand/or employees and/or other facilitieswith another concern, particularlywhere such concerns are in the same orrelated industry or field of operations,or where such concerns were formerlyaffiliated, and through these sharingarrangements one concern has control,or potential control, of the otherconcern.

(9) Affiliation through contractualrelationships. Affiliation generallyarises where one concern is dependentupon another concern for contracts andbusiness to such a degree that oneconcern has control, or potentialcontrol, of the other concern.

(10) Affiliation under joint venturearrangements.

(i) A joint venture for sizedetermination purposes is anassociation of concerns and/orindividuals, with interests in any degreeor proportion, formed by contract,

express or implied, to engage in andcarry out a single, specific businessventure for joint profit for whichpurpose they combine their efforts,property, money, skill and knowledge,but not on a continuing or permanentbasis for conducting business generally.The determination whether an entity isa joint venture is based upon the factsof the business operation, regardless ofhow the business operation may bedesignated by the parties involved. Anagreement to share profits/lossesproportionate to each party’scontribution to the business operation isa significant factor in determiningwhether the business operation is a jointventure.

(ii) The parties to a joint venture areconsidered to be affiliated with eachother.


§ 90.913 Eligibility for small businessstatus.

(a) Short-Form Applications:Certifications and Disclosure. Eachapplicant for an EA license whichqualifies as a small business orconsortium of small businesses under§§ 90.912(b) or (c) shall append thefollowing information as an exhibit toits short-form application (FCC Form175):

(1) The identity of the applicant’saffiliates and controlling principals,and, if a consortium of small businesses(or a consortium of very smallbusinesses), the members of the jointventure; and

(2) The applicant’s gross revenues,computed in accordance with § 90.912.

(b) Long-Form Applications:Certifications and Disclosure. Inaddition to the requirements in subpartV of this part, each applicant submittinga long-form application for license(s) forSpectrum Blocks A through V andqualifying as a small business shall, inan exhibit to its long-form application:

(1) Disclose separately and in theaggregate the gross revenues, computedin accordance with § 90.912, for each ofthe following: the applicant, theapplicant’s affiliates, the applicant’scontrolling principals, and, if aconsortium of small businesses (orconsortium of very small businesses),the members of the joint venture;

(2) List and summarize all agreementsor other instruments (with appropriatereferences to specific provisions in thetext of such agreements andinstruments) that support theapplicant’s eligibility as a smallbusiness, very small business,consortium of small businesses orconsortium of very small businesses

under §§ 90.910 and 90.912, includingthe establishment of de facto and de jurecontrol; such agreements andinstruments include articles ofincorporation and bylaws, shareholderagreements, voting or other trustagreements, franchise agreements, andany other relevant agreements(including letters of intent), oral orwritten; and

(3) List and summarize any investorprotection agreements, including rightsof first refusal, supermajority clauses,options, veto rights, and rights to hireand fire employees and to appointmembers to boards of directors ormanagement committees.

(c) Records Maintenance. All winningbidders qualifying as small businessesor very small businesses, shall maintainat their principal place of business anupdated file of ownership, revenue andasset information, including anydocument necessary to establisheligibility as a small business, verysmall business and/or consortium ofsmall businesses (or consortium of verysmall businesses) under § 90.912.Licensees (and their successors ininterest) shall maintain such files for theterm of the license.

(d) Audits. (1) Applicants andlicensees claiming eligibility as a smallbusiness, very small business orconsortium of small businesses (orconsortium of very small businessesunder §§ 90.910 and 90.912 shall besubject to audits by the Commission,using in-house and contract resources.Selection for audit may be random, oninformation, or on the basis of otherfactors.

(2) Consent to such audits is part ofthe certification included in the short-form application (FCC Form 175). Suchconsent shall include consent to theaudit of the applicant’s or licensee’sbooks, documents and other material(including accounting procedures andpractices) regardless of form or type,sufficient to confirm that suchapplicant’s or licensee’s representationsare, and remain, accurate. Such consentshall include inspection at allreasonable times of the facilities, orparts thereof, engaged in providing andtransacting business, or keeping recordsregarding licensed 800 MHz SMRservice and shall also include consent tothe interview of principals, employees,customers and suppliers of theapplicant or licensee.

(3) Definitions. The terms affiliate,small business, very small businessconsortium of small businesses,consortium of very small businesses,


and gross revenues used in this sectionare defined in § 90.912.



47 CFR Part 90

[PR Docket No. 93–144; GN Docket No. 93–252; PP Docket No. 93–253; FCC 97–224]

Facilitate Future Development of SMRSystems in the 800 MHz FrequencyBand


ACTION: Final rule.

SUMMARY: In the First Report and Orderand Eighth Report and Order in PRDocket No. 93–144, GN Docket No. 93–252, and PP Docket No. 93–253, theCommission adopted final service andcompetitive bidding rules for the upper200 channels of the 800 MHzSpecialized Mobile Radio (SMR) band.In the Second Further Notice ofProposed Rulemaking, the Commissionsought comment on additional serviceand competitive bidding rules for theremaining 800 MHz SMR spectrum andthe General Category channels. Aftercarefully reviewing the comments andpetitions the Commission receivedfollowing the issuance of the FurtherNotice of Proposed Rulemaking, theCommission addresses the Petitions forReconsideration in this order.

EFFECTIVE DATE: September 29, 1997.

FOR FURTHER INFORMATION CONTACT:Shaun Maher or Michael Hamra, Policyand Rules Branch, Commercial WirelessDivision, Wireless TelecommunicationsBureau at (202) 418–0620 or Alice Elder,Auctions and Industry AnalysisDivision, Wireless TelecommunicationsBureau at (202) 418–0660.

SUPPLEMENTARY INFORMATION: ThisMemorandum Opinion and Order onReconsideration in PR Docket No. 93–144, GN Docket No. 93–252, and PPDocket No. 93–253, adopted June 23,1997, and released July 10, 1997, isavailable for inspection and copyingduring normal business hours in theFCC Dockets Branch, Room 230, 1919 MStreet, NW., Washington, DC. Thecomplete text may be purchased fromthe Commission’s copy contractor,International Transcription Service,Inc., 2100 M Street, NW., Suite 140,Washington, DC 20037 (telephone (202)857–3800).

I. Background1. In the 800 MHz Report and Order,

61 FR 6138 (February 16, 1996), theCommission restructured the licensingframework that governs the 800 MHzSMR service. For the upper 200channels, the Commission replaced site-and frequency-specific licensing with ageography-based system similar to thoseused in other Commercial Mobile RadioServices (‘‘CMRS’’). The Commissiondesignated the upper 200 channels of800 MHz SMR spectrum for geographiclicensing, and created 120-, 60- and 20-channel blocks within the U.S.Department of Commerce Bureau ofEconomic Analysis Economic Areas(‘‘EAs’’). The Commission concludedthat mutually exclusive applications forthese licenses would be awardedthrough competitive bidding.Additionally, the Commission grantedEA licensees the right to relocateincumbent licensees out of the upper200 channels to comparable facilities.The Commission reallocated the 150contiguous 800 MHz General Categorychannels for exclusive SMR use.

2. The Commission also establishedcompetitive bidding rules for the upper200 channels of 800 MHz SMRspectrum. Specifically, the orderprovided for the award of 525 EAlicenses in the upper 200 channel blockthrough a simultaneous multiple roundauction. Incumbents and new entrantsmay bid for all EA licenses, subject tothe CMRS spectrum cap in § 20.6 of theCommission’s rules. The Commissionalso adopted a ‘‘tiered’’ approach toinstallment payments for smallbusinesses in the upper 200 channelblock, and allowed partitioning for ruraltelephone companies.

A. Geographic Licensing in the 800 MHzSMR Band

1. Geographic Licensing in ContiguousSpectrum Blocks

3. In the CMRS Third Report andOrder, 59 FR 59945 (November 21,1996), the Commission found thatlicensing 800 MHz SMR spectrum incontiguous blocks would make SMRsystems more competitive with otherCMRS systems by maximizing technicalflexibility so that, for example, it wouldbe possible for SMR licensees to deployspread spectrum and other broadbandtechnologies. In the 800 MHz Reportand Order the Commission concludedthat the entire upper 200 channel blockshould be licensed on a contiguousbasis throughout a geographic areabecause the SMR geographic licensewould then be equivalent in size to thesmallest block of spectrum nowauthorized for broadband PCS.

4. Commenters argue that theCommission has not justified itsdecision to group the upper 200channels of 800 MHz SMR spectruminto geographically licensed contiguousblocks or adequately explained how theneed for contiguous spectrum justifiesdisruption of established SMR operatorsand that the Commission’s rulesimpermissibly fail to mandate thatcontiguous blocks of spectrum be usedto offer innovative or competitiveservices. They also argue that theCommission’s decision should bereversed if it is based on reducing itsadministrative burden. It argues thatscarcity of Commission resourcescannot justify any changes in its rulesand that geographic licensing will infact increase the Commission’sadministrative burden. One commenterasserts that most incumbent licenseesspan all three EA frequency blocks.Thus, relocating most incumbents willrequire that at least four applications befiled, placed on public notice andprocessed by the Commission. It alsoclaims that these burdens will beexacerbated by the burdens of site-specific licensing because theCommission has not eliminated currentsite-specific licenses.

5. Discussion: The Commission rejectsthe contention that it has failed tojustify the need for licensing the upper200 channels in contiguous blocks. Inthe CMRS Third Report and Order, theCommission determined that, wherefeasible, assigning contiguous spectrumis likely to enhance the competitivepotential of CMRS geographic providers.In the 800 MHz Report and Order theCommission determined that geographiclicensing and contiguous spectrum areessential to the competitive viability ofSMR service because they will permituse of spread spectrum and otherbroadband technologies and eliminatedelays and transaction costs associatedwith site-by-site licensing.

6. The Commission disagrees withCommenters claim that geographiclicensing will have a negative impact onexisting SMR operators. TheCommission’s rules continue to protectincumbent operators from interference.In the upper 200 channels, theCommission requires EA licensees tocomply with existing rules that requireminimum separation from incumbents’facilities. Thus, an EA licensee musteither locate its station at least 113 km(70 miles) from any incumbent’s facility,or if it seeks to operate stations less than113 km from an incumbent’s facility, itmust comply with the Commission’sshort-spacing rule, unless it negotiates ashorter distance with the incumbent.Additionally, incumbent SMRs on the


upper 200 channels also have theoperational flexibility to addtransmitters in their existing coveragearea, without prior notification to theCommission, so long as their 22 dBuinterference contours are not exceeded.The Commission cannot agree with thecontention that competition andinnovation will be increased byallocation of spectrum resources via ablanket regulatory prescription ratherthan through individual marketparticipants’ decisions. In the 800 MHzReport and Order, the Commissionstated that its goal was to provideregulatory symmetry and operationalflexibility that will allow SMR providersto use new technologies and competewith other CMRS providers. By givinglicensees flexibility to use spectrum oneither a contiguous or non-contiguousbasis, the Commission gives SMRoperators more ways to provide serviceand more ways to compete with otherCMRS providers.

7. The Commission also rejects theclaim that geographic licensing willincrease its administrative burden.Under the Commission’s site-specificlicensing rules, it has received andprocessed approximately 6,000applications for individual SMRlicenses and modifications a year, andin some years, as many as 20,000applications. By contrast, geographiclicensing of the upper 200 channels willbe accomplished by issuing 525 EAlicenses, and virtually eliminating theneed for subsequent modifications ofany license unless it is transferred orpartitioned. Moreover, licensees will nolonger be required to file an applicationfor each base station; geographiclicensees will be able to construct base-stations in pre-defined areas without theCommission’s prior approval. Thesechanges represent dramatic reductionsin administrative burden for bothlicensees and the Commission. In thisconnection, the Commission rejectscommenter’s claim that reducing itsadministrative costs is an invalid basisfor adopting new rules. While theCommission’s rule changes are drivenby numerous considerations other thanadministrative cost, e.g., promotingmore efficient spectrum use andcreating a regulatory framework thatwill allow 800 MHz SMR operators tocompete more effectively with otherCMRS providers, the Commissionconsiders improving its efficiency andreducing its cost to be valid publicinterest considerations.

2. Size of EA Spectrum Blocks8. Background. In the 800 MHz Report

and Order, the Commission concludedthat dividing the upper 200 channels

into various-sized channel blocks wouldcreate opportunities for SMR providerswith differing spectrum needs. TheCommission rejected proposals to assignthe upper 200 channels in five- and/orten-channel blocks, concluding insteadthat allocating one 120-channel block,one 60-channel block, and one 20-channel block for licensing on an EAbasis would equitably balance theinterests of all potential and existinglicensees.

9. Commenters argue that the recorddoes not support the Commission’sdecision to group currently allocatedchannels into contiguous blocks. Theycontend that the aggregation of 20, 60,and 120 contiguous channels restrictsthe number of small business entitiesthat can compete effectively at auctionbecause relocation channels will eitherbe unavailable or impracticably costlyand that the cost of relocating 20 ormore channels will be prohibitive forsmall business.

10. Commenters claim that smallerchannel blocks would require an EAapplicant desiring adjacent channels tobid more aggressively, and thus thepublic would receive more value for thespectrum. They also argue that 5-channel geographic licenses wouldfacilitate bidding for designated entitiessuch as small businesses.

11. Discussion. The Commissionrejects commenters’ argument that thepublic interest would be better servedby five-channel spectrum blocks. TheCommission stated in the 800 MHzReport and Order, that the use of suchsmall spectrum blocks make it moredifficult to obtain sufficient spectrum toestablish a viable and competitive wide-area system, and to use broadbandtechnologies such as CDMA and GSM.The Commission also rejects the claimthat the aggregation of 20, 60, and 120channels will reduce opportunities forsmall businesses. Under Commissionrules, small businesses may formcoalitions to raise needed capital andfinance any desired relocations. TheCommission has adopted provisions inits auction rules enabling smallbusinesses to receive bidding credits.

12. The Commission also rejectsCommenter’s claim that five-channelblocks would increase spectrumvaluation. The Commission’s geographiclicensing system is designed to enhancethe competitive potential of the 800MHz SMR operators. To accomplishthis, the Commission has tailored thechannel blocks to the needs of varioususers by creating large, medium andsmall channel blocks and by placingthese blocks to accommodate thespectrum needs of different-sized SMRproviders. As the Commission

recognized in the 800 MHz Report andOrder, placing the 120-channel blockclosest to the cellular spectrumallocation will assist operators inproviding wide-area service byfacilitating dual-mode operation.Placing the 20-channel block in theportion of spectrum nearest to the lower80 SMR channels will allow small tomedium-sized operators to expandcapacity while minimizing costs anddisruption to existing customers.Similarly, the Commission expects thatin many EA’s medium-sized SMRoperators or consortia of smaller SMRoperators may find the 60-channel blocksuitable to their needs.

13. The Commission similarly is notpersuaded by the claim that allocatingspectrum in five-channel blocks willreduce the burdens of, and number ofentities involved in, relocationnegotiations. To the contrary, theCommission’s relocation mechanismprovided for cost sharing and collectivenegotiations so that relocation canefficiently occur. Additionally, theCommission notes that in the lower 80channels, where the current five-channel blocks are non-contiguous andinterleaved with blocks of non-SMRchannels, it is adopting the proposal tolicense in five-channel blocks.

3. 800 MHz SMR Spectrum AggregationLimit

14. Background. In the CMRS ThirdReport and Order, the Commissionadopted a 45 MHz limit on aggregationof broadband PCS, cellular, and SMRspectrum. It concluded that in light ofthe broadband CMRS spectrum cap, noseparate limitation was necessary onaggregation of spectrum in the upper200 channel block. In the 800 MHzReport and Order, the Commissionreasoned that the 800 MHz SMR serviceis one of many competitive serviceswithin the CMRS marketplace, and thatallowing unrestricted aggregation ofSMR spectrum would not impede CMRScompetition so long as 800 MHz SMRlicensees were subject to the 45 MHzCMRS spectrum aggregation limit.

15. Petitions. Commenters argue thatthe Commission has failed to considerthat its actions will increase the currentstate of concentration in the SMRindustry. Accordingly, the Commissionmust limit EA licensees to somethingless than the entire 200 channels toensure a wide variety of applicants. Onecommenter suggests that theCommission prohibit any EA licenseefrom acquiring more than one third ofthe Upper 200 channels in any EA, thus,providing adequate opportunities fordesignated entities while avoidingexcessive concentration of licenses.


Commenters also argue that unlimitedspectrum aggregation is critical toregulatory parity because an SMRoperator aggregating all 200 channels ina market would still operate on only 10MHz of spectrum, as compared to the 25MHz for cellular and 30 MHz for A, Band C block PCS licensees.

16. Discussion. The Commission seesno need to adopt a spectrum aggregationlimit for the upper 200 channels beyondthe CMRS spectrum aggregation limitset forth in 47 CFR 20.6. Market forces—not regulation—should shape thedeveloping CMRS marketplace, and theCommission is unpersuaded that furtherconstraints on SMR providers’ ability toacquire spectrum are necessary. In fact,the proposed restriction could handicapall SMR providers—including smallbusinesses, rural telephone companiesand women-owned and minority-ownedbusinesses—by limiting their ability tocompete with cellular and broadbandPCS. The Commission has determinedthat the relevant market for examiningconcentration of SMR licenses is theCMRS market as a whole, not SMR only.Thus, even if one licensee were toacquire all 10 MHz of spectrum in anEA, this would not be sufficient to havean anti-competitive effect on therelevant market.

4. Licensing in Mexican and CanadianBorder Areas

17. Background: In the 800 MHzReport and Order, the Commissiondetermined that EA licenses would bemade available without distinguishingborder from non-border areas. Thus, theCommission determined that EAlicensees can use available border areachannels within their spectrum blocks,subject to international assignment andcoordination. Although, reducedchannel availability and operatingrestrictions may reduce values of borderarea EA licenses, the Commissionconcluded that EA applicants wouldconsider such factors when bidding onsuch licenses. The Commission alsonoted that EA licensees could privatelynegotiate with other licensees to acquireadditional SMR spectrum in borderareas.

18. Petitions. Petitioners seekclarification of the Commission’s borderarea licensing plan. They note that inborder areas some of the upper 200channels are assigned to non-SMRcategories. They seek clarification thatthese channels are not subject to EAlicensing and that incumbent licenseesare not subject to mandatory relocation.Petitioners note that in many EAsadjacent to either the Canadian orMexican borders, no frequencies areavailable for SMR use in the 120-

channel, and 60-channel blocks, andfew are available in the 20-channelblock and are concerned that bidderswill be unaware of this and mayovervalue the spectrum.

