Friday March by jennyyingdi

VIEWS: 33 PAGES: 202

									3–24–95                                Friday
Vol. 60   No. 57                       March 24, 1995
Pages 15457–15648

                    federal register
                                          Briefings on How To Use the Federal Register
                                          For information on briefings in Washington, DC, and
                                          Dallas, TX, see announcement on the inside cover of this

II                              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995

                                                                          SUBSCRIPTIONS AND COPIES

                                                                              Paper or fiche                                     202–512–1800
FEDERAL REGISTER Published daily, Monday through Friday,                      Assistance with public subscriptions                   512–1806
(not published on Saturdays, Sundays, or on official holidays), by          Online:
the Office of the Federal Register, National Archives and Records             Telnet, login as newuser <enter>, no
Administration, Washington, DC 20408, under the Federal Register                password <enter>; or use a modem to call (202) 512–1661,
Act (49 Stat. 500, as amended; 44 U.S.C. Ch. 15) and the
regulations of the Administrative Committee of the Federal Register             login as swais, no password <enter>, at the second login as
(1 CFR Ch. I). Distribution is made only by the Superintendent of               newuser <enter>, no password <enter>.
Documents, U.S. Government Printing Office, Washington, DC                    Assistance with online subscriptions               202–512–1530
20402.                                                                     Single copies/back copies:
The Federal Register provides a uniform system for making                     Paper or fiche                                         512–1800
available to the public regulations and legal notices issued by               Assistance with public single copies                   512–1803
Federal agencies. These include Presidential proclamations and
Executive Orders and Federal agency documents having general              FEDERAL AGENCIES
applicability and legal effect, documents required to be published          Subscriptions:
by act of Congress and other Federal agency documents of public
interest. Documents are on file for public inspection in the Office           Paper or fiche                                                523–5243
of the Federal Register the day before they are published, unless             Assistance with Federal agency subscriptions                  523–5243
earlier filing is requested by the issuing agency.
                                                                              For other telephone numbers, see the Reader Aids section
The seal of the National Archives and Records Administration                  at the end of this issue.
authenticates this issue of the Federal Register as the official serial
publication established under the Federal Register Act. 44 U.S.C.
1507 provides that the contents of the Federal Register shall be
judicially noticed.
The Federal Register is published in paper, 24x microfiche and as                          THE FEDERAL REGISTER
an online database through GPO Access, a service of the U.S.
Government Printing Office. The online database is updated by 6                     WHAT IT IS AND HOW TO USE IT
a.m. each day the Federal Register is published. The database               FOR:     Any person who uses the Federal Register and Code of Federal
includes both text and graphics from Volume 59, Number 1
(January 2, 1994) forward. It is available on a Wide Area                            Regulations.
Information Server (WAIS) through the Internet and via                      WHO:     The Office of the Federal Register.
asynchronous dial-in. The annual subscription fee for a single
workstation is $375. Six-month subscriptions are available for $200         WHAT:    Free public briefings (approximately 3 hours) to present:
and one month of access can be purchased for $35. Discounts are                      1. The regulatory process, with a focus on the Federal Register
available for multiple-workstation subscriptions. To subscribe,                         system and the public’s role in the development of
Internet users should telnet to and login as                       regulations.
newuser (all lower case); no password is required. Dial-in users
should use communications software and modem to call (202)                           2. The relationship between the Federal Register and Code of
512–1661 and login as swais (all lower case); no password is                            Federal Regulations.
required; at the second login prompt, login as newuser (all lower                    3. The important elements of typical Federal Register
case); no password is required. Follow the instructions on the                          documents.
screen to register for a subscription for the Federal Register Online                4. An introduction to the finding aids of the FR/CFR system.
via GPO Access. For assistance, contact the GPO Access User
Support Team by sending Internet e-mail to                                  WHY:     To provide the public with access to information necessary to, or a fax to (202) 512–1262, or by calling                  research Federal agency regulations which directly affect them.
(202) 512–1530 between 7 a.m. and 5 p.m. Eastern time, Monday                        There will be no discussion of specific agency regulations.
through Friday, except Federal holidays.
The annual subscription price for the Federal Register paper
edition is $494, or $544 for a combined Federal Register, Federal
Register Index and List of CFR Sections Affected (LSA)                                           WASHINGTON, DC
subscription; the microfiche edition of the Federal Register                 WHEN:         April 20 at 9:00 am
including the Federal Register Index and LSA is $433. Six month              WHERE:        Office of the Federal Register Conference
subscriptions are available for one-half the annual rate. The charge                       Room, 800 North Capitol Street NW.,
for individual copies in paper form is $8.00 for each issue, or $8.00
for each group of pages as actually bound; or $1.50 for each issue                         Washington, DC (3 blocks north of Union
in microfiche form. All prices include regular domestic postage                            Station Metro)
and handling. International customers please add 25% for foreign             RESERVATIONS: 202–523–4538
handling. Remit check or money order, made payable to the
Superintendent of Documents, or charge to your GPO Deposit
Account, VISA or MasterCard. Mail to: New Orders,                                                DALLAS, TX
Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA
15250–7954.                                                                  WHEN:         March 30 at 9:00 am
There are no restrictions on the republication of material appearing         WHERE:        Conference Room 7A23
in the Federal Register.                                                                   Earle Cabell Federal Building
                                                                                           and Courthouse
How To Cite This Publication: Use the volume number and the
page number. Example: 60 FR 12345.                                                         1100 Commerce Street
                                                                                           Dallas, TX 75242
                                                                             RESERVATIONS: 1–800–366–2998


Contents                                                     Federal Register
                                                             Vol. 60, No. 57

                                                             Friday, March 24, 1995

Administrative Conference of the United States               See National Oceanic and Atmospheric Administration
NOTICES                                                      See National Telecommunications and Information
Meetings:                                                        Administration
 Adjudication Committee, 15532
 Rulemaking Committee, 15532                                 Committee for Purchase From People Who Are Blind or
                                                                Severely Disabled
Agency for International Development                         NOTICES
NOTICES                                                      Procurement list; additions and deletions, 15535–15536
Agency information collection activities under OMB
   review, 15582                                             Commodity Futures Trading Commission
Agricultural Marketing Service                               Contract market proposals:
PROPOSED RULES                                                 Chicago Board of Trade—
Almonds grown in California, 15522–15523                         Treasury yield curve spreads, 15537–15538
Milk marketing orders:                                         New York Cotton Exchange—
  Eastern Ohio-Western Pennsylvania, 15523–15524                 Frozen concentrated orange juice, 15536–15537
Meetings:                                                    Copyright Office, Library of Congress
 National Organic Standards Board, 15532–15533               NOTICES
                                                             Copyright claims registrability of works for which design
Agriculture Department                                          patent has been issued, 15605–15606
See Agricultural Marketing Service
See Animal and Plant Health Inspection Service               Defense Department
See Food and Consumer Service                                See Army Department
See Food Safety and Inspection Service                       See Defense Logistics Agency
See Forest Service                                           PROPOSED RULES
                                                             Acquisition regulations:
American Indian Arts Institute                                Contracting by negotiation, 15528–15529
See Institute of American Indian and Alaska Native Culture    Government property; public hearing, 15528
    and Arts Development                                     NOTICES
Animal and Plant Health Inspection Service                     Science Board task forces, 15538
PROPOSED RULES                                                 Semiconductor Technology Council, 15538
Animal welfare:                                              Privacy Act:
 Marine mammals—                                               Systems of records, 15538–15542
   Swim-with-the-dolphin interactive programs, 15524–
       15525                                                 Defense Logistics Agency
Army Department                                              Privacy Act:
NOTICES                                                        Computer matching programs, 15543–15544
Environmental statements; availability, etc.:
  Base realignment and closure—                              Drug Enforcement Administration
    Army Materials Technology Laboratory, MA, 15542          NOTICES
    Jefferson Proving Ground, IN, 15542                      Applications, hearings, determinations, etc.:
                                                              Goshen, Henry M., M.D., 15585–15587
Arts and Humanities, National Foundation                      Graham, James C., M.D., 15587–15588
See National Foundation on the Arts and the Humanities        Sweet, Charles L., M.D., 15588

Blind or Severely Disabled, Committee for Purchase From      Economic Development Administration
    People Who Are                                           NOTICES
See Committee for Purchase From People Who Are Blind or      Trade adjustment assistance eligibility determinations
    Severely Disabled                                            petitions:
                                                               Klein Bicycle Corp. et al., 15534
Centers for Disease Control and Prevention
NOTICES                                                      Education Department
Grants and cooperative agreements; availability, etc.:       NOTICES
  Aerosol generator development; solid sodium chloride       Agency information collection activities under OMB
      aerosol production, 15569                                  review, 15544–15545
  Public health leadership institute, 15569–15572            Grants and cooperative agreements; availability, etc.:
                                                               Postsecondary education improvement fund—
Commerce Department                                              Special focus competition: disseminating proven
See Economic Development Administration                              reforms, 15545–15546
IV                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Contents

Meetings:                                                        Common carrier services and radio services, special:
 Regional educational laboratories program; presolicitation        Public mobile services and private land mobile services—
      conference, 15546–15547                                        Specialized mobile services and 220–222 MHz land
                                                                          mobile band, eligibility; and radio dispatch
Employment Standards Administration                                       communications use, 15490–15495
See Wage and Hour Division                                       Radio stations; table of assignments:
                                                                   West Virginia, 15496
                                                                 Television stations; table of assignments:
Energy Department                                                  Nebraska, 15496–15497
See Energy Efficiency and Renewable Energy Office                PROPOSED RULES
See Federal Energy Regulatory Commission                         ITU World Radiocommunication Conference, 1995; U.S.
See Hearings and Appeals Office, Energy Department                   proposals; inquiry, 15527–15528
Grant and cooperative agreement awards:                          Federal Deposit Insurance Corporation
  National Automotive Technicians Education Foundation,          NOTICES
      15552                                                      Meetings; Sunshine Act, 15624
Grants and cooperative agreements; availability, etc.:
  Geothermal power; research, development, and                   Federal Emergency Management Agency
      demonstration, 15547–15552                                 RULES
Energy Efficiency and Renewable Energy Office                      Offsite radiological emergency preparedness program;
                                                                       services fee, 15628–15634
                                                                 Agency information collection activities under OMB
 Federal energy management programs; workshops,
                                                                     review, 15566
                                                                 Disaster and emergency areas:
                                                                   California, 15566–15567
Environmental Protection Agency                                    South Dakota, 15567
Air quality implementation plans; approval and                   Federal Energy Regulatory Commission
    promulgation; various States:                                NOTICES
  District of Columbia, 15483–15486                              Electric rate and corporate regulation filings:
Pesticides; tolerances in food, animal feeds, and raw              Central Hudson Gas & Electric Corp. et al., 15554–15555
    agricultural commodities:                                    Hydroelectric applications, 15556–15557
  Beauveria bassiana Strain GHA, 15486–15488                     Meetings:
  Chlorpyrifos, 15488–15489                                        Environmental training courses, 15557
Superfund program:                                               Applications, hearings, determinations, etc.:
  National oil and hazardous substances contingency                Columbia Gas Transmission Corp., 15557
       plan—                                                       KN Interstate Gas Transmission Co., 15557
    National priorities list update, 15489–15490                   NorAm Gas Transmission Co., 15557–15558
PROPOSED RULES                                                     Northwest Pipeline Corp., 15558
Air quality implementation plans; approval and                     Tennessee Gas Pipeline Co., 15558–15559
    promulgation; various States:                                  Transcontinental Gas Pipe Line Corp., 15559
  District of Columbia, 15527                                      West Texas Gas, Inc., 15559
NOTICES                                                            William Natural Gas Co., 15559–15560
Agency information collection activities under OMB
    review, 15563–15564                                          Federal Highway Administration
Environmental statements; availability, etc.:                    RULES
  Agency statements—                                             Engineering and traffic operations:
    Comment availability, 15564–15565                              Construction and maintenance—
    Weekly receipts, 15565                                           Pig iron and processed, pelletized, and reduced iron
Water pollution control:                                                  ore; Buy America requirements waiver, 15478–
  Clean Water Act—                                                        15479
    State water quality standards; approval and disapproval
        lists and individual control strategies; availability,   Federal Maritime Commission
        15565–15566                                              NOTICES
                                                                 Complaints filed:
Federal Aviation Administration                                    Great Eastern Shipping, Inc., et al., 15567–15568
                                                                 Federal Reserve System
 Harmonization Work Program, 15525–15526
                                                                 Truth in Lending (Regulation Z):
                                                                   Mortgage rates and fees; limitations and disclosure
Federal Communications Commission                                      requirements, 15463–15477
RULES                                                            NOTICES
Common carrier services:                                         Meetings; Sunshine Act, 15624
  Calling party telephone number; privacy requirements,          Applications, hearings, determinations, etc.:
       15495–15496                                                Ace Gas, Inc., et al., 15568
                      Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Contents                             V

  C&F Financial Corp., 15568                                 Interior Department
  Solsrud, Rachel Ann, 15568–15569                           See Fish and Wildlife Service
                                                             See Land Management Bureau
Fish and Wildlife Service                                    See National Park Service
PROPOSED RULES                                               See Reclamation Bureau
Migratory bird hunting:
 Annual hunting regulations; and migratory bird hunting      Internal Revenue Service
      by Indian Tribes, 15642–15648                          PROPOSED RULES
NOTICES                                                      Employment taxes and collection of income taxes at source:
Endangered and threatened species permit applications,        Termination of employer’s operations; time for furnishing
    15577–15578                                                   wage statements to employees and Social Security
Environmental statements; availability, etc.:                     Administration; hearing, 15526–15527
  Incidental take permits—
    Blue Hills Estates Subdivision, Travis County, TX;       International Development Cooperation Agency
         golden-cheeked warbler, 15578                       See Agency for International Development
    Critter Canyon Subdivision, Travis County, TX; golden-
         cheeked warbler, 15578–15579                        Interstate Commerce Commission
Food and Consumer Service                                    Railroad services abandonment:
RULES                                                          Chaparral Railroad Co., Inc., 15583
Child nutrition programs:                                      Lakeside Transportation Co., 15583–15584
  State administrative expense funds—
    National school lunch, special milk, school breakfast,   Judicial Conference of the United States
         child and adult care food, and food distribution    NOTICES
         programs, 15457–15463                               Meetings:
                                                              Judicial Conference Advisory Committee on—
Food Safety and Inspection Service                              Appellate Procedure Rules, 15584
NOTICES                                                         Civil Procedure Rules, 15584
Meetings:                                                       Evidence Procedure Rules, 15584
 Microbiological testing role in verifying food safety;
      scientific/technical conference, 15533–15534           Justice Department
                                                             See Drug Enforcement Administration
Forest Service                                               See National Institute of Justice
                                                             See Prisons Bureau
                                                             Agency information collection activities under OMB
 Wildcat River Advisory Commission, 15533
                                                                review, 15584–15585
Health and Human Services Department                         Labor Department
See Centers for Disease Control and Prevention               See Occupational Safety and Health Administration
See Health Care Financing Administration                     See Pension and Welfare Benefits Administration
See National Institutes of Health                            See Wage and Hour Division
See Public Health Service                                    NOTICES
                                                             Agency information collection activities under OMB
Health Care Financing Administration                            review, 15589–15595
Medicaid:                                                    Land Management Bureau
 State plan amendments, reconsideration; hearings—           NOTICES
   Kansas, 15572–15573                                       Environmental statements; availability, etc.:
                                                               Imperial Project, CA; gold mining/processing operation,
Hearings and Appeals Office, Energy Department                     15579
NOTICES                                                      Opening of public lands:
Cases filed, 15560–15562                                       Washington, 15579
Special refund procedures; implementation, 15562–15563       Realty actions; sales, leases, etc.:
                                                               Nevada, 15580
Housing and Urban Development Department                     Resource management plans, etc.:
RULES                                                          Carson City District, NV, 15580–15581
Non-Federal audit report submission requirements, 15481–     Survey plat filings:
   15483                                                       Montana, 15580
Grants and cooperative agreements; availability, etc.:       Library of Congress
  Facilities to assist homeless—                             See Copyright Office, Library of Congress
    Excess and surplus Federal property, 15575–15576
                                                             National Aeronautics and Space Administration
Institute of American Indian and Alaska Native Culture       RULES
     and Arts Development                                    Acquisition regulations:
NOTICES                                                       Small disadvantaged businesses (SDBs); mentor-protege
Board of Trustees; nominations, 15583                             program, 15497–15503
VI                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Contents

National Credit Union Administration                           National Science Foundation
NOTICES                                                        NOTICES
Meetings; Sunshine Act, 15624–15625                            Agency information collection activities under OMB
                                                                  review, 15609–15610
National Foundation on the Arts and the Humanities             Meetings:
                                                                Advanced Scientific Computing Special Emphasis Panel,
Meetings:                                                            15610
 Arts in Education Advisory Panel, 15606–15607                  Cell Biology Program Advisory Panel, 15610
 Challenge/Advancement Advisory Panel, 15607                    Future of NSF Supercomputer Centers Program Task
 Expansion Arts Advisory Panel, 15608                                Force, 15610
 Media Arts Advisory Panel, 15607                               Mathematical Sciences Special Emphasis Panel, 15610–
 Music Advisory Panel, 15607–15608                                   15611
 President’s Committee on Arts and Humanities, 15608            Physiology and Behavior Advisory Panel, 15611
 Visual Arts Advisory Panel, 15608–15609
                                                               National Telecommunications and Information
National Highway Traffic Safety Administration                 NOTICES
RULES                                                          Grants and cooperative agreements; availability, etc.:
Drunk driving prevention programs; incentive grant criteria,     National Endowment for Children’s Educational
    15479–15481                                                      Television, 15636–15639
Insurance cost information regulation, 15509–15512
Motor vehicle safety standards:                                Nuclear Regulatory Commission
  Designated seating position; definition, 15504–15509         NOTICES
Organization, functions, and authority delegations:            Environmental statements; availability, etc.:
  Associate Administrator for Safety Performance                 Union Electric Co., 15611–15612
      Standards et al., 15503–15504                            Meetings:
PROPOSED RULES                                                   Reactor Safeguards Advisory Committee, 15612–15613
Consumer information:
  Course monitoring tires and traction skid pads use; fees,    Occupational Safety and Health Administration
     15529–15531                                               NOTICES
NOTICES                                                        Nationally recognized testing laboratories, etc.:
Motor vehicle safety standards:                                 Canadian Standards Association, 15595–15597
 Nonconforming vehicles—
   Importation eligibility; determinations; correction,        Pension and Welfare Benefits Administration
        15623                                                  NOTICES
                                                               Employee benefit plans; class exemptions:
National Institute of Justice                                   Plan asset transactions determined by in-house asset
                                                                    managers, 15597–15604
Grants and cooperative agreements; availability, etc.:
                                                               Prisons Bureau
  Research plan, 15588–15589
                                                               Environmental statements; availability, etc.:
National Institutes of Health                                    Jonesville, VA, 15589
Meetings:                                                      Public Health Service
 National Library of Medicine, 15573                           See Centers for Disease Control and Prevention
 Research Grants Division special emphasis panels,             See National Institutes of Health
      15573–15574                                              NOTICES
 Women’s Health Research Advisory Committee, 15574             Agency information collection activities under OMB
                                                                  review, 15574
National Oceanic and Atmospheric Administration
                                                                National Toxicology Program; Scientific Counselors
                                                                     Board, 15574–15575
Endangered and threatened species:
  Sea turtle conservation; shrimp trawling requirements—       Reclamation Bureau
    Turtle excluder devices; flotation devices, 15512–15520    NOTICES
Fishery conservation and management:                           Environmental statements; availability, etc.:
  Bering Sea and Aleutian Islands groundfish, 15521              Glen Canyon Dam, Colorado River Storage Project, AZ,
  Gulf of Alaska groundfish, 15521                                   15581–15582
Permits:                                                       Securities and Exchange Commission
  Marine mammals, 15534–15535                                  NOTICES
                                                               Agency information collection activities under OMB
National Park Service                                               review, 15613
NOTICES                                                        Meetings; Sunshine Act, 15625
Meetings:                                                      Self-regulatory organizations; proposed rule changes:
 San Francisco Maritime National Historical Park                 Chicago Stock Exchange, Inc., 15613–15614
      Advisory Commission, 15581                                 Depository Trust Co., 15614–15615
                     Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Contents                             VII

 Midwest Clearing Corp., 15615–15616                           Wage and Hour Division
 National Association of Security Dealers, Inc., 15616–        NOTICES
      15618                                                    Minimum wages for Federal and federally-assisted
 New York Stock Exchange, Inc., 15618–15619                       construction; general wage determination decisions,
 Stock Clearing Corp. of Philadelphia, 15620                      15604–15605
Applications, hearings, determinations, etc.:
 Kinark Corp., 15620–15621

Small Business Administration                                  Separate Parts In This Issue
Small business size standards:
 Small business set-aside contracts; participation of public   Part II
      and private organizations for handicapped, 15477–        Federal Emergency Management Agency, 15628–15634
Loans to State and local development companies:                Part III
  Computer generated facsimile copies of application and       Department of Commerce, National Telecommunications
      closing forms, 15525                                         and Information Administration, 15636–15639
Transportation Department
See Federal Aviation Administration                            Part IV
See Federal Highway Administration                             Department of the Interior, Fish and Wildlife Service,
See National Highway Traffic Safety Administration                 15642–15648
Agency information collection activities under OMB
    review, 15621–15622
Aviation proceedings:                                          Reader Aids
 Agreements filed; weekly receipts, 15622                      Additional information, including a list of public laws,
 Certificates of public convenience and necessity and          telephone numbers, and finding aids, appears in the Reader
      foreign air carrier permits; weekly applications,        Aids section at the end of this issue.

Treasury Department
See Internal Revenue Service
                                                               Electronic Bulletin Board
United States Information Agency                               Free Electronic Bulletin Board service for Public Law
NOTICES                                                        numbers, Federal Register finding aids, and a list of
Art objects; importation for exhibition:                       documents on public inspection is available on 202–275–
  Assyrian Origins: Discoveries at Ashur on the Tigris;        1538 or 275–0920.
      Antiquities in the Vorderasiatisches Museum, Berlin,
VIII                               Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Contents


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

Proposed Rules:
Proposed Rules:
12 CFR
13 CFR
Proposed Rules:
14 CFR
Proposed Rules:
Ch. I .................................15525
23 CFR
24 CFR
26 CFR
Proposed Rules:
40 CFR
180 (2 documents) .........15486,
Proposed Rules:
44 CFR
47 CFR
73 (2 documents) ............15496
Proposed Rules:
Ch. I .................................15527
48 CFR
Proposed Rules:
49 CFR
Proposed Rules:
50 CFR
Proposed Rules:

Rules and Regulations                                                                       Federal Register
                                                                                            Vol. 60, No. 57

                                                                                            Friday, March 24, 1995

This section of the FEDERAL REGISTER            provision. These changes to the SAE         to the provisions of this rule or the
contains regulatory documents having general    provisions are designed to ensure that      application of the provision, all
applicability and legal effect, most of which   adequate funds are available for the        applicable administrative procedures
are keyed to and codified in the Code of        purposes specified.                         must be exhausted. In the National
Federal Regulations, which is published under                                               School Lunch Program, the
                                                EFFECTIVE DATE: This final regulation is
50 titles pursuant to 44 U.S.C. 1510.
                                                effective April 24, 1995.                   administrative procedures for State
The Code of Federal Regulations is sold by      FOR FURTHER INFORMATION CONTACT: Mr.        agency appeals of State Administrative
the Superintendent of Documents. Prices of      Robert Eadie, Chief, Policy and Program     Expense funds sanctions (7 CFR
new books are listed in the first FEDERAL       Development Branch or Mr. Charles           235.11(b)) are set forth in 7 CFR
REGISTER issue of each week.                    Heise, Child Nutrition Division, Food       235.11(f).
                                                and Consumer Service, USDA, 3101            Executive Order 12372
                                                Park Center Drive, Alexandria, Virginia       The FDP, SBP, NSLP, SMP, CACFP,
                                                22302 or by telephone at (703) 305–         and SAE are listed in the Catalog of
Food and Consumer Service                       2620.                                       Federal Domestic Assistance under No.
                                                SUPPLEMENTARY INFORMATION:                  10.550, No. 10.553, No. 10.555, No.
7 CFR Part 235                                                                              10.556, No. 10.558, and No. 10.560,
                                                Executive Order 12866
RIN 0584–AB31                                                                               respectively. These programs are subject
                                                  This rule has been determined to be       to the provisions of Executive Order
State Administrative Expense Funds:             not significant for purposes of Executive   12372, which requires
National School Lunch Program,                  Order 12866 and, therefore, has not         intergovernmental consultation with
Special Milk Program for Children,              been reviewed by the Office of              State and local officials. (See 7 CFR part
School Breakfast Program, Child and             Management and Budget.                      3015, subpart V, and final rule related
Adult Care Food Program, Food                   Regulatory Flexibility Act                  to notice published at 49 FR 29114, June
Distribution Program                                                                        24, 1983.)
                                                   This final rule has been reviewed
AGENCY:  Food and Consumer Service,             with regard to the requirements of the      Background
USDA.                                           Regulatory Flexibility Act (5 U.S.C.           Public Law 101–147, entitled the
ACTION: Final rule.                             601–612). The Administrator of the          Child Nutrition and WIC
                                                Food and Consumer Service (FCS) has         Reauthorization Act of 1989 (103 Stat.
SUMMARY: This rulemaking incorporates           certified that this final rule will not     877), was enacted on November 10,
in the regulations the requirements in          have a significant economic impact on       1989. Section 122 of this legislation
the Child Nutrition and WIC                     a substantial number of small entities,     included changes to some of the
Reauthorization Act of 1989, which              since the regulation pertains entirely to   statutory provisions governing the use
concern State Administrative Expense            the funding of State agencies, and these    of State Administrative Expense (SAE)
(SAE) funds. SAE funds are Federal              are not small entities.                     funds provided by the Federal
funds provided to State agencies to                                                         government to assist States with
assist with the administrative costs of         Paperwork Reduction Act
                                                                                            meeting the administrative costs of
the National School Lunch Program                 The proposed rule contained               many of the programs authorized under
(NSLP), the School Breakfast Program            information collections. However, the       the National School Lunch Act (NSLA)
(SBP), the Special Milk Program for             provisions that contained reporting and     and the Child Nutrition Act of 1966
Children (SMP) and the Child and Adult          recordkeeping burdens are not included      (CNA).
Care Food Program (CACFP) and the               in this final rule. Therefore, this final      On December 6, 1991, the Department
administrative costs of the Food                rule does not contain information           published a proposed rulemaking at 56
Distribution Program (FDP) in                   collections which are subject to review     FR 63882 to incorporate these statutory
conjunction with these programs. The            by the Office of Management and             changes into the SAE regulations and to
SAE provisions of the 1989 legislation          Budget (OMB) under the Paperwork            make discretionary changes to the
included in this final rulemaking do the        Reduction Act of 1980 (44 U.S.C.            funding of Food Distribution Programs.
following: Establish limits on the level        Chapter 35).                                This proposal included the following
of SAE funds that may be retained by                                                        provisions: (1) The maximum amount of
the State from one fiscal year to another       Executive Order 12778                       SAE which a State could carry over
and specify how SAE funds that are                 This final rule has been reviewed        from one fiscal year to the next was
returned by the State are to be                 under Executive Order 12778, Civil          limited to 25 per cent for Fiscal Year
redistributed. Finally, the legislation         Justice Reform. This rule is intended to    1991 and 20 per cent for subsequent
provides that alternate State agencies          have preemptive effect with respect to      years; (2) a minimum of $3 million of
which administer the CACFP receive              any State or local laws, regulations or     any excess SAE funds recovered by the
the funds to which they are entitled. In        policies which conflict with its            Department in Fiscal Year 1992 and $4
practical effect, this provision concerns       provisions or which would otherwise         million of SAE recovered in each of the
the ‘‘adult care component’’ of the             impede its full implementation. This        next two years must be made available
CACFP since the Department already              rule is not intended to have retroactive    to demonstration projects authorized
provides funds directly to the State            effect unless so specified in the           under section 107 of Public Law 101–
agencies administering the CACFP. This          ‘‘Effective Date’’ section of this          147 to provide food service to homeless
final regulation reflects this statutory        preamble. Prior to any judicial challenge   children under the age of 6 in
15458        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

emergency shelters; (3) if a State elects   needed, especially in those States in         has always intended that SAE funds
to have an agency other than the agency     which one agency administers both the         designated for food distribution
administering the child care component      child nutrition programs and the FDP;         purposes be so used, the proposed rule
of the CACFP administer the adult care         • Tracking and accounting for              prohibited using the food distribution
component of that Program, the              separate funds will create a burden,          portion of SAE for any other purposes,
Department will ensure that a share of      especially for those agencies which           even when the same agency administers
the SAE funds generated by the CACFP        administer both programs and must,            the FDP and the child nutrition
is made available to this other agency;     therefore, document the exclusive use of      programs. Finally, the legislative history
(4) a portion of the nondiscretionary       funds for food distribution activities;       of section 122 makes it clear that
SAE funds made available to a State            • The FDP already has a source of          distributing agencies were expected to
would be designated exclusively for the     funding through assessment fees, and          reduce or eliminate current assessment
Food Distribution Program’s                 any additional funds should be                fees, wherever possible, in response to
administrative expenses associated with     appropriated separately rather than           their receipt of SAE funds. The
providing commodities to the NSLP,          transferred at the expense of the child       ‘‘maintenance of effort’’ provision of the
SBP, and CACFP; and (5) beginning           nutrition programs.                           proposal was designed to promote this
with Fiscal Year 1993, expenditures            Commenters opposed to the                  goal by ensuring that States would
from State sources for applicable food      maintenance of effort provision raised        continue to provide the same level of
distribution administrative costs would     the following concerns and issues:            State funds derived from sources other
have to be no less than the amount of          • This provision exceeds                   than assessment fees. Since the total of
State funds expended or obligated in        Congressional intent;                         State and Federal funds provided for
Fiscal Year 1991, in order to ensure           • This provision would penalize            food distribution would, in many cases,
continued State support for food            those States which have been providing        increase, assessment fees could be
distribution activities. Readers are        funds voluntarily for food distribution       reduced or eliminated.
referred to the proposed rule for a more    purposes;                                       Nevertheless, the Department
complete explanation of these                  • Since most States do not currently       recognizes the concerns raised by
provisions.                                 track food distribution funds separately,     commenters and has no desire to adopt
   During the official comment period,      it will be difficult to establish the exact   provisions that could potentially have a
the Department received 53 comments.        level of funding to be maintained;            negative impact on operations in some
Most of these were from State agencies         • Because of cutbacks in State             States. For these reasons, the
which administer one or more of the         funding since 1991, some States will be       Department wishes to reconsider these
child nutrition programs and/or the         unable to comply with the maintenance         discretionary issues regarding FDP
Food Distribution Program, but three        of effort requirement.                        funding and review available options,
comments were received from State or           As noted in the preamble to the            including possible alternatives to the
national associations and one comment       December 6, 1991 proposed rulemaking,         proposal. Therefore, these provisions
was submitted by a State governor’s         section 122(a)(1)(D) of Pub. L. 101–147       are not included in this final regulation;
office. Most of the commenters              added a new paragraph (8) to section          rather, they will be treated in a separate,
addressed the provisions relating to the    7(a) of the CNA which directs each State      future rulemaking. The Department is,
transfer of funding to food distribution    to ensure (in accordance with                 however, proceeding to finalize those
activities and the maintenance of State     regulations issued by the Secretary) that     provisions required by Public Law 101–
funding levels for these activities. The    the State agency administering the            147. The remainder of this preamble
overwhelming majority opposed these         distribution of donated food (the             discusses commenters’ questions and
provisions; in fact, only four              ‘‘distributing agency’’) is provided an       concerns on these issues.
commenters approved wholly of the           appropriate amount of SAE for the
                                            administrative costs incurred in              Limits on Funds Retained From the
proposed provisions on transfer of funds
                                            distributing donated commodities to the       Previous Fiscal Year
to the FDP. The major concerns of those
opposed to the transfer/exclusive use       NSLP, SBP and CACFP. The law further             The Department proposed to amend
provisions were as follow:                  authorized the Secretary to consider the      § 235.5(e) and § 235.6(a) to incorporate
   • The provision is inconsistent with     value of commodities when developing          the mandate of section 7(a)(5)(A) of the
either the statutory language or the        regulations to implement this provision.      CNA as amended by section 122(a)(1)(C)
intent of Congress;                         Currently, the Department provides SAE        of Public Law 101–147, which limits the
   • The total prohibition against          funds directly to the distributing agency     amount of unobligated SAE funds that
transferring funds from the FDP to the      in the State that administers the FDP for     may be retained and carried over into
other child nutrition programs is           the NSLP, SBP, and CACFP. Therefore,          the next fiscal year to a maximum of 25
inconsistent with the statutory             no change to the SAE regulation was           per cent for Fiscal Year 1991 and a
provision which permits a 10 per cent       required to implement this provision.         maximum of 20 per cent for subsequent
transfer of administrative funds among         However, in order to further improve       fiscal years. The proposed amendment
programs;                                   the administration of SAE funds in            also specified how the limit would be
   • The proposal would divert              connection with the FDP, the                  calculated and how the limit would be
administrative funds away from the          Department proposed a number of               compared at the end of the first fiscal
child nutrition programs at the same        discretionary changes to the SAE              year to the amount of unobligated SAE
time that additional administrative         regulations regarding funding of the          funds. Essentially, the Department
requirements such as coordinated            FDP. First, the Department proposed a         would apply the appropriate percentage
review and breakfast outreach are being     methodology for distributing a portion        to the State’s initial allocation to
imposed;                                    of the nondiscretionary SAE allocation        establish the maximum amount of SAE
   • The requirement that the food          for the FDP’s administrative costs.           that may be carried over. To determine
distribution portion of funds be used       Second, clarifications to the formula for     the total amount of unobligated funds,
exclusively for these activities would      determining the level of discretionary        the Department would subtract the
interfere with States’ flexibility to       SAE funds to be used for the FDP were         amount reported by the State agency on
provide funding where it is most            proposed. Third, since the Department         Line k (Total Federal share of outlays
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                 15459

and unliquidated obligations) of the         Department has no authority to waive or         Department does not have the authority
fourth quarter Standard Form (SF) 269        modify this mandate. Moreover, as               to authorize alternate uses. Further
from the total amount of SAE funds           discussed in the preamble to the                discussion of this issue appears later in
granted for the fiscal year. The             proposed rulemaking, this limitation is         this preamble.
Department would then recover any of         applied to the initial allocation rather          Finally, proposed § 235.5(e)(2) reads
these funds in excess of the maximum         than to the total administrative funds          as follows:
amount of SAE that can be carried over.      made available during the fiscal year              (2) At the end of the fiscal year following
For an example of how the process            because the Department wished to                the fiscal year for which funds were
would work, interested parties should        simplify the overall process of                 allocated, each State agency shall return any
refer to the discussion on page 63885 of     calculation and to enable State agencies        funds made available which are unexpended.
the preamble to the proposed rule.           to know at the beginning of the fiscal
                                                                                                Several commenters believed that the
   Twenty-three commenters addressed         year exactly what the maximum amount
the limitation provisions of the                                                             last word of this paragraph should read
                                             of their carryover would be. To this end,
proposed rule, with most of them                                                             ‘‘unobligated’’ rather than
                                             the Department believes Congress’
believing that such a limitation would                                                       ‘‘unexpended.’’ The Department notes,
                                             overriding intent was to reduce the
have a negative impact on Program                                                            however, that this provision clearly
                                             amount of carryover funds available as
administration, although one State                                                           refers to the recovery made at the end
                                             much as possible while still allowing
agency reported that its carryover has                                                       of the second fiscal year for which SAE
                                             States flexibility in obligating and
been well below 20 per cent, so                                                              has been available, not the return of
                                             expending funds. The Department
compliance was not perceived to be a                                                         funds in excess of the carryover limits.
                                             believes that the proposal to base the
problem. One commenter, however, was         carryover limit on the initial allocation       Proposed § 235.5(e)(2) merely restated
concerned that the carryover limit will      is consistent with this intent.                 the requirement that has always been in
lead to the elimination of funds for            The Department does not believe this         effect. Previously, this requirement for
reallocation, with the result that small     provision will adversely affect the             the recovery of unexpended funds at the
States in particular will have difficulty    overall reallocation process. Funds are         end of the second fiscal year was stated
funding their activities with only the       reallocated to States on the basis of           in § 235.5(e).
minimum grant available to them. One         need. Consequently, States receiving               For these reasons, this final
commenter suggested that an arbitrary        reallocations should generally have few,        rulemaking adopts the provisions
percentage is inequitable to those States    if any, unobligated funds remaining             limiting the amount of SAE that may be
with allocations below the national          from their initial allocations. Moreover,       carried over from one fiscal year to the
mean, and another stated that basing the     States will often request reallocations         next as proposed. The Department
carryover amount only on the initial         for specific expenses and can, therefore,       emphasizes, however, that this
allocation does not conform with the         obligate these funds relatively quickly.        carryover limit does not apply to funds
language of the statute, which allows        The Department recognizes that some             made available to State agencies which
the carryover of 20 per cent of the funds    small State agencies, particularly those        agree to assume responsibility for
available for the fiscal year. Two           receiving minimum grants, could                 programs previously administered
commenters were concerned about              receive reallocations which are large           directly by FCS, as authorized under the
including reallocated funds as part of       relative to the States’ carryover limit,        newly redesignated § 235.4(d). These
the year-end balance subject to the          and in these instances a State’s                funds are intended to assist States with
carryover limitation, since these funds      reallocation might be affected. These           costs associated with start-up operations
are sometimes received late in the fiscal    situations should not be common,                when assuming responsibility for a
year and returning any or all of these       however, and the Department will make           program formerly administered by FCS.
monies due to the carryover limit would      every effort to provide reallocations well         As such, they are made infrequently
defeat the purpose of reallocation. One      in advance of the end of the fiscal year        and are intended for a specific purpose.
commenter believed the carryover limit       in order to facilitate the States’ ability to   Consequently, the Department does not
should apply on an agency-by-agency          obligate a major portion of their               consider that this funding is subject to
basis rather than being calculated using     reallocations before the funds become           the carryover limit and is amending
the total amount of SAE allocated to the     subject to the carryover limit.                 § 235.5(e)(1) to specify that start-up
State as a whole, and another                   This limitation applies to all SAE           funds are excluded from the amount
commenter suggested that States should       funds received by any State agency for          subject to the retention limit. In
be allowed to use excess funds for           the administration of any aspect of the         addition, the reference in § 235.5(e) to
demonstration projects in lieu of            child nutrition programs. Funding for           § 235.4 (a) through (e) is revised from
returning the monies to the Federal          food distribution activities, therefore, is     the proposal to § 235.4 (a) through (c) to
Government. Some commenters                  subject to the carryover limit, regardless      reflect the deletion of the proposed new
requested clarification on whether the       of whether the State education agency           § 235.4 (d) and (e). These latter
carryover limit applies to the funds         or another State agency performs these          paragraphs provided for pro rata shares
designated for food distribution             activities. Moreover, under the proposed        of SAE funds for FDP administrative
activities, and several commenters           regulation the limitation would be              purposes which are not included in this
noted that the last word in § 235.5(e)(2)    applied on an agency-by-agency basis,           final regulation. This same change is
should be ‘‘unobligated’’ rather than        since the Department receives separate          made to the references in § 235.6(a).
‘‘unexpended.’’                              SF–269’s from each administering
   The Department recognizes                 agency and has no feasible means of             Use of Returned SAE Funds
commenters’ concerns about the impact        making the necessary year-end                     The Department proposed to add a
of the carryover limitation on their         comparison for the State as a whole.            new paragraph—§ 235.6(h) to
operations. However, section 7(a)(5)(B)      With respect to allowing States to retain       incorporate the mandate of Public Law
of the CNA specifically established          excess funds for demonstration projects,        101–147 regarding how any excess
carryover limits of 25 per cent for Fiscal   the statute is specific about requiring         carryover funds recovered by the
Year 1991 and 20 per cent for                the return of excess funds and how the          Department were to be used. Section
succeeding fiscal years, and the             recovered funds may be used, and the            7(a)(5)(B) as amended by section
15460        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