19. Discussion. The Commissionclarifies that non-SMR channels in theborder area are not subject to EAlicensing and thus are unaffected by thisrulemaking. The Commission furtherclarifies that non-SMR channels thathave been allocated to SMR eligibles inborder areas, but to non-SMR eligibleselsewhere in the country, have beenallocated to the upper 200 channel EAlicensees on a pro rata basis.Prospective bidders should be awarethat these channels, which are notavailable to them anywhere else exceptin the border regions, will be assignedfor their use in the Canadian andMexican border regions. Mostimportantly, EA licensees must affordfull interference protection to non-SMRlicensees operating in adjacent areas onthese channels.

20. The Commission notes that itsrules already specify which channelsare available for EA licensing in theborder regions. The Commissionbelieves that license applicants are bestsituated to decide whether reducedchannel availability in border areasaffects the value of particular licenses.Nonetheless, to help alleviate ITA’sconcern about applicant awareness, theCommission will also provideinformation regarding channelavailability border area in the auctionbidders package.

B. Rights and Obligations of EALicensees

1. Spectrum Management Rights

21. Background. In the 800 MHzReport and Order, the Commissiondetermined that if an SMR incumbentfails to construct, discontinuesoperations, or otherwise has its licenseterminated by the Commission, thelicensed spectrum automatically revertsto the EA licensee. The Commissionthus eliminated all waiting lists for SMRcategory channels within the upper 200channel block and terminated itsfinder’s preference program for the 800MHz SMR service. Finally, theCommission created a presumption thatpermanent transfers and assignmentsbetween an EA licensee and incumbentsoperating within its spectrum blockwould serve the public interest. TheCommission reasoned that this wouldgive EA licensees more flexibility tomanage their spectrum, be moreconsistent with their cellular and PCSrules, and reduce regulatory burdens onboth licensees and the Commission.

22. Petitions. Petitioner claims thatthe Commission’s approach to spectrummanagement violates Congressionalintent and its goal of regulatorysymmetry by disadvantaging non-EAwinning SMR licensees vis-a-vis EAlicensees. They argue, that incumbentsare disadvantaged because they will berestricted from expanding on wide-areablocks and that the Commission’sconstruction requirements favor EAlicensees over incumbents. Onepetitioner claims that the Commissionviolated section 553(b) of theAdministrative Procedure Act by failingto give notice of the elimination of thefinder’s preference program. It alsoargues that the Commission shouldtemporarily retain the finder’spreference program so that all personsknowing of unconstructed ordiscontinued facilities can request afinder’s preference, take the channels,and provide balance among thoseapplying for the wide-area SMRfrequency blocks.

23. Discussion. The Commissionrejects the claim that it has violatedCongressional intent by conferringspectrum management rights on EAlicensees, including the right to recoverspectrum lost by incumbents who ceaseoperations or violate its rules. Thecontention that these rules discriminateagainst incumbent licensees is withoutmerit. Incumbents retain all of the rightsto operate that they held under theirpre-existing licenses. Thus, incumbentswho operate in compliance with theCommission’s rules are not affected bythe spectrum recovery rule, whileincumbents who cease operations orviolate the Commission’s rules wouldlose their spectrum rights under eitherthe old rules or the new rules. The onlydifference in the Commission’s newrules is that they have provided forunused spectrum to revert to the EAlicensee rather than to be relicensed bythe Commission. This procedure doesnot discriminate against incumbents:any incumbent who seeks the‘‘superior’’ spectrum management rightsof an EA license has the sameopportunity to obtain it as any otherapplicant: by bidding for the EA licensethrough the auction process.

24. The Commission also rejects theclaim that it gives no notice of thepossible elimination of the finder’spreference program. Such notice wasinherent in the Commission’s proposalthat rights to unconstructed or non-operational channels wouldautomatically revert to the EA licensee.The elimination of the Commission’sfinder’s preference program was thusboth necessarily implicit in and a


logical outgrowth of, the Commission’sproposals.

25. Finally, the Commission declinesto retain the finders preference program,even on a temporary basis. TheCommission’s move to geographiclicensing makes the finder’s preferenceprogram unnecessary because EAlicensees will have incentive to identifyand make use of unused spectrumwithin their blocks. Additionally, thefinder’s preference program isinconsistent with the Commission’sobjective of assigning spectrum throughgeographic licensing because it wouldperpetuate site-by-site licensing.

2. Treatment of Incumbent Systems

a. Mandatory Relocation of IncumbentsFrom the Upper 200 Channels

26. Background. In the 800 MHzReport and Order, the Commissionadopted a mandatory relocationmechanism for incumbents on the upper200 channels. In order to minimize theimpact on existing licensees, theCommission adopted two keyprovisions: (1) If an EA licensee isunable or unwilling to provide anincumbent licensee with ‘‘comparablefacilities,’’ such an incumbent wouldnot be subject to mandatory relocation;and (2) any incumbent that is relocatedfrom the upper 200 channels, eithervoluntarily or involuntarily, will not berequired to relocate again if theCommission adopts its geographic arealicensing proposal for the lower 80 andGeneral Category channels.

27. Petitions. Several petitionerschallenge the Commission’s decision toauthorize mandatory relocation ofincumbent SMR licensees. They arguethat the Commission’s licensingframework does not require mandatoryrelocation, and that relocations shouldoccur through private negotiationsbetween EA licensees and incumbents.Other petitioners object that there are noalternative channels on which torelocate incumbents. Still, othercommenters are concerned thatmandatory relocation will reduce theamount of competitive service offered tothe public and thus be harmful to endusers and subscribers. These petitionersargue that requiring relocation of anincumbent’s entire system effectivelyexcludes most bidders from the auction,including small businesses. Anotherpetitioner adds that the public interestis not served by displacing existingSMRs so other SMRs can provide thesame service. And, another argues thatthe Commission has behavedinconsistently with respect to 800 MHzand paging services, two comparablyencumbered frequency bands, because

they have concluded that ‘‘alternative’’spectrum for relocation exists in the 800MHz band but does not exist in thepaging bands.

28. Discussion. In the 800 MHz Reportand Order, the Commission concludedthat while voluntary negotiations areimportant and to be encouraged,mandatory relocation is necessary toachieve the transition to geographic arealicensing and to enhance the flexibilityof EA licensees on the upper 200channels. The Commission rejectspetitioners’ contention that theCommission could accomplish thesegoals by relying on voluntarynegotiations alone. While theCommission expects most relocation tooccur through voluntary negotiations, itis concerned that EA licensees will beunable to realize the potential of theirspectrum without some mandatorymechanism in the event voluntarynegotiations prove unsuccessful. TheCommission reaffirms its conclusionthat a narrowly tailored mandatoryrelocation mechanism is necessary tothe achievement of the goals of thisproceeding.

29. The Commission also rejects theargument that relocation should not berequired because EA licensees willprovide the same service as incumbentswho are relocated. The Commissionexpects that EA licensees will use theirspectrum to provide a wide variety ofservices. While some of these servicesmay be of the same type provided byincumbents who are relocated, theability to clear contiguous spectrum willgive EA licensees operational flexibilityto provide new and innovative servicesthat were far more difficult to developunder site-by-site, channel-by-channellicensing rules. Thus, relocation will notmerely replace one SMR licensee withan identical licensee, but will allowboth parties to move towards moreefficient use of the spectrum.

30. Many petitioners who challengethe Commission’s adoption ofmandatory relocation argue it will harmincumbent licensees, particularly smallsystem operators. The Commissiondisagrees with this view. TheCommission’s rules do not require anyincumbent to relocate unless the EAlicensee provides comparable facilitiesand a seamless transition. Moreover, therules the Commission is adopting for thelower 80 and General Category channelsprovide positive incentives for smallbusinesses who relocate, includingbidding credits. Bidding credits assistsmall business in obtaining licenses andthus, provide small business with anincentive to relocate to the lowerchannels. In addition, because theCommission is allowing incumbents on

the lower channels to operate withintheir 18 dBu contours, incumbents onthese channels (including incumbentswho relocate from the upper 200channels) will have greater operationalflexibility and protection frominterference than incumbents on theupper 200 channels.

31. Some petitioners argue that theCommission’s mandatory relocationrules make relocation impractical for allbut a few large SMR operators who havespectrum on the lower 80 and GeneralCategory channels that can be used forrelocation. Even if this is so, theCommission does not agree withpetitioners that this is an argumentagainst mandatory relocation: theCommission considers it preferable toallow relocation where it is feasiblerather than to prohibit it because it isnot feasible in every instance. Moreover,the Commission disagrees with thepremise that small businesses will bediscouraged from participating in theupper 200 channel auction because ofthe practical difficulty of relocatingincumbents. Many of those smallbusinesses may themselves beincumbents who choose to bid(individually or in combination withother small incumbents) for the upper200 channel blocks rather than relocate.In addition, small businesses maydevelop business strategies that do notdepend on relocation, e.g., entering intopartitioning agreements withincumbents or providing niche serviceson available channels. The Commissionbelieves that market forces should berelied upon for these types of decisions.

32. Finally, the Commission rejectsthe claim that its decision conflicts withits decision not to adopt mandatoryrelocation in the Commission’s recentlycompleted paging rulemaking. TheCommission’s adoption of geographiclicensing rules in paging did not requirerelocation because paging channels aretechnically identical to one another andpaging technology is generallyconsistent and compatible regardless ofthe channel used. Thus, there is noadvantage in spectrum efficiency to begained from encouraging pagingincumbents in a particular band tomigrate to another band. In contrast, the800 MHz SMR allocation is a mixture ofcontiguous and non-contiguouschannels, which has led to thedevelopment of sometimes incompatibletechnologies. Relocation is thereforebeneficial because it creates incentivesfor SMR providers to operate on thespectrum most suitable for theirparticular technologies.


b. Mandatory RelocationImplementation Issues

i. Pre-Auction Negotiations33. Background: In the CMRS Third

Report and Order, the Commissionsuspended acceptance of new 800 MHzapplications pending adoption of new800 MHz service and auction rules. OnOctober 4, 1995, the Wireless Bureauimposed a similar freeze on newapplications for the General Categorychannels. Under both of these freezes,assignment and transfer of controlapplications continued to be processedif the location of the licensed facilitiesremained unchanged.

34. In the 800 MHz Report and Order,the Commission partially lifted thefreeze on new applications for SMR andGeneral Category channel licenses.Specifically, the Commission allowedfiling of new applications to permitassignments and transfers of controlinvolving modifications to licensedfacilities that were intended toaccommodate market-driven, voluntaryrelocation arrangements betweenincumbents and potential EAapplicants; and (1) would not changethe 22 dBu service contour of thefacilities relocated, (2) the assignment ortransfers would relocate a licensee outof the upper 200 channels block, and (3)the potential EA applicant andrelocating incumbent(s) wereunaffiliated. The Commission took theseactions to begin the relocation processand thus ease the transition to a wide-area licensing scheme for the upper 200channels.

35. Petitions. Petitioner requests twomodifications of the Commission’spartial lifting of the application freeze.First, it asks that the Commission‘‘clarify’’ that only incumbent 800 MHzSMR licensees be treated as ‘‘potentialEA applicants.’’ It argues that absentthis restriction, anyone could negotiatewith an incumbent and avoid thelicensing freeze—regardless of eligibilityor intent to bid in the auctions.Petitioner believes that the ability toparticipate in pre-auction settlementsshould ‘‘travel with the license.’’Second, the petitioner requests thatprior to the auction the Commissionaccept only those applications thatfacilitate relocation of incumbents offthe upper 200 channels, as opposed tomoves from one upper 200 channel toanother. Petitioner argues that allowingincumbents to move within the upper200 channels could be used by potentialEA applicants for anti-competitivepurposes. Such a limitation on pre-auction settlements would prejudiceincumbent licensees without lowerband channels to trade and may reduce

the number of auction participants forcertain channels and satisfyCongressional intent that theCommission use negotiations to avoidmutual exclusivity in application andlicensing procedures.

36. Discussion. The Commission goalin partially lifting the freeze was tofacilitate the voluntary relocation ofincumbents off of the upper 200channels. In order to facilitate this goal,the Commission believes that anyonewho intends to bid in the upper 200auction should be able to use thisprocedure to obtain spectrum that couldbe used for relocation of incumbents.While the Commission anticipates thatmost bidders for EA licenses willthemselves be incumbents, it is possiblethat non-incumbents will bid as well.Therefore, the Commission declines tolimit the filing of new applications toincumbent 800 MHz SMR licensees asrequested. The Commission isconcerned that such a restriction couldarbitrarily limit the flexibility ofparticipants in pre-auction negotiations.

37. The Commission agrees that newapplications should only be accepted ifthey facilitate relocation of incumbentsoff of the upper 200 channels. In orderfor the auction of the upper 200channels to occur, bidders must havecertainty regarding the channels that arecurrently licensed to incumbents.Continuing to accept applications fornew authorizations on the upper 200channels would deprive bidders of suchcertainty and delay the auction process.In addition, the Commission sees norelocation benefit to allowing licenseesto acquire new spectrum on the upper200 channels prior to the auction.Therefore, pre-auction applications willbe accepted for relocation purposes onlyon the lower 230 channels, and only ifthey meet the conditions specified inthe 800 MHz Report and Order. TheCommission notes, however, that thispolicy only applies to initialapplications for new spectrum, not totransfers and assignments of existingauthorizations, which have never beensubject to the 800 MHz licensing freeze.Therefore, incumbents may continue totransfer and assign existingauthorizations on either the upper 200channels or the lower 230 channels.

ii. Relocation Negotiations38. Background. To encourage

negotiation between EA licensees andincumbents the Commission adopted amulti-phase, post-auction relocationmechanism in the 800 MHz Report andOrder. In the initial one-year voluntaryperiod, the EA licensee and incumbentsmay negotiate any mutually agreeablerelocation agreement. If no agreement is

reached, the EA licensee may initiate atwo-year mandatory negotiation period,during which the parties are required tonegotiate in ‘‘good faith.’’ If the partiesstill fail to reach an agreement, the EAlicensee may then initiate involuntaryrelocation of the incumbent’s system.However, such relocation must be tocomparable facilities and must beseamless, i.e., without any significantdisruption in the incumbent’soperations.

39. Petitions. Several commentersargue that the Commission’s phasednegotiation plan does not serve thepublic interest and object to the one-year voluntary period and two yearmandatory period. They argue that theCommission recently recognized theadvantages of a two-year voluntaryperiod and have no compelling reasonto deviate from this precedent and thata two-year voluntary period givesincumbents the flexibility in timingtheir relocation and minimizes theadverse impact of relocation on existingSMR service subscribers.

40. Some commenters argue that theCommission should reduce themandatory negotiation period to oneyear, because the 800 MHz relocationprocess will be less complex than thatfaced by PCS licensees and 2 GHzmicrowave incumbents. Others supportthe adopted relocation process of one-year voluntary and two-year mandatorynegotiation periods, although they wantrelocation safeguards to apply to allincumbents, including non-SMRlicensees.

41. Commenters complain that theCommission’s rules do not require EAlicensees to begin negotiations at anyparticular time and do not require an EAlicensee to relocate incumbents duringthe initial year. It is argued that EAlicensees should be required to notifythe incumbent that mandatorynegotiations have begun, lest an EAlicensee wait out the voluntary periodand then declare later that mandatorynegotiations have begun, leavingincumbents unprepared. Another arguesthat the EA licensee must show that ithas made a bona fide attempt tonegotiate during the voluntary period.

42. Commenters also complain thatthe Commission has not explained howdisputes over whether negotiations havebeen conducted in ‘‘good faith’’ are to beadjudicated. They also argue that sincethe Communications Act authorizes theCommission neither to reject nordelegate its authority to resolvelicensing disputes, the Commissionmust either (1) expeditiously resolvethese disputes or (2) reject mandatoryfrequency relocation and let the marketdetermine whether frequency relocation


will occur. They also ask that theCommission allow incumbents todecide who will retune end-userequipment. They note that hundreds ofthousands of mobile units and controlstations are included in incumbent SMRsystems. Thus, it is concerned that theCommission’s requirement that EAlicensees build and test the new[relocated] system could be read topermit or require that EA licenseesintervene in relations between anincumbent and its customers.

43. Discussion: The Commissionagrees with commenters that themandatory negotiations period belimited to one year. The Commissionagrees that such a reduction will servethe public interest by facilitating theclearing of incumbents from the EAblocks so that the EA licensees canimplement their wide-area systems.Moreover, this reduction will minimizethe period during which incumbentswill experience uncertainty concerningrelocation. Finally, the Commissionnotes that this approach is consistentwith its recent decision in PCS to adopta one-year voluntary period and a one-year mandatory period for the C, D, E,and F blocks.

44. The Commission rejects theproposal that we extend voluntarynegotiations to two years. A one-yearvoluntary period and a one-yearmandatory period balances thedesirability of giving parties flexibilityto negotiate voluntarily with the need toensure that relocation, where feasible,occurs expeditiously. The Commissionsees no need to extend the voluntaryperiod for an additional year. TheCommission finds that petitioners havenot supported their claims that anotheryear of voluntary negotiations would‘‘minimize the adverse impact’’ ofrelocation. In fact, although thevoluntary period has not yetcommenced, incumbents and potentialEA licensees can begin voluntarynegotiations at any time, thus affordingthemselves more than a year to reach avoluntary agreement. The Commissionfinds that it would not serve the publicinterest to delay for another year.Finally, the Commission notes that inrecent decisions they have reducedvoluntary negotiation periods to oneyear.

45. In response to the argument thatthe Commission has not explained howdisputes over good faith will beresolved, the Commission notes that inthis case as in all others, licensees maybring infractions of the Commission’srules to its attention. Nevertheless, theCommission strongly encourage partiesto use expedited alternative disputeresolution procedures, such as binding

arbitration, mediation or otheralternative dispute techniques. Further,since relocation agreements arepursuant to private contracts, theCommission anticipates that parties willpursue common law contract remediesin the court of competent jurisdiction ifalternative dispute resolution is notsuccessful.

46. Finally, the Commission clarifiesthat its relocation rules are not intendedto require the mandatory disclosure ofincumbents’ proprietary information orcustomer lists. Incumbents mustcooperate with the EA licensees andfacilitate the testing of their relocatedequipment, but incumbents need notdisclose competitively sensitiveinformation.

iii. Notice47. Background. In the 800 MHz

Report and Order, the Commissionrecognized that incumbents needprompt information about the EAlicensees’ relocation plans. As such, theCommission required EA licenseeswithin 90 days of the release of thePublic Notice commencing thevoluntary negotiation period to notifyincumbents operating in their spectrumblock of their intent to relocate suchincumbents. Moreover, if an incumbentdoes not receive timely notice of the EAlicensees intent to relocate, the EAlicensee can no longer require thatincumbent to relocate.

48. Because such notice affects an EAlicensee’s relocation rights, theCommission decided that the EAlicensee must file a copy of therelocation notice and proof of theincumbent’s receipt of the notice withinten days of such receipt, or theCommission will presume that theincumbent was not notified of theintended relocation. An incumbentlicensee notified of intended relocationwill be able to require joint negotiationswith all notifying EA licensees. Theserequirements should ensure thatpossible relocation will be properlynoticed and coordinated.

49. Petitions. Commenters ask theCommission to amend its notice rule torecognize proof of an attempt to notifyat the address in the Commission’sdatabase as proper notice and that theCommission clarify that any EAlicensees relocation notice informs theincumbent that it could be relocated outof any EA license block on which itsSMR system is operating—even thosenot licensed to the EA licenseeproviding notice. Otherwise any EAlicensee’s failure to provide noticecould provide the incumbent a defenseto the relocation of part of its system(and, thus, the entire system).

50. Discussion. The Commission’srules already require licensees to updateits data base with their current address.The Commission thus agrees that proofof an attempt to notify at the address inits database constitutes sufficientevidence of notice. The Commissionalso agrees that notice by an EA licenseeshall constitute notice with respect tothe incumbent’s entire system,including portions of the system outsidethe EA licensees’ own spectrum block.

c. Incumbent Operational Flexibility51. Background. In the 800 MHz

Report and Order the Commissiondeclined to allow non-EA licensees toexpand their systems at will aftergeographic licensing has occurredbecause such expansion would devaluegeographic licenses by creatingcontinuing uncertainty about theamount of spectrum available under theEA license. The Commissionrecognized, however, that incumbentsshould be allowed to make minoralterations to their service areas topreserve the viability of their systems.Thus, in the 800 MHz Report and Order,the Commission concluded thatincumbent licensees on the upper 200channels should be allowed to makemodifications within their current 22dBu interference contour without priornotice to the Commission. TheCommission reasoned that this wouldincrease incumbents’ operationalflexibility without significantly affectingthe EA licensee’s wide-area system inthe same market. The Commissionstated, however, that incumbents muststill comply with its short-spacingcriteria even if the modifications do notextend their 22 dBu interferencecontours. Finally, the Commission alsodecided to allow 800 MHz SMRincumbents who are not relocated toconvert their current site-by-sitelicenses to a single license authorizingoperations throughout the contiguousand overlapping service area contours ofthe incumbent’s constructed multiplesites.

52. Petitions. Commenters asked thatthe Commission clarify that the ruleallowing incumbents to modify theirsystems within existing 22 dBu contoursdoes not apply to aggregate 22 dBucontours but must be applied on achannel-specific basis. For example, ifan incumbent is operating on more thanone station within a geographic area,petitioner contends that the incumbentshould not be allowed to use a channellicensed at one station at a site insidethe 22 dBu contour of another station ifthat channel is not licensed at bothsites. Thus, an incumbent would beallowed to re-use a channel throughout


the composite 22 dBu contour only ofthose stations on which that channel islicensed.

53. One commenter supports theCommission’s decision to permitincumbent licensees to convert theircurrent site-by-site licenses to a singlelicense, but argues that incumbentlicensees might abuse the procedure byfiling spurious requests that wouldenable unaffiliated systems to obtain asingle geographic license. Commenterproposed that the Commission allowaffected EA licensees to oppose suchrequests.

54. Discussion. The Commissionclarifies that the rule allowingincumbents to modify their systemswithin their existing 22 dBu contourswill be applied on a channel-specificbasis. The Commission is concernedthat by allowing incumbents tounilaterally redeploy channels to siteswhere they were not previouslyauthorized would create continuousuncertainty for EA licensees as to whichchannels they could use at particularlocations. Thus, an incumbent may usea channel within the 22 dBu contour ofall facilities authorized on that channel,but may not redeploy the channel toanother facility (or within the 22 dBucontour of such a facility) where thatchannel is not previously authorized,unless the EA licensee agrees to thechange. The Commission emphasizes,however, that incumbents and EAlicensees may negotiate alternativearrangements with respect to thedeployment of channels for theirrespective systems.

55. The Commission rejects therequest to allow EA licensees toformally oppose incumbent requests toconvert multiple site-by site licenses toa single geographic license. TheCommission does not believe thisprocess will be susceptible to abuse byincumbents, as Nextel contends.Converting site-by-site licenses to ageographic license will not in any wayexpand the spectrum rights ofincumbents; it is simply anadministrative vehicle for simplifyingthe licensing process. In addition, theCommission is requiring incumbentsseeking geographic licenses to show thattheir facilities are constructed andoperational, and that no other licenseewould be able to use the channelswithin the designated geographic area.

3. Co-Channel Interference Protection

a. Incumbent SMR Systems

56. Background. In the CMRS ThirdReport and Order, the Commissionretained most of its existing co-channelprotection rules for CMRS licensees,

including its existing station-specificinterference criteria for 800 MHz SMRco-channel stations.

57. In the 800 MHz Report and Order,the Commission concludes that EAlicensees on the upper 200 channelsmust afford interference protection toincumbent SMR systems as provided in§ 90.621 of the Commission’s rules. Asa result, an EA licensee must either (1)locate its stations at least 113 km (70miles) from any incumbent’s facilities;(2) comply with the Commission’sshort-spacing rule; or (3) negotiate withthe incumbent licensee if it wishes tooperate closer than these rules allow.The Commission concluded that theserequirements will adequately protectincumbents while EA licensees to buildstations in their authorized serviceareas. The Commission believes that theshort-spacing rule provides flexibility toEA licensees, allows incumbents to fillin ‘‘dead spots,’’ and protects incumbentlicensees from actual interference.

58. Petitions. Commenters argue thatthe Commission’s decision improperlygives geographic licensees more rightsthan incumbent licensees. They believethat the Commission’s proposal willpreclude affected parties from equitablybalancing one operator’s desire toexpand against another operator’s desireto obtain full value for an existinginvestment. Another commenterrequests that the Commission requireEA licensees to file an application foreach proposed station and serve a copyon any incumbent within 70 miles ofthe proposed station. It claims that someauthorized wide-area licensees haveviolated the Commission’s rules whenselecting co-channel station locations.Additionally, it argues that theCommission should not proceed until itreviews its database of currentlyauthorized wide-area stations, confirmthose authorizations comply with theCommission’s interference protectionrules, and cancel any wide-areaauthorizations which were erroneouslygranted.

59. Consumers also requestclarifications of certain aspects of theinterference protection rules.Consumers asks the Commission toclarify that the full primary co-channelprotection standards of § 90.621(b) mustbe afforded by non-border area EAauction winners to co-channel I/LTcategory licensees. They also ask thatthe Commission clarify that EAlicensees operating in California and thePacific Northwest must comply with theunique co-channel interferenceprotection rules applicable to certaintransmitter sites in mountainous areasof California and Washington state.

60. Discussion. The Commissiondisagrees that it must give incumbentand EA licensees identical co-channelprotection rights. In other auctions,incumbents obtained the benefits ofbeing geographic area providers byobtaining geographic area licenses. Toprotect incumbents who do not want toprovide service in a predeterminedgeographic area, the Commission hasmaintained the technical co-channelinterference standards under whichsuch incumbents were originallylicensed. These measures giveincumbents the flexibility provided intheir original license. The Commissionalso permits them to freely add siteswithin their existing 22 dBuinterference contour.

61. The Commission also declines toadopt the suggestion that it require EAlicensees to file applications on a per-site basis. Such a procedure iscounterproductive to the Commission’sgoal of providing EA licenseesadditional operational flexibility, andwould reintroduce some of theadministrative burdens associated withsite-by-site licensing.

62. Finally, as requested bycommenters, the Commission clarifiesthat (1) full primary co-channelprotection pursuant to the standards of§ 90.621(b) must be afforded to co-channel I/LT category licensees by non-border area EA licensees and (2) the EAlicensees must comply with co-channelseparation rules in § 90.621(b) fordesignated transmitter sites in Californiaand Washington.

b. Adjacent EA Licensees63. Background. In the CMRS Third

Report and Order, the Commissionconcluded that the co-channelinterference protection betweengeographic area licensees would besimilar to those in the cellular and PCSservices, which impose interferenceprotection criteria for border areas inCommission-defined service areas. Inthe 800 MHz Report and Order, theCommission determined that 40 dBuV/m is an appropriate measure for thedesired signal level at the service borderarea. Thus, the Commission prohibitedEA licensees from exceeding a signallevel of 40 dBuV/m at their service areaboundaries, unless the bordering EAlicensee(s) agree to a higher fieldstrength.

64. Petitions. One commenter claimsthat the Commission should replace the40 dBuV/m signal level standard with a22 dBu standard as proposed. It alsoclaims that the Commission shouldadopt a stricter protection standardbecause entities operating at a signallevel of 40 dBuv/m at the same


geographic boundary will interfere withone another. It further argues that underthe proposal, resulting ‘‘dead spots’’ atborders could be resolved bynegotiations between operators.

65. Discussion. The Commissionrejects the suggestion that it replace the40 dBuV/m signal level standard with a22 dBu standard. The Commission’sapproach here is consistent with itsapproach in setting signal strengththresholds in PCS and cellular services.In all three instances, the Commissionhas used a threshold that allows thegeographic area licensee to deliver areliable signal throughout its licensingarea. While the commenter is correctthat this could lead to interferencebetween adjacent licensees operating atfull power at a common service areaborder, the Commission’s experiencehas shown that actual interference isuncommon because not all licenseesextend coverage to their licensing areaborders. Moreover, the Commission hasfound that in those instances whereactual interference does occur, adjacentlicensees can and do resolve thesesituations by mutual agreement. If theCommission were to use the 22 dBustandard, on the other hand, an EAlicensee seeking to provide reliablecoverage at the border of its licensingarea would require the consent of theadjacent EA licensee even if theadjacent licensee was not operatingclose enough to the border to sufferactual interference. The Commissionbelieves such a requirement would beunnecessarily restrictive.

4. Emission Masks66. Background. In the CMRS Third

Report and Order, the Commissionaffirmed its out-of-band emission rulesfor CMRS services and decided that out-of-band emission rules should applyonly if emissions could potentiallyaffect other licensees operations.Moreover, the Commission decided toapply out-of-band emission rules tolicensees having exclusive use of ablock of contiguous channels only ifneeded to protect operations outside ofthe licensee’s authorized spectrum. Inthe 800 MHz Report and Order, theCommission decided to apply out-of-band emission rules only to the ‘‘outer’’channels included in an EA license andto spectrum adjacent to interiorchannels used by incumbents. TheCommission also adopted and modifieda proposed emission mask rule tomaintain the existing level of adjacentchannel interference protection.

67. Petitions. Commenters supportsthe emission mask rule described in§ 90.691, but believes that it should alsoapply to any non-EA 800 MHz part 90

CMRS system. They propose to amend§ 90.210 of the Commission’s rules byadding the following sentence tofootnote 3: ‘‘Equipment used in thisband by non-EA systems shall complywith this section or the emission maskprovisions of Section 90.691.’’

68. Discussion. The Commissionagrees with petitioners that its § 90.691emission mask rules should also applyto non-EA 800 MHz part 90 CMRSsystems, and thus it will adopt theproposed change to § 90.210 of theCommission’s rules. By making thischange, the Commission will provideincumbent licensees who do not submita winning bid in the auction process theopportunity to use the more flexibleemission mask that it has adopted forEA licensees. Moreover, it will aidCMRS operators who are operating onnon-SMR pool channels to have thesame capabilities as those operating inthe SMR category. Thus, theCommission amends § 90.210 by addingthe suggested sentence to footnote 3.

C. Construction Requirements

1. EA Licensees

69. Background. In the 800 MHzReport and Order, the Commissionadopted a five-year constructionrequirement for EA-based licenseesbeginning when the license issues andapplying to all of the licensee’s stationswithin the EA spectrum block,including any stations previouslysubject to an earlier constructiondeadline. The Commission recognizedthat it had adopted a ten-year periodadopted for PCS systems, but concludedthat the already-substantial constructionof 800 MHz systems made a five-yearperiod sufficient. Moreover, theCommission recognized that geographic-area licensees that have invested inexisting systems or that have incurredbidding costs must construct facilitiesand provide service promptly, torecover these costs.

70. Petitions. A petitioner argues thatEA licensees should not be able toobtain an additional five years toconstruct facilities previously subject toearlier construction deadlines and thatthe Commission’s approach rewardsspectrum warehousing and isinconsistent with regulatory symmetrybecause prior construction deadlineswere issued on a site-specific basis.Other petitioners believe that theCommission’s constructionrequirements discriminate between EAlicensees and non-EA licensees and thatthe Commission’s rationale for a five-year construction period is flawedbecause it rested, in part, on an order

finding that a two-year constructionperiod was sufficient for existing SMRs.

71. Finally, the petitioner argues that50 percent minimum channel useshould be required at more than a singlelocation within the EA or otherwise, alicensee could meet this requirement bybuilding a multi-channel facility in arural portion of an EA and avoid servinga metropolitan area. They contend thatthis would enable EA licensees to avoidconstructing true wide-area systems andto warehouse spectrum.

72. Discussion. The Commissiondeclines to reconsider its five-yearconstruction deadline. The Commissionis unpersuaded by the unsupportedassertion that a five-year constructionperiod for EA licensees does not servethe public interest and that its EAconstruction requirements will allowthose who warehouse to be unjustlyenriched at auction. To the contrary, theauctions process requires licensees topurchase the rights to, and therebycompensate the American taxpayer for,the spectrum that they use. Thus, theCommission’s auction rules discouragespeculation and spectrum warehousing.Moreover, the Commission does notagree that its five-year constructionrequirement will result in or rewardspectrum warehousing. The five-yearrequirement assures that geographiclicensees promptly build out andprovide service.

73. The Commission also rejectsclaims that it has acted discriminatorilyby adopting a two year constructionrequirement for site-by-site licenses anda five-year build out for EA licensees.Further, the Commission rejects theclaim that its rationale for granting EAlicensees a five-year build out period,while limiting existing site licensees toan additional two years, is flawed. TheCommission imposes a two-year buildout period on site licensees because, bydefinition, they are seeking authority tobuild and operate a particular site. EAlicensees, in contrast, will be buildingmultiple sites throughout their licensesentire geographical area and thusrequire a longer build out period.Moreover, the competitive biddingprocess provides incentives for EAlicensees to build out quickly, and thusreduces the likelihood that a longerconstruction period would lead tospectrum warehousing.

74. Finally, the Commission rejectsthe proposed expansion of the 50percent channel use requirementbecause it finds that its concerns are toospeculative, and its suggested approachtoo rigid. It would be economicallyirrational for a licensee to constructmultiple channels in areas where thereis limited demand while leaving areas


where demand is greatest covered byonly a single channel. Moreover,licensees should have the flexibility todetermine how best to provide servicesin response to consumer demand. TheCommission does not believe that itshould micromanage how the EAlicensee chooses to provide service.

2. Extended Implementation Authority

a. Dismissal of Pending ExtendedImplementation Requests

75. Background. In the 800 MHzReport and Order, the Commissionstopped accepting requests for extendedimplementation authority, acceleratedthe termination date of pendingextended implementation periods, anddismissed pending requests forextended implementation authority. TheCommission reasoned that retainingextended implementation authority forup to five years would impede EAlicensees construction efforts, and thatparties still wanting extendedimplementation could apply for EAlicenses under the Commission’s newrules.

76. Petitions. A Commenter seeksreconsideration of the Commission’sdismissal of pending requests forextended implementation and itsdecision to reduce previously grantedconstruction periods from five to twoyears. They argue that eliminatingexisting extended implementationperiods unfairly harms incumbent SMRproviders. They also argue thateliminating extended implementationauthority is an unlawful deprivation ofthe property interest which it contendsit has in its FCC licenses and thecontinuation of those licenses, andargues that to deny or revoke such alicense without cause violates thelicensee’s due process rights.

77. The commenter also claims thateliminating extended implementationperiods will harm the public and theCMRS industry by excluding small andmid-sized SMR providers from theCMRS marketplace. They argue thatsmall SMR providers may lack theresources to acquire spectrum for theircurrent markets at auction. It asserts thateliminating extended implementationcompounds this problem by strandinginvestment in SMR systems whoseconstruction periods will be cut short.

78. Finally, another commenter arguesthat the Commission has recognized thatpublic safety agencies need extendedimplementation because complexgovernment funding mechanismsimpede rapid deployment of publicsafety systems. It argues that extendedimplementation should be available topublic safety systems in the General

Category. Still, another commenterargues that extended implementationshould be available for all private radiolicensees in the General Category,because problems such as budgetaryconstraints affect the I/LT and Businessusers as much as Public Safetylicensees.

79. Discussion. The Commissionrejects the claim that eliminatingextended implementation interfereswith legitimate business expectations.First, these licensees have already beengiven significant time to completeconstruction. Second, upon adequaterejustification, licensees will have up totwo years to complete build out of theirsystems. Far from being a ‘‘drasticchange’’ that will strand investment, ascontended, this is an equitabletransition to a more efficient method ofproviding service and using spectrum.Finally, one commenter’s reliance onthe public interest analysis in the OVSNPRM, 61 FR 10496 (March 14, 1996),is also misplaced. While, the OVSproceeding did acknowledge a strongpublic interest in establishing a level ofcertainty in business plans, theCommission did not suggest that alicensees’ business expectations wereentitled to absolute protection, nor didthe Commission imply that theseexpectations would always dictate thecourse of future regulation.

80. The claim of a property interest inits license is also without merit. Bothsection 301 of the Communications Actand relevant case law establish thatlicensees have no ownership interest intheir FCC licenses. Moreover, theCommission does not agree that endingextended implementation will decreasecompetition. To the contrary,competitive bidding, which allocatesresources to those who value them most,is a more efficient and competitivemethod than the Commission’s priorrules for licensing spectrum on anextended basis. The Commission alsodisagrees that terminating extendedimplementation will limit smallbusiness participation. To the contrary,the Commission has adopted specialprovisions, such as bidding credits, inorder to assist small businesses atauction.

Finally, the Commission notes that itonly curtailed extended implementationfor SMR licensees. Thus, non-SMRlicensees with existing extendedimplementation grants are not affectedby this proceeding. In addition, non-SMR licensees on 800 MHz channelsthat are not subject to EA licensing (i.e.Business, I/LT and Public Safetychannels may still obtain extendedimplementation authority under§ 90.629).

b. Rejustification of ExtendedImplementation Authority

82. Background. In the 800 MHzReport and Order, the Commissionrequired incumbent 800 MHz licenseeswith extended implementation grants tosubmit showings rejustifying the needfor extended time to construct theirfacilities. The Commission providedthat if the Bureau approved a licensee’sshowing, the licensee would receive aconstruction period of two years or theremainder of its current extendedimplementation period, whichever wasshorter. Licensees making aninsufficient or incomplete showingwould have six months to construct theremaining facilities covered under theirimplementation plans.

83. Petitions: Several petitioners seekreconsideration or clarification of theextended implementation rejustificationprocedures adopted in the 800 MHzReport and Order. One petitioner arguesthat wide-area systems that receivedextended implementation via waivershould not be required to submitrejustification showings because theirwaivers were predicated on theexistence of underlying constructedanalog facilities. Another asks that theCommission delineate the evidence thata licensee must provide to rejustify itsextended implementation grant.Petitioners also ask that the Commissionclarify whether licensees who receivedlicense grants in the processing of the800 MHz SMR backlog in October 1995are eligible for extendedimplementation.