122(a)(1)(C) of Public Law 101–147          over. The Department is, therefore,            As noted in the preamble to the
stipulated that in Fiscal Year 1992, a      incorporating the language of Public        proposed rule, the Department believes
minimum of $3 million of recovered          Law 102–512 on the use of returned          this amendment to section 7(a)(3) of the
monies be made available for the            funds into § 235.6(h) to comply with        CNA must be read in the context of
purpose of providing grants to private      this most recent statutory requirement.     section 17(p)(6) of the National School
nonprofit organizations participating in                                                Lunch Act as amended by section
                                            Alternate State Agencies for the CACFP
demonstration projects to provide food                                                  105(b)(3)(B) of Public Law 101–147,
service to homeless children under the         Section 7(a)(3) of the CNA as            which authorizes governors to designate
age of 6 in emergency shelters. The law     amended by section 122(a)(1)(A) of          alternate agencies to administer the
also mandated that a minimum of $4          Public Law 101–147 requires that if an      adult care component of the CACFP. In
million be made available for this          agency other than the State educational     those instances in which a governor
purpose in each of the next two fiscal      agency administers the CACFP, the           decides that an agency other than the
years. Any funds in excess of the           State must ensure that such State agency    CACFP agency is better able to serve the
amount made available to these              which administers the CACFP is              adult community, the Department
demonstration projects would be             provided an amount equal to no less         believes it is consistent with the
reallocated to States which need SAE        than the SAE funds due to the State for     alternate State agency legislation to
funds. The Department emphasized,           the CACFP. Since the Department             ensure that a portion of SAE funds is
however, that any disbursal of funds to     already provides funds directly to State    provided to that agency. However, the
homeless shelters or the States would be    agencies administering the CACFP, the       Department continues to stress that the
subject to availability of recovered        practical effect of the applicability of    total SAE allocation is earned by the
monies.                                     this provision concerns the ‘‘adult care    CACFP as a whole. Moreover, the total
   Commenters did not generally discuss     component’’ of the CACFP.                   amount of SAE available for all of the
this provision except to recognize that     Accordingly, the Department proposed        child nutrition programs is limited.
the use of recovered funds for this         to add a new paragraph, to be               Consequently, if the Department were to
purpose is mandated by the statute. One     designated as § 235.4(c), to allow a        guarantee a minimum level of funding
commenter, however, expressed               prorated portion of the State’s SAE         for the adult care component of the
concern that SAE plans might be             allocation for the CACFP to be made         CACFP, the amount of funds available
disapproved or significantly modified to    available directly to another agency in     to administer the other child nutrition
ensure that sufficient funding is           the State when that agency administers      programs would be diminished. Finally,
available to fund these projects. The       the adult care component of the CACFP.
                                                                                        the Department notes that nationally,
Department wishes to emphasize that         The Department further proposed to
                                                                                        the adult care component accounts for
there will be no change in the              calculate the prorated share by
                                                                                        only slightly more than 1 per cent of the
procedures currently in place to review     determining what percentage of total
                                                                                        total funding for the CACFP, and
and approve SAE plans. The                  CACFP monies expended by that State
                                                                                        designating a large pool of
Department acknowledges that the            in the second preceding fiscal year was
                                                                                        administrative funding strictly for this
disallowance of outlays stated in the       generated by the adult care component
                                                                                        purpose would not be justified.
plan could result in additional funds       of the CACFP and applying that
                                                                                        Therefore, it would not be reasonable to
being carried over and, hence, subject to   percentage to the State’s total SAE
                                                                                        provide a minimum grant of $50,000 to
the limitation and possible recovery.       allocation for the CACFP. To
                                            accommodate this change, the                an alternate agency solely to administer
The Department considers, however,
                                            Department also proposed a number of        the adult care component of the CACFP.
that the primary purpose of SAE is to
                                            technical amendments and proposed to        The Department does wish to
ensure that States have adequate funds
                                            delete the word ‘‘agency’’ where it         emphasize, however, that in those States
available to administer the child
                                            appears in § 235.4 (b)(1) and (4) to        which do elect to administer the adult
nutrition programs effectively. To this
                                            clarify that it is the State which earns    care component through an alternate
end, the Department will continue to
                                            the total CACFP grant.                      agency, the agency administering the
negotiate these plans with the States to
                                               The Department received eight            child care component of the CACFP
ensure that outlays are appropriate but
                                            comments on this proposal. Three of the     may elect to transfer a portion of its SAE
has no intention of artificially reducing
                                            commenters argued that the $30,000          funds to the alternate agency in
the funding available to States in order
to provide funds for the homeless           discretionary grant made available to       accordance with established FCS
demonstration projects.                     assist in administering the CACFP           procedures. This would be in addition
   Since publication of the proposed        should be redirected to help fund the       to the amount required by the
rule, additional legislation was passed     monitoring requirements of the NSLP.        regulations to be provided the agency
which impacts upon the use of               Three commenters from one State             administering the adult care component
recovered SAE funds. On September 30,       (which has designated an alternate          of the CACFP.
1992, Public Law 102–512, the               agency to administer the adult care            Secondly, the Department does not
Children’s Nutrition Assistance Act of      component of the CACFP) maintained          agree with those commenters who wish
1992, was enacted which further             that the prorated share is insufficient     to redirect the CACFP discretionary
amended the provision on the use of         and recommended a minimum level of          grant to cover the costs of monitoring
excess carryover funds for                  $50,000 per year, while another State       the school nutrition programs. The
demonstration projects for the homeless.    suggested that the provision be             Department makes these grants available
Public Law 102–512 amended section          eliminated entirely, since redirecting of   to CACFP agencies in recognition of the
7(a)(5)(B)(i) of the CNA to require that    finite SAE funds would weaken overall       fact that this Program has heavy
a minimum of $1,000,000 in Fiscal           Program administration. Finally, one        monitoring responsibilities, which
Years 1993 and 1994 be available at the     commenter recommended adjusting the         actually exceed the requirements for
beginning of the fiscal year, based on      SAE nondiscretionary allocation for the     monitoring of schools, as well as other
Departmental estimates of the funds         CACFP based on growth in the Program        administrative requirements, such as the
expected to be recovered as a result of     between the second preceding year and       oversight of approval when licensing or
the limit on funds that can be carried      the current year.                           approval is not otherwise available,
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                15461

which are unique to the CACFP. If            Marianas Islands and the Republic of         Department notes, however, that the
States could redirect the entire             Palau, respectively. The Department          original reference was incorrect, since
discretionary money from the CACFP to        notes that separate SAE funds are no         § 235.4(c) did not address carryover.
school programs, the overall                 longer made available to the                 The correct reference should have been
management of the CACFP could be             Commonwealth of the Northern                 § 235.6(a), and this reference is being
weakened. The Department also                Marianas Islands; it is not necessary,       incorporated into § 235.7(b) of this final
provides States with $4 million for the      therefore, to include that entity in the     rule.
specific purpose of conducting reviews       definition at all. Consequently, in this        Changes are also made to § 235.4(b)(4)
of the NSLP. For these reasons, the          final regulation, the old references are     to revise references to reflect other
Department could not justify redirecting     replaced by the single reference to the      changes made by this regulation and to
monies from the CACFP to NSLP.               Republic of Palau.                           correct an obsolete reference to
   The Department recognizes the                To distinguish more clearly between       § 235.4(f) which was renamed § 235.4(c)
concern about possible fragmentation of      nondiscretionary and discretionary SAE       by an earlier regulation. This paragraph
the SAE grant for the CACFP if funding       funding, the proposed rule amended           is also changed to clarify that funds
is made available to an alternate agency     § 235.4 by redesignating paragraph (a) as    provided under this paragraph are
to administer the adult care component.      paragraph (a)(1), adding new                 allocated on a State basis for the CACFP
As the above discussion makes clear,         introductory text to paragraph (a),          and the FDP, not for each State agency
the Department is anxious to maintain        redesignating paragraph (b) as paragraph     that administers these programs.
sufficient funding to ensure proper          (a)(2) and adding new introductory text
management of the Program. Under the         to paragraph (b) to indicate the             Implementation
proposal, a portion of the SAE grant is      additional discretionary SAE funding            The provisions of section 122
designated for an alternate agency only      designations. The Department also            affecting SAE funds were effective
when the State, itself, has decided to       proposed to delete the second sentence       October 1, 1989. Accordingly, the
split the administration of the CACFP.       of § 235.4(b)(3)(iv) and add a new           Department has already implemented
Since this action would be voluntary on      paragraph (i) to § 235.4 to clarify that     these requirements, and this rule is
the part of the State, the Department        funds allotted to State agencies under       made effective 30 days after publication.
assumes that the State has determined        § 235.4 are subject to the reallocation
that the advantages, both financial and      provisions in § 235.5(d).                    List of Subjects in 7 CFR Part 235
administrative, of shifting the adult care      Finally, the Department proposed            Administrative practice and
component outweigh any reduction the         changes to § 235.7(c) to comply with         procedure, Child and Adult Care Food
agency administering the CACFP may           section 122(a)(2) of Public Law 101–147,     Program, Food assistance programs,
experience in its SAE grant. For these       which amended section 7(g) of CNA to         Grant administration, Intergovernmental
reasons, the Department is adopting as       require that SAE funds cannot be             relations, National School Lunch
proposed the provision to designate a        distributed unless the State agrees to       Program, Reporting and recordkeeping
pro rata share of the CACFP’s SAE grant      participate fully in any studies             requirements, School Breakfast Program,
for an alternate agency administering        authorized by the Secretary. The             Special Milk Program.
the adult care component.                    proposal deleted the phrase ‘‘studies          Accordingly, 7 CFR part 235 is
   The final comment to address on this      directed by Congress and requested’’ (by     amended as follows:
provision is the recommendation that         the Secretary) and replaced it with the
the SAE nondiscretionary allocation for      word ‘‘authorized’’ as well as deleted       PART 235—STATE ADMINISTRATIVE
the CACFP be adjusted based on growth        the reference to Fiscal Year 1980.           EXPENSE FUNDS
in the Program between the second               The Department received only one
                                             comment on these provisions, and that          1. The authority citation for part 235
preceding year and the current year. The
                                             commenter observed that the                  continues to read as follows:
Department is unable to adopt this
recommendation because the time frame        requirement to participate in studies          Authority: Secs. 7 and 10 of the Child
for determining the level of                 authorized by the Secretary should not       Nutrition Act of 1966, 80 Stat. 888, 889, as
nondiscretionary funds for the CACFP is      be imposed unless there is specific          amended (42 U.S.C. 1776, 1779).
statutory.                                   authorizing legislation. As noted in the     § 235.1   [Amended]
                                             preamble to the proposed rule and in
Miscellaneous Provisions                                                                    2. In § 235.1, the second sentence is
                                             this preamble above, the change was in
   In addition to the changes described                                                   amended by removing the words ‘‘the
                                             response to the specific mandate of
above, the Department proposed a                                                          Food Service Equipment Assistance
                                             Public Law 101–147. Therefore, the
number of amendments intended to                                                          Program (7 CFR Part 230)’’.
                                             Department is adopting this provision
remove obsolete references, provide          and the other miscellaneous                  § 235.2   [Amended]
clarification and incorporate the            amendments as proposed. However,                3. In § 235.2:
provision in Public Law 101–147              because of changes in the final rule in         a. Paragraph (r) is amended by
mandating cooperation with studies           § 235.4, the proposed new § 235.4(i) is      removing the words ‘‘American Samoa,
authorized by the Secretary. In § 235.1      now designated as § 235.4(g).                or the Trust Territory of the Pacific
and § 235.2(s), the references to the           The Department is also taking this        Islands’’ and adding in their place the
Food Service Equipment Assistance            opportunity to correct an erroneous          words ‘‘or the Republic of Palau’’.
Program were deleted, as were                reference which was discovered                  b. Paragraph (s)(2) is amended by
references to Fiscal Year 1986 in            subsequent to the publication of the         removing the reference to part 230 in
§ 235.5(b) and Fiscal Year 1980 in           proposed rule. Section 235.7(b) contains     the first sentence.
§ 235.7(c). Also, the definition of          a reference to § 235.4(c). In the proposed      4. In § 235.4:
‘‘State’’ in § 235.2(r) was revised by       rule, § 235.4(c) was redesignated               a. Paragraph (a) is redesignated as
deleting references to the Trust             § 235.4(f) because three new paragraphs      paragraph (a)(1), and new paragraph (a)
Territories and American Samoa and           were being inserted after § 235.4(b), and    introductory text is added, the
replacing them with references to the        the reference was changed in § 235.7(b)      introductory text of paragraph (b) is
Commonwealth of the Northern                 to accommodate this redesignation. The       redesignated as paragraph (a)(2); and
15462          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

new paragraph (b) introductory text is       section, and after any payments                 a. The first sentence of paragraph
added.                                       provided for under paragraph (c) of this     (b)(1) is amended by removing the
   b. The first sentence of newly            section, as determined by the Secretary,     semicolon following the words
redesignated paragraph (a)(1) is             to those States which administer the         ‘‘upcoming fiscal year’’ and adding in
amended by removing the words ‘‘For          Food Distribution Program (part 250 of       its place a period, and by removing the
each fiscal year, FNS shall allocate’’ and   this chapter) in schools and/or              remainder of the sentence.
the word ‘‘agency’’ the first time it        institutions which participate in               b. Paragraph (e) is revised in its
occurs; the first sentence is further        programs under parts 210, 220, or 226        entirety.
amended by removing the words ‘‘by           of this chapter and to those States which       The revision reads as follows:
such agency’’ and adding in their place      administer part 226 of this chapter. The
                                             amount of funds to be allocated to each      § 235.5   Payments to States.
the words ‘‘by such State’’.
   c. The first sentence of newly            State for the Food Distribution Program      *      *     *      *     *
redesignated paragraph (a)(2) is             for any fiscal year shall bear the same         (e) Return of funds. (1) In Fiscal Year
amended by removing the words ‘‘For          ratio to the total amount of funds made      1991, up to 25 per cent of the SAE funds
each fiscal year, FCS shall allocate’’ and   available for allocation to the State for    allocated to each State agency under
by removing the words ‘‘to each State        the Food Distribution Program under          § 235.4 may remain available for
agency’’ and adding in their place the       this paragraph as the value of USDA          obligation and expenditure in the
words ‘‘to each State’’.                     donated foods delivered to the State for     second fiscal year of the grant. In
   d. Paragraph (b)(1) is amended by         schools and institutions participating in    subsequent fiscal years, up to 20 percent
removing the words ‘‘For each fiscal         programs under parts 210, 220 and 226        may remain available for obligation and
year, FCS shall allocate’’ and the word      of this chapter during the second            expenditure in the second fiscal year.
‘‘agency’’.                                  preceding fiscal year bears to the value     The maximum amount to remain
   e. Paragraph (b)(2) is revised in its     of USDA donated foods delivered to all       available will be calculated at the time
entirety.                                    the States for such schools and              of the formula allocation by multiplying
   f. The introductory text of paragraph     institutions during the second preceding     the appropriate percentage by each State
(b)(3) is revised in its entirety.           fiscal year. The amount of funds to be       agency’s formula allocation as provided
   g. Paragraph (b)(3)(iv) is amended by     allocated to each State which                under § 235.4(a) through (c). At the end
removing the second sentence.                administers the Child and Adult Care         of the first fiscal year, the amount
   h. Paragraph (b)(4) is revised in its     Food Program for any fiscal year shall       subject to the retention limit is
entirety.                                    bear the same ratio to the total amount      determined by subtracting the amount
   i. Paragraphs (c) through (e) are         of funds made available for allocation to    reported by the State agency as Total
redesignated as paragraphs (d) through       all such States under this paragraph as      Federal share of outlays and
(f), respectively; and a new paragraph       the amount of funds allocated to each        unliquidated obligations on the fourth
(c) is added.                                State under paragraph (a)(2) of this         quarter Standard Form (SF) 269,
   j. Newly redesignated paragraphs (d)      section bears to the amount allocated to     Financial Status Report, from the total
through (f) are amended by adding            all States under that paragraph.             amount of SAE funds made available for
paragraph headings.                             (c) SAE Funds for the Child and Adult     that fiscal year (i.e., the formula
   k. In newly redesignated paragraph        Care Food Program. If a State elects to      allocation adjusted for any transfers or
(f), the references to paragraphs ‘‘(a)’’    have a separate State agency administer      reallocations). However, funds provided
and ‘‘(b)’’ are removed and references to    the adult care component of the Child        under § 235.4(d) are not subject to the
paragraphs ‘‘(a)(1)’’ and ‘‘(a)(2)’’ are     and Adult Care Food Program, such            retention limit. Any funds in excess of
added in their place.                        separate State agency shall receive a pro    the amount that remains available to
   l. A new paragraph (g) is added.          rata share of the SAE funds allocated to     each State agency shall be returned to
   The additions read as follows:            the State under paragraphs (a)(2), (b)(1),   FCS.
                                             and (b)(4) of this section which is equal       (2) At the end of the fiscal year
§ 235.4   Allocation of funds to States.     to the ratio of funds expended by the        following the fiscal year for which funds
   (a) Nondiscretionary SAE Funds. For       State for the adult care component of        were allocated, each State agency shall
each fiscal year, FCS shall allocate the     the Child and Adult Care Food Program        return any funds made available which
following:                                   during the second preceding fiscal year      are unexpended.
*      *     *      *     *                  to the funds expended by the State for          (3) Return of funds by the State
   (b) Discretionary SAE Funds. For each     the entire Child and Adult Care Food         agency shall be made as soon as
fiscal year, FCS shall provide the           Program during the second preceding          practicable, but in any event, not later
following additional allocations:            fiscal year. The remaining funds shall be    than 30 days following demand by FCS.
                                             allocated to the State agency                   6. In § 235.6:
*      *     *      *     *
                                             administering the child care component          a. Paragraph (a) is amended by
   (2) $30,000 to each State which
                                             of the Child and Adult Care Food             revising the last sentence.
administers the Food Distribution
                                             Program.                                        b. Paragraph (c) is revised in its
Program (part 250 of this chapter) in
                                                (d) SAE Start-up Cost Assistance for      entirety.
schools and/or institutions which                                                            c. Paragraphs (d) and (f), previously
                                             State Administration of Former ROAPs.
participate in programs under parts 210,                                                  reserved, are removed; paragraphs (e),
                                             * * *
220, 226 of this chapter.                       (e) SAE Funding Reduction Upon            (g), and (h) are redesignated as (d), (e),
   (3) Amounts derived by application of     State Agency Termination of a Food           and (f), respectively, and a new
the following four-part formula to each      Service Program. * * *                       paragraph (g) is added.
State agency which is allocated funds           (f) SAE Funds for ROAPs. * * *               The revisions and addition read as
under paragraph (a) of this section:            (g) Reallocation. Funds allotted to       follows:
*      *     *      *     *                  State agencies under this section shall
   (4) Funds which remain after the          be subject to the reallocation provisions    § 235.6   Use of funds.
allocations required in paragraphs (a)(1),   of § 235.5(d).                                  (a) * * * Up to 25 per cent of funds
(a)(2), (b)(1), (b)(2) and (b)(3) of this       5. In § 235.5:                            allocated under § 235.4(a) through (c)
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                             15463

for Fiscal Year 1991 and up to 20 per        § 235.7    [Amended]                           provide periodic advances primarily to
cent of funds allocated in subsequent           7. In § 235.7,                              elderly homeowners and rely
fiscal years to a State agency may,             a. The second sentence of paragraph         principally on the home’s value for
subject to the provisions of § 235.5 of      (b) is amended by removing the                 repayment.
this part, remain available for obligation   reference to ‘‘§ 235.4(c) of this part’’ and   DATES: This rule is effective March 22,
and expenditure by such State agency         adding in its place the reference to           1995. Compliance is optional until
during the following fiscal year.            ‘‘§ 235.6(a)’’.                                October 1, 1995.
*      *     *      *     *                     b. The first sentence of paragraph (c)
                                             is amended by removing the words               FOR FURTHER INFORMATION CONTACT: Jane
   (c) The SAE funds allocated under                                                        Ahrens, Senior Attorney, or Kyung Cho-
                                             ‘‘directed by Congress and requested’’
§ 235.4(b)(2), (b)(4), and (d) shall be                                                     Miller, Sheilah Goodman, or Kurt
                                             and adding in their place the word
used exclusively for Food Distribution                                                      Schumacher, Staff Attorneys, Division
                                             ‘‘authorized’’. Paragraph (c) is further
Program administrative expenses for the                                                     of Consumer and Community Affairs,
                                             amended by removing the words ‘‘FY
programs under Parts 210, 220, and 226                                                      Board of Governors of the Federal
                                             ’80’’ from the last sentence.
of this chapter by any distributing                                                         Reserve System, at (202) 452–3667 or
agency which receives such funds. SAE        § 235.11   [Amended]                           452–2412; for the hearing impaired
funds allocated under § 235.4(a)(1),            8. In § 235.11:                             only, Dorothea Thompson,
(a)(2), (b)(1), (b)(3) and (f), and those       a. Paragraph (b)(2) is amended by           Telecommunications Device for the
funds for the Child and Adult Care Food      removing the reference to ‘‘§ 235.4(a)’’       Deaf, at (202) 452–3544.
Program under (b)(4) which are not           and adding in its place the reference to
otherwise redirected for the Food            ‘‘§ 235.4 (a)(1)’’.                            SUPPLEMENTARY INFORMATION:
Distribution Program under § 235.4(d)           b. Paragraph (b)(3) is amended by           I. Background
may be used to assist in the                 removing the reference to ‘‘§ 235.4(b)’’
administration of the Food Distribution      and addding in its place the reference to         The purpose of the Truth in Lending
Program for such purposes. However, no       ‘‘§ 235.4(a)(2)’’.                             Act (15 U.S.C. 1601–1666j) is to
funds designated for the exclusive use          c. Paragraph (b)(4) is amended by           promote the informed use of consumer
of the Food Distribution Program may         removing the reference to ‘‘§ 235.4(a)’’       credit. The act requires creditors to
be transferred by any State agency for       and adding in its place the reference to       disclose credit terms and the cost of
other purposes. Furthermore, for each        ‘‘ § 235.4(a)(1)’’.                            credit as an annual percentage rate
fiscal year beginning with Fiscal Year          d. Paragraph (b)(7) is amended by           (APR). The act requires additional
1993, expenditures of funds from State       removing the reference to ‘‘§ 235.4(e)’’       disclosures for loans secured by a
sources for administrative costs             and adding in its place the reference to       consumer’s home, and permits
incurred in the distribution of USDA         ‘‘§ 235.5(d)’’.                                consumers to cancel certain transactions
donated foods to schools and                                                                that involve their principal dwelling.
                                               Dated: March 16, 1995.
institutions which participate in                                                           The act is implemented by the Board’s
programs governed by parts 210, 220,         William E. Ludwig,                             Regulation Z (12 CFR part 226).
and/or 226 of this chapter shall not be      Administrator.
                                                                                               The Home Ownership and Equity
less than the amount of such funds           [FR Doc. 95–7310 Filed 3–23–95; 8:45 am]
                                                                                            Protection Act of 1994 (HOEPA),
expended in Fiscal Year 1991.                BILLING CODE 3410–30–U
                                                                                            contained in the Riegle Community
*      *     *      *     *                                                                 Development and Regulatory
   (g) FCS shall allocate, for the purpose                                                  Improvement Act of 1994 (Community
                                             FEDERAL RESERVE SYSTEM                         Development Act), Pub. L. 103–325, 108
of providing grants on an annual basis
to public entities and private nonprofit                                                    Stat. 2160, amends the Truth in Lending
                                             12 CFR Part 226
organizations participating in projects                                                     Act (TILA). Section 152 of the HOEPA
under section 18(c) of the National          [Regulation Z; Docket No. R–0858]              adds a new section 129 dealing with
School Lunch Act, not more than                                                             certain mortgages bearing rates or fees
                                             Truth in Lending                               above a certain percentage or amount.
$4,000,000 in each of Fiscal Years 1993
and 1994. Subject to the maximum             AGENCY:  Board of Governors of the             Section 154 adds a new section 138
allocation for such projects for each        Federal Reserve System.                        dealing with reverse mortgage
fiscal year, at the beginning of each of                                                    transactions.
                                             ACTION: Final rule.
Fiscal Years 1993 and 1994, FCS shall                                                          The HOEPA was enacted in
allocate, from funds available under         SUMMARY:   The Board is publishing             September 1994, and directs the Board
§ 235.5(d) that have not otherwise been      amendments to Regulation Z (Truth in           to issue final regulations within 180
allocated to States, an amount equal to      Lending). The amendments implement             days. Section 155 provides that the
the estimates by FCS of the funds to be      changes made to the Truth in Lending           statutory provisions and the Board’s
returned under paragraph (a) of this         Act by the Riegle Community                    rules shall apply on the October 1
section, but not less than $1,000,000 in     Development and Regulatory                     following six months after the final
each fiscal year. To the extent that         Improvement Act of 1994. The law               regulation is issued. It also states that
amounts returned to FCS are less than        imposes new disclosure requirements            the final rule governs all mortgage
estimated or are insufficient to meet the    and substantive limitations on closed-         transactions having rates or fees above
needs of the projects, FCS may allocate      end home equity mortgage loans bearing         a certain percentage or amount
amounts to meet the needs of the             rates or fees above a certain percentage       (‘‘Section 32 mortgages,’’ as found in
projects from funds available under this     or amount. The amendments provide              § 226.32 of the regulation) consummated
section that have not been otherwise         protection to consumers entering into          after the mandatory effective date. The
allocated to States. FCS shall reallocate    these mortgages. The law also imposes          Board has determined that the same
any of the excess funds above the            new disclosure requirements to assist          compliance rule applies to reverse
minimum level in accordance with             consumers in comparing the cost of             mortgage transactions consummated
§ 235.5(d).                                  reverse mortgage transactions, which           after October 1, 1995.
15464        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

II. Regulatory Provisions                   creditor’s security. Section 154(c) of the    requirements and limitations contained
   In December 1994, the Board              HOEPA excludes reverse mortgage               in other subparts of the regulation. For
published a proposed rule amending          transactions from these restrictions. The     example, Subpart C requires creditors to
Regulation Z, to implement the new law      legislative history states that the           provide disclosures at the time of
(59 FR 61832, December 2, 1994). The        statutory amendment codifies the              application and prior to consummation
Board received about 100 comments on        Board’s existing interpretation regarding     for closed-end variable-rate loans that
the proposal. About 85 percent were         a creditor’s ability to accelerate an open-   are secured by the consumer’s principal
from creditors or other businesses          end reverse mortgage loan in accordance       dwelling and have a term greater than
potentially affected by the proposal (and   with the credit contract, specifically,       one year. If these transactions are also
their trade associations); the remainder    upon the consumer’s death. The                mortgage loans subject to § 226.32,
were mainly from consumer groups and        regulatory amendment reflects that            Subpart E requires creditors to provide
individuals. Commenters generally           legislative intent.                           the special disclosures at least three
supported the Board’s proposal,                                                           business days prior to the
                                            Subpart C—Closed-End Credit
although some believe the act’s                                                           consummation.
                                            Section 226.23—Right of Rescission
provisions are detrimental to consumers                                                   31(c) Timing of Disclosures
seeking credit. In large measure, the       23(a) Consumer’s Right to Rescind             31(c)(1) Disclosures for Certain Closed-
regulatory amendments that the Board          Section 152(b) of the HOEPA provides        end Home Mortgage Disclosures
has adopted in the final rule follow the    that Section 32 mortgage disclosures
proposal; technical suggestions or                                                          Implementing section 129(b) of the
                                            and certain practices involving these         TILA, the regulation requires a three-
concerns raised by commenters are           loans are ‘‘material’’ for purposes of the
addressed in the final rule. The section-                                                 day ‘‘cooling off’’ period between the
                                            TILA. The amendments to footnote 48 of        time a consumer is furnished with
by-section descriptions given below         the regulation implement the change.
provide interpretive guidance to                                                          special disclosures about a mortgage
                                            Consumers are provided with the right         subject to § 226.32 (Section 32 mortgage)
creditors until autumn 1995, when an        to rescind a Section 32 mortgage if a
update to the Official Staff Commentary                                                   and the time the consumer becomes
                                            creditor fails to furnish the disclosures     obligated under the loan. Some
to the regulation will be proposed.         under § 226.32(c) or if the loan              commenters suggested that the final rule
III. Section-by-Section Analysis            documents include a credit term under         should provide flexibility in the timing
                                            § 226.32(d).                                  requirements to facilitate delivery by
Section 226.2—Definitions and Rules of
Construction                                Subpart D—Miscellaneous                       mail or the contemporaneous delivery of
                                                                                          other required disclosures. The Board
2(a) Definitions                            Section 226.28—Effect on State Laws           believes, however, that the act requires
2(a)(17) Creditor                           28(b) Equivalent Disclosure                   that consumers considering a Section 32
                                            Requirements                                  mortgage loan be given the special
  Section 226.2(a)(17) n.3 implements                                                     disclosures at least three business days
section 152(c) of the HOEPA and               Section 152(e) of the HOEPA provides
                                            that the procedure for substituting           before completing the transaction,
defines coverage in terms of the number                                                   regardless of the creditor’s method of
of Section 32 mortgage transactions that    substantially similar state law
                                            disclosures for federal TILA                  delivering these disclosures or the
will subject a lender to the TILA. The                                                    timing of other disclosures.
regulation parallels the statute. A         requirements does not apply to state
creditor includes a person originating—     disclosure requirements for Section 32        31(c)(1)(i) Change in Terms
during any 12-month period—two or           mortgages. The amendments reflect this           Implementing section 129(b)(2) of the
more Section 32 mortgage loans, or one      limitation.                                   act, the regulation requires creditors to
or more such mortgage loans through a       Subpart E—Special Rules for Certain           provide new Section 32 mortgage
mortgage broker. Thus, for example, a       Home Mortgage Transactions                    disclosures if, after giving the
person that originates one Section 32                                                     disclosures to the consumer and before
mortgage during a 12-month period is          The amendments to the TILA (section
                                            129 dealing with mortgages having rates       consummation, the creditor changes any
not covered. A person that originates                                                     terms that make the disclosures
                                            or fees above a certain percentage or
three home-secured loans, two of which                                                    inaccurate. New disclosures are
                                            amount and section 138 dealing with
are secured by Section 32 mortgages,                                                      triggered by a changed term only if it
                                            reverse mortgage transactions) layer
will be required to comply with the                                                       affects the APR, for example, or other
                                            disclosure and timing requirements onto
TILA for the latter two transactions.                                                     disclosures set forth in § 226.32(c).
                                            the requirements already imposed for
Persons making fewer than five home-                                                      Commenters requested guidance on the
                                            these consumer credit transactions. The
secured loans during a calendar year—                                                     scope of ‘‘terms’’ for which such a
                                            Board has implemented these
that do not meet the definition of a                                                      change could trigger new disclosures.
                                            provisions by adding a new subpart E to
Section 32 mortgage—are not subject to                                                    The Board believes the scope extends
                                            the regulation: § 226.31 addresses
the act.                                                                                  both to a change in the terms of the loan
                                            general requirements such as timing and
Subpart B—Open-End Credit                   format rules; § 226.32 contains rules         agreement, as well as to a change in any
                                            relating to mortgages having rates or fees    charge associated with closing the loan.
Section 226.5b—Requirements for Home
                                            above a certain percentage or amount;         31(c)(1)(iii) Consumer’s Waiver of
Equity Plans
                                            and § 226.33 addresses reverse                Waiting Period Before Consummation
5b(f) Limitations on Home Equity Plans      mortgages.                                      Section 129(b)(3) of the TILA
  The TILA generally restricts creditors’   Section 226.31—General Rules                  authorizes the Board to permit the
ability to terminate open-end plans and                                                   consumer to modify or waive the right
demand repayment to narrowly drawn          31(a) Relation to Other Subparts              to the three-day waiting period to meet
circumstances, such as when the               Section 31(a) explicitly states that the    bona fide personal financial
consumer fails to make payments or          requirements and limitations of Subpart       emergencies. Sections 226.15(e) and
takes actions that adversely affect the     E are in addition to—not in lieu of—          226.23(e) of the regulation discuss
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                            15465

waivers of the right to rescind to meet    31(g) Accuracy of Annual Percentage           compared to securities with a ten-year
bona fide personal financial               Rate                                          maturity. If the loan maturity is exactly
emergencies. Comment was solicited on         Creditors offering mortgages subject to    halfway between the maturities for two
whether the Board should provide a         § 226.32 must include the APR as part         published Treasury securities, the
similar provision for waivers of the       of the new Section 32 mortgage                creditor would compare the APR to the
three-day waiting period on Section 32     disclosures. In response to comments          yield for the lower Treasury security.
mortgages.                                 received, the regulation clarifies that the      The act and regulation require
   In response to comments received and    APR shall be calculated in accordance         creditors to compare the APR to yields
upon further analysis, the Board is        with § 226.22, which provides guidance        as of the fifteenth day of the month
adding a new paragraph providing that      for calculating an APR (and provides a        immediately preceding the month in
the consumer may modify or waive the       tolerance for minor calculation errors)       which the application for credit is
three-day waiting period between           for transactions covered by Subpart C         received. Commenters asked the Board
delivery of Section 32 mortgage            (closed-end). Commenters also                 to clarify when an application is
disclosures and consummation, if the       suggested that the regulation should          deemed to be received. The Board
consumer determines that the extension     provide a tolerance for errors made in        believes an application is received when
of credit is needed to meet a bona fide    calculating payment amounts for the           it reaches the creditor in any of the ways
personal financial emergency.              Section 32 mortgage loan disclosure. No
   Some commenters requested that the                                                    applications are normally transmitted,
                                           tolerance exists for any such calculation     even if the consumer did not provide all
Board identify specific circumstances
                                           errors under Subpart C, and the Board         the information required for the creditor
that are bona fide personal financial
                                           has not adopted a tolerance for payment       to make the credit decision. (See official
emergencies. Generally, the facts
                                           amounts in Section 32 mortgage                staff interpretations of § 226.19(a)(1) in
surrounding individual situations will
                                           disclosures.                                  Supplement I of this part.)
determine whether the standard is met
and the consumer may waive the three-      Section 226.32—Requirements for               32(a)(1)(ii)
day waiting period before                  Certain Closed-End Home Mortgages
consummation. The Board believes,                                                          The statute covers mortgages if the
                                           32(a) Coverage                                total points and fees payable by the
however, that consummating a Section
32 mortgage loan to prevent the sale of       Section 103(aa) of the TILA defines        consumer at or before loan closing
the consumer’s home at foreclosure is a    the mortgages covered by new section          exceed the greater of $400 or 8 percent
bona fide personal financial emergency.    129 based on the rates charged and fees       of the total loan amount. The Board
   For example, if the consumer’s home     paid. The proposal referred to those          contemplates that any adjustment to the
is scheduled to be sold at foreclosure     mortgages as high-rate, high-fee              $400 dollar amount will be published
within the three-day waiting period, the   mortgages. Many commenters opposed            with the proposed updates to Regulation
consumer could waive the waiting           the label, stating that early versions of     Z’s official staff commentary (in the
period to consummate the Section 32        the legislation had been revised to           autumn of each year). The adjustment
mortgage loan and forestall the            delete any identification of the covered      will be based on the annual percentage
foreclosure. The consumer may exercise     mortgages with their relative cost. The       change in the Consumer Price Index (as
the waiver, however, only after            final rule follows the statutory              reported on June 1) and will be effective
receiving the disclosures required by      approach.                                     on January 1 of the following year.
paragraph (c)(1).                          32(a)(1)(i)                                     Many commenters asked for further
31(c)(2) Disclosures for Reverse              The statute covers mortgages that          guidance to determine the ‘‘total loan
Mortgages                                  charge rates above a specified standard.      amount.’’ Some suggested using the face
                                           The rate-based test is tied to Treasury       amount of the note; others suggested
  Section 138 of the TILA requires
                                           securities having terms comparable to         using the ‘‘amount financed’’ as
creditors to furnish additional
                                           the loan’s maturity, and several              calculated according to § 226.18(b). The
disclosures to consumers for a reverse
                                           commenters asked for more guidance on         Board believes the statute requires
mortgage transaction at least three
                                           how creditors may determine if a              creditors to omit from the ‘‘total loan
business days prior to consummation.
                                           particular transaction meets that test.       amount’’ any additional costs that may
Under the statute, timing requirements
                                           The proposal cited the Board’s Selected       be incurred at closing—and included in
for closed-end credit are often tied to
                                           Interest Rates (statistical release H–15)     the face amount of the note if financed
the consummation of the transaction,
                                           as an example of a readily available          by the creditor—when determining
and the regulation parallels the statute
                                           source that identifies Treasury securities    whether the ratio of fees to the total loan
for closed-end reverse mortgage loans.
                                           (bills, notes, and bonds) with maturities     amount exceeds 8 percentage points.
However, reverse mortgage loans may
                                           of 1, 2, 3, 5, 7, 10, 20, and 30 years. The   Thus, the ‘‘total loan amount’’ is the
also be structured as open-end credit
                                           same figures are published in other           amount financed, as defined in
plans. In that case, the regulation
                                           widely available sources, such as major       § 226.18(b), less any items that are
provides that the disclosures must be
                                           financial and metropolitan newspapers.        required to be disclosed under
given at least three business days prior
                                              Commenters also sought guidance for        § 226.4(c)(7) and that are not excluded
to the first transaction under the open-
                                           selecting the proper maturity for loan        as fees under paragraph (b)(1)(iii) of this
end credit plan or before the consumer
                                           maturities that do not match those of         section.
becomes obligated on the plan. (See
official staff interpretations of          Treasury securities. The Board believes       32(a)(2)
§ 226.5(b)(1) in Supplement I of this      that creditors could use rounding. For
part.)                                     example, if a creditor must compare the          Section 103(aa) of the TILA provides
                                           APR to Treasury securities with either        that the Section 32 mortgage rules do
Conforming Paragraphs                      seven-year or ten-year maturities, the        not apply to a residential mortgage
  Paragraphs (d), (e), and (f) mirror      APR for an eight-year loan would be           transaction, a reverse mortgage
provisions in subparts B and C (§ 226.5    compared to securities with a seven-          transaction, or an open-end credit plan.
and § 226.17).                             year maturity; a nine-year loan would be      The regulation tracks those exceptions.
15466         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