84. Discussion. In the 800 MHz Reportand Order, the Commission specifiedthat all licensees with extendedimplementation grants would berequired to file rejustification showings,regardless of whether they soughtextended implementation under§ 90.629 to construct new systems orhad obtained waivers to reconfigureexisting high-power analog systems intolow-power digital systems within theexisting analog footprint. One petitionerargues that licensees who are convertingtheir systems should be exempt from therejustification requirement because theyare not seeking to occupy previouslyunlicensed spectrum. The Commissiondisagrees. The waivers that were grantedto licensees to convert existing analogfacilities gave them considerablelatitude to redeploy channelsthroughout the aggregate footprint oftheir systems, in effect allowing them toobtain new spectrum (i.e., spectrum onadditional channels) within theirexisting footprints. In order to provideEA licensees with reasonable certaintyregarding what spectrum is available to


them, the Commission believes it isnecessary that these licensees be subjectto the same timetable for constructingtheir systems and returningunconstructed channels as licenseeswho received extended implementationgrants to build entirely new systems.Therefore, the Commission denies therequest for reconsideration.

85. Since the filing of the petitions forreconsideration, the Wireless Bureauhas solicited and received rejustificationshowings from 37 licensees, and hasacted on the showings in a recent order.The Commission also notes that prior tothe filing of these showings, the Bureauissued a Public Notice describing theinformation to be provided in therejustifications and clarifying thatlicensees who obtained license grants inthe October 31, 1995 Bureau PublicNotice, and who had extendedimplementation requests associatedwith such applications, could treat suchrequests as granted for purposes of therejustification filing requirement.Therefore, the Commission dismissestwo petitioners’ reconsiderationrequests as moot.

D. EA License Initial Eligibility86. Background. In the 800 MHz

Report and Order, the Commissionconcluded that restrictions on EAlicensee eligibility were not warranted,except for foreign ownership restrictionsrequired by section 310(b) of theCommunications Act.

87. Petitions. A petitioner argues thatthe Commission’s relocationrequirements have created a de factoeligibility limitation. According to thepetitioner, if EA licensees must relocateincumbent licensees onto ‘‘comparablefacilities,’’ then only entities havingsufficient ‘‘comparable spectrum’’ tooffer to incumbents can become EAlicensees, and it contends that thisrelocation requirement will reduce thenumber and quality of auctionparticipants and the amount of revenueraised. It therefore argues that theCommission should limit eligibility forwide-area licenses on the upper 200channels to applicants who do notcurrently hold any wide-area SMRauthorizations. It argues that thiseligibility restriction will create morecompetition for EA authorizations andwill increase the number of wide-areaCMRS service providers.

88. Discussion. The Commissionrejects the suggested eligibilitylimitation because it confuses protectingindividual competitors with promotingcompetition. In many instances, theproposal would preclude entities frombidding to obtain geographic arealicenses that encompass spectrum they

are already using. Such a restrictionwould be inefficient and contrary to thegoals of this proceeding. By contrast,open eligibility for EA licensees is pro-competitive because it enables themarket, not regulation, to determinewho values the spectrum the most.

E. Redesignation of Other 800 MHzSpectrum—General Category Channelsand Inter-Category Sharing

1. General Category Channels

89. Background. In the Commission’s800 MHz Report and Order, theCommission redesignated the GeneralCategory channels exclusively for SMRuse. The Commission’s licensingrecords showed that there are threetimes as many SMR licensees in theGeneral Category as any other type ofpart 90 licensee. The Commissionconcluded that SMR providers’ demandfor additional spectrum significantlyexceeds the demand of non-SMRservices. Moreover, the Commissionanticipated that SMR providers’ demandfor this spectrum would be increased bygeographic area licensing of the upper200 channels and its mandatoryrelocation policy.

90. Petitions. A number of petitionerschallenge the Commission’s decision toreclassify the General Category based onits finding that SMR licenseesoutnumber non-SMR licensees on thesechannels. Some commenters argue thatmany of these licensees are speculatorswho have not constructed and are notusing the spectrum. Others contend thatthe SMR licensing freeze and theelimination of intercategory sharinghave artificially increased SMR demandfor General Category channels and arguethat the Commission has arbitrarilyreversed its prior treatment of theGeneral Category without adequateexplanation. They note that in theCompetitive Bidding Second Report andOrder, 59 FR 26741 (May 24, 1994), theCommission declined to subject theGeneral Category to competitivebidding, whereas it has now determinedthat the General Category should bereclassified and subject to auction. Itcontend that the pattern of licensing onthe General Category channels has notchanged dramatically since theCompetitive Bidding Second Report andOrder was adopted, and that theCommission therefore has no basis fortreating it differently now.

91. Some petitioners also argue thatreclassifying the General Category willharm non-SMR operations on GeneralCategory channels by stranding existinginvestment in internal communicationssystems. They contend that it will haveto re-engineer its nationwide network if

the General Category is redesignated.Another adds that the Commission’sdecision will make American industryless competitive internationally bylimiting its flexibility and that denyingpublic safety operators access to GeneralCategory channels will jeopardize policeand ambulance communicationssystems. It adds that redesignating theGeneral Category channels will harmnon-SMR licensees whose needs cannotbe met by commercial carriers and thatredesignation of the General Categorychannels will not facilitate relocationfrom the upper 200 channels, because itwill make it more difficult toaccommodate the relocation of non-SMR incumbents currently operating onthose channels. One petitioner arguesthat a reallocation of the GeneralCategory channels is ill-advised unlessthe Commission identifies additionalspectrum to accommodate privatesystems.

92. Discussion. In the 800 MHz Reportand Order, the Commission concludedbased on comments in the proceedingand on its licensing records that theprimary demand for General Categorychannels came from SMR operators.Petitioners’ arguments do not persuadethe Commission that this conclusionwas incorrect. Petitioners concede thatSMR licensees far outnumber non-SMRlicensees on these channels. Moreover,at the time the Commission frozeGeneral Category licensing in 1995, itnoted that the number of SMRapplications for these channels hadrisen markedly. Even if some of thisincreased licensing activity wasattributable to speculation, aspetitioners contend, the Commissionbelieves that such activity is itself anindication that demand for the spectrumexists. The Commission also anticipatesthat with the advent of geographic arealicensing on the upper 200 channels,there will be substantial demand forGeneral Category channels amonglegitimate small SMR operators,including incumbents who relocatefrom the upper 200 channels. Based onthese factors, and on the fuller recordrelating to 800 MHz developed in thisproceeding, the Commission believesthat it was fully justified in reaching adifferent conclusion with respect to theGeneral Category from that reached inthe earlier Competitive Bidding SecondReport and Order.

93. The Commission believes,however, that petitioners have raisedvalid concerns with respect to theinterests of non-SMR licenseesoperating on the General Categorychannels. As several petitioners note,the Commission’s decision in the 800MHz Report and Order, to reclassify the


General Category as SMR-only wouldpreclude non-SMRs from seekingadditional authorizations on thesechannels to expand their systems. Onreconsideration, the Commission seesno reason why non-SMRs should notcontinue to be eligible for licensing inthe General Category. By allowing non-SMRs to obtain spectrum in this band,the Commission gives non-SMRs moreoptions and greater flexibility forcontinued growth of their systems.

94. While the Commission concludesthat non-SMRs should continue to beeligible for General Category licensing,the Commission emphasizes that this inno way affects its decision to licenseGeneral Category channelsgeographically, with competingapplications resolved throughcompetitive bidding. The Commissionhas not altered its conclusion in the 800MHz Report and Order, that GeneralCategory channels are used primarily forsubscriber-based services, and thus aresubject to competitive bidding undersection 309(j). Moreover, competitivebidding will further the public interestby encouraging efficient spectrum use,promoting competition, recoveringportions of the value of the spectrum forthe public and promote the rapiddeployment of service. The Commissionrejects petitioners’ view that thisapproach will harm the interests of non-commercial licensees by requiring themto compete for spectrum withcommercial systems. To the contrary,there are several ways in which non-SMRs can benefit from theCommission’s geographic licensingrules. For example, non-commercialoperators may not only applyindividually for geographic arealicenses, but may also participate injoint ventures (with other non-commercial operators or withcommercial service providers) or obtainspectrum through partitioning anddisaggregation to meet their spectrumneeds. The Commission also expectsthat geographic area licensing of SMRand General Category spectrum will freeup non-SMR spectrum in the 800 MHzband, providing more options for non-commercial operators where availabilityof General Category spectrum is limited.Finally, the Commission is continuingwith its initiatives to provide sufficientspectrum for non-commercialoperations through its Refarmingproceeding and its participation in thePublic Safety Wireless ActivityCommittee.

2. Inter-Category Sharing95. Background. Prior to the 800 MHz

Report and Order, the Wireless Bureauimposed a freeze on applications for

intercategory sharing among 800 MHzIndustrial/Land Transportation (I/LT),Business, and Public Safety channels(collectively, ‘‘Pool Channels’’). Thisfreeze was intended to stem the increasein intercategory applications for PublicSafety channels by I/LT and Businesslicenses whose own channels weresubject to increased demand from SMRapplicants. In the 800 MHz Report andOrder, the Commission eliminatedintercategory sharing by SMR licenseeson all of the Pool Channels. TheCommission also concluded that non-SMR licensees would no longer beeligible for intercategory sharing onSMR channels.

96. Petitions. Petitioners representingI/LT and Business Radio operatorsoppose the elimination of intercategorysharing to the extent that it preventsthem from obtaining spectrum wherechannels in their own pools areunavailable. They argue that theintercategory sharing freeze has harmedthe wireless industry by prohibitinglicensees from expanding in areaslacking I/LT or Business channels andthat utilities and pipelines needintercategory sharing to expand theirradio systems to meet currentcommunications requirements. Theyadd that commercial demand for 800MHz spectrum has made it virtuallyimpossible for private system operatorsto obtain channels in their own pools.

97. In contrast, one commenterdefends the current freeze onintercategory sharing with respect toPublic Safety channels and opposes anyeffort to reopen these channels to non-Public Safety applicants. It argues thatbecause of the limited availability ofBusiness and I/LT channels and theCommission’s proposals for geographiclicensing of the General Category, alifting of the intercategory freeze wouldcause more Business and I/LT entities toseek Public Safety channels as a ‘‘safeharbor.’’ It argues therefore, that apermanent bar on non-public safetyapplications in the Public Safety pool isneeded to ensure that such channelswill be available for current and futurepublic safety use.

98. Discussion. The Commission willretain the current prohibitions onintercategory sharing between SMR andnon-SMR channels. By prohibitingSMRs from applying for Pool Channels,the Commission preserves theavailability of those channels for non-commercial and public safety uses.Similarly, eliminating intercategorysharing for SMR-only channels ensuresthat they will be available exclusivelyfor licensing to SMR operators. Inaddition, the Commission believes thatthe concerns of ITA and others

regarding the availability of spectrumfor I/LT and Business systems aresufficiently addressed by its decision torestore non-SMR eligibility for GeneralCategory channels.

F. Auctionability99. Background. In the 800 MHz

Report and Order, the Commissionreiterated its conclusion thatcompetitive bidding is an appropriatelicensing mechanism for the 800 MHzSMR service. The Commissionconcluded that the 800 MHz SMRservice satisfies the criteria set forth byCongress for determining whencompetitive bidding should be used. Itnoted that competitive bidding willfurther the public interest requirementsof the Communications Act bypromoting rapid deployment of services,fostering competition, recovering aportion of the value of the spectrum forthe public, and encouraging efficientspectrum use. The Commission furthernoted that where competitive bidding isused, a diverse group of applicantsincluding incumbent licensees andpotential new entrants into this servicewill be able to participate in the auctionprocess because it has decided not torestrict eligibility for EA licenses.Finally, the Commission adoptedspecial provisions for small businessesseeking EA licenses.

100. Petitions. Several petitionersonce again request that the Commissionuse procedures other than competitivebidding to license 800 MHz SMR. Inessence, petitioners contend that thisband does not fit within thecongressional criteria for auctionsbecause (i) Congress did not intend forthe 800 MHz SMR band to be auctioned;(ii) the competitive bidding design forthe upper 10 MHz channels of the 800MHz SMR band does not promote theobjectives contained in section 309(j) ofthe Communications Act; and (iii) theCommission has failed to consideralternative licensing mechanisms whichavoid mutually exclusive applications.

101. Discussion. The Commissionreaffirms its conclusion that competitivebidding is an appropriate tool to resolvemutually exclusive license applicationsfor the upper 10 MHz channels of the800 MHz SMR service. Moreover, thecriteria for auctionability set forth insection 309(j) of the CommunicationsAct are met. The Commission has fullyconsidered the issues raised here bypetitioners both in the 800 MHz Reportand Order and the Competitive BiddingSecond Report and Order. TheCommission continues to believe thatcompetitive bidding is appropriate forthe upper 10 MHz of the 800 MHz SMRspectrum and that employing this


procedure strikes a reasonable balancein protecting the public interest in theuse of the spectrum while promoting theobjectives specified in theCommunications Act.

102. The Commission disagrees withpetitioners’ contention that Congressdid not intend that the upper 10 MHzof the 800 MHz SMR spectrum beauctioned. Those petitioners contendthat Congress intended auctions to beused for the licensing of new servicesand not for currently allocated services,such as the upper 10 MHz of the 800MHz SMR. The Commission disagreeswith this position because section 309(j)of the Communications Act does notdistinguish between new services andexisting services in terms of whetherinitial licenses in a given service shouldbe subject to competitive bidding.Furthermore, there is nothing in thelegislative history to indicate thatCongress intended to limit theapplicability of auctions to newservices. As the Commission noted inthe Competitive Bidding Second Reportand Order, the principal use of 800 MHzSMR is to provide service to eligiblesubscribers for compensation. TheCommission concludes that the use ofcompetitive bidding in the upper 10MHz block is fully consistent withsection 309(j) of the CommunicationsAct and its legislative history.

103. In the Competitive BiddingSecond Report and Order, theCommission concluded that its auctiondesigns are calculated to meet the policyobjective of introducing newtechnologies to the public. Severalpetitioners contend that the competitivebidding procedures for the upper 10MHz of the 800 MHz SMR do notpromote the section 309(j) objectives.One petitioner contends that theCommission’s auctioning policies donot ensure that winning bidders willemploy advanced technologies to servethe public. However, no commenterraises any new arguments that persuadethe Commission to change itsconclusion that making the 800 MHzSMR spectrum available for public usethrough auctioning will lead, mostefficiently and effectively, to thedeployment of new technologies andservices to the public. As theCommission noted in the CompetitiveBidding Eight Report and Order, itbelieves that competitive biddingfurthers the public interest bypromoting rapid development ofservice, fostering competition,recovering a portion of the value of thespectrum for the public and encouragingefficient spectrum use.

104. The Commission does not agreewith the contention of some petitioners

that the administrative proceduresassociated with licensing throughauctions are not as efficient as site-specific licensing. The Commissionpreviously addressed the advantages toboth the Commission and licensees ofgeographic area licensing. Petitioners donot raise any new arguments that wouldpersuade the Commission to reconsiderthe adoption of EA licensing for the 800MHz SMR service. The Commissionagain emphasizes that geographic arealicensing offers a flexible licensingscheme that eliminates the need formany of the complicated andburdensome licensing procedures thathampered SMR development in thepast.

105. In response to requests bypetitioners, the Commission considersyet again whether auctioning allows forthe dissemination of licenses among awide variety of entities in the 800 MHzSMR spectrum. Several petitioners, forexample, believe that auctioning willlead to the concentration of licenses inthe hands of a few operators in eachmarket to the detriment of smallbusinesses. The Commission disagreeswith the contention that smallbusinesses will not be able to participatein these auctions. The auction rules forthe upper 800 MHz SMR include smallbusiness provisions such as biddingcredits and other measures that areintended to meet the statutory objectiveof providing opportunities for smallbusinesses in the upper 10 MHzchannels of the 800 MHz SMR service.The results of prior auctionsdemonstrate that these provisions haveensured small businesses participationin other auctionable services. TheCommission further notes that becausethe 800 MHz SMR service falls withinthe definition of the Commercial MobileRadio Services (CMRS), it is subject tothe 45 MHz aggregate spectrum cap onCMRS. The spectrum cap has beenplaced on CMRS licensees in order topromote and preserve competition inthe CMRS marketplace by limiting thenumber of licenses any one entity canacquire.

106. The Commission has furtherconsidered various alternative licensingprocedures for the 800 MHz SMR bandas requested by several petitioners.These petitioners contend that section309(j)(6)(E) of the Communications Actprohibits the Commission fromconducting an auction unless it firstattempts alternative licensingmechanisms to avoid mutualexclusivity. In the course of thisproceeding, the Commission hasevaluated the appropriateness of otherlicensing mechanisms for the upper 800MHz SMR, but concluded those

methods are not in the public interest.The Commission has found that ‘‘first-come, first-served’’ licensing in the 800MHz service leads to processing delays.For the upper channels of the 800 MHzSMR frequency band, the use ofcompetitive bidding is the mostappropriate licensing procedure becausethe Commission anticipates aconsiderable number of applications forthese licenses and competitive biddingwill allow the most expeditious accessto the spectrum if any of theseapplications is mutually exclusive.Therefore, the Commission rejects onceagain other licensing procedures for theupper 800 MHz SMR spectrum. In doingso, the Commission must emphasizethat it has made every effort to includethe SMR industry in the decision-making process to make certain that theconcerns of the industry and,particularly, incumbents are addressedby the Commission.

G. Bidding Issues

1. Bid Increment

107. Background. In the 800 MHzReport and Order for the upper 10 MHzblock, the Commission adopted thesame procedures for bid increments asthose used in auctions for MTA-basedPCS licenses. The Commission alsoindicated that it would retain thediscretion to set and, by announcementbefore or during the auction, vary theminimum bid increments for individuallicenses or groups of licenses over thecourse of the auction.

108. Petitions. One petitionersupports a minimum bid increment butbelieves that tying the minimum bid tothe absolute minimum bid establishesan artificial value for each license ratherthan allowing the marketplace todetermine the value of the licenses.Instead, petitioner supports a fivepercent minimum bid incrementbecause it will ensure activeparticipation by bidders withoutrequiring a disparate increase from oneround to the next.

109. Discussion. After considering therecord, the Commission modified itsrules to delegate authority to the Bureauto set appropriate bid increments. TheCommission’s experience with otherauctions indicates that flexibility isnecessary to set appropriate biddinglevels to account for the pace of theauction, the needs of the bidders, andthe value of the spectrum. While theCommission believes that a bidincrement of $0.02 MHz-pop isappropriate here, it will delegateauthority to the Bureau to vary theminimum bid increment over the courseof the auction as it deems necessary.