32(b) Definitions                              1996. The Board believes the hearings          32(d) Limitations
32(b)(1) Points and Fees                       may provide an appropriate forum to               Section 129 of the TILA prohibits
                                               explore whether any particular charges         mortgage creditors covered by § 226.32
   Section 103(aa) of the TILA defines         should be included in the total fee
points and fees as all finance charges                                                        from including several terms in their
                                               calculation. The regulation does not           contracts. In large measure, the final
(except interest or the time-price             identify any additional fees at this time.
differential), all compensation paid to                                                       regulation follows the proposal. In the
mortgage brokers, and all items                32(b)(2) Affiliate                             proposal, the headings for and
identified in section 106(e) (other than                                                      substantive limitations in paragraphs
amounts held for future payment of                Section 129(k) of the TILA defines          (d)(1) and (d)(2) were inadvertently
taxes). A charge is excluded from the          ‘‘affiliate’’ for purposes of the Section 32   reversed; the error has been corrected.
definition if the charge is reasonable,        mortgage rules by a statutory reference
                                                                                              32(d)(1)(i) Balloon Payment
the creditor receives no direct or             to the Bank Holding Company Act of
indirect compensation from the charge,         1956 (12 U.S.C. 1841(k)). That act                Under the act and regulation, the
and the charge is not paid to an affiliate     defines affiliate as any company that          repayment schedule for a Section 32
of the creditor.                               controls, is controlled by, or is under        mortgage loan with a term of less than
   The Board believes the Congress             common control with another company.           five years must fully amortize the
intended a broad application of the term       It also defines ‘‘company’’ and defines        outstanding principal balance through
‘‘compensation,’’ including, for               when one company is considered to              regular periodic payments. Many
example, amounts paid to brokers by            ‘‘control’’ another (12 U.S.C. 1841(a)         commenters requested further guidance
creditors in addition to amounts paid by       and (b)). The proposal defined the term        on the phrase ‘‘regular periodic’’
consumers. Many commenters                     by a statutory reference; to ease              payments. Some were concerned that
considered this interpretation too             compliance, the final rule adds a brief        small interest-only payments with
expansive, and suggested that broker           narrative.                                     occasional payments of principal would
fees should only be considered ‘‘fees’’ if                                                    be prohibited, and the lack of flexibility
the broker is required by the creditor as      32(c) Disclosures                              in designing a payment schedule would
a condition of obtaining the credit. (See                                                     ultimately be detrimental to consumers.
                                                 The regulation tracks the disclosure         Others suggested defining a ‘‘regular
official staff interpretations of § 226.4(a)
in Supplement I of this part.)                 requirements of section 129(a). In             periodic payment’’ as one that is not
   RESPA requires creditors to provide         response to comments, a new H–16—              more than twice the amount of other
consumers with estimates of closing            Mortgage Sample has been added to              payments. The Board has adopted this
costs—including fees paid by creditors         Appendix H. Creditors using it properly        approach and believes it reflects the
to brokers—for certain real-estate             will be deemed to be in compliance             intent of the Congress and provides
secured loans (Regulation X, 24 CFR            with the regulation for those                  certainty in compliance.
3500, Appendix A, fact pattern 12). The        disclosures.
                                                                                              32(d)(1)(ii) Exception
Board believes that including in the           32(c)(3) Regular Payment
total fee calculation all broker fees                                                            Section 129(l)(1) of the TILA
required to be disclosed under RESPA is           The act requires creditors to disclose      authorizes the Board to create
consistent with the intent of the              the amount of the regular ‘‘monthly’’          exemptions to the limitations set forth
Congress and addresses the                     payment. In response to comments               in paragraph (d) and paragraph (e) of
commenters’ concerns about broker fees         received and upon further analysis, the        this section, upon a finding that the
that are unknown to the creditor.              final regulation clarifies that the            exemption is in the interest of the
   Section 103(aa) authorizes the Board        disclosure contemplates monthly or             borrowing public and will apply only to
to identify other charges that are             other regularly scheduled periodic             mortgage products or categories of
appropriate to include in the total fee        payments, such as monthly, bimonthly,          products that maintain and strengthen
calculation. The conference report cites       or quarterly.                                  home ownership and protect equity.
credit insurance premiums as an                                                               The legislative history expresses the
example of fees that could be included,        32(c)(4) Variable-rate                         Congress’s concern that the legislation
if evidence showed that the premiums                                                          might inappropriately apply to some
were being used to circumvent the                 The law requires creditors offering         government loans or short-term
statute. Several commenters, mostly            variable-rate transactions to disclose a       ‘‘bridge’’ construction loans. It also
insurance industry representatives,            monthly payment based on an interest           states that in granting the exemption
opposed the regulation’s including             rate cap required for consumer contracts       authority to the Board, the Congress
premiums for credit life insurance that        by a provision in the Competitive              intended that the Board consider
is purchased at the consumer’s option.         Equality Banking Act of 1987 (CEBA),           exemptions on a product-by-product
   Section 158 of the HOEPA requires           which is implemented in § 226.30. The          basis.
the Board (in consultation with its            legislative history provides that in              Based on the legislative history, the
Consumer Advisory Council) to conduct          calculating the maximum payment                comments received and upon further
public hearings that examine home              based on the interest rate cap, creditors      analysis, the Board is creating a
equity loans in the marketplace and the        should assume the maximum possible             narrowly drawn exemption from the
adequacy of federal laws (including the        increases in rates in the shortest             balloon payment limitation for mortgage
new rules affecting Section 32                 possible timeframe. Paragraph                  loans subject to § 226.32 with maturities
mortgages and reverse mortgage                 § 226.19(b)(2)(x)—which requires a             of less than one year, if the purpose of
transactions) in protecting consumers—         similar maximum payment disclosure             the loan is a ‘‘bridge’’ loan connected
particularly low-income consumers. The         for adjustable-rate mortgage                   with the acquisition or construction of
statute provides that the initial hearing      transactions—provides guidance for             a dwelling intended to become the
must be held prior to September 1997,          calculating the maximum possible               consumer’s principal dwelling. These
and the Board contemplates that the            increases in rates in the shortest             ‘‘bridge’’ loans remain subject to all
first hearing will occur sometime in           possible timeframe.                            other provisions of the section.
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                         15467

32(d)(2) Negative Amortization               penalty clause in a Section 32 mortgage     engages in a pattern or practice will
  The act and regulation prohibit            loan under narrowly drawn                   depend on individual fact situations.
payment schedules with regular               circumstances. To include a prepayment      Thus, the final regulation—like the
periodic payments that may result in         penalty clause in the loan documents, a     proposal—does not define the phrase.
increases to the principal balance.          creditor must verify that the consumer’s      Paragraph (d)(7) permits creditors to
Technical changes to the regulation are      monthly debt-to-income ratio is 50          assess a prepayment penalty if, in part,
made for clarity. The Board believes that    percent or less. The Board believes that    the creditor verifies that the consumer’s
the prohibition does not extend to           in calculating the consumer’s monthly       monthly debt to income ratio is 50
increases in the principal balance           debts and income to determine the debt-     percent or less. In the supplementary
unrelated to the payment schedule, such      to-income ratio, creditors may rely on      materials accompanying the proposal,
as when a consumer fails to obtain           widely accepted underwriting                the Board stated that creditors could
property insurance and the creditor          standards, such as those published by       rely on information provided by the
purchases insurance and adds the             the Federal National Mortgage               consumer in connection with paragraph
premium to the consumer’s principal          Association, the Federal Home Loan          (d)(7) when considering a consumer’s
balance.                                     Mortgage Corporation, the Federal           ability to repay the debt. Many
                                             Housing Administration, or the              commenters were concerned that the
32(d)(4) Increased Interest Rate             Veteran’s Administration. A creditor        Board intended to incorporate the
  The act and regulation prohibit            using one of these standards and            income verification and debt-to-income
creditors from increasing the interest       determining that the consumer’s             ratio requirements into paragraph (e)(1).
rate after default. This prohibition does    monthly debt-to-income ration is 50         These concerns are unfounded. There is
not prevent a creditor offering a            percent or less will be deemed to meet      no debt-to-income ratio requirement for
variable-rate loan from changing the         the requirements of this provision. The     paragraph (e)(1). The information
rate, if, for example, the rate is tied to   Board believes this safe harbor provides    provided to creditors in connection with
an index and the index increases after       consistency and eases compliance.           paragraph (d)(7) may be used to
the consumer has defaulted on the                                                        demonstrate that the creditor considered
                                             32(e) Prohibited Acts and Practices         the consumer’s income and obligations
                                               Section 129(l)(2) of the TILA             before extending the credit. Other
32(d)(5) Rebates                             authorizes the Board to prohibit acts or    information—for example, information
   Section 129(d) of the TILA restricts      practices in connection with mortgage       about gift income, expected retirement
how creditors may calculate refunds of       loans that the Board finds to be unfair,    payments, or other unverifiable
interest when a Section 32 mortgage          deceptive, or designed to evade the         income—may also be considered. The
loan is accelerated due to a consumer’s      Section 32 mortgage rules. The Board        Board believes any expected income can
default. The regulation clarifies that the   also may prohibit acts or practices         be considered by the creditor, other than
paragraph covers limitation on refunds       related to refinancing mortgage loans       equity income obtainable by the
of interest (not other charges—points,       that the Board finds are associated with    consumer through the foreclosure of a
for example—that are considered              abusive lending practices or that are not   Section 32 mortgage with the creditor.
finance charges under § 226.4). The          in the borrower’s interest. Neither the
                                             proposal nor the final regulation           32(e)(2) Home Improvement Contracts
calculation would include odd-days
interest, whether paid at or after           identifies any prohibited practices           Section 129(i) of the TILA restricts
consummation.                                pursuant to this authority.                 how creditors may disburse proceeds to
                                               Section 157 of the HOEPA requires         contractors under a home improvement
32(d)(6) Prepayment Penalties                the Board to conduct a study and make       contract secured by a mortgage subject
   Section 129(c) of the TILA generally      recommendations to the Congress             to § 226.32. The regulation reflects the
bars creditors from including a              regarding, in part, the adequacy of         statutory requirement that the creditor
prepayment penalty in a Section 32           federal laws protecting consumers with      must disburse the proceeds by an
mortgage contract. The statute includes,     open-end credit plans secured by the        instrument payable to the consumer or
as a prepayment penalty, refunds of          consumer’s principal dwelling. The          jointly to the consumer and the
unearned interest calculated less            study must be completed within              contractor. The Board believes that if
favorably than the actuarial method          eighteen months after the amendments        the contractor and the consumer are
defined in section 933(d) of the Housing     are adopted. The Board believes the         joint payees, the instrument must name
and Community Development Act of             study and the hearing required by the       as payees all consumers who are
1992 (HCDA).                                 HOEPA will assist the Board in              primarily obligated on the note.
   The legislative history provides that     determining whether certain acts or           Alternatively, the regulation provides
where the actuarial method, as defined       practices should be prohibited.             that at the election of the consumer, the
by state law, provides a refund that is                                                  creditor can disburse the proceeds
                                             32(e)(1) Repayment Ability                  through an escrow agent in accordance
greater than the refund received under
the HCDA definition, creditors should          Section 129(h) of the TILA prohibits      with terms established in a written
apply state law to determine if a refund     creditors extending mortgage loans          agreement signed by the consumer, the
is a prepayment penalty for a Section 32     subject to § 226.32 from engaging in a      creditor, and the contractor prior to the
mortgage. The legislative history states     pattern or practice of extending such       disbursement. The Board solicited
that the reference to the HCDA is not        credit to consumers based on the            comment on whether further guidance
intended to be exclusive, and that           consumer’s collateral without regard to     was needed regarding the use of a third
penalties based on a percentage of the       the consumer’s repayment ability,           party escrow agent, including an agent
outstanding balance or on the number of      including the consumer’s current and        that is an affiliate of the creditor. The
months of interest are also prohibited.      expected income, current obligations,       Board believes that RESPA adequately
                                             and employment. Commenters                  protects consumers dealing with an
32(d)(7) Prepayment Penalty Exception        requested that ‘‘pattern or practice’’ be   escrow agent that is an affiliate of the
  Section 129(c)(2) of the TILA allows       defined; however, the Board believes a      creditor. RESPA prohibits creditors from
creditors to include a prepayment            determination whether a creditor            requiring the use of an affiliate, and
15468         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

requires disclosures to be furnished if      rate’’ rather than ‘‘annual interest rate’’   the consumer purchases (if any) as part
the consumer opts to use the services of     in complying with this section. The           of the reverse mortgage transaction. The
an escrow agent that is in a ‘‘controlled    statute uses but does not mandate the         regulation parallels the statute, except
business arrangement’’ with the creditor     term ‘‘annual interest rate,’’ and the        that the term ‘‘associated’’ has been
(Regulation X, 24 CFR 3500.15).              Board believes that a different term will     deleted.
                                             avoid possible confusion with the                The Board believes the Congress
32(e)(3) Notice to Assignee                  disclosure of the ‘‘annual percentage         intended a broad application of the
  The act and regulation require             rate’’ (APR) required by other parts of       terms ‘‘costs and charges.’’ For example,
persons who sell or assign mortgages         the regulation. The term ‘‘total annual       the Board believes all costs and charges
covered by § 226.32 to furnish a notice      loan cost rate’’ is unlikely to be            connected with the reverse mortgage
of the potential liability under the TILA.   confused with the APR and is a more           transaction must be included in the
In response to comments received, the        accurate description of the percentage        projected total cost of credit, whether or
notice more directly discloses an            cost of reverse mortgages than ‘‘annual       not the charge is deemed to be a finance
assignee’s potential liability.              interest rate.’’ For example, the rate may    charge under Subpart A of the
                                             reflect costs other than interest, such as    regulation.
Section 226.33—Requirements for              annuity premiums, appraisal fees, and a          Some creditors require or permit
Reverse Mortgages                            percentage of any appreciation in the         consumers to purchase an annuity as
33(a) Definition                             consumer’s home.                              part of the transaction that immediately,
                                                Section 138(a)(1) of the TILA requires     or at some future time, supplements or
   Section 154 of the HOEPA defines a        creditors to disclose total annual loan       replaces the creditor’s payments. The
‘‘reverse mortgage’’ as a nonrecourse        cost rates for not less than three            law and regulation require the amount
transaction that is secured by the           projected appreciation rates and not less     paid by the consumer for the annuity to
consumer’s principal dwelling and that       than three credit transaction periods, as     be included as a cost to the consumer.
ties repayment (other than upon default)     determined by the Board. HUD’s HECM           This is the case whether the purchase is
to the homeowner’s death or permanent        matrix similarly discloses nine ‘‘average     made through the creditor or a third
move from or transfer of the home. The       annual percentage rates’’ based on three      party, or whether the purchase is
definition in the regulation tracks the      assumed annual home appreciation              mandatory or voluntary.
statute.                                     rates and three assumed loan terms. As           The HECM program does not include
   A nonrecourse transaction limits the      discussed below, the Board has adopted        disposition costs as a part of the total
homeowner’s liability to no more than        the HECM model which requires the             annual loan cost rate, and the regulation
the proceeds of the sale of the home         tabular disclosure of nine total annual       follows that approach. Few commenters
(unless a lesser amount is provided for      loan cost rates, as described below. The      addressed the issue; they were about
in the credit obligation, such as by an      regulation permits an additional              evenly split on whether to include
equity reservation or an equity              assumed loan term, as described below.        disposition costs as part of the total
conservation agreement between the              The HECM matrix is accompanied by          annual loan cost rate. Based on these
consumer and creditor). Neither the          a listing of the basic factors used in        comments and upon further analysis,
statute nor the regulation defines           calculating the projected total cost of       the Board has retained the rule as
‘‘nonrecourse transactions.’’ Similarly,     credit, such as the age of the borrower,      proposed.
specific acts of default for purposes of     the value of the consumer’s home, etc.,
the reverse mortgage rules are not           and a brief discussion of some                33(c)(2) Advances to Consumer
defined. Neither the act nor the             assumptions used in calculating the             Section 138(b)(3) of the TILA requires
legislative history identifies such acts,    rates in the matrix. The regulation           creditors to consider in the projected
and the Board believes that the              requires that the matrix be accompanied       total cost of credit all advances to and
determination of ‘‘default’’ is most         by a listing of key factors used in           for the benefit of the consumer,
appropriately left to the legal obligation   calculating the total annual loan cost        including annuity payments received by
between the parties and state or other       rates, along with a brief narrative that      the consumer from an annuity
law.                                         helps consumers to interpret the rates        purchased as part of the reverse
33(b) Content of Disclosures                 disclosed in the matrix. (See the             mortgage transaction. The regulation
                                             supplementary material accompanying           generally tracks the statute, with slight
  Section 138 of the TILA establishes a      proposed Appendix K for further               modifications for clarity.
new standard to measure the cost of          discussion of the model disclosure.)
reverse mortgage credit. The statute                                                       33(c)(3) Additional Creditor
requires reverse mortgage creditors to       33(c) Projected Total Cost of Credit          Compensation
disclose a good faith projection of the         Section 138 (a) and (b) of the TILA           Section 138(b)(1) of the TILA and the
total cost of the credit to the consumer,    identify factors creditors must consider      regulation include, in the total cost of a
by means of a table of annual interest       when calculating the projected total cost     reverse mortgage loan, any shared
rates. The legislative history states that   of credit and the corresponding total         appreciation or equity that the creditor
the Congress contemplated a disclosure       annual loan cost rates. The regulation        is entitled to receive pursuant to the
scheme modeled after the matrix              lists those requirements in paragraph (c)     credit contract. For example, creditors
disclosure currently required by section     of this section. (The mathematical            sometimes offer a reduced interest rate
255 of the National Housing Act and          formula for determining the total annual      in exchange for a portion of the
implemented by the Department of             loan cost rate is contained in Appendix       appreciation or equity that may be
Housing and Urban Development’s              K.)                                           realized when the dwelling is sold.
(HUD’s) Home Equity Conversion
Mortgage (HECM) program. The Board’s         33(c)(1) Costs to Consumer                    33(c)(4) Limitations on Consumer
regulation reflects that approach, except      Section 138(b)(2) of the TILA includes      Liability
as noted below.                              in the projected total cost of credit all       Section 138(b)(4) of the TILA requires
  The regulation requires creditors to       costs and charges to the consumer,            creditors to consider in the projected
use the term ‘‘total annual loan cost        including the costs of any annuity that       total cost of credit any limitation on the
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                         15469

consumer’s liability under the reverse       be more appropriate. Based on the           consumers will benefit by receiving
mortgage loan. This includes, for            comments received and upon further          information about the transaction’s costs
example, equity conservation                 analysis, the Board believes that the       for a ‘‘midpoint’’ assumed loan period,
agreements. These agreements protect a       percentages used by HUD are                 given the potential of an event such as
portion of the equity in the dwelling for    appropriate estimates for reverse           a permanent move from the home
the consumer or the consumer’s estate.       mortgage disclosures, and are required      during the borrower’s lifetime. The
   This paragraph also applies to the        by the final rule.                          benefits to the consumer outweigh any
nonrecourse provision that is a part of                                                  additional compliance burden: For
any credit contract meeting the              33(c)(6) Assumed Loan Period
                                                                                         lenders offering reverse mortgage
definition of a reverse mortgage                Section 138(a)(1) of the TILA also       transactions not covered by the HECM
transaction. (See paragraph (a) of this      requires each total annual loan cost rate   program, the compliance burden of
section.) Some reverse mortgage              to be based on one of (at least) three      choosing to implement a new disclosure
transactions provide that a consumer’s       credit transaction periods, as              scheme based on four (rather than three)
liability will not exceed a specific         determined by the Board, including a        assumed loan periods is not significant;
percentage of the projected home value,      short-term reverse mortgage, a term         HECM lenders will revise their
say 75 percent. Other reverse mortgages      equaling the actuarial life expectancy of   disclosures to comply with other
set the consumer’s maximum liability at      the consumer, and ‘‘such longer term as     requirements, such as the narrative
the ‘‘net proceeds’’ available from the      the Board deems appropriate.’’ The          required in the model form, in any
sale of the home. That is, if a consumer     proposed regulation tracked the             event, and are not required to add the
sells the home for $100,000 and              assumed loan periods required under         fourth loan period to their forms.
brokerage commissions and other              the HECM program: a period of two
incidental selling costs were $7,000, the    years, a period equal to the consumer’s     Appendix K—Total Annual Loan Cost
creditor would receive no more than          life expectancy, and a period equal to      Rate Computations for Reverse
$93,000—the net proceeds of the sale.        approximately 1.4 times the consumer’s      Mortgage Transactions
   The Board believes that the purposes      life expectancy (the creditor would use        The final regulation bases the
of the reverse mortgage disclosures are      the life expectancy of the youngest         calculation of total annual loan cost
enhanced if the calculations of projected    consumer in transactions involving          rates on a commonly used computation
total costs for ‘‘net proceeds’’ recourse    multiple borrowers).                        tool, an internal rate of return formula.
limitations are based on uniform                The statute authorizes the Board to
                                                                                         The formula uses the estimation or
assumptions about the costs associated       require total annual loan cost rates for
                                                                                         ‘‘iteration’’ procedure required to
with the sale of the home. Thus, if a        more than three assumed loan periods.
                                                                                         compute APRs under Appendix J of this
contract does not otherwise specify a        In the proposed rule, the Board noted
                                                                                         part. However, Appendix J is written in
percentage for net proceeds, creditors       that, depending on the age of the
                                                                                         the context of forward (not reverse)
must assume closing costs of 7 percent,      borrower, a significant time interval
                                                                                         mortgages. The formulas are similar to
which approximates the amounts paid          could exist between the shortest loan
                                                                                         those in Appendix J; however, to ease
for typical brokerage fees and other         period (two years) and the consumer’s
                                                                                         compliance and avoid confusion about
incidental costs. The Board solicited        life expectancy. Accordingly, the Board
                                                                                         terminology, definitions and
comment on this approach. Most               solicited comment on whether other
                                             assumed loan periods, such as an            instructions appropriate for reverse
commenters agreed both with the
                                             assumed loan period of one-half of the      mortgages are placed in Appendix K.
approach and the use of the 7 percent
                                             life expectancy figure, should be added     The final rule tracks the proposal,
                                             to the regulation; and if so, whether       except as noted below.
33(c)(5) Assumed Annual Appreciation         calculations based on the additional        (b) Instructions and Equations for the
Rates                                        assumed loan periods should be              Total Annual Loan Cost Rate
   Section 138(a)(1) of the TILA requires    required or optional.
each total annual loan cost rate to be          About 10 commenters addressed this       (b)(5) Number of Unit-Periods Between
based on one of (at least) three projected   point, and views were mixed. Some           Two Given Dates
appreciation rates for the consumer’s        believed an additional assumed loan           The total annual loan cost rates are
dwelling. The regulation tracks the          period equal to one-half of the life        based on an assumption that the reverse
appreciation rates used in HUD’s HECM        expectancy figure would assist              mortgage transaction begins on the first
program. That is, the total annual loan      consumers in better understanding the       day of the month in which
cost rates are based on assumed annual       costs of the reverse mortgage transaction   consummation is estimated to occur.
home appreciation rates of 0 percent, 4      in the event that, for example, they        The total annual loan cost rates are
percent, and 8 percent. HUD’s program        move permanently from the dwelling          good-faith projections based on a
based the 4 percent annual appreciation      either sooner or later than anticipated;    number of assumptions. The Board
rate on its assessment of long-term          commenters were split on whether the        believes that using the fractional unit-
averages of historical housing               additional period should be mandatory       periods required under Appendix J for
appreciation rates. The 0 percent and 8      or optional. Those commenters               calculating APRs is unnecessary for
percent rates help consumers                 opposing an additional assumed loan         these disclosures, and has omitted many
understand the potential costs and           period expressed concern about              of the definitions relating to time
benefits of the loan if their dwelling       increased compliance burden and             intervals.
does not appreciate in value at all, or if   possible consumer confusion.
                                                Based on the comments received and       (b)(8) Solution of General Equation by
its value appreciated at a rate double the
                                             upon further analysis, the Board is         Iteration Process
4 percent rate.
   Commenters were about equally             permitting creditors to add a fourth          Rather than restate the iteration
divided on the use of these assumed          assumed loan period equal to one-half       process required to be used in
appreciation rates. Those that opposed       of the life expectancy figure. Use of the   determining total annual loan cost rates
the proposed figures believed that 0         additional period is permissive, to         under the appendix, the regulation
percent, 3 percent, and 6 percent would      promote flexibility. The Board believes     refers lenders to Appendix J of this
15470         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

regulation for the procedures to be          (c) Examples of Total Annual Loan Cost       are estimated to comprise the majority
followed.                                    Rate Computations                            of borrowers under existing reverse
                                               Three examples are provided to assist      mortgage programs.
(b)(9) Assumption for Discretionary
Cash Advances                                creditors in calculating the total annual    IV. Regulatory Flexibility Analysis
  Some reverse mortgage transactions         loan cost rate. Some figures have been         The Board’s Office of the Secretary
permit the consumer to control when          corrected, and interest rates have been      has prepared an economic impact
advances are received. The regulation        added to the examples.                       statement on the amendments to
requires creditors to use a special          Reverse Mortgage Model Form and              Regulation Z. A copy of the analysis
assumption for calculating the total         Sample Form                                  may be obtained from Publications
annual loan cost rate in this case.                                                       Services, Board of Governors of the
Creditors must assume that 50 percent          The regulation requires that the
                                                                                          Federal Reserve System, Washington,
of the amount of the credit line is          matrix be accompanied by a disclosure
                                                                                          D.C. 20551, at (202) 452–3245.
advanced when the consumer becomes           substantially similar to the model form
obligated under the transaction (at the      in this paragraph. Reverse mortgages are     V. Paperwork Reduction Act
interest rate then in effect) and that no    complicated transactions, and the Board         In accordance with section 3507 of
further advances are made during the         believes a uniform disclosure will           the Paperwork Reduction Act of 1980
remaining term. The Board believes this      enhance consumer understanding of the        (44 U.S.C. 35; 5 CFR 1320.13), the
assumption is appropriate for reverse        proposed transaction and promote             amendments were reviewed by the
mortgage credit lines, given that the        informed comparison shopping.                Board under the authority delegated to
amount and timing of advances (and,            The model form and sample form are         the Board by the Office of Management
thus, the estimated interest owed) are       placed in this appendix, because they        and Budget after consideration of
within the consumer’s control. The           apply to both open-end and closed-end        comments received during the public
assumption used in the final rule also is    reverse mortgage transactions. This          comment period.
consistent with HUD’S HECM program           avoids publishing the forms twice, in           Regulation Z requires creditors
(and with Appendix D’s requirements          Appendix G (Open-end model forms             offering mortgages subject to § 226.32
for an estimated interest figure when the    and clauses) and Appendix H (Closed-         and creditors offering reverse mortgage
amount and timing of construction loan       end model forms and clauses). The            transactions to furnish to consumers at
advances are unknown).                       sample form has technical corrections to     least three days prior to consummation
  Creditors should follow this approach      some figures.                                a one-time notice disclosing costs of the
for estimating interest on open-end          Appendix L—Assumed Loan Periods              loan and reminding consumers that
reverse mortgage credit lines. Once the      for Calculation of Total Annual Loan         signing an application or receiving
interest figure is determined, creditors     Cost Rates                                   disclosures does not require the
should use the general equation in                                                        consumer to complete the transaction.
section (b)(8) of this appendix to              The law requires the total annual loan    Model forms are adopted to ease
calculate the total annual loan cost rate.   cost rate disclosures for reverse            compliance for creditors furnishing
                                             mortgage transactions to be based on at      Section 32 and reverse mortgage
(b)(10) Assumption for Variable-Rate         least three assumed loan periods, as         disclosures.
Reverse Mortgage Transactions                determined by the Board. The regulation         The Board believes that the types of
   Regulation Z provides that to             tracks the assumed loan period               mortgage products that trigger these
calculate the APR, creditors offering        requirements of HUD’s HECM program           additional disclosures are not typically
variable-rate transactions must base         (two years, a period equal to the            offered by state member banks; thus, the
disclosures on the initial interest rate     youngest consumer’s life expectancy,         requirements have only a negligible
and not assume the rate will increase.       and a period 1.4 times that consumer’s       impact on the paperwork burden for
The Board proposed adopting the same         life expectancy), and adds an optional       state member banks. Any estimates of
convention for calculating total annual      additional loan period equal to one-half     paperwork burden for institutions other
loan cost rates, and solicited comment       of the youngest consumer’s life              than state member banks that are
on whether the assumption used in            expectancy.                                  affected by the amendments would be
HUD’s HECM program—the ‘‘expected               The Board proposed using the U.S.         provided by the federal agency or
interest rate’’—was more appropriate.        Decennial Life Tables for the life           agencies that supervise these lenders.
The majority of commenters favored the       expectancy figures. These tables are
                                             published by the Department of Health        List of Subjects in 12 CFR Part 226
use of the initial interest rate and the
Board has adopted this approach in the       and Human Services and are widely              Advertising, Credit, Federal Reserve
final rule. Commenters also requested        available to the public. The Board           System, Mortgages, Reporting and
information on how to calculate the          solicited comment on other sources of        recordkeeping requirements, Truth in
total annual loan cost rate when there is    such data. Most commenters agreed            lending.
an initial discount rate. Creditors should   with the use of the U.S. Decennial Life        For the reasons set forth in the
apply the same rules for calculating the     Tables, and the requirement to use those     preamble, the Board amends 12 CFR
annual loan cost rate as are applied         tables has been adopted in the final rule.   part 226 as set forth below:
when calculating an APR for a loan with      The figures in the appendix are based
an initial discount rate (§ 226.17(c)).      on data currently available, that is, on     PART 226—TRUTH IN LENDING
                                             tables for 1979–1981, as rounded to the      (REGULATION Z)
(b)(11) Assumption for Closing Costs         nearest whole year. The Board
                                                                                            1. The authority citation for part 226
  The regulation requires creditors to       contemplates updating the figures as
                                                                                          continues to read as follows:
assume all closing and other consumer        data are published periodically.
costs are financed by the creditor. These       The regulation tracks the HECM              Authority: 12 U.S.C. 3806; 15 U.S.C. 1604
costs are generally financed as a part of    program’s use of female life expectancy      and 1637(c)(5).
the transaction, and the Board believes      figures for calculating total annual loan      2. Section 226.1 is amended as
this assumption provides uniformity.         cost rates for all borrowers, as women       follows:
                  Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                             15471

  a. Paragraph (b) is revised;                            *     *     *     *    *                              Subpart E—Special Rules for Certain Home
  b. Paragraph (d)(5) is redesignated as                    4. In § 226.5b, paragraph (f)(2)                    Mortgage Transactions
paragraph (d)(6);                                         introductory text is revised and a new                Sec.
  c. A new paragraph (d)(5) is added;                     paragraph (f)(4) is added to read as                  226.31 General rules.
and                                                       follows:                                              226.32 Requirements for certain closed-end
  d. Redesignated paragraph (d)(6) is                                                                                home mortgages.
revised.                                                  § 226.5b   Requirements for home equity               226.33 Requirements for reverse mortgages.
  The revisions and addition read as                      plans.
follows:                                                  *       *      *    *    *                            Subpart E—Special Rules for Certain
                                                                                                                Home Mortgage Transactions
§ 226.1 Authority, purpose, coverage,
                                                             (f) * * *
organization, enforcement and liability.                     (2) Terminate a plan and demand                    § 226.31   General rules.
*      *     *     *     *                                repayment of the entire outstanding                      (a) Relation to other subparts in this
   (b) The purpose of this regulation is                  balance in advance of the original term               part. The requirements and limitations
to promote the informed use of                            (except for reverse mortgage                          of this subpart are in addition to and not
consumer credit by requiring                              transactions that are subject to                      in lieu of those contained in other
disclosures about its terms and cost. The                 paragraph (f)(4) of this section) unless:             subparts of this part.
regulation gives consumers the right to                   *       *      *    *    *                               (b) Form of disclosures. The creditor
cancel certain credit transactions that                      (4) For reverse mortgage transactions              shall make the disclosures required by
involve a lien on a consumer’s principal                  that are subject to § 226.33, terminate a             this subpart clearly and conspicuously
dwelling, regulates certain credit card                   plan and demand repayment of the                      in writing, in a form that the consumer
practices, and provides a means for fair                  entire outstanding balance in advance of              may keep.
and timely resolution of credit billing                   the original term except:                                (c) Timing of disclosure—(1)
disputes. The regulation does not                            (i) In the case of default;                        Disclosures for certain closed-end home
govern charges for consumer credit. The                      (ii) If the consumer transfers title to            mortgages. The creditor shall furnish
regulation requires a maximum interest                    the property securing the note;                       the disclosures required by § 226.32 at
rate to be stated in variable-rate                                                                              least three business days prior to
                                                             (iii) If the consumer ceases using the
contracts secured by the consumer’s                                                                             consummation of a mortgage transaction
                                                          property securing the note as the
dwelling. It also imposes limitations on                                                                        covered by § 226.32.
                                                          primary dwelling; or
home equity plans that are subject to the                                                                          (i) Change in terms. After complying
                                                             (iv) Upon the consumer’s death.                    with paragraph (c)(1) of this section and
requirements of § 226.5b and mortgages
that are subject to the requirements of                   *       *      *    *    *                            prior to consummation, if the creditor
§ 226.32.                                                    5. In § 226.23, footnote 48 in                     changes any term that makes the
                                                          paragraph (a)(3) is revised to read as                disclosures inaccurate, new disclosures
*      *     *     *     *
                                                          follows:                                              shall be provided in accordance with
   (d) * * *
   (5) Subpart E relates to mortgage                                                                            the requirements of this subpart.
                                                          § 226.23   Right of rescission.
transactions covered by § 226.32 and                                                                               (ii) Telephone disclosures. A creditor
                                                            (a) * * *                                           may provide new disclosures by
reverse mortgage transactions. It
contains rules on disclosures, fees, and                    (3) * * * 48 * * *                                  telephone if the consumer initiates the
total annual loan cost rates.                             *     *     *     *     *                             change and if, at consummation:
   (6) Several appendices contain                           6. In § 226.28, the first sentence of                  (A) The creditor provides new written
information such as the procedures for                    paragraph (b) is revised to read as                   disclosures; and
determinations about state laws, state                    follows:                                                 (B) The consumer and creditor sign a
exemptions and issuance of staff                                                                                statement that the new disclosures were
                                                          § 226.28   Effect on State laws.                      provided by telephone at least three
interpretations, special rules for certain
kinds of credit plans, a list of                          *      *     *     *    *                             days prior to consummation.
enforcement agencies, and the rules for                      (b) Equivalent disclosure                             (iii) Consumer’s waiver of waiting
computing annual percentage rates in                      requirements. If the Board determines                 period before consummation. The
closed-end credit transactions and total                  that a disclosure required by state law               consumer may, after receiving the
annual loan cost rates for reverse                        (other than a requirement relating to the             disclosures required by paragraph (c)(1)
mortgage transactions.                                    finance charge, annual percentage rate,               of this section, modify or waive the
*      *     *     *     *                                or the disclosures required under                     three-day waiting period between
   3. In § 226.2, footnote 3 in paragraph                 § 226.32) is substantially the same in                delivery of those disclosures and
(a)(17)(i) is revised to read as follows:                 meaning as a disclosure required under                consummation if the consumer
                                                          the act or this regulation, creditors in              determines that the extension of credit
§ 226.2 Definitions and rules of                          that state may make the state disclosure              is needed to meet a bona fide personal
construction.                                             in lieu of the federal disclosure. * * *              financial emergency. To modify or
    (a) * * *                                             *      *     *     *    *                             waive the right, the consumer shall give
    (17) * * *                                               7. Part 226 is amended by adding a                 the creditor a dated written statement
    (i) * * * 3 * * *                                                                                           that describes the emergency,
                                                          new Subpart E to read as follows:
                                                                                                                specifically modifies or waives the
   3 A person regularly extends consumer credit only
                                                                                                                waiting period, and bears the signature
if it extended credit (other than credit subject to the   one credit extension that is subject to the
requirements of § 226.32) more than 25 times (or          requirements of § 226.32 or one or more such credit   of all the consumers entitled to the
more than 5 times for transactions secured by a           extensions through a mortgage broker.                 waiting period. Printed forms for this
dwelling) in the preceding calendar year. If a person        48 The term ‘‘material disclosures’’ means the     purpose are prohibited, except when
did not meet these numerical standards in the             required disclosures of the annual percentage rate,   creditors are permitted to use printed
preceding calendar year, the numerical standards          the finance charge, the amount financed, the total
shall be applied to the current calendar year. A          payments, the payment schedule, and the
                                                                                                                forms pursuant to § 226.23(e)(2).
person regularly extends consumer credit if, in any       disclosures and limitations referred to in § 226.32      (2) Disclosures for reverse mortgages.
12-month period, the person originates more than          (c) and (d).                                          The creditor shall furnish the
15472         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

disclosures required by § 226.33 at least     percent of the total loan amount, or          fully amortize the outstanding principal
three business days prior to:                 $400; the $400 figure shall be adjusted       balance.
   (i) Consummation of a closed-end           annually on January 1 by the annual              (ii) Exception. The limitations in
credit transaction; or                        percentage change in the Consumer             paragraph (d)(1)(i) of this section do not
   (ii) The first transaction under an        Price Index that was reported on the          apply to loans with maturities of less
open-end credit plan.                         preceding June 1.                             than one year, if the purpose of the loan
   (d) Basis of disclosures and use of           (2) This section does not apply to the     is a ‘‘bridge’’ loan connected with the
estimates. Disclosures shall reflect the      following:                                    acquisition or construction of a dwelling
terms of the legal obligation between the        (i) A residential mortgage transaction.    intended to become the consumer’s
parties. If any information necessary for        (ii) A reverse mortgage transaction        principal dwelling.
accurate disclosure is unknown to the         subject to § 226.33.                             (2) Negative amortization. A payment
creditor, the creditor shall make the            (iii) An open-end credit plan subject      schedule with regular periodic
disclosure based on the best information      to subpart B of this part.                    payments that cause the principal
reasonably available and shall state             (b) Definitions. For purposes of this      balance to increase.
clearly that the disclosure is an             subpart, the following definitions apply:        (3) Advance payments. A payment
estimate.                                        (1) For purposes of paragraph (a)(1)(ii)   schedule that consolidates more than
   (e) Multiple creditors; multiple           of this section, points and fees mean:        two periodic payments and pays them
consumers. If a transaction involves             (i) All items required to be disclosed     in advance from the proceeds.
more than one creditor, only one set of       under § 226.4(a) and 226.4(b), except            (4) Increased interest rate. An
disclosures shall be given and the            interest or the time-price differential;      increase in the interest rate after default.
creditors shall agree among themselves           (ii) All compensation paid to                 (5) Rebates. A refund calculated by a
which creditor must comply with the           mortgage brokers; and                         method less favorable than the actuarial
requirements that this part imposes on           (iii) All items required to be disclosed   method (as defined by section 933(d) of
any or all of them. If there is more than     under § 226.4(c)(7) (other than amounts       the Housing and Community
one consumer, the disclosures may be          held for future payment of taxes) unless      Development Act of 1992, 15 U.S.C.
made to any consumer who is primarily         the charge is reasonable, the creditor        1615(d)), for rebates of interest arising
liable on the obligation. If the              receives no direct or indirect                from a loan acceleration due to default.
transaction is rescindable under              compensation in connection with the              (6) Prepayment penalties. Except as
§ 226.15 or § 226.23, however, the            charge, and the charge is not paid to an      allowed under paragraph (d)(7) of this
disclosures shall be made to each             affiliate of the creditor.                    section, a penalty for paying all or part
consumer who has the right to rescind.           (2) Affiliate means any company that       of the principal before the date on
   (f) Effect of subsequent events. If a      controls, is controlled by, or is under       which the principal is due. A
disclosure becomes inaccurate because         common control with another company,          prepayment penalty includes computing
of an event that occurs after the creditor    as set forth in the Bank Holding              a refund of unearned interest by a
delivers the required disclosures, the        Company Act of 1956 (12 U.S.C. 1841 et        method that is less favorable to the
inaccuracy is not a violation of              seq.).                                        consumer than the actuarial method, as
Regulation Z (12 CFR part 226),                  (c) Disclosures. In addition to other      defined by section 933(d) of the Housing
although new disclosures may be               disclosures required by this part, in a       and Community Development Act of
required for mortgages covered by             mortgage subject to this section the          1992.
§ 226.32 under paragraph (c) of this          creditor shall disclose the following:           (7) Prepayment penalty exception. A
section, § 226.9(c), § 226.19, or § 226.20.      (1) Notices. The following statement:      mortgage transaction subject to this
   (g) Accuracy of annual percentage          ‘‘You are not required to complete this       section may provide for a prepayment
rate. For purposes of § 226.32, the           agreement merely because you have             penalty otherwise permitted by law
annual percentage yield shall be              received these disclosures or have            (including a refund calculated according
considered accurate if it is accurate         signed a loan application. If you obtain      to the rule of 78s) if:
according to the requirements and             this loan, the lender will have a                (i) The penalty can be exercised only
within the tolerances set forth in            mortgage on your home. You could lose         for the first five years following
§ 226.22.                                     your home, and any money you have             consummation;
                                              put into it, if you do not meet your             (ii) The source of the prepayment
§ 226.32 Requirements for certain closed-     obligations under the loan.’’                 funds is not a refinancing by the
end home mortgages.                              (2) Annual percentage rate. The            creditor or an affiliate of the creditor;
  (a) Coverage. (1) Except as provided in     annual percentage rate.                       and
paragraph (a)(2) of this section, the            (3) Regular payment. The amount of            (iii) At consummation, the consumer’s
requirements of this section apply to a       the regular monthly (or other periodic)       total monthly debts (including amounts
consumer credit transaction that is           payment.                                      owed under the mortgage) do not exceed
secured by the consumer’s principal              (4) Variable-rate. For variable-rate       50 percent of the consumer’s monthly
dwelling, and in which either:                transactions, a statement that the            gross income, as verified by the
  (i) The annual percentage rate at           interest rate and monthly payment may         consumer’s signed financial statement, a
consummation will exceed by more              increase, and the amount of the single        credit report, and payment records for
than 10 percentage points the yield on        maximum monthly payment, based on             employment income.
Treasury securities having comparable         the maximum interest rate required to            (e) Prohibited acts and practices. A
periods of maturity to the loan maturity      be disclosed under § 226.30.                  creditor extending mortgage credit
as of the fifteenth day of the month             (d) Limitations. A mortgage                subject to this section may not:
immediately preceding the month in            transaction subject to this section may          (1) Repayment ability. Engage in a
which the application for the extension       not provide for the following terms:          pattern or practice of extending such
of credit is received by the creditor; or        (1)(i) Balloon payment. For a loan         credit to a consumer based on the
  (ii) The total points and fees payable      with a term of less than five years, a        consumer’s collateral if, considering the
by the consumer at or before loan             payment schedule with regular periodic        consumer’s current and expected
closing will exceed the greater of 8          payments that when aggregated do not          income, current obligations, and
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                               15473

employment status, the consumer will         because the consumer has received the          that consumer’s most recent birthday).
be unable to make the scheduled              disclosures required by this section or        In the case of multiple consumers, the
payments to repay the obligation.            has signed an application for a reverse        period shall be the actuarial life
   (2) Home improvement contracts. Pay       mortgage loan.                                 expectancy of the youngest consumer
a contractor under a home improvement           (2) Total annual loan cost rates. A         (as of that consumer’s most recent
contract from the proceeds of a mortgage     good-faith projection of the total cost of     birthday).
covered by this section, other than:         the credit, determined in accordance             (C) The actuarial life expectancy
   (i) By an instrument payable to the       with paragraph (c) of this section and         specified by paragraph (c)(6)(i)(B) of this
consumer or jointly to the consumer and      expressed as a table of ‘‘total annual         section, multiplied by a factor of 1.4 and
the contractor; or                           loan cost rates,’’ using that term, in         rounded to the nearest full year.
   (ii) At the election of the consumer,     accordance with Appendix K of this
through a third-party escrow agent in                                                         (ii) At the creditor’s option, the
                                             part.                                          actuarial life expectancy specified by
accordance with terms established in a          (3) Itemization of pertinent
written agreement signed by the                                                             paragraph (c)(6)(i)(B) of this section,
                                             information. An itemization of loan            multiplied by a factor of .5 and rounded
consumer, the creditor, and the              terms, charges, the age of the youngest
contractor prior to the disbursement.                                                       to the nearest full year.
                                             borrower and the appraised property
   (3) Notice to assignee. Sell or                                                            9. In Part 226, Appendix H is
otherwise assign a mortgage subject to                                                      amended by:
                                                (4) Explanation of table. An
this section without furnishing the          explanation of the table of total annual         a. Revising the appendix heading;
following statement to the purchaser or      loan cost rates as provided in the model         b. Revising the table of contents at the
assignee: ‘‘Notice: This is a mortgage       form found in paragraph (d) of                 beginning of the appendix; and
subject to special rules under the federal   Appendix K of this part.                         c. Adding a new H–16 Mortgage
Truth in Lending Act. Purchasers or             (c) Projected total cost of credit. The     Sample in numerical order.
assignees of this mortgage could be          projected total cost of credit shall reflect     The revisions and additions read as
liable for all claims and defenses with      the following factors, as applicable:          follows:
respect to the mortgage that the                (1) Costs to consumer. All costs and
borrower could assert against the            charges to the consumer, including the         Appendix H to Part 226—Closed-End Model
creditor.’’                                                                                 Forms and Clauses
                                             costs of any annuity the consumer
                                             purchases as part of the reverse               H–1—Credit Sale Model Form (§ 226.18)
§ 226.33 Requirements for reverse                                                           H–2—Loan Model Form (§ 226.18)
mortgages.                                   mortgage transaction.
                                                                                            H–3—Amount Financed Itemization Model
  (a) Definition. For purposes of this          (2) Payments to consumer. All                  Form (§ 226.18(c))
subpart, reverse mortgage transaction        advances to and for the benefit of the         H–4(A)—Variable-Rate Model Clauses
means a nonrecourse consumer credit          consumer, including annuity payments              (§ 226.18(f)(1))
obligation in which:                         that the consumer will receive from an         H–4(B)—Variable-Rate Model Clauses
  (1) A mortgage, deed of trust, or          annuity that the consumer purchases as            (§ 226.18(f)(2))
                                             part of the reverse mortgage transaction.      H–4(C)—Variable-Rate Model Clauses
equivalent consensual security interest
                                                (3) Additional creditor compensation.          (§ 226.19(b))
securing one or more advances is                                                            H–4(D)—Variable-Rate Model Clauses
created in the consumer’s principal          Any shared appreciation or equity in the
                                             dwelling that the creditor is entitled by         (§ 226.20(c))
dwelling; and                                                                               H–5—Demand Feature Model Clauses
  (2) Any principal, interest, or shared     contract to receive.                              (§ 226.18(i))
appreciation or equity is due and               (4) Limitations on consumer liability.      H–6—Assumption Policy Model Clause
payable (other than in the case of           Any limitation on the consumer’s                  (§ 226.18(q))
default) only after:                         liability (such as nonrecourse limits and      H–7—Required Deposit Model Clause
  (i) The consumer dies;                     equity conservation agreements).                  (§ 226.18(r))
  (ii) The dwelling is transferred; or          (5) Assumed annual appreciation             H–8—Rescission Model Form (General)
  (iii) The consumer ceases to occupy        rates. Each of the following assumed              (§ 226.23)
the dwelling as a principal dwelling.        annual appreciation rates for the              H–9—Rescission Model Form (Refinancing)
  (b) Content of disclosures. In addition    dwelling:                                         (§ 226.23)
                                                                                            H–10—Credit Sale Sample
to other disclosures required by this           (i) 0 percent.
                                                                                            H–11—Installment Loan Sample
part, in a reverse mortgage transaction         (ii) 4 percent.                             H–12—Refinancing Sample
the creditor shall provide the following        (iii) 8 percent.                            H–13—Mortgage with Demand Feature
disclosures in a form substantially             (6) Assumed loan period. (i) Each of           Sample
similar to the model form found in           the following assumed loan periods, as         H–14—Variable-Rate Mortgage Sample
paragraph (d) of Appendix K of this          provided in Appendix L of this part:              (§ 226.19(b))
part:                                           (A) Two years.                              H–15—Graduated Payment Mortgage Sample
  (1) Notice. A statement that the              (B) The actuarial life expectancy of        H–16—Mortgage Sample (§ 226.32)
consumer is not obligated to complete        the consumer to become obligated on            *     *     *      *     *
the reverse mortgage transaction merely      the reverse mortgage transaction (as of        BILLING CODE 6210–01–P
15474           Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

BIlLING CODE 6210–01–C                            unit-period shall be that common period, not         (6) Symbols. The symbols used to express
*     *    *     *     *                          to exceed one year, that occurs most               the terms of a transaction in the equation set
  10. In Part 226, a new Appendix K is            frequently in the transaction, except that:        forth in paragraph (b)(8) of this appendix are
added to read as follows:                            (A) If two or more common periods occur         defined as follows:
                                                  with equal frequency, the smaller of such
Appendix K to Part 226—Total Annual Loan          common periods shall be the unit-period; or        Aj=The amount of each periodic or lump-
Cost Rate Computations for Reverse                   (B) If there is no common period in the              sum advance to the consumer under the
Mortgage Transactions                             transaction, the unit-period shall be that              reverse mortgage transaction.
                                                  period which is the average of all periods         i=Percentage rate of the total annual loan cost
   (a) Introduction. Creditors are required to
                                                  rounded to the nearest whole standard                   per unit-period, expressed as a decimal
disclose a series of total annual loan cost
                                                  interval of time. If the average is equally near        equivalent.
rates for each reverse mortgage transaction.
This appendix contains the equations              two standard intervals of time, the lower          j=The number of unit-periods until the jth
creditors must use in computing the total         shall be the unit-period.                               advance.
annual loan cost rate for various transactions,      (ii) In a single-advance, single-payment        n=The number of unit-periods between
as well as instructions, explanations, and        transaction, the unit-period shall be the term          consummation and repayment of the
examples for various transactions. This           of the transaction, but shall not exceed one            debt.
appendix is modeled after Appendix J of this      year.                                              Pn=Min (Baln, Valn). This is the maximum
part (Annual Percentage Rates Computations           (5) Number of unit-periods between two               amount that the creditor can be repaid at
for Closed-end Credit Transactions); creditors    given dates.                                            the specified loan term.
should consult Appendix J of this part for           (i) The number of days between two dates        Baln=Loan balance at time of repayment,
                                                  shall be the number of 24-hour intervals                including all costs and fees incurred by
additional guidance in using the formulas for
                                                  between any point in time on the first date             the consumer (including any shared
reverse mortgages.
                                                  to the same point in time on the second date.           appreciation or shared equity amount)
   (b) Instructions and equations for the total
                                                     (ii) If the unit-period is a month, the
annual loan cost rate.                                                                                    compounded to time n at the creditor’s
                                                  number of full unit-periods between two
   (1) General rule. The total annual loan cost                                                           contract rate of interest.
                                                  dates shall be the number of months. If the
rate shall be the nominal total annual loan       unit-period is a month, the number of unit-        Valn=Val0 (1 + σ)y, where Val0 is the property
cost rate determined by multiplying the unit-     periods per year shall be 12.                           value at consummation, σ is the assumed
period rate by the number of unit-periods in         (iii) If the unit-period is a semimonth or a         annual rate of appreciation for the
a year.                                           multiple of a month not exceeding 11                    dwelling, and y is the number of years
   (2) Term of the transaction. For purposes      months, the number of days between two                  in the assumed term. Valn must be
of total annual loan cost disclosures, the term   dates shall be 30 times the number of full              reduced by the amount of any equity
of a reverse mortgage transaction is assumed      months. The number of full unit-periods                 reserved for the consumer by agreement
to begin on the first of the month in which       shall be determined by dividing the number              between the parties, or by 7 percent (or
consummation is expected to occur. If a loan      of days by 15 in the case of a semimonthly              the amount or percentage specified in
cost or any portion of a loan cost is initially   unit-period or by the appropriate multiple of           the credit agreement), if the amount
incurred beginning on a date later than           30 in the case of a multimonthly unit-period.           required to be repaid is limited to the net
consummation, the term of the transaction is      If the unit-period is a semimonth, the number           proceeds of sale.
assumed to begin on the first of the month        of unit-periods per year shall be 24. If the       Σ=The summation operator.
in which that loan cost is incurred. For          number of unit-periods is a multiple of a            Symbols used in the examples shown in
purposes of total annual loan cost                month, the number of unit-periods per year         this appendix are defined as follows:
disclosures, the term ends on each of the         shall be 12 divided by the number of months
assumed loan periods specified in                 per unit-period.
§ 226.33(c)(6).                                      (iv) If the unit-period is a day, a week, or
   (3) Definitions of time intervals.             a multiple of a week, the number of full unit-
   (i) A period is the interval of time between   periods shall be determined by dividing the
advances.                                         number of days between the two given dates
   (ii) A common period is any period that        by the number of days per unit-period. If the
occurs more than once in a transaction.           unit-period is a day, the number of unit-                  x −1
                                                                                                         = ∑ (1 + i )
                                                                                                                            x− j
   (iii) A standard interval of time is a day,    periods per year shall be 365. If the unit-
week, semimonth, month, or a multiple of a        period is a week or a multiple of a week, the              j= 0
week or a month up to, but not exceeding,         number of unit-periods per year shall be 52
                                                                                                                        x          x −1                1
1 year.                                           divided by the number of weeks per unit-               = (1 + i ) + (1 + i )            + ⋅⋅⋅ (1 + i ) ; or
   (iv) All months shall be considered to have    period.                                                               n
an equal number of days.                             (v) If the unit-period is a year, the number            (1 + i ) − 1
   (4) Unit-period.                               of full unit-periods between two dates shall           =                   × (1 + i )
   (i) In all transactions other than single-     be the number of full years (each equal to 12                     i
advance, single-payment transactions, the         months).                                           w=The number of unit-periods per year.
                   Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                              15475

I=wi × 100=the nominal total annual loan cost                Pn = 350 FV24 ¬ i, or                           Creditors shall assume the advances are
     rate.                                                                                                   made at the interest rate then in effect and
   (7) General equation. The total annual loan
                                                                         (1 + i ) − 1  n
                                                                                                            that no further advances are made to, or
                                                             Pn = 350 ×               × (1 + i )           repayments made by, the consumer during
cost rate for a reverse mortgage transaction
must be determined by first solving the
                                                                               i                
                                                                                                            the term of the transaction or plan.
                                                                                                                (10) Assumption for variable-rate reverse
following formula, which sets forth the                 Using the iteration procedures found in steps
                                                                                                             mortgage transactions. If the interest rate for
relationship between the advances to the                1 through 4 of (b)(9)(i) of Appendix J of this
                                                                                                             a reverse mortgage transaction may increase
consumer and the amount owed to the                     part, the total annual loan cost rate, correct
                                                        to two decimals, is 48.53%.                          during the loan term and the amount or
creditor under the terms of the reverse                                                                      timing is not known at consummation,
                                                           (ii) In using these iteration procedures, it
mortgage agreement for the loan cost rate per           is expected that calculators or computers will       creditors shall base the disclosures on the
unit-period (the loan cost rate per unit-period         be programmed to carry all available                 initial interest rate in effect at the time the
is then multiplied by the number of unit-               decimals throughout the calculation and that         disclosures are provided.
periods per year to obtain the total annual             enough iterations will be performed to make             (11) Assumption for closing costs. In
loan cost rate I; that is, I = wi):                     virtually certain that the total annual loan         calculating the total annual loan cost rate,
                                                        cost rate obtained, when rounded to two              creditors shall assume all closing and other
            n −1                                        decimals, is correct. Total annual loan cost         consumer costs are financed by the creditor.
                                  n− j
                   A j (1 + i )          = Pn           rates in the examples below were obtained by            (c) Examples of total annual loan cost rate
                                                        using a 10-digit programmable calculator and         computations.
            j= 0                                                                                                (1) Lump-sum advance at consummation.
                                                        the iteration procedure described in
   (8) Solution of general equation by                  Appendix J of this part.                             Lump-sum advance to consumer at
iteration process. (i) The general equation in             (9) Assumption for discretionary cash                   consummation: $30,000
paragraph (b)(7) of this appendix, when                 advances. If the consumer controls the timing        Total of consumer’s loan costs financed at
applied to a simple transaction for a reverse           of advances made after consummation (such                  consummation: $4,500
mortgage loan of equal monthly advances of              as in a credit line arrangement), the creditor       Contract interest rate: 11.60%
$350 each, and with a total amount owed of              must use the general formula in paragraph            Estimated time of repayment (based on life
                                                        (b)(7) of this appendix. The total annual loan             expectancy of a consumer at age 78): 10
$14,313.08 at an assumed repayment period
                                                        cost rate shall be based on the assumption                 years
of two years, takes the special form:                   that 50 percent of the principal loan amount         Appraised value of dwelling at
                                                        is advanced at closing, or in the case of an               consummation: $100,000
                                                        open-end transaction, at the time the                Assumed annual dwelling appreciation rate:
                                                        consumer becomes obligated under the plan.                 4%

                                                P120 = Min (109, 441.32, 137,662.72 )
                                                                               + ∑ 0(1 + i )
                                                                     120 − 0                120 − j
                                                      30,000(1 + i )                                  = 109, 441.32
                                                                                 j= 0
                                                   i =.010843293

Total annual loan cost rate (100(.010843293               (2) Monthly advance beginning at                   Estimated time of repayment (based on life
    x 12)) = 13.01%                                     consummation.                                            expectancy of a consumer at age 78): 10
                                                        Monthly advance to consumer, beginning at                years
                                                            consummation: $492.51                            Appraised value of dwelling at
                                                        Total of consumer’s loan costs financed at               consummation: $100,000
                                                            consummation: $4,500                             Assumed annual dwelling appreciation rate:
                                                        Contract interest rate: 9.00%                            8%

                                                   P120 = Min (107,053.63, 200,780.02 )
                                                                    (1 + i )120 − 1           
                                                          492.51 ×                  × (1 + i ) = 107,053.63
                                                                            i                 
                                                      i =.009061140

Total annual loan cost rate (100(.009061140             Total of consumer’s loan costs financed at           Appraised value of dwelling at
    x 12))=10.87%                                           consummation: $4,500                                 consummation: $100,000
  (3) Lump sum advance at consummation                  Contract rate of interest: 8.5%                      Assumed annual dwelling appreciation rate:
and monthly advances thereafter.                        Estimated time of repayment (based on life               8%
Lump sum advance to consumer at                             expectancy of a consumer at age 75): 12
    consummation: $10,000                                   years
Monthly advance to consumer, beginning at
    consummation: $725
15476                   Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

                                                               P144 = Min ( 221,818.30, 234,189.82 )
                                                                                                          + ∑ 725(1 + i )
                                                                                                144 − 0                             144 − j
                                                                          10,000(1 + i )                                                      = 221,818.30
                                                                                                             j= 0
                                                                    i =.007708844

Total annual loan cost rate (100(.007708844                                 Appraised property value:                                               Annuity cost:
    x 12)) = 9.25%                                                          Interest rate:
                                                                                                                                                    Monthly Loan Charges
  (d) Reverse mortgage model form and                                       Monthly advance:
sample form.                                                                Initial draw:                                                           Servicing fee:
  (1) Model form.                                                           Line of credit:                                                         Other Charges:
Total Annual Loan Cost Rate                                                 Initial Loan Charges                                                    Mortgage insurance:
Loan Terms                                                                  Closing costs:                                                          Shared Appreciation:
Age of youngest borrower:                                                   Mortgage insurance premium:                                             Repayment Limits

                                                                                                                                                         Total annual loan cost rate
                                            Assumed annual appreciation                                                                   2-year loan         [ ]-year         [ ]-year    [ ]-year
                                                                                                                                             term            loan term]       loan term   loan term

0% ....................................................................................................................................                             [     ]
4% ....................................................................................................................................                             [     ]
8% ....................................................................................................................................                             [     ]

   The cost of any reverse mortgage loan                                    include principal, interest, closing costs,                             Monthly advance: $301.80
depends on how long you keep the loan and                                   mortgage insurance premiums, annuity costs,                             Initial draw: $1,000
how much your house appreciates in value.                                   and servicing costs (but not costs when you                             Line of credit: $4,000
Generally, the longer you keep a reverse                                    sell the home).
mortgage, the lower the total annual loan cost                                The rates in this table are estimates. Your                           Initial Loan Charges
rate will be.                                                               actual cost may differ if, for example, the                             Closing costs: $5,000
   This table shows the estimated cost of your                              amount of your loan advances varies or the                              Mortgage insurance premium: None
reverse mortgage loan, expressed as an                                      interest rate on your mortgage changes.                                 Annuity cost: None
annual rate. It illustrates the cost for three                              Signing an Application or Receiving These
[four] loan terms: 2 years, [half of life                                                                                                           Monthly Loan Charges
                                                                            Disclosures Does Not Require You To
expectancy for someone your age,] that life                                 Complete This Loan                                                      Servicing fee: None
expectancy, and 1.4 times that life
expectancy. The table also shows the cost of                                  (2) Sample Form.                                                      Other Charges
the loan, assuming the value of your home                                   Total Annual Loan Cost Rate                                             Mortgage insurance: None
appreciates at three different rates: 0%, 4%                                                                                                        Shared Appreciation: None
and 8%.                                                                     Loan Terms
   The total annual loan cost rates in this                                 Age of youngest borrower: 75                                            Repayment Limits
table are based on the total charges associated                             Appraised property value: $100,000                                      Net proceeds estimated at 93% of projected
with this loan. These charges typically                                     Interest rate: 9%                                                           home sale

                                                                                                                                                         Total annual loan cost rate
                                            Assumed annual appreciation                                                                   2-year loan    [6-year loan          12-year     17-year
                                                                                                                                             term            term]            loan term   loan term

0% ....................................................................................................................................         39.00%         [14.94%]           9.86%       3.87%
4% ....................................................................................................................................         39.00%         [14.94%]          11.03%      10.14%
8% ....................................................................................................................................         39.00%         [14.94%]          11.03%      10.20%

   The cost of any reverse mortgage loan                                      The total annual loan cost rates in this                              Appendix L to Part 226—Assumed Loan
depends on how long you keep the loan and                                   table are based on the total charges associated                         Periods for Computations of Total Annual
how much your house appreciates in value.                                   with this loan. These charges typically                                 Loan Cost Rates
Generally, the longer you keep a reverse                                    include principal, interest, closing costs,                               (a) Required tables. In calculating the total
mortgage, the lower the total annual loan cost                              mortgage insurance premiums, annuity costs,                             annual loan cost rates in accordance with
rate will be.                                                               and servicing costs (but not disposition                                Appendix K of this part, creditors shall
   This table shows the estimated cost of your                              costs—costs when you sell the home).
                                                                                                                                                    assume three loan periods, as determined by
reverse mortgage loan, expressed as an                                        The rates in this table are estimates. Your
                                                                                                                                                    the following table.
annual rate. It illustrates the cost for three                              actual cost may differ if, for example, the
                                                                                                                                                      (b) Loan periods.
                                                                            amount of your loan advances varies or the
[four] loan terms: 2 years, [half of life                                                                                                             (1) Loan Period 1 is a two-year loan period.
                                                                            interest rate on your mortgage changes.
expectancy for someone your age,] that life                                                                                                           (2) Loan Period 2 is the life expectancy in
expectancy, and 1.4 times that life                                         Signing an Application or Receiving These                               years of the youngest borrower to become
expectancy. The table also shows the cost of                                Disclosures Does Not Require You To                                     obligated on the reverse mortgage loan, as
the loan, assuming the value of your home                                   Complete This Loan                                                      shown in the U.S. Decennial Life Tables for
appreciates at three different rates: 0%,4%                                   11. In Part 226, a new Appendix L is                                  1979–1981 for females, rounded to the
and 8%.                                                                     added to read as follows:                                               nearest whole year.
                        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                                                                   15477

   (3) Loan Period 3 is the life expectancy                                    expectancy figures at .5 have been rounded                              expectancy figure in Loan Period 2,
figure in Loan Period 3, multiplied by 1.4                                     up to 1).                                                               multiplied by .5 and rounded to the nearest
and rounded to the nearest full year (life                                       (4) At the creditor’s option, an additional                           full year (life expectancy figures at .5 have
                                                                               period may be included, which is the life                               been rounded up to 1).

                                                                                                                                                                            Loan period
                                                                                                                                              Loan period                    2 (life ex-   Loan period
                                                Age of youngest borrower                                                                                     loan period
                                                                                                                                              1 (in years)                   pectancy)     3 (in years)
                                                                                                                                                              (in years)]    (in years)

62    .....................................................................................................................................             2            [11]            21             29
63    .....................................................................................................................................             2            [10]            20             28
64    .....................................................................................................................................             2            [10]            19             27
65    .....................................................................................................................................             2             [9]            18             25
66    .....................................................................................................................................             2             [9]            18             25
67    .....................................................................................................................................             2             [9]            17             24
68    .....................................................................................................................................             2             [8]            16             22
69    .....................................................................................................................................             2             [8]            16             22
70    .....................................................................................................................................             2             [8]            15             21
71    .....................................................................................................................................             2             [7]            14             20
72    .....................................................................................................................................             2             [7]            13             18
73    .....................................................................................................................................             2             [7]            13             18
74    .....................................................................................................................................             2             [6]            12             17
75    .....................................................................................................................................             2             [6]            12             17
76    .....................................................................................................................................             2             [6]            11             15
77    .....................................................................................................................................             2             [5]            10             14
78    .....................................................................................................................................             2             [5]            10             14
79    .....................................................................................................................................             2             [5]             9             13
80    .....................................................................................................................................             2             [5]             9             13
81    .....................................................................................................................................             2             [4]             8             11
82    .....................................................................................................................................             2             [4]             8             11
83    .....................................................................................................................................             2             [4]             7             10
84    .....................................................................................................................................             2             [4]             7             10
85    .....................................................................................................................................             2             [3]             6              8
86    .....................................................................................................................................             2             [3]             6              8
87    .....................................................................................................................................             2             [3]             6              8
88    .....................................................................................................................................             2             [3]             5              7
89    .....................................................................................................................................             2             [3]             5              7
90    .....................................................................................................................................             2             [3]             5              7
91    .....................................................................................................................................             2             [2]             4              6
92    .....................................................................................................................................             2             [2]             4              6
93    .....................................................................................................................................             2             [2]             4              6
94    .....................................................................................................................................             2             [2]             4              6
95   and over ......................................................................................................................                    2             [2]             3              4

  By order of the Board of Governors of the                                    $40,000,000. Section 305 of the Small                                   However, this statutory revision limits
Federal Reserve System, March 20, 1995.                                        Business Administration                                                 the extent of participation by public or
William W. Wiles,                                                              Reauthorization and Amendments Act                                      private handicapped organizations in
Secretary of the Board.                                                        of 1994 expanded the eligibility of                                     small business set-aside awards to an
[FR Doc. 95–7231 Filed 3–23–95; 8:45 am]                                       entities which may participate in small                                 aggregate amount not to exceed
BILLING CODE 6210–01–P                                                         business set-aside contracts to include                                 $40,000,000. The Act further provides
                                                                               public or private organizations for the                                 that Federal agencies making awards to
                                                                               handicapped during fiscal year 1995.                                    such organizations pursuant to
                                                                               Handicapped organizations had been                                      provisions of this Act may use multi-
SMALL BUSINESS ADMINISTRATION                                                  eligible for set-aside contracts during                                 year contracts, if appropriate.
                                                                               fiscal years 1989 through 1993.                                            This statutory provision reinstates the
13 CFR Part 121                                                                                                                                        eligibility of public or private
                                                                               EFFECTIVE DATE: This rule is effective on
Small Business Size Regulations;                                               March 24, 1995.                                                         handicapped organizations previously
Handicapped Workshop Participation                                                                                                                     authorized by Public Law 100–590 for
                                                                               FOR FURTHER INFORMATION CONTACT:     Gary                               fiscal years 1989 through 1993. Sections
in Small Business Set-Aside Contracts                                          M. Jackson, Assistant Administrator for                                 121.2001 through 121.2005 of the Small
AGENCY:        Small Business Administration.                                  Size Standards, (202) 205–6840.                                         Business Size Regulations prescribe
ACTION:       Final rule.                                                        121.601. The Small Business                                           regulations governing the participation
                                                                               Administration Reauthorization and                                      of public or private handicapped
SUMMARY: The Small Business                                                    Amendments Act of 1994 amended                                          organization on small business set-aside
Administration (SBA) hereby amends its                                         Section 15(c) of the Act, 15 U.S.C.                                     contracts. The regulations include the
size regulations to include public or                                          644(c), by expanding the eligibility of                                 definition of terms, procedures for
private organizations for the                                                  entities which may participate in small                                 protesting the status of an offeror
handicapped as eligible concerns to                                            business set-aside contracts to include                                 asserting eligibility as a handicapped
participate in small business set-aside                                        public or private organizations for the                                 organization, and procedures for filing
contracts during fiscal year 1995, in an                                       handicapped during fiscal year 1995.                                    appeals of an award to a handicapped
aggregate amount not to exceed                                                 See Public Law 103–403, Section 305.                                    organization on the basis of severe
15478        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

economic injury to a small business          certifies that this rule contains no new         (c) Procedure for protest. (1) Protests
concern as a result of a proposed award.     reporting or recordkeeping                     shall be submitted to the contracting
Although these regulations were              requirements. For purposes of Executive        officer who shall promptly forward
originally established for awards made       Order 12612, SBA certifies that this rule      them to the Associate Administrator for
during fiscal years 1989–93, they have       does not have any federalism                   Government Contracting, Small
remained in effect and will generally        implications warranting the preparation        Business Administration, 409 Third
apply to awards made in fiscal year          of a Federalism Assessment. For                Street SW., Washington, DC 20416. The
1995.                                        purposes of Executive Order 12778, the         Associate Administrator shall be the
   However, Sections 121.2004 and            SBA certifies that this rule is drafted, to    deciding official for purposes of protests
121.2005 are now being revised to            the extent practicable, in accordance          under this section.
incorporate the current title and address    with the standards set forth in section        *     *    *     *     *
of the SBA official responsible for          2 of this order.                                 (5) The Associate Administrator for
deciding protests concerning the                For the reasons set forth above, Title      Government Contracting shall consult
eligibility of a handicapped organization    13, Code of Federal Regulations (CFR),         with the Executive Director of the
and appeal of awards based on severe         is amended as set forth below.                 Committee for Purchases from the Blind
economic impact on small business. An                                                       and Other Severely Handicapped before
internal reorganization of the SBA           List of Subjects in 13 CFR Part 121
                                                                                            rendering a determination.
included the renaming of the ‘‘Office of       Government procurement,
                                                                                            *     *    *     *     *
Procurement Assistance’’ to the ‘‘Office     Government property, Grant programs—             4. Section 121.2005 is amended by
of Government Contracting.’’ The             business, Loan programs—business,              revising paragraph (c)(1) to read as
responsibilities of the Office of            Small business.                                follows:
Government Contracting, however,
include those of the former Office of        PART 121—[AMENDED]                             § 121.2005   Appeal of economic impact.
Procurement.                                                                                *     *    *     *     *
   The SBA is publishing this regulation       1. The authority citation for 13 CFR
                                             Part 121 continues to read as follows:           (c) Procedure for appeal. (1) Appeals
as a final rule without notice and                                                          shall be submitted to the contracting
opportunity for public comment since           Authority: 15 U.S.C. 632(a), 634(b)(6),
                                                                                            officer who shall promptly forward
the SBA is merely adopting the statutory     637(a), and 644(c); and Pub. L. 102–486, 106
                                             Stat. 2776, 3133.                              them to the Associate Administrator for
language into its regulations to                                                            Government Contracting, Small
recognize the eligibility granted to           2. Section 121.2001 is revised to read       Business Administration, 409 Third
public or private handicapped                as follows:                                    Street SW., Washington, DC 20416. The
organizations to participate in small                                                       Associate Administrator shall be the
business set-aside contracts during          § 121.2001   Statutory basis.
                                                                                            deciding official for purposes of appeals
fiscal year 1995. In addition, the change       (a) The Small Business Act, as
                                                                                            under this section.
to the title of the Agency official          amended by Public Law 103–403,
responsible for deciding protests and        provides that public or private                *     *    *     *     *
                                                                                              Dated: February 15, 1995.
appeals concerning small business set-       organizations for the handicapped shall
aside awards to handicapped                  be eligible to participate in small            Philip Lader,
organizations is a matter of Agency          business set-aside contracts for fiscal        Administrator.
management and personnel and is,             year 1995 in an aggregate amount not to        [FR Doc. 95–6978 Filed 3–23–95; 8:45 am]
therefore, published without notice and      exceed $40,000,000. See 15 U.S.C.              BILLING CODE 8025–01–M
comment pursuant to 5 U.S.C. 553(a)(2).      644(c)(2)(A).
                                                (b) Agencies awarding one or more
Compliance With Executive Orders
                                             contracts to such a handicapped                DEPARTMENT OF TRANSPORTATION
12612, 12788 and 12866, the Regulatory
                                             organization may use multi-year
Flexibility Act (5 U.S.C. 601 et seq.),                                                     Federal Highway Administration
                                             contracts, if appropriate. See 15 U.S.C.
and the Paperwork Reduction Act (44
U.S.C. Chapter 3501 et seq.)                                                                23 CFR Part 635
                                                (c) Awards to public or private
   The SBA certifies that this rule is not   organizations for the handicapped may
a significant rule within the meaning of                                                    General Material Requirements; Buy
                                             be appealed to SBA when a small
Executive Order 12866 and will not                                                          America Requirements
                                             business experiences or is likely to
have a significant economic impact on        experience severe economic injury as a         AGENCY:  Federal Highway
a substantial number of entities within      result of the proposed award to an             Administration (FHWA), DOT.
the meaning of the Regulatory                organization for the handicapped. Any          ACTION: Notice of nationwide waiver of
Flexibility Act, 5 U.S.C. 601 et seq. This   eligible concern wishing to appeal must        Buy America for pig iron and processed,
rule does not impose costs upon the          file its appeal with the SBA within 10         pelletized, and reduced iron ore.
businesses which might be affected by        days after the announcement of the
it. Because the rule will have no effect     proposed award to which the appeal             SUMMARY:   The FHWA is hereby granting
on the amount or dollar value of any         relates. The SBA is afforded 30 days           a nationwide waiver of the Buy America
contract requirement or the number of        from the date the appeal is filed to           requirements for certain iron
requirements reserved for the small          consult with the Executive Director of         components used in the manufacture of
business set-aside program, it will not      the Committee for Purchase from the            steel and/or iron materials. Based on the
have an annual economic effect of $100       Blind and Other Severely Handicapped.          findings of a nationwide review, and
million or more, result in a major              3. Section 121.2004 is amended by           after analyzing the comments submitted
increase in costs or prices, or have a       revising paragraphs (c)(1) and (c)(5) to       in response to the waiver proposal, the
significant adverse effect on competition    read as follows:                               FHWA believes that the supply from
or the United States economy.                                                               domestic sources of pig iron and
   For the purpose of the Paperwork          § 121.2004   Protest of eligibility.           processed, pelletized, and reduced iron
Reduction Act, 44 U.S.C. Ch. 35, SBA         *     *      *     *      *                    ore is not adequate to permit full
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                             15479

compliance with the Buy America                 Several commentors concluded that        use in the domestic manufacturing
requirements. This action permits the        domestic supplies of pig iron and           process of steel and/or iron materials.
use of pig iron and processed,               processed, pelletized, and reduced iron     Furthermore, processed alloys, alone,
pelletized, and reduced iron ore             ore are either inadequate or nonexistent    are not considered to be steel or iron
manufactured outside of the United           in their region of the United States.       materials under the Buy America
States to be used in the domestic            Supplies were believed to be inadequate     regulation. Thus, unless alloys have
manufacturing process for steel and/or       now and in the future. One commentor        been processed or refined to include
iron materials used in Federal-aid           offered analysis of the current domestic    substantial amounts of steel and/or iron
highway construction projects.               pig iron supply, performed by an            materials, they are not subject to the
EFFECTIVE DATE: March 24, 1995.              outside consultant. Its analysis showed     Buy America requirements.
FOR FURTHER INFORMATION CONTACT: Mr.         that the volume of available domestic       (Pub. L. 97–424, § 165, 96 Stat. 2097, 2136,
Gerald L. Eller, Office of Engineering,      pig iron is insufficient to supply the      as amended by Pub. L. 98–229, § 10, 98 Stat.
(202) 366–0392 or Mr. Wilbert Baccus,        electric furnace steel producers in the     55, 57, and Pub. L. 102–240, §§ 1041, 1048,
Office of the Chief Counsel, (202) 366–      United States. Of the 23 blast furnace      105 Stat. 1914, 1993, 1999; 23 U.S.C. 315; 49
0780, Federal Highway Administration,        sites in the United States the analysis     CFR 1.48; 23 CFR 635.410)
400 Seventh Street, SW., Washington,         showed that only four currently sell pig      Issued on: March 20, 1995.
DC 20590. Office hours are from 7:45         iron. No commentor stated that the          Rodney E. Slater,
a.m. to 4:15 p.m., e.t., Monday through      domestic supply of pig iron and             Federal Highway Administrator.
Friday, except Federal holidays.             processed, pelletized, and reduced iron     [FR Doc. 95–7362 Filed 3–21–95; 3:49 pm]
                                             ore is adequate. The FHWA concludes
SUPPLEMENTARY INFORMATION: In                                                            BILLING CODE 4910–22–P
                                             that the waiver is substantiated due to
accordance with 23 CFR 635.410(c)(6),        the unavailability of pig iron.
the FHWA hereby provides notice that            Although supportive of the waiver
it is granting a nationwide waiver of the                                                National Highway Traffic Safety
                                             several commentors questioned the           Administration
requirements of 23 CFR 635.410, Buy          need for a waiver, since they believed
America requirements, for pig iron and       that pig iron and processed, pelletized,    23 CFR Part 1313
processed, pelletized, and reduced iron      and reduced iron ore were already
ore. Pig iron is made from molten iron       exempt from the Buy America                 [Docket No. 89–02; Notice 7]
which has been cast in the shape of          requirements. Their belief was based on     RIN 2127–AD01
‘‘pigs’’ as it comes from a blast furnace.   the idea that the Buy America
Processing, pelletizing, and reducing        requirements apply only to products         Incentive Grant Criteria for Drunk
iron ore are methods by which raw iron       further along in the manufacturing          Driving Prevention Programs
ore is improved to produce enriched          process of steel and iron. The FHWA
ore.                                                                                     AGENCY:  National Highway Traffic
                                             has previously stated that products of a
   Section 635.410 provides, with                                                        Safety Administration (NHTSA),
                                             manufacturing process are not exempt
exceptions, that no Federal-aid highway                                                  Department of Transportation.
                                             from the Buy America requirements. On
construction project using steel or iron                                                 ACTION: Interim final rule; reopening of
                                             November 25, 1983, the FHWA
materials is authorized to proceed           published a final rule (48 FR 53099) of     comment period.
unless all manufacturing processes for       the Buy America requirements to             SUMMARY:    On August 9, 1994, (59 FR
these materials, including the               implement procedures required by § 165      40471) NHTSA published an interim
application of coatings for such             of the Surface Transportation Assistance    final rule, amending the criterion in part
materials, occur in the United States.       Act (STAA) of 1982 (Pub. L. 97–424).        1313 for a supplemental grant for States
Because the domestic supply of pig iron      The final rule’s discussion of              that deem persons under age 21 who
and processed, pelletized, and reduced       manufactured materials stated that          operate a motor vehicle with a BAC of
iron ore is not adequate, a nationwide       ‘‘Raw materials used in the steel * * *     0.02 or greater to be driving while
waiver of these requirements is being        product may be imported. All                intoxicated. The interim final rule
granted for these specific iron              manufacturing processes to produce          requested comments on the amendment.
components. Items not specifically           steel * * * products must occur             Today’s notice reopens the comment
included in the waiver remain subject to     domestically. Raw materials are             period to provide States, national
the Buy America requirements.                materials such as iron ore * * * [and]
   The basis for the nationwide waiver is                                                organizations and other interested
                                             waste products * * * which are used in      persons an additional opportunity to
that pig iron and processed, pelletized,     the manufacturing process to produce
and reduced iron ore are not produced                                                    comment on the amendment.
                                             the steel * * * products’’ (48 FR 53099,
in the United States in sufficient and                                                   DATES: The comment period for NHTSA
                                             53103). Consistent with this
reasonably available quantities which        interpretation, pig iron and processed,     Docket No. 89–02; Notice 6 is reopened
are of a satisfactory quality. Therefore,    pelletized, and reduced iron ore are        so that it closes May 23, 1995.
imposing Buy America requirements on         products of a manufacturing process         ADDRESSES: Written comments should
these materials is not in the public         and thus subject to the Buy America         refer to the docket number and the
interest.                                    requirements.                               number of this notice and be submitted
   On August 23, 1994, the FHWA                 At least one commentor questioned        (preferably in ten copies) to: Docket
published a notice (59 FR 43376) and         whether the FHWA’s Buy America              Section, National Highway Traffic
requested comments on the proposed           regulation applies to certain alloys        Safety Administration, Room 5109,
nationwide waiver and the availability       required in the production of steel and/    Nassif Building, 400 Seventh Street,
of a domestic supply of the components       or iron materials. Even though most of      SW., Washington, DC 20590. (Docket
included in the waiver. Ten comments         these alloys are unavailable from           hours are from 9:30 a.m. to 4 p.m.)
were received to FHWA Docket No. 94–         domestic sources, alloys were not           FOR FURTHER INFORMATION CONTACT: Ms.
18. All 10 commentors were supportive        addressed in the 1983 final rule. Similar   Marlene Markison, Chief, Program
of the waiver, although some questioned      to the treatment of raw iron ore, alloys    Support Staff, NSC–10, National
the need for waiver.                         in their raw state may be imported for      Highway Traffic Safety Administration,
15480             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