The Bureau will announce by PublicNotice prior to the auction the generalguidelines for bid increments.

2. Upfront Payment110. Background. In the 800 MHz

Report and Order, the Commissiondetermined that the upfront payment forthe upper 800 MHz SMR service shouldbe $0.02 per MHz-pop, with a minimumpayment of $2500. The Commissionindicated that in the initial PublicNotice, it would announce populationinformation and upfront paymentscorresponding to each EA license.Further, the Commission notes thatpopulation coverage for each channelblock in each EA will be based on aformula that takes into account thepresence of incumbent licenses.

111. Petitions. Petitioners request theCommission to set a lower upfrontpayment contending that $0.02 perMHz-pop is too high given the value ofthese licenses and that the Commissionreconsider its decision to use upfrontpayments that take into account thepresence of incumbent licenses becauseof the uncertainty that results fromongoing channel relocation byincumbents. Petitioner believes thatprospective bidders would be betterserved by being advised that the band inheavily encumbered, by being providedwith either a list of those incumbents orinformation as to how that informationmay be obtained.

112. Discussion. The Commissionreaffirms its upfront payment formula of$0.02 MHz-pop and uniformdiscounting for incumbency. TheCommission also reaffirms a minimumupfront payment of $2500 and believesthat it is necessary to set an adequateupfront payment to ensure participationby qualified bidders. However, ascommenters suggest, the Commissionrecognizes that for purposes of theseparticular licenses the standard upfrontpayment formula may yield higherpayment as compared to the values ofthe license. The Commission willmodify its rules to delegate authority tothe Bureau to vary the minimumupfront payment when it determinesthat the standard $0.02 per MHz-popformula would result in anunreasonably high upfront payment. Indetermining an appropriate upfrontpayment, the Bureau may take intoaccount such factors as the populationand the approximate amount of usablespectrum in each EA. The Bureau willannounce any such modification byPublic Notice.

3. Activity Rules113. Background. In the 800 MHz

Report and Order, the Commission

adopted the three-stage Milgrom-Wilsonactivity rule in conjunction with thesimultaneous stopping rule. TheCommission noted that an activity ruleensures that an auction will closewithin a reasonable period of time byrequiring a bidder to remain activethroughout the auction. TheCommission further noted that underthe Milgrom-Wilson approach, biddersare required to declare their maximumeligibility in terms of MHz-pops, and tomake an upfront payment equal to $0.02per MHz-pop. The Commission alsonotes that the population calculation ineach EA will be discounted to take intoconsideration the presence ofincumbent licensees.

114. Petitions. Petitioner requests theCommission to reconsider the decisionto adjust the bidding unit of an EAbased on the occupation of channelblocks by incumbents unless theincumbent has constructed facilities. Itcontends that the allowance of adownward adjustment irrespective ofwhether facilities have been constructedunjustly enriches those entities holdingunconstructed authorizations.

115. Discussion. The Commissionaffirms its decision to use a three-stageMilgrom-Wilson activity rule for theupper 10 MHz channels of the 800 MHzSMR service. The Commission alsoreaffirms the use of a uniform discounton the upfront payment to take intoconsideration the presence ofincumbent licenses. The Commissiondisagrees with the recommendation thata downward adjustment should be madefor constructed facilities only. Thisproposal would require the Commissionto make an unsupported assumptionthat none of the entities holdingunconstructed authorizations everintend to build out their systems.

H. Treatment of Designated Entities

1. Bidding Credits

116. Background. In the 800 MHzReport and Order, the Commission doesnot adopt bidding credits for designatedentities participating in the auctions forthe upper 10 MHz channels of the 800SMR service. Bidding credits initiallyhad been proposed for businessesowned by women and minorities. As aresult of the Supreme Court’s decisionin Adarand, in the 800 MHz Report andOrder the Commission concluded therewas an insufficient record to support theadoption of special provisions solelybenefitting minority-and women-ownedbusiness (regardless of size) for theupper 10 MHz block auction.

117. Petitions. Petitioners request thatthe Commission provide bidding creditsto small businesses in order to provide

these entities with a meaningfulopportunity to obtain licenses in the 800MHz SMR service auction.

118. Discussion. In this instance, theCommission grants petitioners’ requestand will provide bidding credits tosmall businesses. The Commissionnotes that in the 800 MHz Report andOrder, it concluded that specialprovisions for small businesses areappropriate for the 800 MHz SMRservice. The Commission alsorecognizes that smaller businesses havemore difficulty accessing capital andthus may need a higher bidding credit.Accordingly, the Commission will adopttiered bidding credits that are narrowlytailored to the varying abilities ofbusinesses to access capital. Tiering alsotakes into account that different smallbusinesses will pursue differentstrategies. In determining eligibility forthese bidding credits, the Commissionwill employ the same tiered definitionsof small businesses as used in the 800MHz Report and Order to determineeligibility for installment payments inthe upper 10 MHz, with an adjustmentto reflect the unavailability ofinstallment payment plans for the 800MHz SMR services. Accordingly, asmall business with average grossrevenues that do not exceed $15 millionwill be eligible for a bidding credit of 25percent. A small business havingrevenues that do not exceed $3 millionwill be eligible for a bidding credit of 35percent. Revenues will be defined asaverage gross revenues for the last threeyears including affiliates. These are thesame levels of bidding credits used inthe WCS auction.

2. Installment Payments119. Background. In the 800 MHz

Report and Order, the Commissionadopted rules which provided smallbusinesses participating in this auctionwith tiered installment payment plans.The Commission noted that it adoptsthe same tiered installment paymentapproach as in the 900 MHz SMRauction.

120. Petitions. Petitioner requests thatthe Commission eliminate allinstallment payment plans for the upper200 channels on the basis of its beliefthat in prior auctions, the availability ofinstallment payments has encouragedspeculation and warehousing. Anotherpetitioner disagrees, stating thatinstallment payments are the onlymeans by which independent,incumbent SMR operators will be ableto participate in the auctions. Onepetitioner believes that the tieredapproach to installment payments isinsufficient to ensure meaningfulparticipation by small businesses, and


as an alternative asks for 50 percentbidding credits.

121. Discussion. As petitioned, theCommission will not adopt installmentpayments for the upper 200 channels.While the Commission disagrees withthe petitioner’s contention thatinstallment payments encouragespeculation and warehousing ofspectrum, its experience with theinstallment payment program leads theCommission to conclude thatinstallment payments may not alwaysserve the public interest. TheCommission has found, for example,that obligating licensees to pay for theirlicenses as a condition of receiptrequires greater financial accountabilityfrom applicants. Currently, in severalproceedings the Commission isreviewing a number of issues related toadministration of installment paymentprograms. Nonetheless, given thatapplications for new 800 MHz SMRlicenses have not been accepted since1994, the Commission’s priority is tofacilitate the licensing of the upper 200channels without further delay.Therefore, the Commission believes thatthe public interest is best served bygoing forward with the auction for theupper 200 channels without extendinginstallment payments to smallbusinesses while it considersinstallment payment issues generally.

122. The Commission disagrees withpetitioner’s contention that installmentpayments are the only means by whichsmall SMR operators will be able toparticipate in auctions. The Commissionnotes that in other auctions in whichinstallment payments were notavailable, small businesses were thehigh bidders on a significant number oflicenses. Further, section 309(j)(4)requires the Commission to consideralternative methods to allow fordissemination of licenses among a widevariety of applicants, including smallbusinesses. To encourage small businessparticipation, the Commission hasraised the bidding credits available tosmall businesses and very smallbusinesses to 25 percent and 35 percent

respectively. The Commission believesthat higher bidding credits will bothfulfill the mandate of section309(j)(4)(D) to provide small businesswith the opportunity to participate inauctions and ensure that new servicesare offered to the public without delay.

123. In view of the Commission’sdecision here, all winning bidders willbe required to supplement their upfrontpayments with down paymentssufficient to bring their total deposits to20 percent of their winning bid(s).Consistent with the Commission’sdetermination in the Second Report andOrder, it will allow bidders up to tendays following the close of the auctionto make their down payments.

3. Attribution of Gross Revenues ofInvestors and Affiliates

124. Background. In the 800 MHzReport and Order, the Commissionadopts a definition of small businesswhich included attributing the grossrevenues of investors owning 20 percentor more in the applicant. In light of thepending petitions for reconsideration,the Commission, on its own motion,retains jurisdiction to reconsider theattribution rule.

125. Discussion. In determiningeligibility for small business provisions,the Commission will modify itsattribution rule to substitute the‘‘controlling principal’’ concept for theattribution model as it recently did forauctions involving other services.Specifically, the Commission willeliminate the rule attributing therevenues of certain investors. TheCommission will only attribute the grossrevenues of all controlling principals inthe small business applicant as well asthe gross revenues of the affiliates of theapplicant. The Commission will requirethat in order for an applicant to qualifyas a small business, qualifying smallbusiness principals must maintain bothde jure and de facto control of theapplicant. Typically, de jure control isevidenced by ownership of 50.1 percentof an entity’s voting stock. De factocontrol is determined on a case-by-case

basis. An entity must demonstrate atleast the following indicia of control toestablish that it retains de facto controlof the applicant: (1) The entityconstitutes or appoints more than 50percent of the board of directors orpartnership management committee; (2)the entity has authority to appoint,promote, demote and fire seniorexecutives that control the day-to-dayactivities of the licensee; and (3) theentity plays an integral role in all majormanagement decisions. This simplifiedprocedure was adopted for auctionsinvolving other services. TheCommission believes this modificationof its attribution rule will enhance theopportunity for a wide variety ofapplicants to obtain licenses.Specifically, the Commission willfollow the attribution rules discussed inthe Lower 80 and General Categorylicenses section of the Second Reportand Order in section 2(a), SmallBusiness Definition.

II. Ordering Clauses

126. It is ordered that, pursuant to theauthority of sections 4(i), 302, 303(r),and 332(a)(2) of the CommunicationsAct of 1934, as amended, 47 U.S.C.154(i), 302, 303(r), and 332(a), the rulechanges specified in the related finalrule (FCC 97–223) published elsewherein this issue of the Federal Register areadopted.

127. It is further ordered that the rulechanges set forth in FCC 97–223 willbecome effective September 29, 1997.

128. It is further ordered that thereferenced Petitions for Reconsiderationare granted to the extent discussedherein, and are otherwise denied.


Radio, Specialized mobile radioservices.Federal Communications Commission.William F. Caton,Acting Secretary.[FR Doc. 97–19914 Filed 7–30–97; 8:45 am]BILLING CODE 6712–01–P

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Part V

Department ofAgricultureCooperative State Research, Education,and Extension Service; Notice



Cooperative State Research,Education, and Extension Service

Request for Proposals (RFP): Fund forRural America Program.AGENCY: Cooperative State Research,Education, and Extension Service,USDA.ACTION: Announcement of availability ofgrant funds and request for proposals forThe Fund for Rural America—RuralInformation Infrastructure Program.

SUMMARY: The Federal AgricultureImprovement and Reform Act of 1996established an account in the Treasuryof the United States to provide funds forrural development programs and acompetitive grant program to supportresearch, education, and extensionactivities.

This notice pertains only to thecompetitive grant program for research,education, and extensiontelecommunications activities. Itidentifies eligible participants in theprogram, the program areas to besupported, and the funding levels foreach area; provides instructions forpreparing and submitting proposals; anddescribes the selection process andevaluation criteria to be used to makefunding decisions. To obtain programapplication materials, please contact theProposal Services Unit, GrantsManagement Branch; Office ofExtramural Programs; Cooperative StateResearch, Education, and ExtensionService; U.S. Department of Agriculture;STOP 2245; 1400 IndependenceAvenue, S.W.; Washington, D.C. 20250–2245; Telephone: (202) 401–5048. Whencalling the Proposal Services Unit,please indicate that you are requestingmaterials for The Fund for RuralAmerica—Rural InformationInfrastructure Program. These materialsmay also be requested via Internet bysending a message with your name,mailing address (not e-mail) and phonenumber to [email protected] whichstates that you want a copy of theapplication materials for the Fiscal Year1997 Fund for Rural America—RuralInformation Infrastructure Program. Thematerials will then be mailed to you(not e-mailed) as quickly as possible.DATES: Project grant applications mustbe received on or before September 29,1997. Proposals received afterSeptember 29, 1997, will not beconsidered for funding.FOR FURTHER INFORMATION CONTACT:Cathy Bridwell, Cooperative StateResearch, Education, and ExtensionService, U.S. Department of Agriculture,STOP 2207, 1400 Independence

Avenue, SW., Washington, DC 20250–2207; telephone (202) 720–6084.

Table of ContentsPart I. General Information

A. Legislative AuthorityB. General DefinitionsC. EligibilityD. Available Funds and Award Limitations

Part II. Program Description

A. Purpose of the ProgramB. Scope of ProgramC. Proposal Narrative

Part III. Preparation of a Proposal

A. Program Application MaterialsB. Content of a Proposal

Part IV. Submission of a Proposal

A. What to SubmitB. Where and When to SubmitC. Acknowledgment of Proposals

Part V. Selection Process and EvaluationCriteria

A. Selection ProcessB. Technical Evaluation CriteriaC. Programmatic Relevance Review

Part VI. Supplementary Information:

A. Access to Peer Review InformationB. Grant AwardsC. Use of Funds; ChangesD. Other Federal Statutes and Regulations

That ApplyE. Confidential Aspects of Proposals and

Awards

Part I. General Information

A. Legislative AuthorityThe Fund for Rural America (The

Fund), authorized under section 793 ofthe Federal Agriculture Improvementand Reform Act of 1996 (FAIR Act) (7U.S.C. 2204(f)), provides $100 millionannually for the next three years. One-third of the fund is available forresearch, education, and extensiongrants. These grants will be awarded ona competitive basis and are not targetedto specific priorities. One-third of thefund is available for rural developmentand must be administered throughexisting rural development programs.One-third of the fund is available eitherfor research, education, and extensionor rural development, or both at theSecretary’s discretion. Note that theEmergency SupplementalAppropriations Act, Pub. L. No. 105–18,rescinded $20 million of The Fund inFiscal Year 1997. As a result of thisrescission, research and ruraldevelopment will each sustain areduction of $10 million. The $10million reduction of the researchcomponent of The Fund will be appliedproportionately across all areas of thecomponent.

On January 29, 1997, the programsolicited proposals for two initiatives:The Fund Core Initiative and The

Secretary’s Initiative. The Fund CoreInitiative was funded from the one-thirdof the fund dedicated to research,education, and extension. TheSecretary’s Initiative was funded fromthe one-third of the fund to be used atthe Secretary’s discretion. While theFund for Rural America—RuralInformation Infrastructure Program alsois being funded from the discretionaryfunds, it is separate from the solicitationof January 29, 1997.

This portion of the discretionarymonies will be used fortelecommunications research to providethe same economic opportunity forthose living in small towns and ruralareas as for those living in cities. Tohelp achieve this goal, approximately$2.1 million in competitive grants willbe awarded through this separaterequest for proposals (RFP). If anapplicant submitted a proposal to TheFund under the January 29, 1997, RFPwhich relates to telecommunicationsresearch, they also may submit theproposal under this RFP so long as theproposal conforms to the guidelinescontained in this RFP.

These funds are to be competitivelyawarded as grants on the basis of merit,quality, and relevance to advancing thepurposes of federally supportedagricultural research, extension, andeducation provided in Section 1402 ofthe National Agricultural Research,Extension, and Teaching Policy Act of1977, as amended (7 U.S.C. 3101).Section 1402 identifies the followingpurposes:

‘‘(1) Enhance the competitiveness ofthe United States agriculture and foodindustry in an increasingly competitiveworld environment;

(2) Increase the long-termproductivity of the United Statesagriculture and food industry whilemaintaining and enhancing the naturalresource base on which rural Americaand the United States agriculturaleconomy depend;

(3) Develop new uses and newproducts for agricultural commodities,such as alternative fuels, and developnew crops;

(4) Support agricultural research andextension to promote economicopportunity in rural communities and tomeet the increasing demand forinformation and technology transferthroughout the United States agricultureindustry;

(5) Improve risk management in theUnited States agriculture industry;

(6) Improve the safe production andprocessing of, and adding of value to,United States food and fiber resourcesusing methods that maintain the balance


between yield and environmentalsoundness;

(7) Support higher education inagriculture to give the next generation ofAmericans the knowledge, technology,and applications necessary to enhancethe competitiveness of United Statesagriculture; and

(8) Maintain an adequate, nutritious,and safe supply of food to meet humannutritional needs and requirements.’’

This program has the capability ofaddressing each of the purposes throughthe use of telecommunications;however, the specific purposes to beaddressed is dependent on the fundedprojects.

Section 793(c)(2)(A) of the FAIR Actauthorizes the Secretary to use TheFund for competitive research,education, and extension grants to:

‘‘(i) Increase internationalcompetitiveness, efficiency, and farmprofitability;

(ii) Reduce economic and health risks;(iii) Conserve and enhance natural

resources;(iv) Develop new crops, new crop

uses, and new agricultural applicationsof biotechnology;

(v) Enhance animal agriculturalresources;

(vi) Preserve plant and animalgermplasm;

(vii) Increase economic opportunitiesin farming and rural communities; and

(viii) Expand locally-owned, value-added processing.’’

B. General Definitions

For the purpose of awarding grantsunder this program, the followingdefinitions are applicable:

(1) Administrator means theAdministrator of the Cooperative StateResearch, Education, and ExtensionService (CSREES) and any other officeror employee of the Department to whomthe authority involved may bedelegated.

(2) Authorized departmental officermeans the Secretary or any employee ofthe Department who has the authority toissue or modify grant instruments onbehalf of the Secretary.

(3) Authorized organizationalrepresentative means the president orchief executive officer of the applicantorganization or the official, designatedby the president or chief executiveofficer of the applicant organization,who has the authority to commit theresources of the organization.

(4) Budget period means the intervalof time (usually 12 months) into whichthe project period is divided forbudgetary and reporting purposes.

(5) College or university means aneducational institution in any State

which admits as regular students onlypersons having a certificate ofgraduation from a school providingsecondary education, or the recognizedequivalent of such a certificate, islegally authorized within such State toprovide a program of education beyondsecondary education, provides aneducational program for which anassociate’s degree, a bachelor’s degree orany other higher degree is awarded, isa public or other nonprofit institution,and is accredited by a nationallyrecognized accrediting agency orassociation.

(6) Communities of interest meansinterests which bond individualstogether for the purpose of achieving acommon goal. Communities of interestmay coalesce around common locations,commodity or production interests,environmental concerns, economicdevelopment opportunities, or othershared commitments.

(7) Core initiative means the programsencompassing the one-third of TheFund designated for research,education, and extension activities.

(8) Department or USDA means theUnited States Department ofAgriculture.

(9) End users means the intendedaudience or beneficiary of the programor project.