400 Seventh Street SW., Washington,                       that makes driving with a BAC of 0.02           itself governing its 0.02 per se law for
DC 20590; telephone (202) 366–2121 or                     percent or above itself an offense for such     persons under age 21. It need not submit
Dr. James Hedlund, Director, Office of                    persons. (57 FR 29007)                          data. To demonstrate compliance, a
Alcohol and State Programs, NTS–20,                          The interim final rule amended the           ‘‘Data State’’ must submit its law,
National Highway Traffic Safety                           regulation to provide that, to qualify for      regulation, or binding policy directive
Administration, 400 Seventh Street,                       this supplemental grant, a State must           governing its 0.02 per se law for persons
SW., Washington, DC 20590, telephone                      ‘‘provide that any person under age 21          under age 21. It must also submit data
(202) 366–2753.                                           with an alcohol concentration of 0.02           demonstrating that the average length of
SUPPLEMENTARY INFORMATION: The                            percent or greater when driving a motor         hard suspensions for offenders under
section 410 program, established in title                 vehicle shall be deemed to be driving           the State’s per se law for persons under
23, United States Code, section 410, as                   while intoxicated for the purpose of            age 21 meets or exceeds 30 days.
amended, is an incentive grant program                    administrative sanctions.’’
                                                             The agency interpreted this criterion        Comments Received
under which States may qualify for
basic and supplemental grant funds for                    to require that a State’s law must                 NHTSA received four comments in
adopting and implementing                                 provide that 0.02 BAC underage                  response to the interim final rule. The
comprehensive drunk driving                               offenders must be treated the same as           commenters included the Michigan
prevention programs that meet specified                   other (0.10) DUI offenders would be             State Police Department, the Michigan
statutory criteria.                                       treated under the State’s administrative        Department of State, the National
  To qualify for basic grant funds under                  license revocation (ALR) law, for the           Association of Governors’ Highway
section 410, a State must meet five out                   State to qualify for a ‘‘per se law for         Safety Representatives (NAGHSR) and
of six basic criteria. The criteria include               persons under age 21’’ supplemental             Advocates for Highway and Auto Safety
an expedited driver’s license suspension                  grant.                                          (Advocates).
or revocation system, a per se law (at                       Further, the agency determined that             Both comments from the State of
0.10 BAC in the first three fiscal years                  States that did not have an ALR law at          Michigan objected to the imposition of
in which the State receives a grant and                   all or did not have an ALR law that             legislative mandates in the section 410
0.08 BAC in subsequent years), a                          qualifies under section 410 need not            program. The Michigan commenters
statewide program for stopping motor                      provide for identical sanctions, but their      favored the use of performance-based
vehicles, a self-sustaining drunk driving                 laws must require a minimum 30-day              criteria instead. Michigan has raised this
prevention program, a minimum                             license suspension as an administrative         comment previously regarding other
drinking age prevention program, and                      sanction for 0.02 underage offenders,           aspects of the section 410 program.
mandatory sentencing requirements.1                       and the suspension must be mandatory.           However, section 410 does not permit
  If a State qualifies for a basic grant, it                                                              the agency to disregard the statutory
                                                          Changes to the regulation                       criteria and qualify a State based solely
may also seek to qualify for funds under
one or more of seven supplemental                            Some States objected to the                  on performance.
grants. The supplemental grants include                   application of this portion of part 1313.          The Michigan Department of State
a per se law for persons under age 21,                    In response to these objections, NHTSA          Police and NAGHSR objected to the 30-
a program making unlawful open                            published an interim final rule on              day hard suspension requirement. These
containers and consumption of alcohol                     August 9, 1994 (59 FR 40470), amending          commenters were concerned that, by
in motor vehicles, a suspension of                        part 1313 to provide that any State             defining this requirement, NHTSA was
registration and return of license plate                  (whether it has an ALR law that                 making the criterion stricter, thereby
program, a mandatory alcohol                              conforms to section 410 or not) need            making it more difficult for States to
concentration testing program, a                          only provide for a 30-day suspension or         qualify for section 410 funds. NAGHSR
drugged driving prevention, a per se                      revocation for persons under the age of         also objected to the interim final rule’s
level of 0.08 (in the first three fiscal                  21 who operate a motor vehicle with a           provision that States ‘‘must be a Law or
years in which the State receives a                       BAC of 0.02 or greater. The 30-day              Data State in order to show
grant), and a video equipment program.                    suspension or revocation period must be         compliance.’’
                                                          a mandatory hard suspension or                     NHTSA wishes to clarify that the
Per se Law for Persons Under Age 21                       revocation (i.e., it may not be subject to      changes that were made to the
Supplemental Grant                                        hardship, conditional or provisional            regulation in the interim final rule made
   To qualify for the ‘‘per se law for                    driving privileges).                            it easier, not more difficult, for States to
persons under age 21’’ supplemental                          The interim final rule also amended          qualify for the 0.02 supplemental grant.
grant, Section 410 requires that the State                the regulation to permit States to              Prior to the issuance of the interim rule,
must be ‘‘eligible for a basic grant in the               demonstrate compliance with this                to qualify for this grant, States with ALR
fiscal year and (provide) that any person                 criterion as either ‘‘Law’’ or ‘‘Data’’         laws that qualified under section 410
under age 21 with a blood alcohol                         States. The amended regulation defined          were required to impose the same
concentration of 0.02 percent or greater                  a ‘‘Law State’’ as a State that has laws,       sanctions on 0.02 BAC underage
when driving a motor vehicle shall be                     regulations, or binding policy directives       offenders as were imposed on other
deemed to be driving while                                which, on their face, meet each element         (0.10 or, in some States, 0.08) DUI
intoxicated.’’                                            of the criterion. It defined a ‘‘Data State’’   offenders. These sanctions include a 90-
   In an interim final rule, dated June 30,               as a State that has laws, regulations, or       day suspension for first offenders (30
1992, NHTSA explained:                                    binding policy directives which, on             days of which must be hard for those
  In other words, States must establish a 0.02            their face, meet each element, except           who fail the test and all of which must
per se law for persons under the age of 21,               that they need not specifically provide         be hard for those who refuse to submit
                                                          for a 30-day hard suspension.                   to the test) and a one-year hard
  1 To receive a basic grant, States that qualified for      Under the interim final rule, the            suspension for repeat offenders.
section 410 funding in FY 1992 need only                  regulation was amended to provide that,            Further, prior to the issuance of the
demonstrate compliance with four out of the five
criteria in effect at that time, namely all the basic
                                                          to demonstrate compliance, a ‘‘Law              interim rule, to demonstrate compliance
criteria listed above except for mandatory                State’’ must submit only the law,               for this grant, States could only qualify
sentencing.                                               regulation or binding policy directive          by submitting a conforming law (i.e., as
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                          15481

Law States). The interim rule provided           The agency’s finding was based also      FOR FURTHER INFORMATION CONTACT:
additional flexibility by permitting          on its view that the amendments made        Peter Bell, Office of the Inspector
States with laws that contain                 in the interim final rule rectified an      General, Room 8180, Department of
exemptions or some other provision that       inequity in the regulation, provided        Housing and Urban Development, 451
did not fully comply with the criterion,      additional flexibility for the States and   Seventh Street SW., Washington, D.C.
to demonstrate compliance through the         were consistent with other provisions in    20410, telephone (202) 708–0383.
use of data.                                  the section 410 implementing                Hearing or speech-impaired individuals
   As a result of the changes made in the     regulation, which was promulgated           may call HUD’s TDD number (202) 708–
interim final rule, three States qualified    subject to notice and a full opportunity    9300 (These telephone numbers are not
for funding under the 0.02 supplemental       for the public to comment.                  toll free.)
criterion that were not able to qualify          The agency stated there would be
previously. These States included                                                         SUPPLEMENTARY INFORMATION:
                                              little benefit gained by following the
California, Ohio and Virginia.                notice and comment procedures with          I. Background
   Advocates did not oppose the               regard to the revisions made by the
amendment contained in the interim                                                          HUD is amending the single audit
                                              interim final rule.                         requirements for the submission of audit
rule, but expressed some reservations.           NHTSA believes its assessment was
Advocates stated, ‘‘We are not                                                            reports found at 24 CFR 44.10(f) and 24
                                              correct, as demonstrated by the small       CFR 45.4.
convinced * * * that a 30-day period of       number of comments received in
suspension is sufficient to make an           response to the interim final rule.         A. 24 CFR Part 44
effective impression on under age 21          However, NHTSA wishes to ensure that
drivers. * * * We believe that there is                                                      Part 44 implements the general audit
                                              the public has a full opportunity to be     requirements for recipient organizations
a strong argument for requiring a 90-day      heard. Therefore, the agency has
suspension for under age 21                                                               in OMB Circular A–128 ‘‘Audits of State
                                              decided to reopen the comment period        and local governments.’’ The OMB
supplemental grants even for states that      to provide the public with an additional
meet the basic grant criteria without an                                                  Circular was issued under the Single
                                              opportunity to comment on the agency’s      Audit Act of 1984 (31 U.S.C. 7501–
ALR law.’’                                    action.
   NHTSA adopted the 30-day hard                                                          7507) (the Act). The Act requires State
                                                 The regulation, as amended by the        or local governments that receive
suspension criterion for both
                                              interim final rule, remains in effect and   $100,000 or more a year in Federal
administrative license suspension laws
                                              binding. Following the close of the         financial assistance to have an audit
(for first offenders who submit to and
                                              reopened comment period, NHTSA will         conducted according to the Act’s
fail a chemical test) and for 0.02 laws for
                                              publish a notice responding to any          standards.
youth because that is the sanction that
                                              additional comments it receives and, if        State or local governments that
is recommended in the Uniform Vehicle
                                              appropriate, will amend the provisions      receive between $25,000 and $100,000 a
Code concerning license suspension
                                              of this rule.                               year have the option of having an audit
laws (see § 6–215, Limited License) and
because most States with demonstrated           Issued on: March 20, 1995.                conducted according to the Act’s
effective license suspension laws             Ricardo Martinez,                           standards or having a grant specific
provide for a 30-day hard suspension          Administrator, National Highway Traffic     financial audit performed. The
period. NHTSA is not aware of any             Safety Administration.                      requirements for conducting these grant
evidence that State zero tolerance laws       [FR Doc. 95–7264 Filed 3–24–95; 8:45 am]    specific audits are described in 24 CFR
which provide for a 90-day hard               BILLING CODE 4910–59–P
                                                                                          44.1(c)(2). State or local governments
suspension are any more effective than                                                    that receive less than $25,000 a year are
State zero tolerance laws which provide                                                   exempt from the audit requirements.
for a 30-day hard suspension. Of course,                                                     Section 7505 of the Act requires the
                                              DEPARTMENT OF HOUSING AND                   Office of Management and Budget
States that provide for a hard
                                              URBAN DEVELOPMENT                           (OMB) to establish procedures and
suspension period of longer than 30
days could qualify for grant funding          Office of the Secretary                     guidelines to implement the Act. It
under this criterion.                                                                     specifies that OMB shall assign an
   Both NAGHSR and Advocates also             24 CFR Parts 44 and 45                      overseeing, or cognizant, Federal agency
objected to NHTSA’s use of an interim                                                     to each recipient in order to facilitate
final rule without providing for prior        [Docket No. R–95–1777; FR–3767–F–01]        the auditing process and ensure that the
notice and an opportunity for public                                                      audit requirements are met. The
                                              RIN 2501–AB85
comment. As explained in that                                                             responsibilities of cognizant agencies
document, the changes were published          Non-Federal Audit Report Submission         are set forth in 24 CFR 44.8.
as an interim final rule, because the         Requirements
regulation relates to a grant program, to                                                 B. 24 CFR Part 45
which the requirements of the                 AGENCY:  Office of the Secretary, HUD.        Part 45 implements the audit
Administrative Procedure Act (APA), 5         ACTION: Final rule.                         requirements for recipient organizations
U.S.C. 553, are not applicable.                                                           in OMB Circular A–133 ‘‘Audits of
Moreover, the agency explained that,          SUMMARY:   HUD is amending the single       Institutions of Higher Education and
even if the notice and comment                audit requirements for the submission of    Other Nonprofit Institutions.’’ Section
provisions of the APA did apply, there        audit reports. HUD’s current regulations    45.1 requires that nonprofit institutions
is good cause for finding that providing      require recipients of Federal financial     whose receipts of Federal financial
notice and comment in connection with         assistance from HUD to submit a copy        assistance and outstanding Federal
the rulemaking action was                     of their audit report to HUD. This rule     direct, guaranteed, or insured loan
impracticable, unnecessary and contrary       describes the circumstances under           balances total $100,000 or more a year
to the public interest, since it would        which a ‘‘no finding’’ report need not be   have an audit conducted in accordance
have prevented States from qualifying         submitted.                                  with the requirements of OMB Circular
for grant funds in fiscal year 1994.          EFFECTIVE DATE: April 24, 1995.             A–133.
15482        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

  Nonprofit institutions which meet the      which set forth the requirements a            family formation, maintenance, and
$100,000 requirement but participate in      recipient must fulfill in lieu of             general well-being, and, thus is not
only one Federal financial assistance        submitting a copy of the audit report to      subject to review under the order. This
program may elect to have an audit           HUD.                                          rule applies only to the submission of
conducted in compliance with the OMB                                                       audit reports from governmental entities
                                             II. Justification for Final Rule Making
Circular’s requirements or have a                                                          and nonprofit institutions to HUD. No
program specific audit performed.               In general, the Department publishes       change in existing HUD policies or
Nonprofit institutions whose total           rules for public comment before their         programs will result from promulgation
receipt of Federal financial assistance      issuance for effect, in accordance with       of this rule, as those policies and
and outstanding Federal direct,              its own regulations on rulemaking, 24         programs relate to family concerns.
guaranteed, or insured loan balances are     CFR part 10. However, part 10 provides
                                             exceptions from that general rule where       D. Regulatory Flexibility Act
between $25,000 and $100,000 a year
are given the same choice. The               the agency finds good cause to omit              The Secretary, in accordance with the
requirements for conducting these            advance notice and public participation.      Regulatory Flexibility Act (5 U.S.C.
program specific audits are described in     The good cause requirement is satisfied       605(b)) has reviewed and approved this
24 CFR 45.1(b)(2).                           when prior public procedure is                rule, and in so doing certifies that this
  Nonprofit institutions that have           ‘‘impracticable, unnecessary, or contrary     rule will not have a significant
annual receipts of Federal financial         to the public interest’’ (24 CFR 10.1).       economic impact on a substantial
assistance and outstanding Federal           The Department finds that good cause          number of small entities. This rule
direct, guaranteed or insured loan           exists to publish this rule for effect        alleviates an administrative burden
balances totalling less than $25,000 are     without first soliciting public comment,      imposed on governmental entities and
exempt from the audit requirements.          in that prior public procedure is             nonprofit institutions. Accordingly, the
HUD programs listed in 24 CFR 45.1(c)        unnecessary because the Department is         rule will not have a significant
are also excused from the audit report       merely alleviating an administrative          economic impact on a substantial
requirements.                                burden imposed on recipients and              number of small entities.
                                             program offices by modifying its audit
C. The Amendments                            report submission requirements.               E. Regulatory Agenda
   HUD’s single audit requirements for                                                       This final rule was not listed in the
the submission of audit reports are          III. Other Matters
                                                                                           Department’s Semiannual Agenda of
contained in 24 CFR 44.10(f) and 24          A. Environmental Impact                       Regulations published on November 14,
CFR 45.4. These regulations require             In accordance with 40 CFR 1508.4 of        1994 (59 FR 57632) in accordance with
recipients of Federal financial assistance   the regulations of the Council on             Executive Order 12866 and the
from HUD to submit a copy of their           Environmental Quality and 24 CFR              Regulatory Flexibility Act.
audit reports to HUD. The audit report       50.20(k) of the HUD regulations, the
must be submitted regardless of whether                                                    List of Subjects
                                             policies and procedures contained in
HUD is the recipient’s cognizant agency      this rule relate only to HUD                  24 CFR Part 44
or the report is a ‘‘no finding’’ audit      administrative procedures and,                  Accounting, Grant programs, Indians,
report. A ‘‘no finding’’ report is one       therefore, are categorically excluded         Intergovernmental relations, Loan
which expresses an unqualified opinion       from the requirements of the National         programs, Reporting and recordkeeping
on the financial statements; identifies      Environmental Policy Act.                     requirements.
no material instances of noncompliance;
identifies no material weakness in           B. Executive Order 12612, Federalism          24 CFR Part 45
internal controls; contains no schedule         The General Counsel, as the                  Accounting, Colleges and universities,
of findings and questioned costs             Designated Official under section 6(a) of     Grant programs, Loan programs,
applicable to a HUD program; identifies      Executive Order 12612, Federalism, has        Nonprofit organizations, Reporting and
no potential illegal act which could         determined that the policies contained        recordkeeping requirements.
result in a criminal prosecution; and        in this rule will not have substantial          Accordingly, 24 CFR parts 44 and 45
contains no uncorrected significant          direct effects on states or their political   are amended as follows:
finding from a prior audit.                  subdivisions, or the relationship
   HUD believes that it is not necessary     between the federal government and the        PART 44—NON-FEDERAL AUDIT
in all cases for recipients to provide it    states, or on the distribution of power       REQUIREMENTS FOR STATE AND
with copies of ‘‘no finding’’ audit          and responsibilities among the various        LOCAL GOVERNMENT
reports. A new paragraph (f)(2) has been     levels of government. Specifically, the
added to 24 CFR 44.10 and a new              requirements of this rule involve the           1. The authority citation for 24 CFR
paragraph (b)(1) added to 24 CFR 45.4        submission of audit reports by state and      part 44 continues to read as follows:
which permit HUD to provide by               local governments that receive federal          Authority: 31 U.S.C. 7501–7507; 42 U.S.C.
program notice that the recipient is not     financial assistance through HUD              3535(d).
required to submit a copy of the audit       programs. It effects no changes in the          2. Section 44.10 is amended by
report if HUD is not the cognizant           current relationships between the             revising paragraph (f) to read as follows:
agency for the recipient and if the report   federal government, the states and their
is a ‘‘no finding’’ report. HUD also         political subdivisions in connection          § 44.10   Audit reports.
believes that even where it is the           with these programs.                          *      *     *    *    *
cognizant agency that the provision of                                                       (f) (1) In accordance with generally
information about the content of certain     C. Executive Order 12606, the Family          accepted government audit standards,
reports being submitted would effect           The General Counsel, as the                 reports shall be submitted by the auditor
greater efficiency in their processing.      Designated Official under Executive           to the organization audited and to those
   A new paragraph (f)(5) has been           Order 12606, The Family, has                  requiring or arranging for the audit. In
added to 24 CFR 44.10 and a new              determined that this rule does not have       addition, the recipient shall submit
paragraph (b)(2) added to 24 CFR 45.4        potential for significant impact on           copies of the reports to each Federal
               Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                          15483

department or agency that provided           audit, but the audit should be               submitted by the District of Columbia
Federal Financial assistance funds to        completed and the report submitted not       pertaining to the regulation of major
the recipient, except as provided in         later than 13 months after the end of the    new and major modified sources in the
paragraph (f)(2) of this section.            recipient’s fiscal year unless a longer      District of Columbia. The intended
   (2) HUD may provide by program            period is agreed to with the cognizant or    effect of this action is to disapprove the
notice that:                                 oversight agency.                            District of Columbia regulations because
   (i) Reports are not required to be sent      (b)(1) HUD may provide by program         they do not meet the requirements of the
to HUD if HUD is not the cognizant           notice that:                                 Clean Air Act. This action is being taken
agency for the recipient and if the report      (i) Reports are not required to be sent   under section 110 of the Clean Air Act.
meets all the following conditions: an       to HUD if HUD is not the cognizant           DATES: This action will become effective
unqualified opinion was expressed on         agency for the recipient and if the report   May 23, 1995 unless adverse comments
the financial statements; the report         meets all the following conditions: an       are received on or before April 24, 1995.
identified no material instances of          unqualified opinion was expressed on         If the effective date is delayed, timely
noncompliance; the report identified no      the financial statements; the report         notice will be published in the Federal
reportable condition or material             identified no material instances of          Register.
weakness in internal controls; the report    noncompliance; the report identified no      ADDRESSES: Comments may be mailed to
contains no schedule of findings and         reportable condition of material             Marcia L. Spink, Associate Director, Air
questioned costs applicable to a HUD         weakness in internal controls; the report    Programs (3AT00), U.S. Environmental
program; the report identified no            contains no schedule of findings and         Protection Agency, Region III, 841
potential illegal act which could result     questions applicable to a HUD program;       Chestnut Building, Philadelphia,
in a criminal prosecution; and the report    the report identified no potential illegal   Pennsylvania 19107. Copies of the
contained no uncorrected significant         act which could result in criminal           documents relevant to this action are
finding from a prior audit; and              prosecution; and the report contained        available for public inspection during
   (ii) Reports are required to be sent to   no uncorrected significant finding from      normal business hours at the Air,
HUD in all cases where HUD is the            a prior audit; and                           Radiation, and Toxics Division, U.S.
cognizant agency; however in those              (ii) Reports are required to be sent to
                                                                                          Environmental Protection Agency,
cases where a report meets the               HUD in all cases where HUD is the
                                                                                          Region III, 841 Chestnut Building,
conditions specified in paragraph (f)(2)     cognizant agency; however in those
                                                                                          Philadelphia, Pennsylvania 19107 and
of this section, the report shall be         cases where a report meets the
                                                                                          the District of Columbia Department of
accompanied by a transmittal letter          conditions specified in paragraph (b)(1)
                                                                                          Consumer and Regulatory Affairs, 2100
indicating that such conditions have         of this section, the report shall be
                                             accompanied by a transmittal letter          Martin Luther King Ave, SE.,
been met.                                                                                 Washington, DC 20020.
   (3) Subrecipients shall submit copies     indicating that such conditions have
                                             been met.                                    FOR FURTHER INFORMATION CONTACT:
to recipients that provided them Federal
assistance funds.                               (2) If no report is required to be        Cynthia H. Stahl, (215) 597–9337, at the
   (4) The reports shall be sent within 30   submitted as provided in paragraph           EPA Region III address.
days after completion of the audit, but      (b)(1)(i) of this section, the recipient     SUPPLEMENTARY INFORMATION: On June
no later than one year after the end of      must notify the appropriate HUD office       21, 1985 and October 22, 1993, the
the audit period, unless a longer period     in writing that report met the conditions    District of Columbia submitted a formal
is agreed to with the cognizant agency.      set forth in paragraph (b)(1) of this        revision to its State Implementation
   (5) If no report is required to be        section; indicate the report date, fiscal    Plan (SIP). Only the portions of those
submitted as provided in paragraph           year audited, and identifying                submittals pertaining to the permitting
(f)(2)(i) of this section, the recipient     information on the independent auditor;      of new sources is being addressed in
must notify the appropriate HUD office       and attach a copy of the Schedule of         this rulemaking. The SIP submittal
in writing that the report met the           Federal Financial Assistance.                being addressed consists of District of
conditions set forth in paragraph (f)(2)       Dated: March 16, 1995.                     Columbia Municipal Regulations
of this section; indicate the report date,   Henry G. Cisneros,                           (DCMR) Title 20, Sections 199
fiscal year audited, and identifying         Secretary.
                                                                                          (definitions—only those pertaining to
information on the independent auditor;                                                   the permitting of new sources), 200,
                                             [FR Doc. 95–7331 Filed 3–23–95; 8:45 am]
and attach a copy of the Schedule of                                                      201, 202 and 204 (permitting), and 299
                                             BILLING CODE 4210–32–P
Federal Financial Assistance.                                                             (reference to the applicability of
*       *     *     *     *                                                               definitions in Section 199).
                                                                                             The District of Columbia (the District)
PART 45—NON-FEDERAL AUDIT                    ENVIRONMENTAL PROTECTION                     is part of the Washington D.C. ozone
REQUIREMENTS FOR INSTITUTIONS                AGENCY                                       nonattainment area, which includes
OF HIGHER EDUCATION AND OTHER                                                             portions of Maryland and Virginia.
                                             40 CFR Part 52
NONPROFIT INSTITUTIONS                                                                    Washington D.C. is a nonattainment
                                             [DC 13–1–6552a; FRL–5177–7]                  area classified as serious for ozone and
  3. The authority citation for part 45                                                   moderate for carbon monoxide and, as
continues to read as follows:                Approval and Promulgation of Air             such, is required to implement certain
  Authority: 42 U.S.C. 3535(d).              Quality Implementation Plans; District       requirements including those pertaining
                                             of Columbia; Disapproval of New              to the permitting of major new and
  4. Section 45.4 is revised to read as      Source Review Regulations
follows:                                                                                  major modified sources. The Clean Air
                                             AGENCY: Environmental Protection             Act required that areas such as the
§ 45.4   Submission of reports.              Agency (EPA).                                District submit adopted regulations
  (a) Except for the organizations           ACTION: Direct final rule.
                                                                                          applying to the permitting of these
subject to the requirements set forth in                                                  major sources by no later than
§ 45.1(c), the report shall be due within    SUMMARY:EPA is disapproving a State          November 15, 1992. In addition, section
30 days after the completion of the          Implementation Plan (SIP) revision           184 of the Clean Air Act requires that
15484        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

areas located in the ozone transport         flaws are the lack of public notice and      subsequent memoranda. The District
region, of which the District is a part,     comment requirements for proposed            has not made a petition under section
submit a new source review program           new sources, and the existence of a          182(f) but even if it had, EPA could not
applicable to major new and major            provision in the regulation that would       approve the exclusion of major NOX
modified sources. The Act defines major      allow the Mayor to grant temporary           sources from RACT requirements until
sources in serious ozone nonattainment       permits on a month by month basis,           approval of such petition under section
areas as those with the potential to emit    allowing circumvention of the entire         182(f) were granted.
greater than or equal to 50 tons per year    NSR regulation. The requirement for             Several citations to the Clean Air Act
of VOC or NOx emissions. Therefore,          providing public notice and comment          in Section 204 of the DCMR regulation
although section 184 requires that areas     on all major new source and major            are incorrect. Any updated references to
in the ozone transport region (OTR)          modified source permits is contained in      the Act, as amended in 1990, should
define major sources as those with the       40 CFR part 51. The District’s regulation    reflect the appropriate provisions
potential to emit greater than or equal to   does not provide such required public        pertaining to new source permitting
50 TPY VOC or 100 TPY NOx                    notice and comment. These two flaws          program requirements in sections 172,
emissions, the more stringent major          alone are so significant as to warrant       173, and other relevant sections of the
source threshold of 50 TPY for serious       disapproval of the District’s 1985 and       Act.
ozone nonattainment areas supersedes         1993 NSR SIP submittals. The other              The District regulations applicable to
the OTR requirement. The Act requires        deficiencies include the lack of clarity     major new and major modified sources
that moderate carbon monoxide (CO)           in requiring consistency of emission         also do not contain the de minimis and
nonattainment areas, such as the             offsets with the RFP baseline, the           special modification provisions of
District, control its new CO sources with    determination of the amount of               sections 182(c) (6), (7) and (8) of the Act.
potential emissions greater than or equal    emission offsets required (separate          These provisions apply to sources
to 100 TPY and its major modified            summation of VOC and NOX emissions           locating in serious and severe ozone
sources where potential emissions were       for offset purposes), location of emission   nonattainment areas. Section 182(c)(6)
increasing by greater than 40 TPY. On        offsets, timing of the enforceability of     is a de minimis provision that requires
July 6, 1993, EPA made a finding that        the emission offsets, creditability of       that a source undergoing modifications
the District failed to submit the required   emission offsets relative to other Clean     determine whether those modifications
new source review regulations and            Air Act requirements, the definition of      are major by summing its net emission
started the 18 month sanctions clock         stationary source as it pertains to          increases over a 5-year consecutive
under section 179 of the Act. On             nonroad engines, a provision that allows     period, including the calendar year in
October 22, 1993, the District submitted     circumvention of the offset requirement      which the increase occurred. If the sum
the required regulations, which were         (Section 204.9), and the de minimis          of the emission increases exceeds 25
subsequently determined by EPA to be                                                      TPY over that period, the modification
                                             provisions of section 182(c)(6).
complete and stopped the sanctions                                                        is considered major. Sections 182(c) (7)
                                                The District’s regulations at Section     and (8) apply to such sources that have
                                             200.11 also include an exemption for         exceeded the 25 ton threshold but wish
Summary of SIP Revision                      fuel-burning equipment, which has a          to avoid the otherwise applicable new
  The District of Columbia submittals        capacity of 5 million or less BTU per        source review requirements. Section
include more than the required               hour (mmBTU/hr) of heat input and,           182(c)(7) would allow sources with
construction permitting program for          which uses for fuel only gaseous fuels       potential emissions of less than 100 TPY
major new and major modified sources         or distillate oils. This exemption is not    to obtain 1.3 to 1 internal offsets to
required under section 182 of the Act.       approvable because the Act, as amended       avoid new source review, or else to
Sections 200, 201, 202, and 204 of the       in 1990, requires that states with ozone     install best available control technology
DCMR regulations apply to both major         nonattainment areas control major            (BACT) instead of LAER technology.
and minor sources and to sources             sources of nitrogen oxides (NOX) as well     Section 182(c)(8) would allow sources
wishing to obtain construction or            as volatile organic compounds (VOCs).        with potential emissions of more than
operating permits. Section 299 is an         In the District, a major source of VOC       100 TPY to obtain 1.3 to 1 internal
administrative section stating that the      or NOX is defined as that which has the      offsets in order to avoid the installation
definitions in Section 199 apply to          potential to emit 50 tons per year or        of LAER technology. The District must
Chapter 2. Section 199 contains the          more. Fuel burning equipment are             adopt a regulation that reflects the
definitions applicable to all of the         sources of NOX emissions and while an        requirements of section 182(c)(6) but
District’s regulations. Those definitions    individual piece of equipment with a         may choose not to adopt the provisions
contained in Section 199 that apply to       capacity of 5 mmBTU/hr heat input            in sections 182(c) (7) and (8). The
the permitting program, and which are        would likely not generate emissions          consequence of simply adopting the de
the subject of this rulemaking action,       greater than 50 TPY potential emissions,     minimis provisions of section 182(c)(6)
are: actual emissions, allowable             a group of such sources at a single          but not (c)(7) or (c)(8) is that the overall
emissions, begin actual construction,        facility could generate emissions over       effect would be to make the District
commence, complete, emissions unit,          the major source size threshold. If the      requirements more stringent than the
federally enforceable, major                 District wishes to exempt any group of       Act. Since the Act allows for state
modification, major stationary source,       NOX sources that would be considered         regulations to be more stringent, this
modification, necessary preconstruction      major, it must apply for and receive a       would be acceptable to EPA.
approvals or permits, net emissions          waiver under section 182(f) of the Act.         The District regulations pertaining to
increase, new source, potential to emit,     EPA’s guidance on the criteria for           major new and major modified sources
shutdown, significant, and stationary        approval of NOX exemptions under             also do not clearly require that VOC and
source.                                      section 182(f) is contained in EPA           NOX emissions are to be summed
  The DC regulations at Sections 200,        documents including, ‘‘Guideline for         separately to determine applicability
201, 202, and 204 include a number of        Determining the Applicability of             and the required amount of emission
deficiencies that make the submittal         Nitrogen Oxide Requirements under            offsets. In addition, emission offsets are
unapprovable. The two most significant       Section 182(f)’’, December 1993 and          not explicitly required to be federally
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                               15485

enforceable prior to permit issuance.          rulemaking action. The effect of this          summarized in the accompanying
The District must, at a minimum,               rulemaking action will be to disapprove,       technical support document. Any
require that VOC and NOX emission              also, the District regulation as it pertains   subsequent submittal that the District
offsets be obtained for the same               to a major source operating permit             makes must meet the requirements of
pollutant and that these emission offsets      program as the program submitted by            the Act and 40 CFR parts 51 and 52 in
be made federally enforceable prior to         the District does not meet the                 order to be approved into the District
permit issuance. The separate                  requirements of sections 182 and 184 of        SIP. EPA is in the process of updating
summation of VOC and NOX emissions             the Act. EPA cannot approve a title V          40 CFR parts 51 and 52 to reflect the
for offset purposes is a required              operating permit program in lieu of a          current requirements in the 1990 Clean
clarification. If the District elects not to   new source review (major new and               Air Act Amendments. Any future NSR
require the separate summation of VOC          major modified source construction)            submittals from the District will be
and NOX emissions for applicability            program. EPA, however, encourages the          judged against the federal requirements
purposes and does not permit the               submittal of a minor source operating          in existence at the time of the submittal.
netting of emissions in order to               permit program, separate from the major           EPA is disapproving this SIP revision
determine NSR applicability, this would        source construction permit program,            without prior proposal because the
be more stringent than the federal             which would establish federally                District’s regulations contain such
requirements and would be considered           enforceable conditions for those sources       significant flaws that the Agency views
acceptable to EPA. If, however, the            that wish to remain minor sources.             this as a clear-cut decision and
District chooses to allow netting, a             The effect of this rulemaking action         anticipates no adverse comments.
separate summation of VOC and NOX              will be to disapprove, also, the District      However, in a separate document in this
emissions for both applicability and           regulation as it pertains to minor source      Federal Register publication, EPA is
offset purposes is required. In addition,      construction and operating permits             proposing to disapprove the SIP
Section 204.9 of the District’s regulation     because it does not meet the                   revision should adverse or critical
appears to provide sources with the            requirements of Part D of Subchapter I         comments be filed. This action will be
ability to circumvent the offset               of the Act. Submittal of a minor source        effective May 23, 1995 unless, by April
requirements in Section 204.4. The             construction or operating permit               24, 1995, adverse or critical comments
District must delete this provision.           program does not correct the                   are received.
                                               deficiencies in the major source                  If EPA receives such comments, this
  The District regulation is not limited       construction permit program, required          action will be withdrawn before the
to a major new or major modified source        under Part D of the Act. The submittal         effective date by publishing a
construction permit program. The               addressed in this rulemaking contains          subsequent notice that will withdraw
applicability of the District regulation       provisions pertaining to major and             the final action. All public comments
(Chapter 2) includes major source              minor source construction permits and          received will then be addressed in a
operating permits and minor source             major and minor source operating               subsequent final rule based on this
construction and operating permits.            permits that are inextricably                  action serving as a proposed rule. EPA
This raises additional issues that do not      intertwined. Since the District                will not institute a second comment
pertain to the required submittal under        regulation does not meet Part D                period on this action. Any parties
section 182 or 184 of the Act. Submittal       requirements, pertaining to a major            interested in commenting on this action
of a major source operating permit             source construction permitting program,        should do so at this time. If no such
program or a minor source construction         EPA is proposing to disapprove the             comments are received, the public is
and operating permit program is not a          entire submittal as it pertains to             advised that this action will be effective
requirement under section 182 or 184 of        permitting.                                    on May 23, 1995.
the Act. Therefore, lack or disapproval          While the District may choose to
of such submittals will not result in                                                         Final Action
                                               modify and submit a minor source
sanctions under section 179 pertaining         operating permit program (subject to the         EPA is disapproving the District of
to failure to submit or adopt regulations      criteria in the June 28, 1989 Federal          Columbia Municipal Regulations title
required under section 182 or 184.             Register notice) for approval into the         20, sections 200, 201, 202, 204 and 299
Likewise, the District’s submittal of a        SIP, such a submittal is not required          and the associated definitions in section
major source operating permit program          under section 182 or 184 of the Act and        199, pertaining to the permitting of
or a minor source construction or              the lack of submittal or lack of               sources. The accompanying technical
operating permit does not fulfill the          corrections to this operating permit           support document more fully explains
District’s requirement to submit a NSR         program is not considered a deficiency         the rationale for EPA’s action.
program under sections 182 and 184 of          under section 182 or 184 of the Act. Any         EPA is disapproving the District’s
the Act. It is not and was not the             subsequent submittal that the District         permitting regulation because it
District’s intent to submit the Section        makes to correct the deficiencies in the       contains deficiencies that do not meet
200–299 regulation to meet the                 major source construction permit               the requirements of section 182(a)(2)(C)
requirements of title V of the Act             program, which is a required submittal         of the CAA, and, as such, the rule does
pertaining to major source operating           under sections 182 and 184 of the Act,         not fully meet the requirements of part
permit programs. In fact, the District has     must clearly delineate the program             D of the Act. Under section 179(a)(2), if
subsequently submitted a title V               requirements applicable to major new or        the Administrator disapproves a
operating permit program for EPA               major modified sources applying for            submission under section 110(k) for an
approval. The submittal being acted on         construction permits versus permitting         area designated nonattainment, based
today is being judged as to whether it         requirements that may be applicable to         on the submission’s failure to meet one
meets the requirements of sections 182         minor sources or sources applying for          or more of the elements required by the
and 184 of title I of the Act, pertaining      operating permits.                             Act, the Administrator must apply one
to a major new and major modified                The requirements for a new source            of the sanctions set forth in section
source construction permitting program,        review construction permitting program         179(b) unless the deficiency has been
not title V requirements. The title V          are contained in 40 CFR parts 51 and 52        corrected within 18 months of such
submittal is not the subject of today’s        and the Clean Air Act and are                  disapproval. Section 179(b) provides
15486         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

two sanctions available to the               of Appeals for the appropriate circuit by      determines have been delayed because
Administrator: highway funding and           May 23, 1995. Filing a petition for            of his/her office, the inclusion of a
offsets. The 18 month period referred to     reconsideration by the Administrator of        major source operating permit program,
in section 179(a) will begin at the time     this final rule does not affect the finality   the inclusion of a minor source
EPA publishes final notice of this           of this rule for the purposes of judicial      operating permit program that does not
disapproval. Moreover, the final             review nor does it extend the time             meet Part D requirements of the Act, the
disapproval triggers the federal             within which a petition for judicial           exemption of certain fuel burning
implementation plan (FIP) requirement        review may be filed, and shall not             (nitrogen oxide emitting) sources,
under section 110(c).                        postpone the effectiveness of such rule        incorrect citations of the Clean Air Act,
   Nothing in this action should be          or action. This action may not be              a provision that allows circumvention of
construed as permitting or allowing or       challenged later in proceedings to             the offset requirement, and the lack of
establishing a precedent for any future      enforce its requirements. (See section         the de minimis special modification
request for revision to any state            307(b)(2).)                                    provisions required in serious and
implementation plan. Each request for                                                       severe ozone nonattainment areas
revision to the state implementation         List of Subjects in 40 CFR Part 52
                                                                                            (section 182(c)(6) of the Clean Air Act).
plan shall be considered separately in         Environmental protection, Air
light of specific technical, economic,       pollution control, Carbon monoxide,            [FR Doc. 95–7243 Filed 3–23–95; 8:45 am]
and environmental factors and in             Hydrocarbons, Intergovernmental                BILLING CODE 6560–50–P