(10) Grant means the award by theSecretary of funds to a Federal researchagency, a national laboratory, a collegeor university or a research foundationmaintained by a college or university, ora private research organization to assistin meeting the costs of conducting, forthe benefit of the public, an identifiedproject which is intended and designedto accomplish the purpose of theprogram as identified in theseguidelines.

(11) Grantee means the organizationdesignated in the grant award documentas the responsible legal entity to whicha grant is awarded.

(12) The National InformationInfrastructure (NII) includes, but is notlimited to, the physical facilities used totransmit, store, process, and displayvoice, data, and images, as well as awide range and ever-expanding range ofequipment including cameras, scanners,keyboards, telephones, fax machines,computers, switches, compact disks,video and audio tape, cable, wire,satellites, optical fiber transmissionlines, microwave nets, switches,televisions, monitors, and printers.

(13) Partners are defined as all thosewho will collaborate on and have asubstantial role and interest in theproject.

(14) Peer review panel means a groupof experts qualified by training and

experience in particular fields to giveexpert advice on the merit of grantapplications in such fields, whoevaluate eligible proposals submitted tothis program in their personal area(s) ofexpertise.

(15) Prior approval means writtenapproval evidencing prior consent by anauthorized departmental officer asdefined in (2) above.

(16) Private research organizationmeans any non-governmentalcorporation, partnership,proprietorship, trust, or otherorganization with an established anddemonstrated capacity to performresearch or technology transfer which(1) conducts any systematic studydirected toward new or fullerknowledge and understanding of thesubject studied, or (2) systematicallyrelates or applies the findings ofresearch or scientific experimentation tothe application of new approaches toproblem solving, technologies, ormanagement practices; and (3) hasfacilities, qualified personnel,independent funding, and prior projectsand accomplishments in research ortechnology transfer.

(17) Project means the particularactivity within the scope of the programsupported by a grant award.

(18) Project director means the singleindividual designated by the grantee inthe grant application and approved bythe Secretary who is responsible for thedirection and management of theproject.

(19) Project period means the period,as stated in the award document andmodifications thereto, if any, duringwhich Federal sponsorship begins andends.

(20) Secretary means the Secretary ofAgriculture and any other officer oremployee of the Department to whomthe authority involved may bedelegated.

(21) Secretary’s initiative means theprograms encompassing the one-third ofThe Fund for rural development and/orresearch, education, and extensionactivities according to the Secretary’sdiscretion.

(22) Smaller institution means acollege or university or a researchfoundation maintained by a college oruniversity that ranks in the lower one-third of such institutions on the basis ofFederal research funds received(excepting monies received under theFund).

(23) Stakeholder means those whohave a substantial interest in the project,but are not the intended audience of theprogram or project.

(24) The Fund means the Fund forRural America.


C. Eligibility

Proposals may be submitted byFederal research agencies, nationallaboratories, colleges or universities orresearch foundations maintained by acollege or university, or private researchorganizations. National laboratoriesinclude Federal laboratories that aregovernment-owned contractor-operatedor government-owned government-operated. If the applicant is a privateorganization, documentation must besubmitted establishing that the privateorganization has an established anddemonstrated capacity to performresearch or technology transfer. Aprogrammatic decision on the eligibilitystatus of the private organization will bemade based on the informationsubmitted.

D. Available Funds and AwardLimitations

Under this program, subject to theavailability of funds, the Secretary mayaward competitive grants, for periodsnot to exceed five years, for the supportof research, education, and extensionprojects to further the programs of theUSDA. The first allocation to The Fundfrom the U.S. Treasury is $100,000,000on January 1, 1997. No less than one-third of the amount must be used forrural development and competitivelyawarded research, education, andextension grants according to theSecretary’s discretion. Funds for thecompetitive grants program are availableto the Department for award during atwo-year period. Note that theEmergency SupplementalAppropriations Act, Pub. L. No. 105–18,rescinded $20 million of The Fund inFiscal Year 1997. As a result of thisrescission, research and ruraldevelopment will each sustain areduction of $10 million. The $10million reduction of the researchcomponent of The Fund will be appliedproportionately across all areas of thecomponent. The Department expects toaward approximately $2.1 million asgrants to meritorious eligible applicantsunder this request for proposals (RFP).

Not less than 15 percent of the totalfunds awarded by CSREES under TheFund for research, education, andextension activities will be used forgrants to colleges, universities, orresearch foundations maintained by acollege or university that rank in thelowest one-third of such entities basedon Federal research funds received(excepting monies received under TheFund).

Funds awarded under this RFP maynot be used for the construction of anew building or the acquisition,

expansion, remodeling, or alteration ofan existing building.

Part II. Program Description

A. Purpose of the Program

The ability of rural Americans toaccess and use rural and agriculturallybased information is critical to ensuringequal opportunity for economic growth.The purpose of the program is toexamine ways to improve delivery ofrural economic, communitydevelopment and agriculturalknowledge to rural communities inorder to provide the same economicopportunity for those living in smalltowns and rural areas as for those livingin cities.

B. Scope of the Program

Proposals must address whichpurposes described in Section 1402 ofthe National Agricultural Research,Extension, and Teaching Policy Act of1977, as amended (7 U.S.C. 3101) willbe incorporated in the application of theproposed telecommunications. In FiscalYear 1997, the Fund for RuralAmerica—Rural InformationInfrastructure Program will supportprojects in three program categories: (1)Rural TelecommunicationsTechnologies and Systems; (2)Information Infrastructure; and (3)Human Capacity Building. Applicantsmust clearly state to which categorythey are applying; each proposal will berated against other proposals in thatcategory; and applicants may not submitidentical proposals to more than onecategory.

1. Rural TelecommunicationsTechnologies and Systems

Applicants may submit a proposal inthe Rural TelecommunicationsTechnologies and Systems category toexamine the special needs, limitations,applicability, and use of existing andcutting-edge telecommunicationstechnologies and systems in ruralAmerica. Proposals in this categorymust clearly target thetelecommunications infrastructureneeds of rural citizens not currentlyconnected to the National InformationInfrastructure (NII) and mustsubstantiate the choice of technology inrelation to the needs of the rural citizenstargeted by the project. Examples mightinclude, but are not limited to,application of technology to solve theeducation needs of a particularcommunity, or implementation oftechnology systems to link citizens toinformation, two-way interactivecommunications and/or formal or non-formal educational opportunities.

2. Information InfrastructureApplicants may submit a proposal in

the Information Infrastructure categoryto examine ways to build theinformation infrastructure to further theeducation of rural Americans and toimprove access to research andextension tools/sources. Proposals inthis category must clearly target thedevelopment of the informative andeducational content of the NIIspecifically relating to rural andagricultural research, education andextension. Proposals must seek toenhance the applicability andusefulness of this content to ruralcitizens. Examples include, but are notlimited to, development of interactivenon-formal and formal distanceeducation opportunities and thedigitization and organization of subjectmatter information for rural citizens.

3. Human Capacity BuildingApplicants may submit a proposal to

the Human Capacity category toexamine the interaction among people,technology, and knowledge. Proposalsin this category must clearly target thehuman interface to technology, as wellas to information and formal and non-formal education made availablethrough telecommunications. Examplesinclude, but are not limited to,development of new and more userfriendly applications of the informationand the technology and programsdesigned to remove barriers to adoptionand use of technology by citizens ofrural America.

The Fund for Rural America—RuralInformation Infrastructure Program willnot fund the following types of projects:

Hardware or Software DevelopmentProjects. While some hardware orsoftware development may be requiredto implement a project, it may not be amajor emphasis of any project.

Internal Projects. While some internaltraining and infrastructure may berequired to implement a project, thisprogram will not support projects whoseprimary emphasis is on the internaleducation, technology, or informationneeds of an organization.

Replacement or Upgrade of ExistingFacilities. This program will not supportany projects whose primary emphasis isthe upgrade or replacement of existingfacilities.

Planning Projects. While planning isan appropriate and encouraged activityas a component of a project, thisprogram will not support projects whosesole emphasis is on planning.

C. Proposal NarrativeThe narrative should contain the

following sections set in the context of


the category under which funding isrequested:

1. Introduction

Include a clear statement of the goal(s)and objective(s) of the project. Theproblem should be set within thecontext of work that has been previouslydone in the category applied for, as wellas in the context of the present-daysituation. Summarize the body ofknowledge which substantiates the needfor the proposed project. Preliminaryinformation pertinent to the proposedwork should also be cited.

2. Rationale and Significance

Substantiate the need for theproposed project. Describe the impact ofthe project on the end user. Describe theproject’s specific relationship to thepurposes of The Fund and to theidentified need to be addressed.

3. Objectives and Approach

Cite and discuss the specificobjective(s) to be accomplished underthe project. A detailed description of theapproach must include:• Techniques and/or procedures used to

carry out the proposed activities andfor accomplishing the objectives

• The results expected• Limitations• Time table

4. Evaluation

Provide a plan for assessing andevaluating the accomplishments of thestated objectives during the conduct ofthe project and describe ways todetermine the effectiveness of the endresults upon conclusion of the project.

5. Relationship to Partners,Communities of Interest, Stakeholders,and End Users

Describe how the project will involvepartners and communities of interest.Describe how and by whom the focusand scope of the project weredetermined, how partners will beinvolved during the course of theproject, and how end users will beimpacted by results. Evidence must beprovided via letters by the partiesinvolved that arrangements necessaryfor collaborative partnerships have beendiscussed with the parties involved andcan realistically be expected to come tofruition, or have actually been finalizedcontingent on an award under thisprogram. A letter from a university mustbe signed by the dean or researchdirector, a representative of theuniversity’s central administration, or ahigher university official. A letter froma business or industry must be signed byan official who has the authority to

commit the resources of theorganization. Such letters should beplaced immediately following theProject Narrative in the proposal.

6. Outreach and Dissemination PlanClearly describe how results and

information will be disseminated ortransferred to end users, partners,communities of interest, andstakeholders.

7. Coordination and Management PlanDescribe how the project will be

coordinated among the variousparticipants and clearly describe thenature of the collaborations. Describeplans for management of the project toensure its proper and efficientadministration.

Part III. Preparation of a Proposal

A. Program Application MaterialsProgram application materials will be

made available to eligible entities uponrequest. These materials includeinformation about the purpose of theprogram, how the program will beconducted, and the required contents ofa proposal, as well as the forms neededto prepare and submit grant applicationsunder the program.

To obtain application materials,please contact the Proposal ServicesUnit, Grants Management Branch; Officeof Extramural Programs; CooperativeState Research, Education, andExtension Service; U.S. Department ofAgriculture; STOP 2245; 1400Independence Avenue, S.W.;Washington, D.C. 20250–2245;Telephone (202) 401–5048. Whencalling the Proposal Services Unit,please indicate that you are requestingforms for The Fund for Rural America—Rural Information InfrastructureProgram. These materials may also berequested via Internet by sending amessage with your name, mailingaddress (not e-mail) and phone numberto [email protected] and state that youwant a copy of the application materialsfor the Fiscal Year 1997 Fund for RuralAmerica—TelecommunicationsProgram. The materials will then bemailed to you (not e-mailed) as quicklyas possible.

B. Content of a ProposalA proposal should contain the

following:

1. Cover PageComplete the ‘‘Application for

Funding’’, Form CSREES–661, in itsentirety.

a. Note that providing a SocialSecurity Number is voluntary, but thenumber is an integral part of the

CSREES information system and willassist in the processing of the proposal.

b. One copy of the ‘‘Application forFunding’’ form must contain the pen-and-ink signatures of the projectdirector(s) and authorizedorganizational representative for theapplicant organization.

c. Note that by signing the‘‘Application for Funding’’ form theapplicant is providing the requiredcertifications set forth in 7 CFR part3017, as amended by 61 FederalRegister 250, January 4, 1996, regardingDebarment and Suspension and Drug-Free Workplace, and 7 CFR part 3018,regarding Lobbying. The certificationforms are included in the applicationpackage for informational purposesonly. It is not necessary to submit theforms to USDA.

2. Table of Contents

For ease in locating information, eachproposal must contain a detailed Tableof Contents immediately after FormCSREES–661, ‘‘Application forFunding.’’ The Table of Contents shouldinclude page numbers for eachcomponent of the proposal. Paginationshould begin immediately following theTable of Contents.

3. Project Summary

The proposal must contain a projectsummary of 250 words or less on aseparate page. This page must includethe title of the project and the names ofthe primary project director(s) and theapplicant organization, followed by thesummary. The summary should be self-contained, and should describe theoverall goals and relevance of theproject. The summary should alsocontain a listing of all organizationsinvolved in the project. The ProjectSummary should immediately followthe Table of Contents.

4. Application Category

Each proposal must state the categoryunder which funds are requested (1)Rural TelecommunicationsTechnologies and Systems (2)Information Infrastructure; or (3)Building Human Capacity.

5. Project Narrative

All proposals are to be submitted onstandard 8.5’’ x 11’’ paper with typingon one side of the page only. Inaddition, margins must be at least oneinch, type must be 12 characters perinch (12 pitch or 10 point) or larger, nomore than 6 lines per inch, and thereshould be no page reductions. Ifapplicable, proposals should includeoriginal illustrations (photographs, colorprints, etc.) in all copies of the proposal


to prevent loss of meaning through poorquality reproduction. Such illustrationsare not included in the page limitationfor project narratives.

The narrative portion of the proposalis limited to 20 pages of text and shouldcontain the required informationdescribed under section (c) of Part II.Program Description.

6. Key PersonnelIdentify the primary project director

and the co-project director(s) and otherkey personnel required for this project.Include vitae that provide adequateinformation so that proposal reviewerscan make an informed judgment as totheir capabilities and experience.

7. Conflict of Interest ListA Conflict of Interest List must be

provided for individuals identified askey personnel. Each list should be on aseparate page and includealphabetically the full names of theindividuals in the following categories:(1) All collaborators on projects withinthe past five years, including currentand planned collaborations; (2) all co-authors on publications within the pastfive years, including pendingpublications and submissions; (3) allpersons in your field with whom youhave had a consulting or financialarrangement within the past five yearswho would stand to gain by seeing theproject funded; and (4) all thesis orpostdoctoral advisees/advisors withinthe past five years.

8. BudgetA. Budget Form: Prepare the budget,

Form CSREES–55, in accordance withinstructions provided with the form. Abudget form is required for each year ofrequested support. In addition, asummary budget is required detailingthe requested total support for theoverall project period. The budget formmay be reproduced as needed byapplicants. Funds may be requestedunder any of the categories listed on theform, provided that the item or servicefor which support is requested isallowable under the authorizinglegislation, the applicable Federal costprinciples, and these programguidelines, and can be justified asnecessary for the successful conduct ofthe proposed project.

The following guidelines should beused in developing your proposalbudget(s):

1. Salaries and Wages. Salaries andwages are allowable charges and may berequested for personnel who will beworking on the project in proportion tothe time such personnel will devote tothe project. If salary funds are requested,

the number of Senior and OtherPersonnel and the number of CSREESFunded Work Months must be shown inthe spaces provided. Grant funds maynot be used to augment the total salaryor rate of salary of project personnel orto reimburse them for time in additionto a regular full-time salary covering thesame general period of employment.

2. Fringe Benefits. Funds may berequested for fringe benefit costs if theusual accounting practices of yourorganization provide that organizationalcontributions to employee benefits(social security, retirement, etc.) betreated as direct costs. Fringe benefitcosts may be included only for thosepersonnel whose salaries are charged asa direct cost to the project.

3. Nonexpendable Equipment.Nonexpendable equipment meanstangible nonexpendable personalproperty including exempt propertycharged directly to the award having auseful life of more than one year and anacquisition cost of $5,000 or more perunit. As such, items of necessaryinstrumentation or other nonexpendableequipment should be listed individuallyby description and estimated cost andjustified.

In addition, pursuant to Section716(b) of Pub. L. No. 104–180 (theAgriculture, Rural Development, Foodand Drug Administration, and RelatedAgencies Appropriations Act, 1997), inthe case of any equipment or productthat may be authorized to be purchasedwith funds provided under thisprogram, entities receiving such fundsare encouraged to use such funds topurchase only American-madeequipment or products.

4. Materials and Supplies. The typesof expendable materials and supplieswhich are required to carry out theproject should be indicated in generalterms with estimated costs.

5. Travel. The type and extent oftravel and its relationship to projectobjectives should be described brieflyand justified. If foreign travel isproposed, the country to be visited, thespecific purpose of the travel, a briefitinerary, inclusive dates of travel, andestimated cost must be provided foreach trip. Airfare allowances normallywill not exceed round-trip jet economyair accommodations. U.S. flag carriersmust be used when available. See 7 CFRpart 3015.205(b)(4) for further guidance.

6. Publication Costs/Page Charges.Anticipated costs of preparing andpublishing results of the research beingproposed (including page charges,necessary illustrations, and the cost of areasonable number of coverless reprints)may be estimated and charged againstthe grant.

7. Computer (ADPE) Costs.Reimbursement for the costs of usingspecialized facilities (such as auniversity- or department-controlledcomputer mainframe or data processingcenter) may be requested if suchservices are required for completion ofthe work.

8. All Other Direct Costs. Anticipateddirect project charges not included inother budget categories must beitemized with estimated costs andjustified on a separate sheet of paperattached to Form CSREES–55. This alsoapplies to revised budgets, as the item(s)and dollar amount(s) may change.Examples may include space rental atremote locations, subcontractual costs,and charges for consulting services. Youare encouraged to consult the‘‘Instructions for Completing FormCSREES–55, Budget,’’ of theApplication Kit for detailed guidancerelating to this budget category.

9. Indirect Costs. If requested, thecurrent rate negotiated with thecognizant Federal negotiating agencyshould be used. Indirect costs may notexceed the negotiated rate. If no rate hasbeen negotiated, a reasonable dollaramount in lieu of indirect costs may berequested, which will be subject toapproval by CSREES. In the latter case,if a proposal is recommended forfunding, an indirect cost rate proposalmust be submitted to support theamount of indirect costs requested.CSREES will request an indirect costrate proposal and provide instructions,as necessary.

In that grants supported by The Fundmay include numerous activities otherthan traditional instruction or research,the institution may choose to requestindirect costs rates that are lower thanthe institution approved negotiatedresearch or instructional rate.

Applications from colleges anduniversities that are not submittedthrough an Office of SponsoredPrograms (or equivalent thereto) mustprovide a statement in the budgetnarrative verifying that the indirectcosts requested are in accordance withinstitutional policies.

B. Budget Narrative: All salaries andwages, nonexpendable equipment,foreign travel, subcontracts, and allother direct costs for which support isrequested must be individually listed(with costs) and justified on a separatesheet of paper and placed immediatelyfollowing the budget.