relation to relevant statutory and           relations, Nitrogen dioxide, Ozone,
regulatory requirements.                     Particulate matter, Reporting and
   Under the Regulatory Flexibility Act,                                                    40 CFR Part 180
                                             recordkeeping requirements, Sulfur
5 U.S.C. 600 et seq., EPA must prepare       oxides.                                        [PP 4F4318/R2118; FRL–4943–9]
a regulatory flexibility analysis
                                               Dated: February 17, 1995.                    RIN 2070–AB78
assessing the impact of any proposed or
                                             Stanley Laskowski,
final rule on small entities. 5 U.S.C. 603
                                             Acting Regional Administrator, Region III.     Beauveria Bassiana Strain GHA;
and 604. Alternatively, EPA may certify
                                                                                            Exemption From the Requirement of a
that the rule will not have a significant        40 CFR part 52 is amended as follows:
impact on a substantial number of small
entities. Small entities include small       PART 52—[AMENDED]
                                                                                            AGENCY:  Environmental Protection
businesses, small not-for-profit               1. The authority citation for part 52        Agency (EPA).
enterprises, and government entities         continues to read as follows:                  ACTION: Final rule.
with jurisdiction over populations of
less than 50,000.                                Authority: 42 U.S.C. 7401–7671q.
                                                                                            SUMMARY:   This rule establishes an
   EPA’s disapproval of the State request                                                   exemption from the requirement of a
                                             Subpart J—District of Columbia
under section 110 and subchapter I, part                                                    tolerance for residues of Beauveria
D of the CAA does not affect any               2. Section 52.472 is amended by              bassiana Strain GHA in or on alfalfa,
existing requirements applicable to          adding paragraph (f) to read as follows:       corn, cotton, potatoes, rapeseed,
small entities. Any pre-existing federal                                                    safflower, small grain crops, soybeans,
requirements remain in place after this      § 52.472   Approval status.
                                                                                            sugarbeets, sunflower, rangeland,
disapproval. Federal disapproval of the      *      *    *     *     *
                                                (f) Disapproval of revisions to the         improved pastures, and in meat, milk,
state submittal does not affect its state-                                                  or other animal products from livestock
enforceability. Moreover, EPA’s              District of Columbia State
                                             Implementation Plan, District of               grazed on treated rangeland or improved
disapproval of the submittal does not                                                       pastures when applied to growing crops
impose any new Federal requirements.         Columbia Municipal Regulations
                                             (DCMR) Title 20, Sections 200, 201, 202,       in accordance with good agricultural
Therefore, EPA certifies that this                                                          practices. Mycotech Corp. requested this
disapproval action does not have a           204 and 299, pertaining to permitting of
                                             sources, and associated definitions in         exemption.
significant impact on a substantial
number of small entities because it does     Section 199 submitted on June 21, 1985         EFFECTIVE DATE: March 10, 1995.
not remove existing requirements and         and October 22, 1993 by the Mayor of           ADDRESSES: Written objections,
impose any new Federal requirements.         the District of Columbia (1985                 identified by the document control
   This action has been classified as a      submittal) and by the Administrator of         number, [PP 4F4318/R2118], may be
Table 2 action for signature by the          the District of Columbia Environmental         submitted to: Hearing Clerk (1900),
Regional Administrator under the             Regulation Administration (1993                Environmental Protection Agency, Rm.
procedures published in the Federal          submittal). The disapproved regulations        M3708, 401 M St., SW., Washington, DC
Register on January 19, 1989 (54 FR          include those applicable to major new          20460. A copy of any objections and
2214–2225), as revised by an October 4,      and major modified sources wishing to          hearing requests filed with the Hearing
1993 memorandum from Michael H.              locate in the District. A new source           Clerk should be identified by the
Shapiro, Acting Assistant Administrator      review program for such major sources          document control number and
for Air and Radiation. The OMB has           is required under sections 182 and 184         submitted to: Public Response and
exempted this regulatory action from         of the Clean Air Act. There are many           Program Resources Branch, Field
E.O. 12866 review.                           deficiencies in the DCMR permitting            Operations Division (7506C), Office of
   Under section 307(b)(1) of the Clean      regulations. Some of these deficiencies        Pesticide Programs, Environmental
Air Act, petitions for judicial review of    are the lack of public notice and              Protection Agency, 401 M St., SW.,
this action, pertaining to the               comment procedures for new and                 Washington, DC 20460. In person, bring
disapproval of the District of Columbia      modified sources applying for                  copy of objections and hearing requests
Municipal Regulations Title 20,              construction permits, the existence of a       to: Rm. 1132, CM #2, 1921 Jefferson
Sections 200, 201, 202, 204, 299 and         provision that allows the Mayor to grant       Davis Hwy., Arlington, VA 22202. Fees
associated definitions in Section 199,       indefinite 1-month temporary permits to        accompanying objections shall be
must be filed in the United States Court     those sources whose permits he/she             labeled ‘‘Tolerance Petition Fees’’ and
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                               15487

forwarded to: EPA Headquarters               animals when administered via oral,           accompanied by the fee prescribed by
Accounting Operations Branch, OPP            dermal, pulmonary, or intraperitoneal         40 CFR 180.33(i). If a hearing is
(Tolerance Fees), P.O. Box 360277M,          routes.                                       requested, the objections must include a
Pittsburgh, PA 15251.                           The active ingredient was not              statement of the factual issue(s) on
FOR FURTHER INFORMATION CONTACT: By          infective or pathogenic to the test           which a hearing is requested, the
mail: Patricia A. Cimino, Biopesticides      animals in any of the studies. Ocular         requestor’s contentions on such issues,
and Pollution Prevention Division            lesions were observed in the eye              and a summary of any evidence relied
(7501W), Office of Pesticide Programs,       irritation study with the technical-grade     upon by the objector (40 CFR 178.27). A
Environmental Protection Agency, 401         active ingredient (TGAI) and resulted in      request for a hearing will be granted if
M St., SW., Washington, DC 20460,            a Toxicity Category I rating. Minimal         the Administrator determines that the
(703)–308–7035; e-mail:                      ocular irritation was observed in the eye     material submitted shows the following:             irritation studies done with oil-flowable     There is a genuine and substantial issue
                                             and emulsifiable suspension end-use           of fact; there is a reasonable possibility
                                             product formulations indicating that the      that available evidence identified by the
Federal Register of July 13, 1994 (59 FR
                                             lesions observed in the eye irritation test   requestor would, if established, resolve
35718), EPA issued a notice that
                                             done with TGAI may have been due to           one or more of such issues in favor of
Mycotech Corp., 630 Utah Drive, P.O.         physical effects of the TGAI. Slight skin     the requestor, taking into account
Box 4109, Butte, MT 59701, had               irritation persisted in test animals          uncontested claims or facts to the
submitted pesticide petition (PP)            treated with the TGAI resulting in a          contrary; and resolution of the factual
4F4318 proposing to amend 40 CFR part        Toxicity Category III rating. There have      issue(s) in the manner sought by the
180 by establishing a regulation             been no reports of hypersensitivity           requestor would be adequate to justify
pursuant to section 408(d) of the Federal    related to the active ingredient. All of      the action requested (40 CFR 178.32).
Food, Drug, and Cosmetic Act (FFDCA),        the toxicity studies submitted are               Under Executive Order 12866 (58 FR
21 U.S.C. 346a(d), to exempt from the        considered acceptable.                        51735, Oct. 4, 1993), the Agency must
requirement of a tolerance the residues         The toxicology data provided are           determine whether the regulatory action
of the microbial pest control agent          sufficient to demonstrate that there are      is ‘‘significant’’ and therefore subject to
Beauvaria bassiana Strain GHA in or on       no foreseeable human health hazards           review by the Office of Management and
alfalfa, corn, cotton, potatoes, rapeseed,   likely to arise from use of Beauveria         Budget (OMB) and the requirements of
safflower, small grain crops, soybeans,      bassiana Strain GHA on the requested          the Executive Order. Under section 3(f),
sugarbeets, sunflower, rangeland,            food and feed commodities when                the order defines a ‘‘significant
improved pastures, and in meat, milk,        applied during the growing season in          regulatory action’’ as an action that is
or other animal products from livestock      accordance with good agricultural             likely to result in a rule (1) having an
grazed on treated rangeland or improved      practices.                                    annual effect on the economy of $100
pastures when applied to growing crops          Acceptable daily intake (ADI) and          million or more, or adversely and
in accordance with good agricultural         maximum permissible intake (MPI)              materially affecting a sector of the
practices. In the Federal Register of        considerations are not relevant to this       economy, productivity, competition,
February 8, 1995 (60 FR 7543), EPA           petition because the data submitted           jobs, the environment, public health or
issued a notice of amendment to PP           demonstrated that this biological control     safety, or State, local, or tribal
4F4318 to establish a regulation to          agent is not toxic to humans by dietary       governments or communities (also
exempt from the requirement of a             exposure. No enforcement actions are          referred to as ‘‘economically
tolerance residues of the insecticide        expected based on a level of residues in      significant’’); (2) creating serious
Beauvaria bassiana Strain GHA in or on       food. Therefore, the requirement for an       inconsistency or otherwise interfering
all raw agricultural commodities.            analytical method for enforcement             with an action taken or planned by
   There were no comments received in        purposes is not applicable to this            another agency; (3) materially altering
response to the notices of filing.           exemption request. This is the first          the budgetary impacts of entitlement,
   Beauveria bassiana Strain GHA is          exemption from the requirement of a           grants, user fees, or loan programs or the
naturally occurring and was originally       tolerance for this microbial pest control     rights and obligations of recipients
isolated from indigenous grasshoppers.       agent.                                        thereof; or (4) raising novel legal or
   The data submitted in the petition           Based on the information considered,       policy issues arising out of legal
and all other relevant material have         the Agency concludes that                     mandates, the President’s priorities, or
been evaluated. The toxicological data       establishment of a tolerance is not           the principles set forth in this Executive
considered in support of the exemption       necessary to protect the public health.       Order.
from the requirement of a tolerance for      Therefore, the exmeption from tolerance          Pursuant to the terms of the Executive
Beauveria bassiana Strain GHA in or on       is established as set forth below.            Order, EPA has determined that this
rangeland, improved pastures, meat,             Any person adversely affected by this      rule is not ‘‘significant’’ and is therefore
milk, or other animal products from          regulation may, within 30 days after          not subject to OMB review.
livestock grazed on treated rangeland or     publication of this document in the              Pursuant to the requirements of the
improved pastures, alfalfa, corn,            Federal Register, file written objections     Regulatory Flexibility Act (Pub. L. 96–
potatoes, rapeseed, safflower, small         and/or request a hearing with the             354, 94 Stat. 1164, 5 U.S.C. 601–612),
grain crops, soybeans, sugarbeets, and       Hearing Clerk, at the address given           the Administrator has determined that
sunflower include an acute oral              above (40 CFR 178.20). A copy of the          regulations establishing new tolerances
toxicity/pathogenicity study, an acute       objections and/or hearing requests filed      or raising tolerance levels or
dermal toxicity study, an acute              with the Hearing Clerk should be              establishing exemptions from tolerance
pulmonary toxicity/pathogenicity study,      submitted to the OPP docket for this          requirements do not have a significant
an acute intraperitoneal toxicity/           rulemaking. The objections submitted          economic impact on a substantial
pathogenicity study, and primary eye         must specify the provisions of the            number of small entities. A certification
irritation studies.                          regulation deemed objectionable and the       statement to this effect was published in
   The results of these studies indicated    grounds for the objections (40 CFR            the Federal Register of May 4, 1981 (46
that the organism was not toxic to test      178.25). Each objection must be               FR 24950).
15488          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

List of Subjects in 40 CFR Part 180           submitted to: Hearing Clerk (1900),         blended together in a mixture
  Environmental protection,                   Environmental Protection Agency, Rm.        containing 97% oats and 3% barley.’’
                                              M3708, 401 M St., SW., Washington, DC          There were two comments received in
Administrative practice and procedure,
                                              20460. A copy of any objections and         response to the proposed rule. General
Agricultural commodities, Pesticides
                                              hearing requests filed with the Hearing     Mills requested that the tolerance
and pests, Reporting and recordkeeping
                                              Clerk should be identified by the           expression be changed to specify a
                                              document control number and                 minimum barley content and a
  Dated: March 10, 1995.                      submitted to: Public Response and           maximum oat content. EPA has
Daniel M. Barolo,                             Program Resources Branch, Field             determined that the purpose of the
Director, Office of Pesticide Programs.       Operations Division (7506C), Office of      blending would continue to be served
                                              Pesticide Programs, Environmental           by this change and has no objection to
  Therefore, 40 CFR part 180 is               Protection Agency, 401 M St., SW.,          the request. The definition of the raw
amended as follows:                           Washington, DC 20460. In person, bring      agricultural commodity in the rule is
                                              copy of objections and hearing requests     amended to ‘‘oats and barley when
PART 180—[AMENDED]                                                                        blended together in a mixture
                                              to: Rm. 1132, CM #2, 1921 Jefferson
  1. The authority citation for part 180      Davis Hwy., Arlington, VA 22202. Fees       containing not more than 97% oats and
continues to read as follows:                 accompanying objections shall be            not less than 3% barley.’’
                                              labeled ‘‘Tolerance Petition Fees’’ and        The second comment was received
  Authority: 21 U.S.C. 346a and 371.                                                      from Michael A. Mentuck, president of
                                              forwarded to: EPA Headquarters
  2. In subpart D, by adding new              Accounting Operations Branch, OPP           Michael A. Mentuck & Associates, Inc.,
§ 180.1146, to read as follows:               (Tolerance Fees), P.O. Box 360277M,         as an interested party and on behalf of
                                              Pittsburgh, PA 15251.                       one of the interested insurance
§ 180.1146 Beauveria bassiana Strain GHA;                                                 companies to the circumstances of the
exemption from the requirement of a           FOR FURTHER INFORMATION CONTACT: By
                                                                                          petition. He suggested that there is the
tolerance.                                    mail: Dennis H. Edwards, Product
                                                                                          possibility that the oats containing
  Beauveria bassiana Strain GHA is            Manager (PM) 19, Registration Division
                                                                                          chlorpyrifos would be acceptable in
exempted from the requirement of a            (7505C), Environmental Protection
                                                                                          some foreign countries having
tolerance in or on alfalfa, corn, cotton,     Agency, 401 M St., SW., Washington,
                                                                                          appropriate tolerances that would allow
potatoes, rapeseed, safflower, small          DC 20460. Office location and telephone     the oats to be used as human food, and
grain crops, soybeans, sugarbeets,            number: Rm. 207, 1921 Jefferson Davis       that the potential for export should be
sunflower, rangeland, and improved            Hwy., Arlington, VA 22202, (703)–305–       investigated. Alternatively, he suggested
pastures and in meat, milk, or other          6386; e-mail:                               that the oats could be limited to use as
animal products from livestock grazed             animal feed in this country by spraying
on treated rangeland or improved              SUPPLEMENTARY INFORMATION: In the           the oats with a dye, thus eliminating the
pastures when applied to growing crops        Federal Register of February 8, 1995 (60    additional expense of blending them
according to good agricultural practices.     FR 7509), EPA issued a proposed rule        with barley.
[FR Doc. 95–7452 Filed 3–22–95; 12:28 pm]     that gave notice that the General Mills        EPA has decided not to modify the
                                              Co. had submitted pesticide petition        proposed tolerances as suggested by Mr.
                                              (PP) 5F4427 to EPA requesting that the      Mentuck because of enforcement
                                              Administrator, pursuant to section          concerns with his suggestions. As to his
40 CFR Part 180                               408(e) of the Federal Food, Drug, and       export proposal, EPA believes it would
                                              Cosmetic Act (FFDCA), 21 U.S.C. 346a,       be difficult to ensure that the
[PP 5F4427/R2118; FRL–4942–8]                 amend 40 CFR 180.342 by establishing        adulterated oats, while still in shipment
RIN 2070–AB78                                 a tolerance for residues of the             in this country, would not be diverted
                                              insecticide chlorpyrifos in or on the raw   to domestic, human food use. Blending
Chlorpyrifos; Pesticide Tolerance             agricultural commodity oats at 15 ppm,      the oats with barley is a straightforward
                                              provided that such tolerance applies        and effective way of ensuring that the
AGENCY:  Environmental Protection             only to oats that were treated post-        oats will not be used as human food.
Agency (EPA).                                 harvest with chlorpyrifos on or before         EPA has further concern about the use
ACTION: Final rule.                           June 15, 1994; that such tolerance          of a dye. Dyes are required for use on
                                              applies only to oats to be used as animal   seed that is treated with a pesticide, the
SUMMARY: This document establishes a
                                              feed or as a constituent of animal feed;    dye being an indicator that the seed is
time-limited tolerance for residues of        that, notwithstanding any other             only to be used for growing crops, not
the insecticide chlorpyrifos [O,O-diethyl     provision of law or regulation, this        for food or feed. To allow the use of a
O-(3,5,6-trichloro-2-pyridyl)                 tolerance does not authorize the            dye in the present situation could cloud
phosphorothioate] in or on the raw            presence of residues of chlorpyrifos in     the distinction between seed use and
agricultural commodities oats and             any human food item made from such          food or feed use. EPA has no supporting
barley when blended together in a             treated oats, other than residues           information that the dyed oats would be
mixture containing not more than 97%          resulting from the use of the oats for      considered acceptable for feed use only
oats and not less than 3% barley.             animal feed purposes; and that such         and would not be used as human food.
General Mills requested this regulation       tolerance expires on December 31, 1996.        The data submitted on the proposal
to establish the maximum permissible             To ensure that the oats would be         and other relevant material have been
level for residues of the insecticide in or   unacceptable for human food                 evaluated and discussed in the
on the commodities.                           production, General Mills stated that       proposed rule. Based on the data and
EFFECTIVE DATE: This regulation               they would be blended to include not        information considered, the Agency
becomes effective March 24, 1995.             less than 3% barley and 97% oats.           concludes that the tolerance will protect
ADDRESSES: Written objections,                Accordingly, the definition of the raw      the public health. Therefore, the
identified by the document control            agricultural commodity in the petition      tolerance is established as set forth
number, [PP 5F4427/R2118], may be             was amended to ‘‘oats and barley when       below.
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                             15489

   Any person adversely affected by this      rule is not ‘‘significant’’ and is therefore   40 CFR Part 300
regulation may, within 30 days after          not subject to OMB review.
publication of this document in the             Pursuant to the requirements of the          [FRL–5172–7]
Federal Register, file written objections     Regulatory Flexibility Act (Pub. L. 96-
and/or request a hearing with the             354, 94 Stat. 1164, 5 U.S.C. 601-612),         National Oil and Hazardous
Hearing Clerk, at the address given           the Administrator has determined that          Substances Pollution Contingency
above (40 CFR 178.20). A copy of the          regulations establishing new tolerances        Plan; National Priorities List Update
objections and/or hearing requests filed      or raising tolerance levels or
with the Hearing Clerk should be              establishing exemptions from tolerance         AGENCY:  Environmental Protection
submitted to the OPP docket for this          requirements do not have a significant         Agency.
rulemaking. The objections submitted          economic impact on a substantial               ACTION: Notice of Deletion of the
must specify the provisions of the            number of small entities. A certification      Radium Chemical Company site from
regulation deemed objectionable and the       statement to this effect was published in      the National Priorities List.
grounds for the objections (40 CFR            the Federal Register of May 4, 1981 (46
178.25). Each objection must be               FR 24950).                                     SUMMARY:    The Environmental Protection
accompanied by the fee prescribed by                                                         Agency (EPA) Region II announces the
40 CFR 180.33(i). If a hearing is             List of Subjects in 40 CFR Part 180            deletion of the Radium Chemical
requested, the objections must include a        Environmental protection,                    Company site from the National
statement of the factual issue(s) on          Administrative practice and procedure,         Priorities List (NPL). The NPL is
which a hearing is requested, the             Agricultural commodities, Pesticides           Appendix B of 40 CFR part 300, which
requestor’s contentions on such issues,       and pests, Reporting and recordkeeping         is the National Oil and Hazardous
and a summary of any evidence relied          requirements.                                  Substances Pollution Contingency Plan
upon by the objector (40 CFR 178.27). A                                                      (NCP), which EPA promulgated
                                                  Dated: March 16, 1995.
request for a hearing will be granted if                                                     pursuant to Section 105 of the
the Administrator determines that the         Stephen L. Johnson,                            Comprehensive Environmental
material submitted shows the following:       Director, Registration Division, Office of     Response, Compensation, and Liability
There is a genuine and substantial issue      Pesticide Programs.                            Act (CERCLA), as amended. EPA and
of fact; there is a reasonable possibility      Therefore, 40 CFR part 180 is                the State of New York have determined
that available evidence identified by the     amended as follows:                            that all appropriate Hazardous
requestor would, if established, resolve                                                     Substance Response Trust Fund (Fund)-
one or more of such issues in favor of        PART 180—[AMENDED]                             financed responses under CERCLA have
the requestor, taking into account                                                           been implemented and that no further
uncontested claims or facts to the              1. The authority citation for part 180       cleanup is appropriate. Moreover, EPA
contrary; and resolution of the factual       continues to read as follows:                  and the State of New York have
issue(s) in the manner sought by the              Authority: 21 U.S.C. 346a and 371.         determined that remedial actions
requestor would be adequate to justify                                                       conducted at the site to date have been
                                                2. In § 180.342, by adding new
the action requested (40 CFR 178.32).                                                        protective of public health, welfare, and
                                              paragraph (f), to read as follows:
   Under Executive Order 12866 (58 FR                                                        the environment.
51735, Oct. 4, 1993), the Agency must         § 180.342 Chlorpyrifos; tolerances for         EFFECTIVE DATE: March 24, 1995.
determine whether the regulatory action       residues.
                                                                                             ADDRESSES: For further information
is ‘‘significant’’ and therefore subject to   *      *     *    *     *                      contact: Janet Cappelli, Remedial Project
review by the Office of Management and           (f) A tolerance of 15 parts per million     Manager, U.S. Environmental Protection
Budget (OMB) and the requirements of          is established for residues of the             Agency, Region II, 290 Broadway, 20th
the Executive Order. Under section 3(f),      pesticide chlorpyrifos [O,O-diethyl O-         Floor, New York, NY 10007–1866, (212)
the order defines a ‘‘significant             (3,5,6-trichloro-2-                            637–4270.
regulatory action’’ as an action that is      pyridyl)phosphorothioate] in or on the
likely to result in a rule (1) having an                                                     SUPPLEMENTARY INFORMATION: The site to
                                              raw agricultural commodities oats and          be deleted from the NPL is: Radium
annual effect on the economy of $100          barley when blended together as a
million or more, or adversely and                                                            Chemical Company site, Woodside,
                                              mixture containing not more than 97%           Queens County, New York.
materially affecting a sector of the          oats and not less than 3% barley.
economy, productivity, competition,                                                             The closing date for comments on the
                                                 (1) Such tolerance applies only to oats     Notice of Intent to Delete was December
jobs, the environment, public health or       that were treated post-harvest with
safety, or State, local, or tribal                                                           9, 1994. EPA received no verbal or
                                              chlorpyrifos on or before June 15, 1994.       written comments.
governments or communities (also                 (2) Such tolerance applies only to oats
referred to as ‘‘economically                                                                   EPA identifies sites which appear to
                                              to be used as animal feed or as a
significant’’); (2) creating serious                                                         present a significant risk to public
                                              constituent of animal feed.
inconsistency or otherwise interfering                                                       health, welfare, or the environment and
                                                 (3) Notwithstanding any other
with an action taken or planned by                                                           it maintains the NPL as the list of those
                                              provision of law or regulation, this
another agency; (3) materially altering                                                      sites. Sites on the NPL may be the
                                              tolerance does not authorize the
the budgetary impacts of entitlement,                                                        subject of Fund-financed remedial
                                              presence of residues of chlorpyrifos in
grants, user fees, or loan programs or the                                                   actions. Any site deleted from the NPL
                                              any human food item made from such
rights and obligations of recipients                                                         remains eligible for Fund-financed
                                              treated oats, other than residues
thereof; or (4) raising novel legal or                                                       remedial actions in the unlikely event
                                              resulting from the use of the oats for
policy issues arising out of legal                                                           that conditions at the site warrant such
                                              animal feed purposes.
mandates, the President’s priorities, or                                                     action. Section 300.66(c)(8) of the NCP
                                                 (4) Such tolerance expires on
the principles set forth in this Executive                                                   states that Fund-financed actions may
                                              December 31, 1996.
Order.                                                                                       be taken at sites deleted from the NPL.
   Pursuant to the terms of the Executive     [FR Doc. 95–7451 Filed 3–22-95; 12:28 pm]      Deletion of a site from the NPL does not
Order, EPA has determined that this           BILLING CODE 6560–50–F                         affect responsible party liability or
15490          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

impede EPA efforts to recover costs           April 24, 1995. Sections 90.603 and          Fed. Reg. 32450 (July 22, 1992)). In
associated with response efforts.             90.703 rule changes will be effective        addition, RAM Mobile Data USA
                                              March 24, 1995.                              Limited (RAM Mobile), Cass Cable TV,
List of Subjects in 40 CFR Part 300
                                              FOR FURTHER INFORMATION CONTACT:             Inc. (Cass Cable), and American Paging,
  Environmental protection, Air               Sue McNeil, Wireless                         Inc. (API) subsequently have sought
pollution control, Chemicals, Hazardous       Telecommunications Bureau,                   waivers of the wireline prohibition. The
substances, Hazardous waste,                  Commercial Radio Division, (202) 418–        Commission issued a public notice
Intergovernmental relations, Penalties,       0620.                                        requesting public comment regarding
Reporting and recordkeeping                   SUPPLEMENTARY INFORMATION: This is a         the waiver requests on April 12, 1994.
requirements, Superfund, Water                synopsis of the Commission’s Order in        In addition, BellSouth has filed an
pollution control, and Water supply.          GN Docket No. 94–90, adopted March 7,        appeal of the Commission’s Termination
 Dated: February 24, 1995.                    1995 and released March 7, 1995. The         Order, which is pending before the D.C.
William J. Muszynski,                         full text of Commission decisions are        Circuit.
                                              available for inspection and copying            3. In 1991, the Commission adopted
Acting Regional Administrator.
                                              during normal business hours in the          an analogous restriction for the newly
  40 CFR part 300 is amended as                                                            established commercial 220 MHz
follows:                                      FCC Docket Branch (Room 230), 1919 M
                                              Street, N.W., Washington, DC. The            service that prevents wireline carriers
                                              complete text of this decision may also      from holding licenses in that service as
                                              be purchased from the Commission’s           well. The Commission’s rationale for
  1. The authority citation for part 300      copy contractor, International               excluding wireline carriers from 220
continues to read as follows:                 Transcription Service, Inc., (202) 857–      MHz was the same as its original
  Authority: 42 U.S.C. 9601–9657; 33 U.S.C.   3800, 2100 M Street, N.W., Washington,       rationale for excluding wireline carriers
1321(d); E.O. 11735, 38 FR 21243; E.O.        DC 20037.                                    from SMR licensing.
12580, 52 FR 2923; E.O. 12777, 56 FR 54757.                                                   4. The Omnibus Budget
                                              Synopsis of the Report and Order             Reconciliation Act of 1993 (Budget Act)
Appendix B      [Amended]                     I. Background                                amended the Communications Act and
                                                                                           prescribed comprehensive regulatory
   2. Table 1 of appendix B to part 300          1. When the Commission established        changes for the mobile services
is amended by removing the Radium             the SMR service in 1974, it elected to       marketplace. The legislative history of
Chemical Company site, Woodside,              prohibit wireline telephone common           the Budget Act identified the
New York.                                     carriers from holding SMR base station       Commission’s ban against wireline
[FR Doc. 95–6769 Filed 3–23–95; 8:45 am]      licenses. The Commission has stated          carriers holding SMR licenses as a
BILLING CODE 6560–50–P                        that the wireline prohibition was            regulation that should be reviewed by
                                              intended to ensure that the provision of     the Commission. The Commission thus
                                              SMR service would be available as a          proposed to eliminate its restrictions
FEDERAL COMMUNICATIONS                        business opportunity for small               that prohibit wireline telephone
COMMISSION                                    entrepreneurs and to reduce incentives       common carriers from holding SMR and
                                              for wireline common carriers to engage       commercial 220 MHz licenses on the
47 CFR Parts 22 and 90                        in discriminatory interconnection            grounds that the restrictions may no
                                              practices. In 1986, the Commission           longer be necessary and that
[GN Docket No. 94–90, FCC 95–98]
                                              proposed to eliminate the SMR                competition would be promoted by their
Eligibility for the Specialized Mobile        restriction after receiving several          elimination.
Radio Services and Radio Services in          requests from wireline carriers for             5. At the same time, the Commission
the 220–222 MHz Land Mobile Band              waiver of Section 90.603(c). The             also proposed to eliminate the
and Use of Radio Dispatch                     Commission observed that the original        prohibition on the provision of dispatch
Communications                                rationale for establishing the restriction   service by common carriers, including
                                              may no longer apply. The Commission          cellular licensees, other licensees in the
AGENCY:  Federal Communications               subsequently granted several                 Public Mobile Service, and PCS
Commission.                                   conditional waivers to wireline carriers     licensees. The prohibition, which was
ACTION: Final rule.                           seeking to acquire SMR stations.             originally enacted by Congress as part of
                                                 2. In 1992, the Commission                the 1982 amendments to the
SUMMARY: In this Report and Order             terminated the proceeding on grounds         Communications Act, prohibited
(Order), the Commission eliminates            that the record had become stale and         common carriers licensed after January
rules that prohibit wireline telephone        stated that the restriction should be        1, 1982, including all cellular licensees,
carriers from holding licenses in the         retained until the Commission could          from offering dispatch services. In the
Specialized Mobile Radio (SMR) service        more fully evaluate the competitive          Budget Act, Congress retained the
and the commercial 220–222 MHz land           impact of allowing wireline providers        statutory ban, thus potentially applying
mobile band. The Order also eliminates        into the SMR marketplace. The                it to all CMRS providers, but granted the
the prohibition on the provision of           Commission terminated all waivers that       Commission authority to repeal the ban
dispatch service by cellular licensees,       had been previously granted, but gave        by regulation in whole or in part. In the
other licensees in the Public Mobile          waiver recipients an opportunity to          Notice of Proposed Rule Making (59
Services, and licensees in the Personal       rejustify their waiver grants.               Fed. Reg. 42563 (Aug. 18, 1994)), the
Communications Services (PCS). After          Southwestern Bell Corporation                Commission tentatively concluded that
reviewing the record, the Commission          (Southwestern Bell), Bell Atlantic           the prohibition was outdated and that
finds that these restrictions no longer       Enterprises International Inc. (Bell         its repeal would promote competition.
serve the public interest and should be       Atlantic), and US West Paging, Inc. (US      Thirty-two (32) comments and twelve
eliminated.                                   West) filed requests to rejustify the        (12) reply comments were filed in
EFFECTIVE DATES: Sections 22.577 and          waiver grants that had been terminated       response to the proposals in this
22.901 rule changes will be effective         pursuant to the Termination Order (57        proceeding.
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                            15491

II. Discussion                              most metropolitan areas. As a result, we     into SMR service. AMTA, however,
                                            stated that wireline entry into the SMR      opposes lifing the restrictions at this
A. Licensee Eligibility in SMR and
                                            service would likely occur through           time. AMTA contends that the
Commercial 220 MHz Service
                                            acquisitions that are subject to             commercial 220 MHz service is still in
   6. Background. In the Notice, we         Commission review. Similarly, we             its infancy, and that its competitive
tentatively concluded that the SMR and      reasoned that wireline entry into            potential is largely unknown.
commercial 220 MHz wireline                 commercial 220 MHz likely would be              13. SMR WON is the only
ownership restrictions are no longer        gradual and subject to case-by-case          commenting party to oppose lifting the
appropriate in today’s competitive          review by the Commission as part of the      wireline prohibition for both SMR and
mobile services marketplace. As             application process. We also asked           commercial 220 MHz services.
described in the Notice, there were         whether commercial 220 MHz services          Specifically, SMR WON expresses
several reasons for this tentative          were sufficiently disparate from any         concern that eliminating the restriction
conclusion. First, we observed that the     LEC offering to make negligible any          would harm traditional SMR operators
risk of wireline carriers being able to     ability these carriers might have to exert   that would not be able to compete
cause competitive harm if allowed to        undue market power or restrain trade.        against the market power of wireline
enter the SMR market has diminished in      This was the analysis we used to justify     common carriers. Moreover, SMR WON
recent years. We indicated that the         LEC entry into narrowband PCS. We            alleges that existing safeguards have
breakup of AT&T and the rapid               further noted that wireline participation    been ineffective in preventing wireline
introduction of new mobile service          could promote opportunities for              carriers from exercising their monopoly
options have combined to create an          additional entry of small, rural             power and financial strength to the
environment in which wireline carrier       telephone companies and could infuse         detriment of competition in the cellular
participation in mobile services has the    new capital and expertise into the           marketplace. Therefore, SMR WON
potential to increase competition rather    mobile services marketplace.                 urges that no changes in the wirline
than impede it.                                10. Also, while we generally              restriction should be made except as
   7. In the Notice, we also drew           concluded that the wireline restrictions     part of comprehensive legislation
comparisons to PCS, noting that we          were outmoded, we questioned whether         addressing the monopoly power of the
have already concluded that wireline        there was any justification for              LECs.
entry into PCS will produce economies       continuation of the restrictions for            14. Decision. We amend our rules to
of scope for that service, which will       either or both of the SMR and                permit wireline telephone common
promote its rapid development and           commercial 220 MHz services. Finally,        carriers to acquire SMR and commercial
yield a broader array of PCS services at    we deferred consideration of whether         220 MHz licenses without restriction
lower costs to consumers. We indicated      there was a need to restrict cellular        and dismiss pending waiver requests as
that similar benefits could result from     eligibility for SMR or commercial 220        moot. Eliminating the wireline
allowing wireline entry into the SMR        MHz licensing pending a decision in GN       prohibition is likely to yield substantial
and commercial 220 MHz services.            Docket No. 93–252 to impose a                public benefits. Commenters echoed our
   8. We also tentatively concluded that    spectrum cap on CMRS providers.              view that permitting wireline common
the restrictions no longer are necessary       11. Comments. All but two                 carriers to acquire SMR and commercial
to safeguard against competitive            commenting parties support our               220 MHz licenses will allow the
concerns that the LECs may (1)              proposal to permit wireline telephone        realization of significant economies of
discriminate in the offering of             common carriers to hold SMR and              scope and provide a new source of
interconnection to non-affiliated SMR       commercial 220 MHz licenses. Many            capital that will yield a broader array of
licensees or (2) use their market power     commenters maintain that eliminating         services at lower costs to consumers.
in the local exchange market to cross-      the restrictions in the SMR service          Repealing the wireline prohibition also
subsidize SMR services and undercut         would facilitate competition and that        will stimulate competition and promote
their competitors. We indicated that        increased competition would thereby          opportunities for additional entry of
existing statutory and regulatory           benefit consumers through lower prices       numerous small wireline carriers,
safeguards probably were sufficient to      and expanded choices. Commenters also        particularly in rural areas, in addition to
prevent LECs from engaging in these         agree that our proposal is consistent        the large wireline carriers. Moreover, we
discriminatory activities. In particular,   with our efforts to achieve regulatory       note that the record supports our view
the Commission has found that,              symmetry by providing identical              that changes in the wireless
pursuant to Section 201 of the              eligibility requirements for all CMRS        marketplace, including our efforts to
Communications Act, it is in the public     licensees. In addition, several              achieve regulatory symmetry among
interest to require LECs to provide         commenters note that changes in the          comparable mobile services, obviate the
reasonable interconnection to               SMR marketplace during the time since        need for the wireline restrictions.
commercial mobile radio service             the service was established eliminate        Finally, we believe that existing
(CMRS) providers. We also noted that        the need for wireline eligibility            regulatory safeguards will prevent
independent accounting and structural       restrictions. Finally, commenting parties    wireline common carriers from engaging
safeguards exist and would apply to         generally agree that existing accounting     in anti-competitive conduct.
wireline participants in the SMR market     and interconnection safeguards will             15. We expect that wireline
to prevent cross-subsidization. We did,     adequately prevent cross-subsidization       participation in the provision of SMR
however, seek comment on the                and discrimination. The Commission           and commercial 220 MHz services will
effectiveness of applying these existing    was encouraged to enforce these              benefit the consumer. Specifically,
safeguards to wireline carriers entering    existing safeguards rigorously.              allowing LECs to participate in SMR
these services.                                12. Most parties who expressly            and commercial 220 MHz services will
   9. We made additional observations as    commented on commercial 220 MHz              likely produce significant economies of
well. We indicated that wireline entry      service generally support lifting the        scope by allowing wireline carriers to
was unlikely to chill further               prohibition on wireline entry for the        combine related services so that they
development of the service since SMR        same reasons set forth in support of         may be provided at less cost than
spectrum has been licensed fully in         lifting the restrictions on wireline entry   providing them separately. We expect
15492        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

that because of their existing wireline      wireline participation would impede           established in 1974. As AMTA points
infrastructure, LECs will be likely to       competition, especially in rural              out, SMR channels already are in
achieve technical efficiencies in            communities. As commenters                    service in most large urban areas.
spectrum use that will result in lower       (including rural telcos) point out,           Wireline carriers therefore will be
costs. Such economies can promote            wireline entry will bring new or              largely limited to acquiring existing
more rapid development of technology         additional SMR services to underserved        businesses, and all such transfers would
and yield a broader range of services at     rural areas, not merely replace existing      be subject to Commission review. We
lower costs to consumers.                    small SMR operators. Additional               will consider the competitive impact of
   16. We expect that wireline entry also    opportunities for small business entry        any transfer to a wireline carrier as part
will benefit competition by providing an     into the SMR business, including              of our public interest determination. In
additional source of capital and             participation by small LECs, are being        addition, we note that wireline SMR
expertise in the mobile services             considered as part of the commission’s        acquisitions will be subject to our CMRS
marketplace. Allowing wireline entry         competitive bidding proceeding. SMR           spectrum cap, which restricts the
will give SMR providers the ability to       WON erroneously suggests that our             amount of cellular, broadband PCS and
draw upon this capital and expertise as      reference to our efforts to help small        SMR spectrum that any one entity may
they move from stand-alone analog to         businesses successfully compete at            acquire in a geographic market. This
wide-area networks. Despite AMTA’s           auctions reveals that our real motivation     acts as a competitive safeguard by
opposition, we reach a similar               for permitting wireline entry is to raise     limiting all wireline carriers from
conclusion with respect to participation     more funds at auction. Rather, we repeal      exerting undue market power in these
by wireline carriers in the commercial       the wireline prohibition because the          services. Furthermore, we observe that
220 MHz service. We observe that             record overwhelmingly indicates that          the spectrum cap will also limit cellular
access to the capital and technical          wireline participation would serve the        licensees’ ability to exercise market
expertise of wireline carriers may be        public interest by promoting                  power and we therefore do not believe
important to the commercial 220 MHz          competition, lowering costs, and              that additional restrictions on cellular
service at its critical stage of             expanding consumer choice. Moreover,          participation are warranted.
technological development. SNET notes,       we note that Congress specifically               20. Moreover, customer demand and
for example, that wireline carriers can      prohibits us from exercising our auction      the desire to offer ‘‘seamless’’
‘‘quickly allocate resources, including      authority for the primary purpose of          communications services has fostered
existing infrastructure, into wireless       raising revenues.                             the development of wide-area systems
services that will speed the deployment         18. Additionally, as we tentatively        in both the 800 MHz and 900 MHz
of services, produce innovative service      concluded in our Notice, the wireline         band. Wide-area licensees have
offerings, promote competition and           restrictions are outmoded in view of          aggregated spectrum across large
produce competitive rates for                recent regulatory changes in the mobile       regions, and are poised to offer services
consumers.’’ We also note that               services marketplace. The Budget Act          competitive with larger CMRS
commercial 220 MHz, like PCS, is a           mandated that similar mobile services         providers, such as cellular and PCS. For
new, developing service, and we have         receive comparable regulatory treatment       these reasons, we are not persuaded by
elected to allow wireline carriers to        and divided all mobile services into two      SMR WON’s argument that the SMR
participate fully in both the narrowband     categories, CMRS and private mobile           market is still relatively immature.
and broadband PCS services. Moreover,        radio service (PMRS). In our CMRS             These systems do not continue to
we observe that commercial 220 MHz           Second Report and Order (59 FR 18493          require the same degree of regulatory
service resembles narrowband PCS in          (April 19, 1994)), we concluded that          nurturing that may have been
that it is a two-way, narrowband service     certain private mobile radio services,        appropriate during the early days of this
that is technically distinct from other      including SMR and commercial 220              service. In addition, we note that
service offerings provided by LECs. In       MHz licensees, would be subject to            artificial eligibility restraints may
the Narrowband PCS First Report and          reclassification as CMRS if they provide      hinder the growth of wide-area systems
Order (59 FR 9100 (Feb. 25, 1994)), we       ‘‘interconnected service.’’ To the extent     and their ability to compete with
concluded that the dissimilarity             that SMR and commercial 220 MHz               cellular and other CMRS licensees.
between narrowband PCS and LEC               licensees qualify as CMRS providers,             21. In addition, we conclude that
service offerings provided additional        the principles of regulatory symmetry         existing regulatory safeguards are
justification for allowing wireline entry.   suggest that they should be subject to        sufficient to prevent possible
We conclude that the same rational           regulations similar to those imposed on       discrimination and cross-subsidization.
supports our conclusion with respect to      cellular carriers, PCS licensees and          We note that wireline telephone
commercial 220 MHz service.                  other CMRS providers. Elimination of          companies are required to provide
   17. Wireline participation also could     §§ 90.603(c) and 90.703(c) thereby            reasonable interconnection upon
promote opportunities for additional         furthers our objective to apply a             request. As evidence of the infrequency
entry of small entrepreneurs, such as        symmetrical, consistent set of                of interconnection problems, we are
rural telephone companies, in the SMR        regulations governing CMRS by                 unaware of any pending complaints
service. As the record in this proceeding    establishing identical wireline eligibility   alleging discriminatory interconnection
suggests, small wireline carriers in rural   requirements for all CMRS providers.          filed by unaffiliated cellular providers
communities are well positioned to              19. As we observed in our Notice, the      against wireline carriers with cellular
provide SMR and commercial 200 MHz           mobile services industry also has             affiliates. We emphasize, however, that
services in areas that presently are         undergone substantial changes that            we agree with AMTA and ITA/CICS that
unserved or underserved. Eliminating         obviate the need for the wireline             the public interest is best served by
the wireline restrictions would allow        restrictions. The record shows that the       strongly enforcing our policies and
these providers to offer cost-effective      competitive concerns that led to the          statutory requirements with respect to
services to rural customers by building      SMR eligibility restrictions are no longer    the interconnection obligations of LECs.
on their existing infrastructure and         applicable in the current competitive            22. Additionally, independent
presence in the market. We disagree          marketplace. The SMR industry has             accounting and structural safeguards
with SMR WON’s allegation that               matured significantly since it was            exist to protect against cross-
                   Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                                 15493

subsidization of services and                         an alternative, however, the                           common carrier service obligations
discriminatory pricing. In the CMRS                   Commission solicited comment on                        would be compromised by the provision
docket, we determined that our joint                  whether it should delay repeal of the                  of dispatch service. Noting the
cost and affiliate transaction rules                  rule until August 10, 1996 (3 years from               significant benefits that would stem
would apply to all CMRS providers with                the date the Budget Act amendments                     from permitting all CMRS licensees to
LEC affiliates. These rules require LECs              became law), allow CMRS licensees                      provide dispatch services, most
to maintain procedures to separate the                (other than SMRs) to provide dispatch                  commenters requested that the
costs of regulated activities from those              only on a secondary basis, or impose a                 Commission eliminate the prohibition
of their activities that are classified as            limit on the amount of system capacity                 immediately and without restriction.
nonregulated for federal accounting                   that non-SMR CMRS licensees may                           26. Several parties, however, urged
purposes, and to account for their                    devote to dispatch service. The                        the Commission to retain the dispatch
transactions with their nonregulated                  Commission requested comment on                        prohibition. Many proponents of the
affiliates in accordance with specified               whether these measures were needed to                  prohibition argue that certain CMRS
valuation methodologies. Since most                   prevent any anti-competitive impact                    licensees, such as cellular providers,
SMRs and commercial 220 MHz                           that may result from participation by all              would chill competition by forcing
licensees fall inside the CMRS                        CMRS providers in the market, with                     small dispatch providers out of the
definition (and are not rate-regulated),              particular focus on cellular entry into                market through below-cost pricing. To
these existing and applicable accounting              dispatch. In addition, the Commission                  the extent that CMRS licensees seek to
rules should deter cross-subsidization                requested comment on whether mobile                    offer dispatch service, commenters
problems. We also note that the largest               common carriers that are not land-based                advocate that they do so on SMR
LECs are subject to price caps, which                 (i.e., aviation, marine, and mobile                    frequencies.
provides additional assurances that no                satellite licensees who provide common                    27. Several commenters request that if
cross-subsidization will occur. Finally,              carrier service) should be permitted to                we elect to eliminate the prohibition, we
we observe that the Commission                        offer dispatch service. Noting that these              phase it out on August 10, 1996 or allow
adopted the same approach concerning                  categories of licensees previously were                non-SMR CMRS licensees to provide
structural separations and accounting                 not prohibited from offering dispatch                  service only on a secondary basis. As a
safeguards in our PCS proceeding. We                  service under Section 332, we                          separate matter, several commenters
therefore decline to impose structural                tentatively concluded that Congress did                request the Commission to clarify that
separation requirements in addition to                not intend to extend the dispatch ban to               the dispatch prohibition did not extend
those already imposed on certain                      non-land mobile licensees when it                      to non-land mobile common carrier
dominant telephone carriers (i.e., BOCs)              amended that section in 1993. Instead,                 licensees.
that provide cellular service. We note,               the Commission reasoned that Congress                     28. Decision. We amend our rules to
however, that we intend to enforce our                meant simply to repeat and incorporate                 permit all mobile service common
existing safeguards vigorously in this                its old prohibition against common                     carriers to provide dispatch service.2
area and are prepared to take additional              carrier land mobile service providers                  The record demonstrates that repeal of
steps, if necessary, to protect against               offering dispatch service without                      the dispatch ban will enhance
cross-subsidization of services and                   modification and to give the                           competition and thereby provide
discriminatory pricing.                               Commission authority to repeal the                     consumers with expanded choice and
   23. In sum, the rapid growth of mobile             prohibition in whole or in part.                       lower prices. Moreover, we agree with
services, regulatory changes and                         25. Comments. Most commenters                       commenters that retention of the ban is
evolving competition in the mobile                    support our view that eliminating the                  inconsistent with our efforts to establish
services industry justify the repeal of               dispatch prohibition would promote                     a regulatory framework which provides
the restrictions on wireline telephone                competition in the dispatch service and                similar services with symmetrical
common carriers holding licenses in the               thereby provide customers with                         requirements. We also note that recent
SMR and commercial 220 MHz services.                  expanded choices and lower prices. In                  technological developments, including
Accordingly, we eliminate these rules                 addition, many commenters observe                      digitalization, have minimized any
today. In addition, we dismiss requests               that the dispatch prohibition is                       concerns that using common carrier
for waivers filed by Southwestern Bell,               inconsistent with our efforts to achieve               spectrum for dispatch would impair the
Bell Atlantic, US West, RAM Mobile,                   regulatory symmetry because it allows                  licensees’ capacity to provide common
Cass Cable and API. These requests are                SMRs to provide a service that other                   carrier service because digital
mooted by our decision to eliminate the               CMRS providers, such as cellular                       technologies allow spectrum to be used
wireline restriction.                                 licensees, may not. Moreover, several                  more efficiently. Because of the
                                                      commenting parties note that recent                    significant public benefits that we
B. Common Carrier Dispatch Prohibition
                                                      technological improvements obviate any                 expect by eliminating the prohibition,
   24. Background. In the Notice, the                 concern that land mobile licensees’                    we decline to impose a sunset provision
Commission tentatively concluded that                                                                        and permit all CMRS licensees to
eliminating the dispatch ban would                    Budget Reconciliation Act of 1993) shall not           provide dispatch upon the effective date
enhance competition and thereby                       provide any dispatch service on any frequency
                                                                                                             of these rule changes, and without
provide consumers with greater choice,                allocated for common carrier service, except to the
                                                      extent such dispatch service is provided on stations   restriction.
more innovative service offerings, and                licensed in the domestic public land mobile radio
lower prices. Commenters were invited                 service before January 1, 1982. The Commission           2 We note that we are not allowing cellular and
to address the competitive                            may by regulation terminate, in whole or in part,      other Part 22 licensees to provide stand-alone
consequences of permitting all CMRS                   the prohibition contained in the preceding sentence    PMRS service, an issue that will be resolved on
                                                      if the Commission determines that such termination     reconsideration of our CMRS Second Report and
providers 1 to offer dispatch services. As            will serve the public interest.                        Order. See CMRS Third Report and Order, 59 Fed.
  1 The
                                                        Budget Act at § 6002(b)(2), 47 U.S.C. 332(c)(2).     Reg. 59945 (Nov. 21, 1994). Rather, by this action
          Budget Act provides that:                   Most CMRS licensees are thereby prohibited from        we will permit Part 22 licensees to provide non-
   [a] common carrier (other than a person that was   offering dispatch service, unless the Commission       interconnected dispatch service, so long as their
treated as a provider of a private land mobile        determines that termination of this prohibition will   dispatch users also have the ability to utilize
service prior to the enactment of the Omnibus         serve the public interest.                             interconnected service if they choose.
15494        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

   29. In eliminating the dispatch          predatory pricing scheme, a dispatch         that comparable mobile services receive
prohibition, we expect to enhance           provider must be able to price its           similar regulatory treatment.
competition by permitting new types of      services below its own costs and the            34. In addition, we note that recent
CMRS providers to enter the                 costs of its competitors in order to drive   technological developments undermine
commercial dispatch service. We             competition out of the market. The           the original justification for the dispatch
believe that increased competition in       dispatch provider must then raise its        prohibition. When Congress adopted the
dispatch service will, in turn, yield       prices above a competitive level and         dispatch prohibition, it sought to ensure
significant public benefits. We note that   effectively preclude potential               that common carriers did not misuse
there seems to be a scarcity of spectrum    competitors from entering or re-entering     frequencies by devoting them to
capacity available for dispatch service,    the market. We consider this possibility     dispatch use. The development of new
as users below 512 MHz strongly             highly unlikely because the entire           technologies, including digitalization,
supported the Commission’s proposals        CMRS market is expanding, with a             have minimized any concerns that using
to make more efficient use of the           number of competitors expected to enter      common carrier spectrum for dispatch
spectrum in those bands and demand          the marketplace in the near term. As a       would impair the licensees’ capacity to
exists for most licenses in the 800 and     result, the two cellular providers in each   provide common carrier service because
900 MHz bands. Moreover, we agree           market are expected to compete with          digital technologies allow spectrum to
with commenters that the introduction       other CMRS service providers,                be used more efficiently. Moreover, the
of new competitors has the potential to     including SMR and PCS licensees, in          mobile services marketplace will ensure
lower costs to subscribers, increase        providing a host of services in addition     that spectrum is not used inefficiently
availability of choices, and improve the    to dispatch. These providers will also       for dispatch service if consumer
quality of service. Several commenters      compete with private mobile radio            demand demonstrates that alternative
maintain that allowing CMRS providers       service (PMRS) providers, including          uses are more desirable.
to provide dispatch in addition to other    businesses that elect to operate their          35. Because of the significant public
mobile services will satisfy consumers’     own systems, in the provision of             benefits that we expect by eliminating
growing demand for integrated services      dispatch service. It is therefore unlikely   the prohibition, we decline to impose a
that are customized to fit their            that cellular carriers would benefit by      sunset provision and permit CMRS
individual needs. AirTouch notes, for       engaging in any anticompetitive pricing      licensees to provide dispatch without
example, that its market research reveals   scheme for particular services in order      restriction. We agree with commenters
that consumers want service packages to     to eliminate competitors. Rather, market     that establishing a sunset period would
include text messaging, vehicle location,   share likely will be based on quality,       delay the introduction of new
alpha-numeric paging, fax, dispatch,        price, and the availability of other         competition without providing any
and mobile voice. In addition, we           service options to satisfy a customer’s      benefit to consumers. Commenters
observe that eliminating the dispatch       individual needs. We note, however,          favoring a sunset period maintain that
ban may lower the cost of multifunction     that we will continue to study the           they need an opportunity to adjust to
equipment since a greater number of         dispatch market carefully and can take       common carrier obligations without
CMRS licensees will be able to provide      appropriate enforcement action if            disruption by new competitors. We
dispatch service. Moreover, as McCaw        licensees engage in anticompetitive          note, however, that our intent in
and East Otter Tail suggest, eliminating    conduct. Moreover, we observe that the       establishing the three-year transition
the dispatch prohibition will make          Department of Justice also has authority     period was to provide private carriers
service available in areas where current    to take enforcement action against           that will be reclassified as CMRS an
options are limited. In particular, we      carriers that engage in predatory pricing.   opportunity to prepare for new
expect that the elimination of the             32. We also do not believe that           regulatory requirements, not to shield
dispatch prohibition will benefit rural     limiting dispatch service to SMR             them from new sources of competition.
communities by facilitating competition     frequencies would be an efficient use of     We are unpersuaded, therefore, that a
in underserved areas and will allow         spectrum. To the extent that any CMRS        sunset provision is needed to protect
some rural subscribers to obtain low-       providers have excess spectrum, we           SMR licensees. Moreover, we observe
cost dispatch service from a third-party    want to encourage them to develop            that to the extent that non-SMR CMRS
service provider for the first time.        innovative uses for it that are responsive   licensees will need to construct or
   30. Commenters seeking to retain the     to consumer demand, including                modify their systems before they will be
dispatch ban argue that allowing CMRS       dispatch service. Moreover, restricting      able to offer dispatch services, SMR
providers, particularly cellular            dispatch service to SMR frequencies          providers will have an opportunity to
licensees, to offer dispatch services       would limit competition by creating an       adjust to new competitors. We also
actually would have an anti-competitive     artificial scarcity of spectrum available    decline to limit non-SMR CMRS
impact on the dispatch market. Noting       to provide dispatch service.                 licensees’ participation to providing
that cellular carriers have significant        33. Permitting all CMRS licensees to      dispatch on a secondary basis. There is
resources and spectrum, opponents           provide dispatch service also is             no evidence in the record that
claim that cellular carriers will           consistent with our efforts to achieve       restricting their participation in this
impermissibly underprice their service      regulatory symmetry among comparable         manner would provide any benefit to
(by subsidizing the dispatch service        services. As many commenters point           consumers.
with cellular revenues) in order to drive   out, the dispatch prohibition allows
                                            SMR licensees to offer services that its     III. Procedural Matters
SMR operators out of business. To
prevent any anti-competitive conduct,       CMRS competitors cannot. Elimination            36. Final Regulatory Flexibility
several commenters suggest that all         of the dispatch prohibition will help to     Analysis. Pursuant to the Regulatory
CMRS providers be required to provide       equalize the regulatory requirements         Flexibility Act of 1980, an Initial
dispatch on frequencies designated for      applicable to all mobile service             Regulatory Flexibility Analysis (IRFA)
SMR service.                                providers by allowing competing              was incorporated in the Notice. Written
   31. We are unpersuaded that any          operators to offer the same portfolio of     comments on the IRFA were requested,
dispatch providers are likely to engage     service options and packages. This           although none were received. The
in anticompetitive conduct. To sustain a    result is required by Congress’ mandate      Commission has prepared the following
                 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                       15495

Final Regulatory Flexibility Analysis                   Southwestern Bell, Bell Atlantic, US          sea level, the channel(s) used, and the
(FRFA) of the expected impact of the                    West, RAM Mobile, Cass Cable, and API         call sign and location of the base station.
proposed rule changes on small entities.                are dismissed as moot.                        *     *     *     *    *
   I. Reason for Action. This Report and                                                                (d) Dispatch transmitters requiring
Order eliminates the restrictions                       List of Subjects
                                                                                                      authorization. A dispatch transmitter
contained in Sections 90.603(c) and                     47 CFR Part 22                                that does not meet all of the
90.703(c) of the Commission’s rules that                                                              requirements of paragraph (a) of this
prohibit wireline telephone common                        Public mobile services; Radio.
                                                                                                      section may be installed only upon
carriers from holding licenses in the                   47 CFR Part 90                                grant of an application for authorization
SMR service and commercial 220 MHz                                                                    therefor (FCC Form 600).
band. The Report and Order also                           Private land mobile services; Radio.
permits all CMRS providers to offer                      Federal Communications Commission.           *     *     *     *    *
dispatch service in competition with                    William F. Caton,                               3. Section 22.901 is amended by
SMR systems. The record in this                                                                       revising paragraph (c) to read as follows:
                                                        Acting Secretary.
proceeding demonstrates that these                                                                    § 22.901 Cellular service requirements and
restrictions are no longer necessary and                Amendatory Text
should be repealed.                                       Parts 22 and 90 of Chapter I of Title       *     *    *     *     *
   II. Objectives. The Commission                       47 of the Code of Federal Regulations           (c) Dispatch service. Cellular systems
intends to promote competition, growth                  are amended as follows:
and innovation at a time when the                                                                     may provide dispatch service.
mobile services marketplace is                          PART 22—PUBLIC MOBILE SERVICE                 *     *    *     *     *
undergoing regulatory changes.
   III. Legal Basis. The action is                        1. The authority citation for part 22       PART 90—PRIVATE LAND MOBILE
authorized under Sections 3(n), 4(i),                   continues to read as follows:                 RADIO SERVICES
303(r), 332(c) and 332(d) of the                          Authority: Sections 4, 303, 307, and 332,     4. The authority citation for part 90
Communications Act of 1934, as                          48 Stat. 1066, 1082, as amended; 47 U.S.C.    continues to read as follows:
amended, 47 U.S.C. §§ 153(n), 154(i)                    154, 303, 307 and 332, unless otherwise
and 303(r), 332(c) and 332(d).                          noted.                                          Authority: Sections 4, 303, and 332, 48
   IV. Reporting, Recordkeeping and                                                                   Stat. 1066, 1082, as amended; 47 U.S.C. 154,
                                                           2. Section 22.577 is amended by            303 and 332, unless otherwise noted.
Other Compliance Requirements. None.                    revising the heading, the introductory
   V. Federal Rules Which Overlap,                                                                      5. Section 90.603(c) is revised to read
                                                        text, the introductory text of paragraph
Duplicate or Conflict With Rules. None.                                                               as follows:
   VI. Description, Potential Impact, and               (a) and paragraphs (a)(1), (a)(2), (b) and
Number of Small Entities Involved.                      (d), to read as follows:
                                                                                                      § 90.603   Eligibility.
Many small entities could be affected by                § 22.577   Dispatch service.                  *      *    *      *     *
the rule changes contained in the Report                                                                 (c) Any person eligible under this part
                                                           Carriers licensed under this subpart
and Order. We expect that several small                                                               and proposing to provide on a
                                                        may provide dispatch service in
entities will benefit by eliminating the                                                              commercial basis base station and
                                                        accordance with the rules in this
wireline restrictions and dispatch                                                                    ancillary facilities as a Specialized
prohibition because it will provide these
                                                           (a) Installation without prior FCC         Mobile Radio Service System operator,
entities and additional opportunity to
                                                        approval. A station licensee may install      for the use of individuals, federal
participate in the provision of these
                                                        or remove dispatch points for                 government agencies and persons
   VII. Significant Alternatives                        subscribers without obtaining prior FCC       eligible for licensing under subparts B,
Minimizing the Impact on Small Entities                 approval. A station licensee may install      C, D, or E of this part.
Consistent with the Stated Objectives.                  or remove dispatch transmitters for              6. 47 CFR 90.703(c) is revised to read
The Notice in this proceeding solicited                 subscribers without applying for              as follows:
comments on whether to eliminate the                    specific authorization, provided that the
                                                                                                      § 90.703   Eligibility.
wireline eligibility restrictions and the               following conditions are met.
                                                           (1) Each dispatch transmitter must be      *      *     *    *      *
dispatch prohibition. No significant
                                                        able to transmit only on the mobile              (c) Any person eligible under this part
alternatives were presented in the
                                                        channel that is paired with the channel       proposing to provide on a commercial
   37. Ordering Clauses. Accordingly, IT                used by the base station.                     basis, station and ancillary facilities for
IS ORDERED, that Part 22 of the                            (2) The antenna of the dispatch            the use of individuals, federal
Commission’s Rules ARE AMENDED as                       transmitter must not exceed the criteria      government agencies and persons
set forth below and are effective April                 in § 17.7 of this chapter that determine      eligible for licensing under subparts B,
24, 1995. It is further ordered that Part               whether the FAA must be notified of the       C, D, or E of this part.
90 of the Commission’s Rules are                        proposed construction.                        [FR Doc. 95–7295 Filed 3–23–95; 8:45 am]
amended as set forth below and are                      *      *     *     *    *                     BILLING CODE 6712–01–M
effective upon March 24, 1995.3                            (b) Notification. Licensees must notify
   38. It is further ordered that the                   the FCC (FCC Form 489) whenever a
Petitions for Waiver filed by                                                                         47 CFR Part 64
                                                        dispatch transmitter is installed
   3 We note that the Administrative Procedure Act
                                                        pursuant to paragraph (a) of this section.
                                                                                                      [CC Docket No. 91–281; FCC 95–119]
allows the rules to become effective immediately        The notification must include the name
because we are relieving a restriction rather than      and address of the subscriber(s) for          Calling Party Telephone Number;
imposing one. See 5 U.S.C. 553(d)(1). We believe        which the dispatch transmitter was
that it is appropriate for these rules to take effect                                                 Privacy
immediately upon publication in the Federal
                                                        installed, the location of the dispatch
Register in light of the pending requests for waiver,   transmitter, the height of antenna            AGENCY:Federal Communications
discussed infra.                                        structure above ground and above mean         Commission.
15496         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

ACTION: Stay of effective date of Order       Federal Communications Commission.         PART 73—[AMENDED]
establishing final rule.                      William F. Caton,
                                              Acting Secretary.                            1. The authority citation for Part 73
SUMMARY:   This Order stays the effective     [FR Doc. 95–7297 Filed 3–23–95; 8:45 am]   continues to read as follows:
date of the Report and Order and              BILLING CODE 6712–01–M                       Authority: Sections 303, 48 Stat., as
Further Notice of Proposed Rulemaking,                                                   amended, 1082; 47 U.S.C. 154, as amended.
April 18, 1994, which adopted the
Commission’s rules regarding privacy                                                     § 73.202   [Amended]
                                              47 CFR Part 73
and other requirements for Calling Party                                                   2. Section 73.202(b), the Table of FM
Telephone Numbers.                            [MM Docket No. 94–15; RM–8411]
                                                                                         Allotments under West Virginia, is
                                                                                         amended by removing Channel 291A at
EFFECTIVE DATE:   March 17, 1995.
                                              Radio Broadcasting Services;               Ravenswood and adding Elizabeth,
FOR FURTHER INFORMATION CONTACT:              Ravenswood and Elizabeth, West             Channel 291A.
Robert E. Kimball, (202) 634–7150,            Virginia                                   Federal Communications Commission.
Domestic Services Branch, Domestic                                                       John A. Karousos,
Facilities Division, Common Carrier           AGENCY:  Federal Communications
                                                                                         Chief, Allocations Branch, Policy and Rules
Bureau.                                       Commission.
                                                                                         Division, Mass Media Bureau.
                                              ACTION: Final rule.                        [FR Doc. 95–7299 Filed 3–23–95; 8:45 am]
summary of the Commission’s Order in          SUMMARY:   The Commission, at the          BILLING CODE 6712–01–F
CC Docket No. 91–281, FCC 95–119,             request of MediaCom, Inc., reallots
adopted March 17, 1995, released March        Channel 291A from Ravenswood to
17, 1995. The item is available for                                                      47 CFR Part 73
                                              Elizabeth, West Virginia, as that
inspection and copying during normal          community’s first local aural
hours in the Commission’s FCC                 transmission service, and modifies         [MM Docket No. 94–143]
Reference Center (room 230), 1919 M           Station WRZZ(FM)’s license
St., NW., Washington, D.C., or a copy                                                    Television Broadcasting Services;
                                              accordingly. See 59 FR 10607, March 7,
may be purchased from the duplicating                                                    Albion, Nebraska
                                              1994. Channel 291A can be allotted to
contractor, International Transcription       Elizabeth in compliance with the
Service, Inc. (202) 857–3800, 2100 M                                                     AGENCY:  Federal Communications
                                              Commission’s minimum distance              Commission.
St., NW., Suite 140, Washington, D.C.         separation requirements without the
20037. The Order will be published in                                                    ACTION: Final Rule.
                                              imposition of a site restriction. The
the FCC Record.                               coordinates for Channel 291A at            SUMMARY:    This document allots UHF
Analysis of Proceeding                        Elizabeth are 39–03–48 and West            Channel 24+ to Albion, Nebraska, in
                                              Longitude 81–23–43. Since Elizabeth is     order to permit Citadel Communications
   In the process of reviewing petitions      located within 320 kilometers (200
for reconsideration of the Commission’s                                                  Co., Inc. to amend it pending
                                              miles) of the U.S.-Canadian border,        application (File No. BPCT–930726KH)
Rules governing passage of Calling Party      concurrence of the Canadian
Number (CPN) on interstate telephone                                                     for Channel 18 at Albion to specify
                                              government has been obtained. With         operation on Channel 24+ without loss
calls, we have decided on our own             this action, this proceeding is
motion that the public interest would                                                    of cut-off protection. See 60 FR 91,
                                              terminated.                                published January 3,1994. The reference
best be served by temporarily staying
                                              EFFECTIVE DATE: May 4, 1995.               coordinates for Channel 24+ at Albion,
effectiveness of 47 CFR 64.1601 and
64.1603. Interested parties have              FOR FURTHER INFORMATION CONTACT:           Nebraska, are 41–55–58 and 98–17–23.
persuasively argued that no matter how        Sharon P. McDonald, Mass Media             With this action, the proceeding is
the issues raised in the petition for         Bureau, (202) 418–2180.                    terminated.
reconsideration are resolved, and even if     SUPPLEMENTARY INFORMATION: This is a       EFFECTIVE DATE: May 4, 1995.
the Commission adheres to its original        synopsis of the Commission’s Report        FOR FURTHER INFORMATION CONTACT:
decision in every material respect,           and Order, MM Docket No. 94–15,            Robert Hayne, Mass Media Bureau,
compliance will not be possible by            adopted March 14, 1995, and released       (202) 776–1654.
April 12, 1995, the effective date            March 21, 1995. The full text of this      SUPPLEMENTARY INFORMATION: This is a
specified in the March 29, 1994 Report        Commission decision is available for       synopsis of the Commission’s Report
and Order Further Notice of Proposed          inspection and copying during normal       and Order, MM Docket No. 94–143,
Rulemaking, 59 FR 18318.                      business hours in the FCC Reference        adopted March 13, 1995, and released
Ordering Clauses                              Center (Room 239), 1919 M Street, NW,      March 21, 1995. The full text of this
                                              Washington, D.C. The complete text of      decision is available for inspection and
   Accordingly, it is ordered, pursuant to    this decision may also be purchased        copying during normal business hours
Sections 1, 4(i) of the Communications        from the Commission’s copy                 in the FCC Dockets Branch (Room 230),
Act, 47 U.S.C. 1 and 154(i), that             contractors, International Transcription   1919 M Street, NW, Washington, D.C.
effectiveness of §§ 64.1601 and 64.1603       Service, Inc., (202) 857–3800, 2100 M      The complete text of this decision may
of the Commission’s Rules IS STAYED           Street, NW, Suite 140, Washington, D.C.    also be purchased from the
until further notice.                         20037.                                     Commission’s copy contractor,
   It is further ordered that this order is   List of Subjects in 47 CFR Part 73         International Transcription Service,
effective upon adoption.                                                                 (202) 857–3800, 2100 M Street, NW,
                                                Radio broadcasting.
List of Subjects in 47 CFR Part 64                                                       Washington, D.C. 20037.
                                                Part 73 of Title 47 of the Code of
                                                                                         List of Subjects in 47 CFR Part 73
  Calling party number identification,        Federal Regulations is amended as
Privacy, Telephone.                           follows:                                     Television broadcasting.
                Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                           15497

PART 73—[AMENDED]                               SUPPLEMENTARY INFORMATION:                   explains that expenses incurred by
                                                Background                                   mentor firms in providing
  1. The authority citation for Part 73                                                      developmental assistance to their
continues to read as follows:                      NASA published a Proposed Rule on         protege/subcontractors are allowable.
                                                February 9, 1994 amending the NASA           The language in paragraph 1819.7205
  Authority: Secs. 303, 48 Stat., as amended,
                                                FAR Supplement to implement a                states that the basic condition for
1082; 47 U.S.C. 154, as amended.
                                                Mentor-Protege Program. Having               Mentor-Protege requires a prime/
§ 73.606    [Amended]                           reviewed the public comments on the          subcontractor relationship between the
                                                Proposed Rule, NASA is publishing this       mentor and protege. The costs will be
  2. Section 73.606(b), the TV Table of
                                                Final Rule with certain changes to the       recognized as part of enhancing
Allotments under Nebraska, is amended
                                                provisions set forth in the Proposed
by adding Channel 24+ at Albion.                                                             contractor performance and are
                                                Rule. Many of the comments
Federal Communications Commission.                                                           allowable consistent with the
                                                represented editorial recommendations
                                                                                             definitions and requirements in FAR
John A. Karousos,                               or affirmations for the program. Also, a
                                                                                             Part 31. A large number of commenters
Chief, Allocations Branch, Policy and Rules     number of comments were duplicative
Division, Mass Media Bureau.                    on subject matter. However, the              requested that NASA provide clarity in
                                                underlying Mentor-Protege policy has         the final rule regarding the fee
[FR Doc. 95–7298 Filed 3–23–95; 8:45 am]
                                                not been significantly altered as a result   arrangement and the earning of award
                                                of changes made in response to               fee. Future award fee plans of NASA
                                                comments. The most suggestive                contracts will be structured such that 15
                                                comments and their disposition are           percent of the available award fee is
                                                discussed in the preface of this Final       allocated for Small Disadvantaged
                                                Rule. This Final Rule serves as the          Business Utilization. Mentor-Protege
                                                regulatory basis for the Mentor-Protege      will be evaluated under Small
48 CFR Parts 1819 and 1852                      Program provisions. For the pilot phase      Disadvantaged Utilization as a separate
                                                of the program, Mentor-Protege               element and allocated a separate 5
                                                applications and activity are limited to     percent of the 15 percent to evaluate the
RIN 2700–AB52
                                                cost-plus-award-fee contracts. The           prime’s performance in the Mentor-
NASA Mentor-Protege Program                     concept for the NASA Mentor-Protege          Protege Program. For purposes of
Policies                                        Program includes the establishment of a      earning award fee, the Mentor firm’s
                                                Prime/Subcontractor relationship             performance will be evaluated against
AGENCY: Office of Small and                     between the mentor and protege firm. In      the measures described in the NASA
Disadvantaged Business Utilization              the role of subcontractor, the protege       FAR Supplement provisions at
(OSDBU), National Aeronautics and               will contribute to the contract efforts;     1852.219–79. Many commenters
Space Administration (NASA).                    however, to enhance contractual              recommended that while NASA
                                                performance, the protege will receive        explains the portability of credit
ACTION:    Final rule.                                                                       features from the statute prescribing the
                                                developmental assistance, as described
                                                in section 1819.7214, from the prime         DOD Mentor-Protege Program that are
SUMMARY: The Final rule establishes
                                                contractor mentor firm.                      available to NASA prime contractors, no
NASA’s policy on its Mentor-Protege
                                                   For consistency with Section 7105 of      provision has been specifically made for
Program. With respect to prime
                                                the Federal Acquisition Streamlining         credit against SDB goals with a
contractors, it defines eligibility for
                                                Act, Public Law 103–355, the categories      multiplier similar to the DOD Mentor-
participation, allowable developmental
                                                of eligible entities defined in section      Protege Program. A multiplier option is
assistance measures that will enhance
                                                1819.7202 of the final rule include          not included in Section 1819.7204 of
the capabilities of Socially and
                                                ‘‘Small Disadvantaged Businesses,            the NASA program since no statute or
Economically Disadvantaged Businesses
                                                Historically Black Colleges and              legislation exists to authorize such an
to perform NASA contracts and
                                                Universities and Minority Institutions’’.    option. Section 1819.7204 includes only
subcontracts, and incentives for
                                                Throughout this final rule, these            the features authorized in the statute
program participation. Further, it
                                                categories are collectively identified by    creating the DOD program that can be
defines the transportability of
                                                the term ‘‘protege’’.                        extended to civilian agencies. A number
subcontracting goal credit features from
                                                   NASA received two hundred and             of commenters commended NASA for
the Department of Defense (DOD)
                                                twenty-seven comments in response to         including a provision allowing proteges
Mentor-Protege Program to NASA
                                                the Proposed Rule. Several commenters        to have multiple mentors. However, a
Contractors. However, the effectiveness
                                                suggested that NASA provide a                number of commenters expressed
of a mentor under the NASA Program
                                                definition of ‘‘high-tech.’’ The agency      concern about this provision. Some
will be evaluated by the measurable
                                                high-tech definition is provided in          concerns centered about proteges with
amount of developmental assistance
                                                1819.7202 to provide clarity regarding       multiple mentors maintaining
provided under NASA contracts.
                                                the Mentor-Protege Program’s targeted        confidentiality; others were concerned
Participation in the program is
                                                areas of contract activity. The Mentor-      with proteges receiving conflicting
                                                Protege Program, a key element of            guidance from multiple mentors. It is
EFFECTIVE DATE:    March 24, 1995.              NASA’s socioeconomic program, is             recommended that Mentor-Protege
ADDRESSES: NASA Office of Small and             designed to increase the participation of    agreements contain some certification
Disadvantaged Business Utilization,             the entities defined as protege in the       regarding confidentiality and non-
NASA Headquarters, (Code K),                    agency’s core mission. Many                  disclosure as is routinely utilized in
Washington, DC 20546.                           commenters suggested that NASA               business relationships. During the
                                                modify the rule to allow reimbursement       review of Letters of Intent and
FOR FURTHER INFORMATION CONTACT:                to primes for expenses incurred in           Agreements, NASA will scrutinize the
Ms. Rae C. Martel, Telephone: (202)             providing developmental assistance to        intended areas of developmental
358–2088.                                       proteges. The coverage in the final rule     assistance for duplication in certain
15498         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

areas that could lead to conflicting          awards to protege firms identified in       Protege applications may be either
guidance. However, some duplication           letters of intent and approved              contract-specific or broader for
may be unavoidable but appropriate and        agreements for the NASA program.            multiple-contract agreements. There is
beneficial from successful large              Several commenters recommend that           no change in the rule. Since the Mentor-
aerospace firms. Several prime                NASA include additional mentor-             Protege relationship involves a prime/
contractors expressed concern with the        provided developmental assistance           subcontractor relationship, the
requirement at Section 1819.7217 for          features that will not be required to be    application and activity must be
quarterly reporting. In the final rule, the   paid back: property; rent-free use of       contract-specific. Several commenters
reporting frequency is changed from           facilities and/or equipment; and            asked if awards to proteges on a
quarterly to semi-annual to parallel the      assignment of personnel to protege.         noncompetitive basis under this
Standard Form 294 submission. Several         Section 1819.7214 has been modified in      program will be viewed as an adequate
commenters suggested that NASA delete         the final rule to include these features.   and acceptable justification for other
the provision encouraging proteges to         Several commenters asked if it is           than full and open competition. The
submit reports because of privity of          NASA’s intent that the Mentor-Protege       requirement for full and open
contract; others recommended that any         requirement may be included as part of      competition for subcontractors is a
report from a protege should be jointly       the evaluation factors even though a        matter of regulatory policy, not statute.
prepared and submitted through the            prime contractor may not sign up to         The Associate Administrator for
mentor. This provision remains                participate in the program. In all NASA     Procurement is approving an exception
unchanged in the final rule. The              solicitations for full and open             to this policy for approved Mentor-
language in 1819.7217(b) reads that           competition, Small Disadvantaged            Protege agreements. Several commenters
‘‘proteges are encouraged to submit           Business Utilization is a stand-alone       state that with this voluntary program
quarterly reports on program progress as      evaluation factor under Mission             participation, NASA states that a 30-day
it pertains to the Mentor-Protege             Suitability, which includes                 notice should be provided by either
agreement.’’ While reporting is not           consideration for Mentor-Protege            party to withdraw. The commenters
mandatory for protege firms, a self           participation. While voluntary and          asked whether a decision to dissolve the
evaluation of their progress under the        better-suited for certain prime             relationship that occurs during a
terms of the approved agreement is            contractors, participation in the Mentor-   contract period would impact the
desired by the NASA OSDBU. Since the          Protege program may provide many            amount of award fee available to the
Mentor-Protege agreement is approved          primes the opportunity to substantially     prime contractor. Notwithstanding the
by NASA, a review of progress against         increase their subcontracting activity      30-day notice provision at 1819.7213(h),
that approved agreement will not violate      while also achieving other agency and       the requirement exists that agreements
privity of contract. Several commenters       program objectives as delineated in         must contain a plan for accomplishing
suggested that NASA modify the rule to        1819.7207. All things being equal, the      the work in progress should the
allow for flowing down program                firm that proposes in compliance with       agreement be terminated. The
participation to lower tier, large            the Government’s subcontracting goals       agreement, containing this plan, must be
business subcontractors where it makes        and includes Mentor-Protege activity        approved by NASA prior to
sound financial sense. Because of             will enhance its competitive position.      implementing the developmental
privity of contract issues with the           Several commenters asked if a NASA          assistance program. Approval of the
mentor prime contractors, no such             prime who is currently a DOD mentor         plan will ensure that the technical
provision will be included in the pilot       has to apply and be approved for the        performance will continue satisfactorily
phase of the Mentor-Protege Program.          NASA Mentor-Protege Program. Any            and thereby eliminating the possibility
Several commenters suggested that             firm that seeks to participate in the       for negative impact to the prime. The
NASA expand the program to include a          NASA Mentor-Protege Program must            remaining major comments will be
provision allowing that a protege may         apply to NASA, see Section                  addressed individually as follows. One
be retained, and receive noncompetitive       1819.7211(a). The discussion at             commenter stated that the application
subcontract awards, until it has grown        1819.7204 only highlights the               process indicates that the application is
to more than twice the size of the SIC        portability of features from the DOD        only for a particular contract which the
code. Such provision cannot be                Mentor-Protege Program that extends to      contractor is currently performing. The
included without specific legislative         NASA prime contractors. This section        commenter stated that this would
authorization. Several commenters             does not address approved NASA              appear to eliminate any Mentor-Protege
asked if a mentor could make                  mentors, only NASA contractors who          arrangements which are part of a
noncompetitive awards to any protege          are approved DOD Mentors. Several           proposal. If a NASA prime is allowed to
subcontractor with whom it plans to           commenters sought clarity regarding         propose a Mentor-Protege arrangement
work or is the mentor limited to              measurement or definition of ‘‘good         as part of its proposal, the commenter
noncompetitive awards to only those           faith,’’ which is what NASA mentors         stated that the evaluation criteria should
protege firms which the mentor is             will be held to beyond transferring         be adjusted for scoring the protege’s
currently using under its DOD Mentor-         credit from activity in the DOD activity    relevant experience and past
Protege Program. NASA prime                   to NASA subcontracting plans. ‘‘Good        performance for areas of work in which
contractors, who are DOD mentors, are         faith’’ will be measured by the amount      they are to be mentored. The prime
authorized to award subcontracts              and quality of developmental assistance     should not be penalized for inclusion of
noncompetitively under their NASA             provided by mentors from the measures       a less-experienced protege. The
contracts to the proteges which they are      set forth at 1819.7214 and as described     application process is intended to
assisting under the DOD program in            in the clause at 1852.219–79. A             recognize both instances—Mentor-
accordance with Public Law 101–510,           discussion of this activity should be       Protege under a particular contract
Section 831(f)(2). In addition, NASA          included in the reports submitted by the    currently being performed and
prime contractors who are also                mentor and in the protege’s reports, if     proposals including Mentor-Protege
approved mentors under the NASA               any. Several commenters suggested that      arrangements. In response to a
program may make noncompetitively             NASA modify the rule so that Mentor-        competitive cost-plus-award-fee
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                             15499

procurement, the contractor’s proposal        goals included in solicitations,              the application should be denied, and
will be submitted in accordance with          expecting a prime to exceed these             the whole process would start over. A
the evaluation methodology and                already high SDB percentages is               commenter suggested that NASA limit
instructions set forth in the solicitation.   unrealistic. Further, the contractor states   application information to two prior
However, prior to proposal submission         that if incentive eligibility is based upon   years and that NASA specify the
the letter of intent and the agreement        a prime exceeding the NASA 8 percent          minimum information for letter of
should be submitted to the OSDBU for          goal (irrespective of a contract’s SDB        intent. The final rule incorporates both
approval. The letter of intent and            goal), then a prime would consider            recommended changes in section
OSDBU approved agreement should be            program participation as a level of risk.     1819.7211. A commenter suggested that
submitted as part of the proposal. In         Mentor-Protege is independent of              since the proposed rule making does not
competitive proposals that include a          establishment of SDB subcontracting           take into account a prior business
Mentor-Protege arrangement, no                goals in specific contracts. The 8            relationship between the mentor and
adjustment will be made for scoring the       percent goal is an agency goal; each          protege, some restrictions should be
protege’s relevant experience and past        procurement includes an SDB goal that         included to prevent overlapping
performance since the protege’s record        represents the maximum practical              management (e.g. Board of Directors)
should demonstrate ability to perform         opportunity as required by public law.        and business arrangements such as
the subcontracting job outlined for a         The Mentor-Protege program represents
                                                                                            partnerships in which the Mentor has a
such a firm. The protege’s performance        only one means of increasing SDB
                                                                                            direct financial interest in the business
in non-traditional areas is essentially       participation—with emphasis on high
                                                                                            success of the protege or can take credit
guaranteed by the prime’s commitment          tech effort. Program success will be
to successfully mentor said firm to           determined by the measures cited at           for developmental assistance which
perform. In these instances, the proposal     1819.7207. Since the Mentor-Protege           would be a part of normal business
should reflect details of the Mentor-         relationship will be contract-specific,       development for the mentor. Proposed
Protege relationship as related to            the contractor’s performance will be          Mentor-Protege agreements will be
performance under the proposed                measured against negotiated goals, the        disapproved where the protege firm’s
contract to provide an understanding of       Mentor-Protege agreement, and the             owner was a former employee of the
the work plan relationship and to             other factors cited in 1819.7206. A           proposed mentor or when the protege
facilitate a complete evaluation and          commenter recommended that NASA               firm itself represents an entity in which
scoring. This commitment and                  delete provisions at 1819.7213 (b) and        the mentor firm holds a financial
performance by mentors form the basis         (c), suggesting that there is no privity of   interest or ownership. However, mentor
for earning the associated fee dollars.       contract, and substitute them with a          firms that hold partial ownership (up to
One commenter requests clarity                provision allowing for after-the-fact         10%) of a proposed protege firm due to
regarding the disposition of reports to be    notification. No change is made to these      their approved participation in the DOD
submitted by the NASA technical               subsections. The NASA position is that        Mentor-Protege Program shall not
program manager. They also seek clarity       advance notification along with a work        negatively impact participation in the
regarding the roles and interactions of       plan for continuation of work does not        NASA program.
the NASA Mentor-Protege program               affect privity of contract. One
manager, the NASA technical program           commenter recommended modification
manager, and the contracting officer in       in the final rule such that annual            Availability of NASA FAR Supplement
the award fee determination process.          briefings of the Mentor-Protege Program
The NASA Mentor-Protege program               success should be presented as part of
                                                                                              The NASA FAR Supplement, of
manager, a senior official in the NASA        the mentor’s normal program review
                                                                                            which this proposed coverage will
Headquarters Office of Small and              with the NASA Center it supports. The
                                                                                            become a part, is codified in 48 CFR,
Disadvantaged Business Utilization, has       NASA OSDBU would be invited to
direct authority for the program and is       participation at the center; the pertinent    Chapter 18, and is available in its
the designated recipient for all required     protege could, at the mentor’s                entirety on a subscription basis from the
reports. The NASA Mentor-Protege              discretion, be invited to make their own      Superintendent of Documents,
program manager will submit quarterly         presentation. Rationale: Mentor-Protege       Government Printing Office,
reports to the contracting officer for use    reviews held as part of a center’s            Washington, DC 20402. Cite GPO
in the semi-annual award fee                  normally-scheduled program review             Subscription Stock Number 933–003–
determinations as a result of monitoring      would significantly reduce cost to            00000–1. It is not distributed to the
activity and work site reviews. The           NASA and contractors thereby                  public, whether in whole or in part,
contracting officer is the responsible        maintaining privity between the mentor        directly by NASA.
NASA official with direct authority for       and the portege. Section 1819.7218 of
the contract. The NASA technical              the Final Rule has been changed to
program manager, provides technical           include such review in program                Impact
direction and as such also provides           reviews. Where applicable, separate
quarterly evaluations of the contractor’s     reviews will be scheduled for other              NASA certifies that this regulation
technical performance for the purpose         contracts at the NASA work site. One          will not have a significant economic
of semi-annual fee determinations.            commenter recommends that NASA
                                                                                            effect on a substantial number of small
Therefore, the program manager will           provide the mentor (formally or
                                                                                            entities under the Regulatory Flexibility
also include in the quarterly reports an      informally) with information on any
assessment of the contractor’s                deficiencies noted in the application so      Act (5 U.S.C. 601 et seq.). The Mentor-
performance in the Mentor-Protege             that the deficiencies can be quickly          Protege Program is intended to have a
Program as it pertains to the technical       corrected, if the Mentor so chooses. If       positive economic effect on small
effort and protege development. One           the Mentor does not correct the               businesses by enhancing their ability to
commenter stated that considering             deficiencies within a reasonable time         participate in both Government and
NASA’s current high SDB percentage            unilaterally established by NASA, then        commercial contracting entities.
15500          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