9. Current and Pending SupportAll proposals must contain Form

CSREES–663 listing other current publicor private support (including in-housesupport) to which key personnel


identified in the proposal havecommitted portions of their time,whether or not salary support forperson(s) involved is included in thebudget. Analogous information must beprovided for any pending proposals thatare being considered by, or that will besubmitted in the near future to, otherpossible sponsors, including otherUSDA programs or agencies. Concurrentsubmission of identical or similarproposals to the possible sponsors willnot prejudice proposal review orevaluation by the Administrator for thispurpose. However, a proposal thatduplicates or overlaps substantiallywith a proposal already reviewed andfunded (or that will be funded) byanother organization or agency will notbe funded under this program. NOTE:This proposal should be identified inthe pending section of Form CSREES–663.

10. Compliance with the NationalEnvironmental Policy Act (NEPA)

As outlined in 7 CFR part 3407(CSREES regulations implementingNEPA), the environmental data for anyproposed project is to be provided toCSREES so that CSREES may determinewhether any further action is needed. Insome cases, however, the preparation ofenvironmental data may not berequired. Certain categories of actionsare excluded from the requirements ofNEPA.

In order for CSREES to determinewhether any further action is neededwith respect to NEPA, pertinentinformation regarding the possibleenvironmental impacts of a particularproject is necessary; therefore, FormCSREES–1234, ‘‘NEPA ExclusionsForm,’’ must be included in theproposal indicating whether theapplicant is of the opinion that theproject falls within a categoricalexclusion and the reasons therefor. If itis the applicant’s opinion that theproposed project falls within thecategorical exclusions, the specificexclusion must be identified. FormCSREES–1234 and supportingdocumentation should be included asthe last page of the proposal.

Even though a project may fall withinthe categorical exclusions, CSREES maydetermine that an EnvironmentalAssessment or an Environmental ImpactStatement is necessary for an activity, ifsubstantial controversy onenvironmental grounds exists or if otherextraordinary conditions orcircumstances are present which maycause such activity to have a significantenvironmental effect.

Part IV. Submission of a Proposal

A. What to Submit

An original and 15 copies must besubmitted. Each copy of each proposalmust be stapled in the upper left-handcorner. (DO NOT BIND.) All copies ofthe proposal must be submitted in onepackage.

B. Where and When to Submit

Applications must be received bySeptember 29, 1997. Proposals sent byFirst Class mail must be sent to thefollowing address: Proposal ServicesUnit, Grants Management Branch, Officeof Extramural Programs, CooperativeState Research, Education, andExtension Service, STOP 2245, 1400Independence Avenue, S.W.,Washington, DC 20250–2245,Telephone: (202) 401–5048

Note: Hand-delivered proposals or thosedelivered by overnight express serviceshould be brought to the following address:Proposal Services Unit, Grants ManagementBranch; Office of Extramural Programs;Cooperative State Research, Education, andExtension Service; U.S. Department ofAgriculture; Room 303, Aerospace Center;901 D Street, S.W.; Washington DC 20024.The telephone number is (202) 401–5048.

C. Acknowledgment of Proposals

The receipt of all proposals will beacknowledged in writing and thisacknowledgment will contain anidentifying proposal number. Once yourproposal has been assigned anidentification number, that numbershould be cited in futurecorrespondence.

Part V. Selection Process andEvaluation Criteria

A. Selection Process

Each proposal will be evaluated in atwo-part process. First, each proposalwill be screened to ensure it meets therequirements as set forth in this RFP.Proposals that meet these requirementswill be technically evaluated. Eachproposal will be judged on its ownmerits.

B. Technical Evaluation Criteria

The review of applications submittedfor funding consideration will consist ofa technical evaluation conducted byCSREES using the competitive peerreview process. Applications willreceive a technical evaluation using thefollowing criteria:

1. Merit

Scientific, technical, or educationalmerit: Well defined problem; clearlydefined objectives; appropriateness ofapproach, (including selection of proper

approach to address systems,multifaceted, or multidisciplinaryproblems); demonstrated integration ofcomponents (such as research,education and extension components);degree of feasibility; soundness andeffectiveness of management plan.

2. Quality

Creativity and innovativeness inaddressing problem and issues;selection of most appropriate andqualified individuals to addressproblem; competence and experience ofpersonnel; effective utilization ofknowledge base in addressing problem;potential to contribute solutions tostated problem; identified potential fortechnology transfer and informationdissemination.

3. Relevance

Proposal advances purposes of TheFund for Rural America; potential tocontribute solutions to priorityproblems in agriculture; identificationand involvement of stakeholders;involvement of communities of interestand stakeholders in the identification ofproblems set forth in proposal;partnership with those affected by theoutcome.

C. Programmatic Relevance Review

The National Agricultural Research,Education and Economics AdvisoryBoard will review collective groups ofrecommended proposals (based ontechnical evaluation) to ensure therelevance of the work proposed forfunding toward achieving theprogrammatic goals of The Fund.

Part VI. Supplementary Information

A. Access to Peer Review Information

After final decisions have beenannounced, CSREES will, upon request,inform the project director of thereasons for its decision on a proposal.Copies of summary reviews, notincluding the identity of the reviewers,will be made available to respectiveproject directors upon specific request.

B. Grant Awards

1. General

Within the limit of funds available forsuch purpose, the awarding official ofCSREES shall make grants to thoseresponsible, eligible applicants whoseproposals are judged most meritoriousin the announced program areas underthe evaluation criteria and proceduresset forth in this request for proposals.The date specified by the Administratoras the effective date of the grant shall beno later than September 30 of theFederal fiscal year in which the project


is approved for support and funds areappropriated for such purpose, unlessotherwise permitted by law. It should benoted that the project need not beinitiated on the grant effective date, butas soon thereafter as practicable so thatproject goals may be attained within thefunded project period. All funds grantedby CSREES under this request forproposals shall be expended solely forthe purpose for which the funds aregranted in accordance with theapproved application and budget, theseapplication guidelines, the terms andconditions of the award, the applicableFederal cost principles, and theDepartment’s assistance regulations(parts 3015, 3016, and 3019 of 7 CFR).

2. Organizational ManagementInformation

Specific management informationrelating to an applicant shall besubmitted on a one-time basis prior tothe award of a grant identified underthese application guidelines if suchinformation has not been providedpreviously under this or anotherprogram for which the sponsoringagency is responsible. Copies of formsrecommended for use in fulfilling therequirements contained in this sectionwill be provided by the sponsoringagency as part of the preaward process.

3. Grant Award Document and Notice ofGrant Award

The grant award document shallinclude at a minimum the following:

a. Legal name and address ofperforming organization or institution towhom the Administrator has awarded agrant under the terms of this request forproposals;

b. Title of Project;c. Name(s) and address(es) of project

director(s) chosen to direct and controlapproved activities;

d. Identifying grant number assignedby the Department;

e. Project period, specifying theamount of time the Department intendsto support the project without requiringrecompetition for funds;

f. Total amount of Departmentalfinancial assistance approved by theAdministrator during the project period;

g. Legal authority(ies) under whichthe grant is awarded;

h. Approved budget plan forcategorizing allocable project funds toaccomplish the stated purpose of thegrant award; and

i. Other information or provisionsdeemed necessary by CSREES to carryout its respective granting activities orto accomplish the purpose of aparticular grant.

The notice of grant award, in the formof a letter, will be prepared and willprovide pertinent instructions orinformation to the grantee that is notincluded in the grant award document.

C. Use of Funds; Changes

1. Delegation of Fiscal Responsibility

The grantee may not in whole or inpart delegate or transfer to anotherperson, institution, or organization theresponsibility for use or expenditure ofgrant funds.

2. Changes in Project Plans

a. The permissible changes by thegrantee, project director(s), or other keyproject personnel in the approvedproject grant shall be limited to changesin methodology, techniques, or otheraspects of the project to expediteachievement of the project’s approvedgoals. If the grantee and/or the projectdirector(s) are uncertain as to whether achange complies with this provision,the question must be referred to theAuthorized Departmental Officer (ADO)for a final determination.

b. Changes in approved goals, orobjectives, shall be requested by thegrantee and approved in writing by theADO prior to effecting such changes. Inno event shall requests be approved forchanges which are outside the scope ofthe original approved project.

c. Changes in approved projectleadership or the replacement orreassignment of other key projectpersonnel shall be requested by thegrantee and approved in writing by theADO prior to effecting such changes.

d. Transfers of actual performance ofthe substantive programmatic work inwhole or in part and provisions forpayment of funds, whether or notFederal funds are involved, shall berequested by the grantee and approvedin writing by the ADO prior to effectingsuch transfers.

e. Changes in Project Period: Theproject period may be extended byCSREES without additional financialsupport, for such additional period(s) asthe ADO determines may be necessaryto complete or fulfill the purposes of anapproved project. Any extension of timeshall be conditioned upon prior requestby the grantee and approval in writingby the ADO, unless prescribedotherwise in the terms and conditions ofa grant.

f. Changes in Approved Budget:Changes in an approved budget must berequested by the grantee and approvedin writing by the ADO prior toinstituting such changes if the revisionwill:

(1) Involve transfers of amountsbudgeted for indirect costs to absorb anincrease in direct costs;

(2) Involve transfers of amountsbudgeted for direct costs toaccommodate changes in indirect costrates negotiated during a budget periodand not approved when a grant wasawarded; or

(3) Involve transfers or expendituresof amounts requiring prior approval asset forth in the applicable Federal costprinciples, Departmental regulations, orin the grant award.

D. Other Federal Statutes andRegulations That Apply

Several other Federal statutes andregulations apply to grant proposalsconsidered for review and to projectgrants awarded under this program.These include but are not limited to:

7 CFR part 1.1—USDAimplementation of the Freedom ofInformation Act.

7 CFR part 1c—USDAimplementation of the Federal Policy forthe Protection of Human Subjects.

7 CFR part 3—USDA implementationof OMB Circular No. A–129 regardingdebt collection.

7 CFR part 15, subpart A—USDAimplementation of Title VI of the CivilRights Act of 1964, as amended.

7 CFR part 3015—USDA UniformFederal Assistance Regulations,implementing OMB directives (i.e.,Circular Nos. A–21 and A–122) andincorporating provisions of 31 U.S.C.6301–6308 (formerly the Federal Grantand Cooperative Agreement Act of 1977,Pub. L. No. 95–224), as well as generalpolicy requirements applicable torecipients of Departmental financialassistance.

7 CFR part 3017, as amended by 61FR 250, January 4, 1996—USDAimplementation of GovernmentwideDebarment and Suspension(Nonprocurement) andGovernmentwide Requirements forDrug-Free Workplace (Grants).

7 CFR part 3018—USDAimplementation of New Restrictions onLobbying. Imposes prohibitions andrequirements for disclosure andcertification related to lobbying onrecipients of Federal contracts, grants,cooperative agreements, and loans.

7 CFR part 3019—USDAimplementation of OMB Circular No. A–110, Uniform AdministrativeRequirements for Grants andAgreements With Institutions of HigherEducation, Hospitals, and OtherNonprofit Organizations.

7 CFR part 3051—USDAimplementation of OMB Circular No. A–133 regarding audits of institutions of


higher education and other nonprofitinstitutions.

7 CFR part 3407—CSREES proceduresto implement the NationalEnvironmental Policy Act of 1969, asamended.

48 CFR part 31—Contract CostPrinciples and Procedures of the FederalAcquisition Regulation.

29 U.S.C. 794 (section 504,Rehabilitation Act of 1973) and 7 CFRpart 15b (USDA implementation ofstatute)—prohibiting discriminationbased upon physical or mental handicapin federally assisted programs.

35 U.S.C. 200 et seq.—Bayh-Dole Act,controlling allocation of rights toinventions made by employees of smallbusiness firms and domestic nonprofit

organizations, including universities, infederally assisted programs(implementing regulations are containedin 37 CFR part 401).

E. Confidential Aspects of Proposalsand Awards

When a proposal results in a grant, itbecomes a part of the record of theAgency’s transactions, available to thepublic upon specific request.Information that the Secretarydetermines to be of a privileged naturewill be held in confidence to the extentpermitted by law. Therefore, anyinformation that the applicant wishes tohave considered as privileged should beclearly marked as such and sent in a

separate statement, two copies of whichshould accompany the proposal. Theoriginal copy of a proposal that does notresult in a grant will be retained by theAgency for a period of one year. Othercopies will be destroyed. Such aproposal will be released only with theconsent of the applicant or to the extentrequired by law. A proposal may bewithdrawn at any time prior to the finalaction thereon.

Done at Washington, D.C., on this 25th dayof July 1997.Colien Hefferan,Associate Administrator, Cooperative StateResearch, Education, and Extension Service.[FR Doc. 97–20236 Filed 7–30–97; 8:45 am]BILLING CODE 3410–22–P

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CFR PARTS AFFECTED DURING JULY

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:6641 (See

Proclamation7011) ............................35909

6763 (SeeProclamation7011) ............................35909

7011.................................359097012.................................394137013.................................407197014.................................407237015.................................40725Executive Orders:January 17, 1911,

(Revoked by PLO7277) ............................40540

5327 (Revoked in partby PLO 7276)...............40541

12721 (See EO13054) ..........................36965

12852 (Amended byEO 13053)....................39945

13017 (Amended byEO 13056)....................39415

13052...............................3565913053...............................3994513054...............................3696513056...............................39415Memorandums:July 16, 1997 ...................38421July 24, 1997 ...................40727

5 CFR

890...................................384332423.................................409112429.................................409117201.................................36447Proposed Rules:550...................................40475880...................................35693

7 CFR

2...........................37485, 402533.......................................4092480.....................................40729278...................................40924300...................................36967301.......................36645, 36976318...................................36967354...................................39747400...................................40924403...................................39917455.......................35661, 35662456...................................35666457 ..........35662, 35666, 39917946...................................36199959...................................38203981.......................37485, 37488985...................................366461005.................................397381006.................................36650

1007.................................397381046.................................397381137.................................359471208.................................402551215.................................393861220.................................374881280.................................388971381.................................366511437.................................369783405.................................393163406.................................39330Proposed Rules:29.....................................35452301.......................37159, 40756401...................................39189450...................................37000457.......................37000, 39189800...................................38488905...................................40482920.......................36231, 36743927...................................40310930...................................36020981...................................36233985...................................36236989...................................403121005.................................394701007.................................394701011 ........36022, 37524, 394701046.................................394701137.................................375241944.................................36467

8 CFR103...................................39417245...................................39417274a.................................39417301...................................39926316...................................36447Proposed Rules:204...................................38041

9 CFR

77.....................................3712578.....................................3844392.....................................38445Proposed Rules:317...................................38220381...................................38220

10 CFR

13.........................40427, 4070220.....................................3905830.....................................3905840.....................................3905850.....................................3905851.....................................3905870.....................................3905872.....................................39058Proposed Rules:20.....................................3909335.....................................4097540.....................................3909350.....................................40978

ii Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Reader Aids

73.....................................40978430.......................36024, 38222451...................................36025

11 CFR

104...................................35670Proposed Rules:100...................................40982114...................................40982

12 CFR

207...................................40257220...................................40257221...................................40257224...................................40257329...................................40731338...................................36201701...................................40928790...................................37126902...................................35948Proposed Rules:9.......................................36746202...................................37166226...................................38489250...................................37744303...................................37748312...................................40487325...................................37748326...................................37748327...................................37748346...................................37748347...................................37748351...................................37748362...................................37748545...................................39477550...................................39477563e.................................39477611...................................38223614...................................38223620...................................38223630...................................38223

13 CFR

123...................................35337

14 CFR

25.....................................4042739 ...........35670, 35950, 35951,

35953, 35956, 35957, 35959,36448, 36652, 36978, 37127,37128, 37130, 37707, 37710,38015, 38017, 38204, 38206,38445, 38447, 38898, 39101,39425, 39427, 39428, 39927,40262, 40264, 40266, 40267

61.....................................4088871 ...........35894, 38208, 38209,

38210, 38211, 38212, 38213,39429, 39430, 39431, 39432,39433, 39434, 39435, 39929,39930, 39931, 39932, 39933

97.........................39435, 39437121...................................38362125...................................38362129...................................38362135...................................38362141...................................40888Proposed Rules:25.........................37124, 3894539 ...........35696, 35698, 35700,

35702, 35704, 35706, 35708,35709, 35711, 36240, 36747,37170, 37778, 37788, 37798,37808, 38491, 38493, 39194,39195, 39490l 39492, 39784,39787, 39789, 39791, 39793,

39975, 40763, 4098571 ...........35713, 37172, 39977,

39978, 39979, 39980, 39981,39982, 40488

187...................................38008401...................................36027411...................................36027413...................................36027415...................................36027417...................................36027440...................................36028

15 CFR

922 ..........35338, 36655, 39494946...................................38901Proposed Rules:30.....................................36242922...................................37818

16 CFR

601...................................355861000.................................364501017.................................36450Proposed Rules:1700.................................38948

17 CFR

4.......................................39104200...................................36450228.......................36450, 39755229.......................36450, 39755230.......................36450, 39755232.......................36450, 39755239 ..........35338, 36450, 39755240 .........35338, 36450, 39755,

40732249.......................35338, 39755260...................................36450269...................................35338Proposed Rules:202...................................38495230...................................38495232.......................36467, 38483239...................................38495240.......................36467, 40316249...................................36467270...................................38495274...................................38495

18 CFR

35.....................................36657381...................................36981Proposed Rules101...................................40987116...................................40987201...................................40987216...................................40987352...................................40987

19 CFR

101...................................37131122...................................37131201.......................38018, 39438Proposed Rules:4.......................................40992101...................................37526122...................................40992123...................................40992148...................................40992192...................................40992351...................................38948

20 CFR

404...................................38448410...................................38448

416.......................36460, 38448422...................................38448430...................................39933Proposed Rules:10.....................................40418295...................................40995702...................................35715

21 CFR

1.......................................3943910.....................................4057016.....................................4042920.....................................4057025.....................................4057050.....................................3943971.....................................40570101...................................40570165...................................36460170...................................40570171...................................40570175...................................39935176.......................39770, 39937178.......................36982, 39441211...................................40447312...................................40570314.......................39890, 40570510 .........38905, 39442, 40930,

40931511...................................40570514...................................40570520 .........37711, 37712, 38905,

38906, 39443, 40932522 ..........37713, 38905, 38907524.......................38907, 40931556...................................40932570...................................40570571...................................40570600...................................39890601.......................39890, 40570610...................................39890640...................................39890812...................................40570814.......................38026, 405701270.................................40429Proposed Rules:Ch. I .................................3624350.....................................40996101...................................36749207...................................40765211...................................40489225...................................40765510...................................40765514...................................40765515...................................40765558...................................40765872...................................382311308.................................37004

22 CFR

126...................................37133201...................................38026

24 CFR

586...................................37478Proposed Rules:201...................................36194202...................................36194207...................................35716251...................................35716252...................................35716255...................................35716266...................................35716950...................................35718953...................................35718955...................................357181000.................................35718

1003.................................357181005.................................357183500.................................38489

26 CFR

1 .............35673, 37490, 38027,39115, 40269, 40270, 40447

31.....................................3749040.....................................3749054.....................................35904301...................................39115602...................................35904Proposed Rules:1 .............35752, 35755, 37818,

37819, 38197, 40316301 ..........37819, 38197, 40316

27 CFR

Proposed Rules:9.......................................39984

28 CFR

0.......................................380282.......................................4027017.....................................3698432.........................37713, 39119544...................................39916Proposed Rules:2.......................................40316

29 CFR

1600.................................364471650.................................364471910.................................401421917.................................401421918.................................401421926.................................371342200.....................35961, 409332203.................................359612204.................................359612520.................................362052570.................................406962590.................................359044000.................................369934001.................................353424004.................................377174007.................................366634010.................................369934011.................................369934043.................................369934071.................................369934302.................................36993Proposed Rules:70a...................................4040671.....................................404061910.................................41002

30 CFR

250...................................39773256.......................36995, 39773902...................................35342946...................................35964Proposed Rules:202...................................38509206.......................36030, 38509211...................................38509250...................................37819924...................................40773935.......................36248, 38509

31 CFR

285...................................36205Proposed Rules:103 .........36475, 38511, 40778,

40779

iiiFederal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Reader Aids

32 CFR

Ch. I .................................40734176...................................35343199...................................39940270...................................39941286.......................35351, 38197706.......................37719, 40449

33 CFR

27.........................35385, 39313100 .........35387, 35388, 35390,

35391, 39443, 39775117...................................38908144...................................35392155...................................37134164...................................40270165 .........35392, 35393, 35394,

35395, 35396, 35398, 35399,35400, 35401, 35402, 35403,35405, 35680, 35968, 37135,38456, 39444, 39445, 40273,

40276334...................................40278Proposed Rules:84.....................................36037100...................................38042110...................................38511117.......................35453, 38043

34 CFR

75.....................................40422222...................................35406685...................................35602

36 CFR

Proposed Rules:4.......................................40317242...................................39987

37 CFR

1.......................................404502.......................................40450201.......................35420, 40457202...................................35420203...................................35420Proposed Rules:201...................................40780

38 CFR

1.......................................359693 ..............35421, 35969, 359709.......................................3596921.........................35423, 40279Proposed Rules:17.........................39197, 4049219.....................................3603821.........................35454, 3546436.....................................37824

39 CFR

111...................................399463001.................................35424

40 CFR

9.......................................3772050 ............38652, 38762, 3885652 ...........35441, 35681, 36212,

36214, 37136, 37138, 37494,37506, 37510, 37722, 37724,38213, 38457, 38909, 38912,38915, 38918, 38919, 38922,39120, 39446, 40139, 40280,40457, 40458, 40734, 40934,

40937, 4093853.....................................38764

58.....................................3876460.....................................3666462.....................................3699563.........................36460, 3772070.....................................3751481 ............35972, 38213, 40280131.......................41172, 41162180 .........35683, 36665, 36671,

36678, 36684, 36691, 37516,38464, 39950, 39956, 39962,

39967, 40735185...................................38464186...................................38464258...................................40708268...................................37694281...................................36698300 .........35441, 35689, 35974,

36997, 37522403...................................38406721 ..........35689, 35690, 40742Proposed Rules:51.........................41190, 4113852 ...........35756, 36249, 37007,

37172, 37175, 37526, 37527,37832, 38949, 38950, 38951,39199, 39202, 39795, 40493,

40783, 41002, 4100455.....................................3804760.....................................3694862.....................................3700863.....................................3805370.........................36039, 3753380.....................................3733881.....................................3823782.....................................3642886.....................................38053131.......................38512, 41162141...................................36100142...................................36100180.......................35760, 38513186...................................35760258...................................40714260...................................37183261.......................37183, 41005273...................................37183300 .........38239, 40029, 40033,

40784372...................................39797799...................................37833

42 CFR

67.....................................37124Proposed Rules:1001.................................39798

44 CFR

62.....................................3990864.........................39448, 4094565 ............37727, 39123, 3912567.........................37729, 39127Proposed Rules:67.........................37834, 39203

45 CFR

16.....................................3821774.....................................3821775.....................................3821795.....................................38217146...................................35904148...................................35904Proposed Rules:Ch. XII..............................3824198.....................................3961099.....................................396101201.................................38241

46 CFR

10.........................40139, 4028112.....................................4013915.....................................40139109...................................35392159...................................35392160...................................35392199...................................35392296...................................37733Proposed Rules:90.....................................4003598.....................................40035125...................................40035126...................................40035127...................................40035128...................................40035129...................................40035130...................................40035131...................................40035132...................................40035133...................................40035134...................................40035135...................................40035136...................................40035170...................................40035174...................................40035175...................................40035384...................................40494

47 CFRCh. I .................................362160.......................................402811 .............37408, 38029, 38475,

394502.......................................4028132.........................39450, 3977636.....................................4074243.....................................3977654.....................................4074259.....................................3699861.....................................4046063.....................................3945164.........................35974, 3977668.....................................3646369.....................................4046073 ...........36226, 36227, 36699,

36700, 36701, 36678, 36684,36691, 37144, 37145, 37522,38029, 38030, 38031, 38032,38033, 38218, 39128, 39779,39780, 39781, 40947, 40948,

4094976.....................................3802980.....................................4028187.....................................4028190.........................41190, 41225Proposed Rules:Ch. I.........36752, 38244, 403191.......................................400362.......................................4101220.....................................3895125.....................................4049452.....................................3647668.....................................3647673 ...........36250, 36756, 37008,

38053, 38054, 38245, 38246,39798, 41015, 41016

80.....................................37533

48 CFR

1.......................................402364.......................................402365.......................................402367.......................................402368.......................................402369.......................................40236

11.....................................4023612.....................................4023615.....................................4023619.....................................4023626.....................................4023627.....................................4023629.....................................4023630.....................................4023631.....................................4023632.....................................4023638.....................................4023642.....................................4023645.....................................4023646.....................................4023650.....................................4023651.....................................4023652.....................................4023653.....................................40236204...................................40471215...................................40471216...................................40471232...................................40471235...................................37146239...................................40471243...................................37146252 ..........37146, 37147, 40471552...................................38475Ch. VII .................39452, 40464701...................................40464702...................................40464703...................................40464704...................................40464705...................................40464706...................................40464708...................................40464709...................................40464711...................................40464715...................................40464716...................................40464717...................................40464719...................................40464722...................................40464724...................................40464725...................................40464726...................................40464728...................................40464731...................................40464732...................................40464733...................................40464734...................................40464736...................................40464749...................................40464750...................................40464752...................................40464753...................................40464909...................................40748952...................................40748970...................................407481514.................................371481515.................................371481535.................................384761552.....................37148, 384761803.................................367041804.................................367041807.................................367041809.................................367041813.................................367041815.................................367041816.................................367041819.................................367041822.................................367041824.................................367041825.................................367041827.................................367041832.................................367041836.................................36704

iv Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Reader Aids

1837.................................367041839.................................367041842.....................36227, 373351844.................................367041845.................................367041852.....................36704, 403081853.................................367041870.................................36704Proposed Rules:4.......................................362507.......................................362508.......................................3625012.....................................3787414.....................................3787415.........................36250, 3787416.....................................3625017.....................................3625019.....................................3787422.....................................3625027.....................................3625028.....................................3625031.........................35900, 3625032.....................................3625033.....................................3787435.....................................3625042.....................................3625043.....................................3625044.....................................36250

45.....................................3625046.....................................3590049.....................................3625051.....................................3625052 ............35900, 36250, 3784753.........................36250, 37847236...................................40497245...................................37185252...................................371859903.................................37654

49 CFR

1.......................................38478171...................................39398172...................................39398173...................................37149193...................................36465355...................................37150369...................................38034372...................................38035382...................................37150383...................................37150384...................................37150389...................................37150391...................................37150392...................................37150531...................................37153541...................................40949

571...................................40953661...................................409531002.................................356921180.................................35692Proposed Rules:23.....................................3895226.....................................38952192...................................37008195...................................37008213...................................36138385...................................36039525...................................39207571...................................36251594...................................378471002.................................364771181.................................364801182.....................36477, 364801186.................................364801187.................................364771188.....................36477, 36480

50 CFR

17 ...........36481, 36482, 38932,39129, 39147, 40954

20.....................................39712227...................................38479229...................................39157285 .........35447, 36998, 38036,

38037, 38485, 38939300.......................38037, 40753648 .........36704, 36738, 37154,

37741, 38038660 .........35450, 36228, 38942,

39782678...................................38942679 .........36018, 36739, 36740,

36741, 37157, 37523, 38039,38943, 38944, 39782, 39783,40309, 40474, 40754, 40755,

40974Proposed Rules:17 ...........35762, 37852, 38953,

38958, 39209, 39210, 40319,40325, 41016

25.....................................3895932.....................................38959100...................................39987216...................................39799226...................................40786285 ..........36040, 36739, 36872600...................................35468622...................................35774630.......................38246, 40039679.......................37860, 40497

vFederal Register / Vol. 62, No. 147 / Thursday, July 31, 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 JULY 31, 1997

COMMERCE DEPARTMENTNational Oceanic andAtmospheric AdministrationFishery conservation and

management:West Coast States and

Western Pacificfisheries—West Coast Salmon

fisheries; published 7-1-97

EDUCATION DEPARTMENTElementary and secondary

education:Impact aid program;

published 7-1-97FEDERALCOMMUNICATIONSCOMMISSIONRadio stations; table of

assignments:Colorado et al.; published 7-

31-97HEALTH AND HUMANSERVICES DEPARTMENTFood and DrugAdministrationAnimal drugs, feeds, and

related products:Apramycin; published 7-31-

97Diethylcarbamazine citrate

syrup, etc.; published 7-21-97

Sponsor name and addresschanges—Boehringer Ingelheim

Animal Health, Inc.;correction; published 7-31-97

Fort Dodge AnimalHealth; published 7-31-97

Medicis Dermatologics,Inc.; published 7-31-97

OCCUPATIONAL SAFETYAND HEALTH REVIEWCOMMISSIONPractice and procedure:

E-Z Trial pilot programimplementation andsimplified proceedings foradjudicative process; rulesrevision; published 7-31-97

TRANSPORTATIONDEPARTMENTFederal AviationAdministrationAirworthiness directives:

Boeing; published 7-16-97British Aerospace; published

7-16-97TRANSPORTATIONDEPARTMENTFederal TransitAdministrationBuy America requirements:

Rolling stock; technicalamendment; published 7-31-97

TRANSPORTATIONDEPARTMENTNational Highway TrafficSafety AdministrationMotor vehicle safety

standards:Controls and displays,

accessibility and visibility;Federal regulatory review;published 6-16-97

Lamps, reflective devices,and associatedequipment—Technical amendment;

published 7-31-97Motor vehicle theft prevention

standard:High theft lines for 1998

model year; listing;published 7-31-97

COMMENTS DUE NEXTWEEK

AGRICULTUREDEPARTMENTAgricultural MarketingServiceCherries (tart) grown in—

Michigan et al.; commentsdue by 8-4-97; published7-3-97

Kiwifruit grown in California;comments due by 8-6-97;published 7-7-97

AGRICULTUREDEPARTMENTFarm Service AgencyProgram regulations:

Section 515 rural rentalhousing loans; requestsprocessing (Exhibit A-8);comments due by 8-7-97;published 7-8-97

AGRICULTUREDEPARTMENTFood Safety and InspectionServiceMeat and poultry inspection:

Continuous immersionchilling of split poultryportions; comments dueby 8-5-97; published 6-6-97

AGRICULTUREDEPARTMENTRural Business-CooperativeServiceProgram regulations:


AGRICULTUREDEPARTMENTRural Housing ServiceProgram regulations:


AGRICULTUREDEPARTMENTRural Utilities ServiceProgram regulations:


COMMERCE DEPARTMENTCensus BureauForeign trade statistics:

Conditional exemptions forfiling Shipper’s ExportDeclarations (SED) fortools of trade; commentsdue by 8-6-97; published7-7-97

COMMERCE DEPARTMENTNational Oceanic andAtmospheric AdministrationFishery conservation and

management:Alaska; fisheries of

Exclusive EconomicZone—Bering Sea and Aleutian

Islands groundfish;comments due by 8-4-97; published 6-5-97

Atlantic highly migratoryspecies; CFR partsconsolidation; commentsdue by 8-4-97; published7-17-97

Caribbean, Gulf, and SouthAtlantic fisheries—Gulf of Mexico and South

Atlantic coastalmigratory pelagicresources; commentsdue by 8-7-97;published 6-23-97

Magnuson-Stevens FisheryConservation andManagement Act;implementation:Limited access permits;

central title and lienregistry; comments due by8-5-97; published 5-7-97

COMMERCE DEPARTMENTPatent and Trademark OfficePatent cases:

Practice rules; trademarktrial and appeal board

proceedings; commentsdue by 8-4-97; published6-5-97

DEFENSE DEPARTMENTAcquisition regulations:

Contingent fees-foreignmilitary sales; commentsdue by 8-4-97; published6-5-97

Contract financing paymentsdistribution; commentsdue by 8-4-97; published6-5-97

Control of munitions andstrategic list items anddemilitarization of excessproperty underGovernment contracts;comments due by 8-4-97;published 6-5-97

Federal Acquisition Regulation(FAR):Affirmative action reform in

Federal procurement;comments due by 8-8-97;published 7-15-97

ENERGY DEPARTMENTAcquisition regulations:

Certification of costsubmissions andassessment of penaltieson unallowable costs, etc.;comments due by 8-4-97;published 6-4-97

Personnel assurance program:DOE and DOE contractor

employees assignednuclear explosive dutiesat DOE facilities;procedures and standards;comments due by 8-4-97;published 6-4-97

ENVIRONMENTALPROTECTION AGENCYAir pollution control; new

motor vehicles and engines:Light-duty vehicle and

trucks—On-board diagnostics

requirements; commentsdue by 8-8-97;published 7-16-97

Motorcycles (1997 and latermodel years); 3-wheeledvehicles weighing up to1749 pounds included inregulatory definition;comments due by 8-4-97;published 6-3-97

Air programs:Stratospheric ozone

protection—Sale of halon blends,

intentional release ofhalon, techniciantraining, and disposal ofhalon and halon-containing equipment;comments due by 8-6-97; published 7-7-97

Air quality implementationplans; approval and

vi Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Reader Aids

promulgation; variousStates:California; comments due by

8-6-97; published 7-7-97Drinking water:

National primary drinkingwater regulations—Chemical monitoring

reform and permanentmonitoring relief;comments due by 8-4-97; published 7-3-97

Water pollution control:Great Lakes System; water

quality guidance—Mercury permitting

strategy; comments dueby 8-5-97; published 6-6-97

FEDERALCOMMUNICATIONSCOMMISSIONRadio broadcasting:

Broadcast licensees; mainstudio and publicinspection filerequirements; commentsdue by 8-8-97; published6-12-97

FEDERAL MEDIATION ANDCONCILIATION SERVICEArbitration services:

Expedited arbitration;comments due by 8-4-97;published 6-30-97

GENERAL SERVICESADMINISTRATIONFederal Acquisition Regulation

(FAR):Affirmative action reform in


INTERIOR DEPARTMENTFish and Wildlife ServiceEndangered and threatened

species:Findings on petitions, etc.—

Mountain yellow-leggedfrog; comments due by8-7-97; published 7-8-97

Recovery plans—Lee County cave isopod;

comments due by 8-4-97; published 6-19-97

Migratory bird hunting:Early-season regulations

(1997-98); frameworks;comments due by 8-5-97;published 7-23-97

INTERIOR DEPARTMENTMinerals ManagementServiceRoyalty management:

Oil valuation; Federal leasesand Federal royalty oilsale; comments due by 8-4-97; published 7-3-97

INTERIOR DEPARTMENTSurface Mining Reclamationand Enforcement OfficePermanent program and

abandoned mine landreclamation plansubmissions:Ohio; comments due by 8-

4-97; published 7-18-97LABOR DEPARTMENTOccupational Safety andHealth AdministrationSafety and health standards:

Control of hazardous energysources (lockout/tagout)Comment period

extension; commentsdue by 8-7-97;published 7-31-97

NATIONAL AERONAUTICSAND SPACEADMINISTRATIONFederal Acquisition Regulation

(FAR):Affirmative action reform in


SECURITIES ANDEXCHANGE COMMISSIONElectronic Data Gathering,

Analysis, and RetrievalSystem (EDGAR):Institutional investment

managers; Form 13Felectronic filingrequirement; commentsdue by 8-7-97; published7-8-97

TRANSPORTATIONDEPARTMENTCoast GuardPorts and waterways safety:

Delaware Bay approaches;traffic separation scheme;comments due by 8-7-97;published 5-9-97

Miami, FL; regulatednavigation area;comments due by 8-8-97;published 6-9-97

Regattas and marine parades:Hurricane Offshore Classic;

comments due by 8-5-97;published 7-16-97

TRANSPORTATIONDEPARTMENTFederal AviationAdministrationAirworthiness directives:

Boeing; comments due by8-8-97; published 6-9-97

Fairchild; comments due by8-7-97; published 6-4-97

General Electric Co.;comments due by 8-8-97;published 6-9-97

Saab; comments due by 8-4-97; published 6-24-97

Commercial launch vehicles;licensing regulations;comments due by 8-4-97;published 7-3-97

Commercial space launchactivities, licensed; financialresponsibility requirements;comments due by 8-4-97;published 7-3-97

VOR Federal airways;comments due by 8-5-97;published 6-20-97

TRANSPORTATIONDEPARTMENTResearch and SpecialPrograms AdministrationPipeline safety:

Low-stress hazardous liquidpipelines serving plantsand terminals; commentsdue by 8-8-97; published6-9-97

TREASURY DEPARTMENTCustoms ServiceMerchandise entry:

Informal entry value limitincrease to $2000;maximum amount;

comments due by 8-8-97;published 6-9-97

TREASURY DEPARTMENT

Internal Revenue Service

Income taxes:

Inbound grantor trusts withforeign grantors;comments due by 8-4-97;published 6-5-97

Trusts and estatesresidency; foreign ordomestic trusts; definition;comments due by 8-4-97;published 6-5-97

TREASURY DEPARTMENT

Thrift Supervision Office

Mutual holding companies:

Subsidiary stock holdingcompanies; establishment;comments due by 8-4-97;published 6-5-97

VETERANS AFFAIRSDEPARTMENT

Adjudication; pensions,compensation, dependency,etc.:

Nonservice-connecteddisability; claims based onaggravation; commentsdue by 8-4-97; published6-4-97

Board of Veterans Appeals:

Appeals regulations andrules of practice—

Field facility with originaljurisdiction; remand forfurther development;comments due by 8-4-97; published 7-3-97

Veterans’ Health CareEligibility Reform Act of1996; implementation:

Sensori-neural aids (i.e.,eyeglasses, contactlenses, hearing aids);furnishing guidelines;comments due by 8-4-97;published 6-3-97