List of Subjects in 48 CFR Parts 1819         by the Secretary of Education to meet        assistance provided to proteges being
and 1852                                      the requirements of 34 CFR 608.2 and         assisted under the DOD program toward
  Government procurement.                     listed therein. HBCUs include any            meeting the goals in their
                                              nonprofit research institution that was      subcontracting plans under their NASA
Deidre A. Lee,                                an integral part of such a college or        prime contracts (Public Law 102–190,
Associate Administrator for Procurement.      university before November 14, 1986.         Section 814). Limitations which may
  Accordingly, 48 CFR Parts 1819 and             (b) Minority Institutions (MI), as used   reduce the value of this benefit include:
1852 are amended as follows:                  in this subpart, means institutions             (1) Credit toward attaining
  1. The authority citation for 48 CFR        verified by the Secretary of Education to    subcontracting goals is available only to
Parts 1819 and 1852 continues to read         meet the criteria set forth in 34 CFR        the extent that the developmental
as follows:                                   637.4. MIs include Hispanic-serving          assistance costs have not been
  Authority: 42 U.S.C. 2473(c)(1).            institutions as defined by 20 U.S.C.         reimbursed to the contractor by DOD as
                                              1059c(b)(1).                                 direct or indirect costs; or
PART 1819—SMALL BUSINESS AND                     (c) Small Disadvantaged Business             (2) The credit is available to meet the
SMALL DISADVANTAGED BUSINESS                  concern (SDB), as used in this subpart,      goals of a NASA subcontracting plan
CONCERNS                                      means small business concerns owned          only to the extent that it has not been
                                              and controlled by socially and               applied to a DOD subcontracting plan.
  2. Subpart 1819.72 is added to read as                                                   The same unreimbursed developmental
follows:                                      economically disadvantaged individuals
                                              (as those terms are used in section 8(a)     assistance costs cannot be counted
Subpart 1819.72—The NASA Mentor-              of the Small Business Act (15 U.S.C.         toward meeting the subcontracting goals
Protege Program                               637(a) (5) and (6))) and small business      of more than one prime contract. These
1819.7201 Scope of subpart.                   concerns owned and controlled by             costs would accrue from credit for the
1819.7202 Definitions.                        women (see section 8(d) of the Small         multiples attributed to assistance
1819.7203 Non-affiliation.                                                                 provided by Small Business
                                              Business Act (15 U.S.C. 637(d)) as
1819.7204 Transportability of features from                                                Development Centers, Historically Black
    the Department of Defense (DOD)           amended by Public Law 103–355.
                                                 (d) High-Tech: As used in this            Colleges and Universities and Minority
    Mentor-Protege Program to NASA
                                              subpart, means research and/or               Educational Institutions.
                                              development efforts that are within or          (d) The features identified in
1819.7205 General policy.
1819.7206 Incentives for prime contractor     advances the state-of-the-art in a           paragraphs (a), (b) and (c) of this section
    participation.                            technology discipline and are performed      point out the portability of features from
1819.7207 Measurement of program              primarily by professional engineers,         the DOD Mentor Protege Program to
    success.                                  scientists, and highly skilled and           NASA prime contractors. NASA
1819.7208 Mentor firms.                                                                    mentors will be held to show ‘‘good
                                              trained technicians or specialists.
1819.7209 Protege firms.                                                                   faith’’ by providing actual
1819.7210 Selection of protege firms.         1819.7203   Non–affiliation.                 developmental assistance beyond
1819.7211 Application process for mentor
                                                 For purposes of the Small Business        transferring credit from activity in the
    firms to participate in the program.§
1819.7212 OSDBU review and approval           Act, a protege firm may not be               DOD program to NASA subcontracting
    process of agreement.                     considered an affiliate of a mentor firm     plans.
1819.7213 Agreement contents.                 solely on the basis that the protege firm    1819.7205   General policy.
1819.7214 Developmental assistance.           is receiving developmental assistance
1819.7215 Obligation.                         referred to in 1819.7214 from such              (a) Eligible large business prime
1819.7216 Internal controls.                  mentor firm under the program. Neither       contractors, not included on the ‘‘Parties
1819.7217 Reports.
                                              shall partial ownership, up to 10            Excluded from Procurement Program’’
1819.7218 Program review.                                                                  list, who have at least one active
1819.7219 Solicitation provision and          percent of a Department of Defense
                                              (DOD) sanctioned Protege firm by its         subcontracting plan, and who are
    contract clauses.                                                                      approved as mentor firms will enter into
                                              DOD mentor constitute affiliation by
                                              NASA.                                        agreements with eligible entities as
Subpart 1819.72—The NASA Mentor-
                                                                                           defined in 1819.7202 as Proteges to
Protege Program
                                              1819.7204 Transportability of features       provide appropriate developmental
1819.7201   Scope of subpart.                 from the Department of Defense (DOD)         assistance to enhance the capabilities of
  The NASA Mentor-Protege Program is          Mentor-Protege Program to NASA               Proteges to perform as subcontractors
                                              contractors.                                 and suppliers. Eligible small business
designed to incentivize NASA prime
contractors to assist Small                     (a) In accordance with the benefits        prime contractors, not included on the
Disadvantaged Business concerns,              authorized by the DOD Mentor-Protege         ‘‘Parties Excluded from Procurement
Historically Black Colleges and               program (Public Law 101–510, Section         Programs’’ list, and that are capable of
Universities, and Minority Institutions       831, as amended by Public Law 102–           providing developmental assistance to
in enhancing their capabilities to            190, Section 814), a NASA contractor         SDB’s, may be approved as mentors. An
perform NASA contracts and                    who is also an approved DOD Mentor           active mentor-protege arrangement
subcontracts, foster the establishment of     can transfer credit features to their        requires the protege to be a
long-term business relationships              NASA contracts.                              subcontractor under the mentor’s prime
between these entities and NASA prime           (b) NASA prime contractors, who are        contract with NASA.
contractors, and increase the overall         approved DOD mentors, can award                 (b) The pilot program has a duration
number of these entities that receive         subcontracts noncompetitively under          of three years commencing from March
NASA contract and subcontract awards.         their NASA contracts to the proteges         24, 1995. During this period, eligible
                                              which they are assisting under the DOD       mentor firms, which have received
1819.7202   Definitions.                      program (Public Law 101–510, Section         approval by NASA to participate in the
  (a) Historically Black Colleges and         831(f)(2)).                                  program pursuant to section 1819.7212,
Universities (HBCU), as used in this            (c) NASA prime contractors may             may enter into agreements with protege
subpart, means institutions determined        count the costs of developmental             firms.
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                              15501

   (c) For the pilot phase of the program,   1819.7208   Mentor firms.                     a mentor to be a protege shall be
mentor-protege activity will be limited        (a) Eligibility.                            referred solely to the Associate
to cost-plus-award-fee contracts.              (1) Contractors eligible for receipt of     Administrator, Office of Small and
   (d) Costs incurred by a mentor to         government contracts;                         Disadvantaged Business Utilization
provide developmental assistance,              (2) Large prime contractors                 (OSDBU), NASA for resolution. In its
technical or managerial assistance           performing under contracts with at least      discretion, NASA may seek an advisory
described in section 1819.7214, are          one negotiated subcontracting plan as         opinion from the Small Business
allowable.                                   required by 48 CFR (FAR) 19.7; and            Administration.
                                               (3) Small Business prime contractors
1819.7206 Incentives for prime contractor    that can provide developmental                1819.7211 Application process for mentor
participation.                               assistance to enhance the capabilities of     firms to participate in the program.
  (a) During source selection, Mentor-       proteges to perform as subcontractors            (a) Prime contractors interested in
Protege will be evaluated under SDB          and suppliers. A small business prime         becoming a mentor firm must submit a
Utilization which is a stand-alone           contractor performing under a NASA            request to the NASA OSDBU to be
evaluation subfactor under the Mission       contract that does not contain a              approved under the program. The
Suitability.                                 negotiated subcontracting plan may            application will be evaluated on the
  (b) Under cost-plus-award fee              apply.                                        extent to which the company plans to
contracts, approved mentor firms shall         (b) Mentors will be encouraged to           provide developmental assistance. The
be eligible to earn award fee associated     identify and select:                          information required in paragraph (b) of
with their performance as a mentor by          (1) A broad base of firms including         this section must be submitted to be
performance evaluation period. The           those defined as emerging firms (e.g., a      considered for approval as a mentor
award fee plans of all NASA contracts        protege whose size is no greater than 50      firm.
are structured such that 15 percent of       percent of the size standard applicable          (b) A proposed mentor must submit
the available award fee is allocated for     to the SIC code assigned to a contracting     the following information to the NASA
Small Disadvantaged Business                 opportunity); and                             OSDBU:
                                               (2) Proteges in addition to firms with         (1) Certification that the mentor firm
Utilization. Mentor-Protege performance
                                             whom they have established business           is currently performing under at least
will be evaluated under Small
                                             relationships.                                one active approved subcontracting plan
Disadvantaged Business Utilization as a        (3) High-Tech firms as proteges.            (small business exempted) and that they
separate element and allocated a
                                                                                           are eligible, as of the date of application,
separate 5 percent of the 15 percent         1819.7209   Protege firms.
                                                                                           for the award of Federal contracts;
award fee. For purposes of earning              (a) For selection as a protege, a firm        (2) The cognizant NASA contract
award fee, the Mentor firm’s                 must be:                                      number(s), type of contract, period of
performance shall be evaluated to               (1) An SDB, HBCU or MI as those            performance (including options), title of
determine the degree to which the            terms are defined in 1891.7202:               technical program effort, name of NASA
participation went beyond (exceeded)            (2) Certified as small in the SIC code
                                                                                           Program Manager (including contact
the negotiated SDB goals commitment.         for the services or supplies to be
                                                                                           information) and name of NASA field
Specifically, the Mentor firm’s              provided by the protege under its
                                                                                           center where support is provided;
performance will be evaluated against        subcontract to the mentor; and                   (3) The number of proposed Mentor-
the criteria described in the NASA FAR          (3) Eligible for receipt of government
                                                                                           Protege arrangements;
Supplement provision at 1852.219–79.         contracts.                                       (4) Data on all current NASA
                                                (b) A protege firm may self-certify to
1819.7207   Measurement of program                                                         contracts and subcontracts to include
                                             a mentor firm that it meets the
success.                                                                                   the contract/subcontract number(s),
                                             requirements set forth in paragraph (a)
                                                                                           period of performance, awarding NASA
   The overall success of the NASA           of this section. Mentor may rely in good
                                                                                           installation or contractor and contract/
Mentor-Protege program encompassing          faith on written representations by
                                                                                           subcontract value(s) including options;
all participating Mentors and proteges       potential proteges that they meet the
                                                                                              (5) Data on total number and dollar
will be measured by the extent to which      specified eligibility requirements.
                                                (c) Proteges may have multiple             amount of subcontracts awarded under
it results in:
                                             mentors. Proteges participating in            NASA prime contracts within the past
   (a) An increase in the number, dollar                                                   2 years and the number of dollar value
value and percentage of subcontracts         mentor-protege programs in addition to
                                             the NASA program should maintain a            of such subcontracts awarded to entities
awarded to proteges by mentor firms                                                        defined as proteges.
under NASA contracts since the date of       system for preparing separate reports of
                                                                                              (6) Information on the proposed types
entry into the program;                      mentoring activity for each agency’s
                                                                                           of developmental assistance. For each
   (b) An increase in the number and         program.
                                                                                           proposed Mentor-Protege relationship
dollar value of contract and subcontract     1819.7210 Selection of protege firms.         include information on the company’s
awards to protege firms since the time          (a) Mentor firms will be solely            ability to provide developmental
of their entry into the program (under       responsible for selecting protege firms.      assistance to the identified protege firm
NASA contracts, contracts awarded by         The mentor is encouraged to identify          and how that assistance will potentially
other Federal agencies and under             and select the types of protege firms         increase subcontracting opportunities
commercial contracts);                       listed in 1819.7208(b).                       for the protege firm, including
   (c) An increase in the number and            (b) Mentor firms may have more than        subcontracting opportunities in industry
dollar value of subcontracts awarded to      one protege.                                  categories where these entities are not
a protege firm by its mentor firm; and          (c) The selection of protege firms by      dominant in the company’s current
   (d) An increase in subcontracting with    mentor firms may not be protested,            subcontractor base; and
protege firms in industry categories         except as in paragraph (d) of this               (7) A Letter of Intent signed by both
where they have not traditionally            section.                                      parties. At a minimum, the Letter of
participated within the mentor firm’s           (d) Any protest regarding the size or      Intent must include the stated
activity.                                    eligibility status of an entity selected by   commitment that the parties intend to
15502         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

enter into a mentor-protege agreement          intent to voluntarily terminate the          the pilot program period or the
under the NASA program, that they              mentor-protege agreement. The mentor         conclusion of their effort, whichever
intend to cooperate in the                     shall notify the OSDBU and the               comes first.
developmental of a suitable                    contracting officer immediately upon
development assistance program to meet         receipt of such notice from the protege;     1819.7216   Internal controls.
their respective needs, and that they            (d) A description of the type of              (a) The NASA OSDBU will manage
agree to comply with the obligations in        developmental program that will be           the program. Internal controls will be
section 1819.7215 and all other                provided by the mentor firm to the           established by NASA OSDBU to achieve
provisions governing the program.              protege firm, to include a description of    the stated program objectives (by
                                               the subcontract work, and a schedule for     serving as checks and balances against
1819.7212 OSDBU review and approval            providing assistance and criteria for        undesired actions or consequences)
process of agreement.                                                                       such as:
                                               evaluation of the protege’s
  (a) The information specified in             developmental success;                          (1) Reviewing and evaluating mentor
1819.7211(b) is reviewed by NASA                 (e) A listing of the number and types      applications for realism, validity and
OSDBU. The review by the NASA                  of subcontracts to be awarded to the         accuracy of provided information;
OSDBU will be completed no later than          protege firm;                                   (2) Reviewing semi-annual progress
30 days after receipt by the OSDBU.              (f) Program participation term;            reports submitted by mentors and
NASA OSDBU will provide a copy of                (g) Termination procedures;                proteges, if any, on protege development
the submitted information to the                 (h) Plan for accomplishing work            to measure protege progress against the
cognizant NASA technical program               should the agreement be terminated;          master plan contained in the approved
manager and contracting officer for a          and                                          agreement.
parallel review and concurrence.                 (i) Other terms and conditions, as            (3) Site visits to NASA installation
  (b) If OSDBU approves the                    appropriate.                                 where Mentor-Protege activity is on-
application, then the mentor                                                                going.
  (1) Negotiates agreement with the            1819.7214   Developmental assistance.           (b) NASA may terminate Mentor-
protege; and                                      The forms of developmental                Protege agreements if NASA determines
  (2) Submits an original and two (2)          assistance a mentor can provide to a         that such actions are in NASA’s interest.
copies of the agreement to NASA                protege include:                             These actions shall be approved by the
OSDBU for approval by the NASA                    (a) Management guidance relating          NASA OSDBU. NASA will terminate an
Mentor-Protege program manager, the            to—                                          agreement or exclude a particular entity
NASA technical program manager and                (1) Financial management,                 by sending a written notice to the
the contracting officer.                          (2) Organizational management,            affected party specifying the action
  (c) Upon agreement approval, the                (3) Overall business management/          being taken and the effective date of that
mentor may implement developmental             planning and                                 action. Termination of an agreement
assistance program.                               (4) Business development;                 does not constitute a termination of the
  (d) An approved agreement will be               (b) Engineering and other technical       subcontract between the Mentor and the
incorporated into the mentor’s contract        assistance;                                  Protege. A plan for accomplishing the
with NASA. It should be added to the              (c) Noncompetitive award of               subcontract effort should the agreement
subcontracting plan in contracts which         subcontracts under NASA contracts;           be terminated shall be submitted with
contain such a plan.                              (d) Progress payments based on costs.     the agreement, as required in
  (e) If OSDBU disapproves the                 The customary progress payment rate          1819.7213(h).
application, then the mentor may               for all NASA contracts with small
provide additional information for             disadvantaged businesses is 95 percent.      1819.7217   Reports.
reconsideration. The review of any             This customary progress payment rate           (a) Semi-annual reports shall be
supplemental material will be                  for small disadvantaged businesses may       submitted by the mentor to the NASA
completed within 30 days after receipt         be used by prime contractors;                mentor-protege program manager,
by the OSDBU. Upon finding                        (e) Advance payments. While a             NASA Headquarters OSDBU, to include
deficiencies that NASA considers               mentor can make advance payments to          information as outlined in 1819.7206(b).
correctable, the OSDBU will notify the         its proteges who are performing as             (b) Proteges are encouraged to submit
mentor and request information to be           subcontractors, the mentor will only be      semi-annual reports, to the NASA
provided within 30 days that may               reimbursed by NASA for these costs if        mentor-protege program manager, on
correct the deficiencies.                      advance payments have been authorized        program progress as pertains to their
                                               in accordance with statute and               mentor-protege agreement. However,
1819.7213   Agreement contents.                regulation;                                  costs associated with the preparation of
  The contents of the agreement must              (f) Loans;                                these reports will not be reimbursed by
contain:                                          (g) Rent-free use of facilities and/or    the Government.
  (a) Names and addresses of mentor            equipment;                                     (c) The NASA technical program
and protege firms and a point of contact          (h) Property; and                         manager shall include an assessment of
within both firms who will oversee the            (i) Temporary assignment of               the Prime Contractor’s (Mentor’s)
agreement;                                     personnel to protege for purpose of          performance in the Mentor-Protege
  (b) Procedures for the mentor firm to        training                                     program in his quarterly ‘Strengths and
notify the protege firm, OSDBU and the                                                      Weaknesses’ evaluation report. A copy
contracting officer, in writing, at least 30   1819.7215   Obligation.                      of these comments, as pertains to the
days in advance of the mentor firm’s             (a) Mentor or protege may voluntarily      technical effort and protege
intent to voluntarily withdraw from the        withdraw from the program as mutually        development, will be provided to NASA
program;                                       agreed by both mentor and protege.           Headquarters OSDBU and the
  (c) Procedures for a protege firm to           (b) Mentor and protege firms will          Contracting Officer.
notify the mentor firm in writing at least     submit a ‘‘lessons learned’’ evaluation to     (d) The NASA mentor-protege
30 days in advance of the protege firm’s       the NASA OSDBU at the conclusion of          program manager will submit semi-
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                       15503

annual reports to the cognizant                  (b) The pilot program consists of:                 (2) Specific actions taken by the contractor
contracting officer regarding                    (1) Mentor firms, which are large prime         during this evaluation period to develop the
participating prime contractor’s               contractors with at least one active              technical and corporate administrative
                                               subcontracting plan or eligible small             expertise of a protege as defined in the
performance in the program for use in          businesses;                                       agreement;
the award fee determination process.             (2) Protege, which are subcontracting              (3) To what extent the Protege has met the
                                               under the prime contractor, include Small         developmental objectives in the agreement;
1819.7218   Program review.
                                               Disadvantaged Business (SDB) concerns             and
  At the conclusion of each year in the        including women-owned small businesses,              (4) To what extent the firm’s participation
mentor-protege program, the prime              Historically Black Colleges and Universities,     in the Mentor-Protege Program resulted in
contractor and protege, as appropriate,        and Minority Institutions, as those terms are     the Protege receiving competitive contract(s)
will formally brief the NASA mentor-           defined in NASA FAR Supplement                    and subcontract(s) from private firms and
protege program manager, the technical         1819.7202.                                        agencies other than the Mentor.
                                                 (3) Mentor-protege agreements, approved            (c) Semi-annual reports shall be submitted
program manager and the contracting
                                               by the NASA Office of Small and                   by the mentor to the NASA mentor-protege
officer regarding program                      Disadvantaged Business Utilization                program manager, NASA Headquarters
accomplishments as pertains to the             (OSDBU);                                          OSDBU to include information as outlined in
approved agreement. This review will             (4) Potential of payment of additional          1819.7206(b).
be incorporated into the normal                award fee for voluntary participation and            (d) The Mentor will notify the OSDBU and
program review, where applicable. A            successful performance in the mentor-protege      the contracting officer, in writing, at least 30
separate review will be scheduled for          program.                                          days in advance of the mentor firm’s intent
other contracts to be held at the NASA           (c) Mentor participation in the program,        to voluntarily withdraw from the program or
                                               described in 48 CFR 1819.72, means                upon receipt of a Protege’s notice to
work site location.                            providing technical, managerial and financial     withdraw from the Program;
1819.7219 Solicitation provision and           assistance to aid proteges in developing             (e) Mentor and protege firms will submit a
contract clauses.                              requisite high-tech expertise and business        ‘‘lessons learned’’ evaluation to the NASA
                                               systems to compete for and successfully           OSDBU at the conclusion of the pilot
  (a) The contracting officer shall insert     perform NASA contracts and subcontracts.          program period or the conclusion of their
the clause at 1852.219–77, NASA                  (d) Contractors interested in participating     effort which ever comes first. At the
Mentor-Protege Program, in all                 in the pilot program are encouraged to            conclusion of each year in the mentor-
solicitations and contracts with               contact the NASA OSDBU, Washington, DC            protege program, the prime contractor and
subcontracting plans or in the case of         20546, (202) 358–2088, for further                protege, as appropriate, will formally brief
small business set-asides exceeding            information. (End of clause)                      the NASA mentor-protege program manager,
$500,000 ($1,000,000 for construction)         1852.219–78 Evaluation of Prime                   the technical program manager, and the
that offer subcontracting opportunities.       Contractor Participation in the NASA              contracting officer during a formal program
  (b) The contracting officer shall insert     Mentor Protege Program.                           review regarding program accomplishments
                                                                                                 as pertains to the approved agreement.
the provision at 1852.219–78,                    As prescribed in 1819.7219(b), insert              (f) NASA may terminate Mentor-Protege
Evaluation of Prime Contractor                 the following provision:                          agreements and exclude Mentor or Protege
Participation in the Mentor-Protege                                                              firms from participating in the NASA
                                               Evaluation of Prime Contractor Participation
Program, in all solicitations containing                                                         program if NASA determines that such
                                               in the NASA Mentor-Protege Program (DEC
the provisions at 1852.219–77, NASA            1994)                                             actions are in NASA’s interest. These actions
Mentor-Protege Program and FAR                                                                   shall be approved by the NASA OSDBU.
                                                 NASA will consider (evaluate) the               NASA shall terminate an agreement by
52.219–9, Small Business and Small
                                               proposed participation and extent of              delivering to the contractor a Notice
Disadvantaged Business Subcontracting          developmental assistance to be provided by
Plan.                                                                                            specifying the reason for termination and the
                                               a prime contractor to protege firms as an         effective date. Termination of an agreement
  (c) The contracting officer shall insert     approved Mentor in the NASA Mentor-               does not constitute a termination of the
the clause at 1852.219–79, Mentor              Protege Program under the SDB Utilization         subcontract between the mentor and the
Responsibility and Evaluation, in              subfactor under Mission Suitability.              protege. A plan for accomplishing the
contracts where the prime contractor is                                                          subcontract effort should the agreement be
                                               1852.219–79    Mentor Requirements and
a participant in the NASA Mentor-              evaluation.                                       terminated shall be submitted with the
Protege Program.                                                                                 agreement as required in 1819.7213(h).
                                                 As prescribed in 1819–7219(c), insert
                                                                                                 (End of clause)
PART 1852—SOLICITATION                         the following provision:
                                                                                                 [FR Doc. 95–7051 Filed 3–23–95; 8:45 am]
PROVISIONS AND CONTRACT                        Mentor Requirements and Evaluation (DEC           BILLING CODE 7510–01–M
CLAUSES                                        1994)
  a. Sections 1852.219–77, 1852.219–             (a) The purpose of the NASA Mentor-
                                               Protege Program (s) is for a NASA prime           DEPARTMENT OF TRANSPORTATION
78, and 1852.219–79 are added to read          contractor to provide developmental
as follows:                                    assistance to certain subcontractors
                                                                                                 National Highway Traffic Safety
                                               qualifying as proteges. Eligible proteges
1852.219–77   NASA Mentor-Protege                                                                Administration
                                               include Small Disadvantaged Business
Program.                                       concerns including women-owned small
  As prescribed in 1819.7219(a), insert        businesses, Historically Black Colleges and       49 CFR Part 501
the following provision:                       Universities, and Minority Institutions, as
                                               those terms are defined in NASA FAR               Organization and Delegation of Powers
NASA Mentor Protege Program (Jan. 1994)        Supplement 1819.7202.                             and Duties
  (a) Prime contractors, including certain       (b) NASA will evaluate the contractor’s
small businesses, are encouraged to            performance through the Performance
                                                                                                 AGENCY:  National Highway Traffic
participate in the NASA pilot mentor-protege   Evaluation process. The evaluation will           Safety Administration (NHTSA), (DOT).
program for the purpose of providing           consider the following:                           ACTION: Final rule.
developmental assistance to eligible protege     (1) Specific actions taken by the contractor,
entities to enhance their capabilities and     during the evaluation period, to increase the     SUMMARY:  This final rule revises the
increase their participation in NASA           participation of proteges as subcontractors       regulations on the organization of and
contracts.                                     and suppliers;                                    delegations of powers and duties within
15504         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

NHTSA to reflect changes in the titles         §§ 501.3, 501.4, 501.8   [Amended]          DATES:  The amendment promulgated by
of two agency officials. The official            2. In 49 CFR part 501, remove the         this final rule will become effective
formerly known as the Associate                words ‘‘Associate Administrator for         March 25, 1996.
Administrator for Rulemaking is now            Rulemaking’’ and add, in their place,          Manufacturers may voluntarily
the Associate Administrator for Safety         the words ‘‘Associate Administrator for     comply with the amendment
Performance Standards. The NHTSA               Safety Performance Standards’’ in the       promulgated by this final rule on or
official formerly known as the Associate       following places:                           after April 24, 1995.
Administrator for Enforcement is now             (a) Section 501.3(c)(1) paragraph            Any petitions for reconsideration
the Associate Administrator for Safety         heading;                                    must be received by NHTSA not later
Assurance.                                       (b) Section 501.4(d);                     than April 24, 1995.
EFFECTIVE DATE: March 24, 1995.                  (c) Section 501.8(f) paragraph
                                                                                           ADDRESSES: Petitions for reconsideration
                                               heading; and
FOR FURTHER INFORMATION CONTACT:                                                           should refer to the docket and number
                                                 (d) Section 501.8(f).
Dorothy Nakama, Office of the Chief                                                        of this document and be submitted to:
                                                 3. In 49 CFR part 501, remove the
Counsel, NHTSA, 400 Seventh Street,                                                        Administrator, Room 5220, National
                                               words ‘‘Associate Administrator for
SW, Room 5219, Washington, DC 20590.                                                       Highway Traffic Safety Administration,
                                               Enforcement’’ and add, in their place,
Ms. Nakama’s telephone number is:                                                          400 Seventh Street S.W., Washington,
                                               the words ‘‘Associate Administrator for
(202) 366–2992.                                                                            D.C., 20590.
                                               Safety Assurance’’ in the following
SUPPLEMENTARY INFORMATION: This final          places:                                     FOR FURTHER INFORMATION CONTACT:
rule revises the regulations on the              (a) Section 501.3(c)(2) paragraph         Mr. Charles Hott, Office of Vehicle
organization of and delegations of             heading;                                    Safety Standards, National Highway
powers and duties within the National            (b) Section 501.4(e);                     Traffic Safety Administration, 400
Highway Traffic Safety Administration            (c) Section 501.8(f);                     Seventh Street, SW, Room 5320,
(NHTSA) to reflect changes in the titles         (d) Section 501.8(g) paragraph            Washington, DC 20590. Telephone:
of two agency officials. The official          heading; and                                (202) 366–0247.
formerly known as the Associate                  (e) Section 501.8(g).
Administrator for Rulemaking is now                                                        SUPPLEMENTARY INFORMATION:
                                                 Issued on: March 20, 1995.
the Associate Administrator for Safety         Ricardo Martinez,                           Background
Performance Standards. The official
                                               Administrator.                                 This rule amends the definition of
formerly known as the Associate
                                               [FR Doc. 95–7349 Filed 3–23–95; 8:45 am]    ‘‘designated seating position’’ found in
Administrator for Enforcement is now
                                               BILLING CODE 4910–59–P                      49 CFR 571.3, Definitions, to respond to
the Associate Administrator for Safety
                                                                                           an issue that arose in a rulemaking
Assurance. Accordingly, all references
                                                                                           concerning a Federal motor vehicle
in part 501 to ‘‘Associate Administrator
                                               49 CFR Part 571                             safety standard (Standard) applying to
for Rulemaking’’ are revised to read
                                                                                           school buses. The rulemaking amended
‘‘Associate Administrator for Safety           [Docket No. 93–78, Notice 02]
                                                                                           Standard No. 222, School Bus Passenger
Performance Standards.’’ All references
                                               RIN No. 2127–AE96                           Seating and Crash Protection, to require
in part 501 to ‘‘Associate Administrator
                                                                                           school buses designed to transport
for Enforcement’’ are revised to read          Federal Motor Vehicle Safety                persons in wheelchairs to have
‘‘Associate Administrator for Safety           Standards; Designated Seating               wheelchair securement devices
Assurance.’’                                   Position
   These amendments relate solely to                                                       (wheelchair restraints) and wheelchair
changes in titles of NHTSA officials,          AGENCY:  National Highway Traffic           occupant restraint systems meeting
and have no substantive effect. As             Safety Administration (NHTSA),              specified performance requirements (58
matters relating to agency management,         Department of Transportation (DOT).         FR 4586; January 15, 1993). School bus
they are not covered by the notice and         ACTION: Final rule.
                                                                                           manufacturers typically remove seats
comment or the effective date                                                              from a vehicle to install wheelchair
requirements of the Administrative             SUMMARY:    This final rule amends the      restraints. Removing seats can affect a
Procedure Act. In addition, they are not       definition of ‘‘designated seating          vehicle’s classification and the
covered by Executive Order 12866 or            position’’ found in 49 CFR 571.3,           standards that apply to it.
the Department of Transportation’s             Definitions, to provide that for the sole      One of the important factors used by
regulatory policies and procedures.            purpose of determining the vehicle type     NHTSA in classifying vehicles is seating
Notice and the opportunity for comment         classification of a vehicle sold to         capacity. For example, NHTSA
are, therefore, not required, and these        transport school children, any location     determines whether a vehicle is a ‘‘bus’’
amendments are effective immediately           in the vehicle intended for securement      or a ‘‘multipurpose passenger vehicle’’
upon publication in the Federal                of an occupied wheelchair during            (MPV) based primarily on passenger
Register.                                      vehicle operation will be regarded as 4     seating capacity. The definition of a bus
                                               designated seating positions. NHTSA is      is found in title 49 CFR 571.3,
List of Subjects in 49 CFR Part 501            issuing this rule to ensure that smaller    ‘‘Definitions.’’ In that section, a bus is
  Authority, Delegations.                      school buses remain classified as school    defined as a passenger motor vehicle
                                               buses, and thus subject to the              designed to carry more than 10 persons
  In consideration of the foregoing, 49
                                               comprehensive school bus safety             (i.e., 10 or more passengers and a
CFR 501 is amended as follows:
                                               standards, when seats are removed to        driver). An MPV is designed to carry 10
PART 501—[AMENDED]                             install wheelchair securement locations.    or fewer persons.
                                               This rule will assure that students being      The agency determines a vehicle’s
  1. The authority citation for Part 501       transported in vehicles accommodating       seating capacity by counting the number
continues to read as follows:                  wheelchairs will be afforded the same       of ‘‘designated seating positions’’ in the
  Authority: 49 U.S.C. sections 105 and 322;   level of occupant protection as other       vehicle. That term is defined in section
delegation of authority at 49 CFR 1.50.        students transported in school buses.       571.3 as follows:
               Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                              15505

  Designated seating position means any           The Washington Superintendent of            final rule for wheelchair restraints,
plan view location capable of                   Public Instruction (WSPI) submitted the       NHTSA mandated that wheelchair
accommodating a person at least as large as     only comment on the issue (Docket No.         restraints be situated so as to secure a
a 5th percentile adult female, if the overall   90–05–N03–051). WSPI supported the            wheelchair in a forward-facing position
seat configuration and design and vehicle
design is such that the position is likely to
                                                idea that the determination of whether        (see S5.4.1.2(a) of Standard No. 222).
be used as a seating position while the         a vehicle should be classified as a           Given that requirement, NHTSA
vehicle is in motion, except for auxiliary      school bus should be based on the             proposed the 4-to-1 seats-to-wheelchair
seating accommodations such as temporary        vehicle’s theoretical or design maximum       ratio for wheelchair locations.
or folding jump seats. Any bench or split-      capacity. In other words, WSPI believed
                                                                                              Evaluation of Comments
bench seat in a passenger car, truck or         that a school bus should remain a
multipurpose passenger vehicle with a           school bus even when enough seats are            Two state agencies (Delaware
GVWR less than 10,000 pounds, having            removed to reduce the seating capacity        Department of Public Instruction,
greater than 50 inches of hip room (measured    to 10 or fewer persons.                       California Highway Patrol), one trade
in accordance with SAE Standard J1100(a))         In the preamble to the final rule on        association (National School
shall have not less than three designated       wheelchair restraints, NHTSA again            Transportation Association), one charter
seating positions, unless the seat design or                                                  bus company (D.B. Fisher Inc.), and one
vehicle design is such that the center
                                                expressed concern about how removing
position cannot be used for seating.            seats from a bus can change a vehicle’s       school bus manufacturer (Mid Bus Inc.)
                                                classification from a school bus to an        commented on the NPRM. Except for
   NHTSA has interpreted this definition        MPV. The agency decided, however, not         D.B. Fisher, Inc., commenters generally
to mean that each position for securing         to address the issue in that final rule but   supported the intent of the NPRM,
a wheelchair is one designated seating          to address it in a separate rulemaking        although some expressed concern about
position. This interpretation has a             action where it could receive more            how the proposal could affect the use of
significant impact on whether some              focused attention.                            school vehicles. Some commenters
vehicles are classified as an MPV or as                                                       made suggestions about issues that were
                                                Proposal for This Rule                        outside the scope of the NPRM.
a school bus.
                                                   On October 28, 1993, NHTSA
   NHTSA determines whether a vehicle                                                         Proposed 4-to-1 Ratio
                                                published the NPRM (58 FR 57975) that
is a ‘‘school bus’’ by first determining                                                         Commenters addressed NHTSA’s
                                                provides the basis for today’s rule on
whether the vehicle is a bus. In 49 CFR                                                       proposal that each location intended to
                                                school bus classification. NHTSA
section 571.3, a school bus is defined as                                                     secure a wheelchair would be counted
                                                proposed to amend the definition of
a ‘‘bus’’ that is sold for purposes that                                                      as four designed seating positions. Mid
                                                ‘‘designated seating position’’ in 49 CFR
include carrying students to and from                                                         Bus Inc. and the National School
                                                571.3 to specify that, for the sole
school or related events. When seats are                                                      Transportation Association (NSTA)
                                                purpose of classifying school vehicles,
removed from a bus for any reason,                                                            supported that proposal. The Delaware
                                                any vehicle location intended for
including placing wheelchair                    securing an occupied wheelchair during        and California state agencies expressed
securement devices on the vehicle, so           vehicle operation would be counted as         concern about it.
that the seating capacity of the vehicle        4 designated seating positions. The              The Delaware Department of Public
is reduced to 10 or fewer persons, the          intent of the NPRM was to ensure that         Instruction (DDPI) was concerned that
classification of the vehicle changes           if a vehicle would have been classified       the proposal could unnecessarily
from a bus to an MPV. The vehicle               as a school bus had it been fully             restrict the seating capacity of school
would be an MPV and not a school bus            equipped with bench seats, it would           buses. The commenter believed that the
even if sold for public transportation          still be regarded as a school bus if it       proposal equates a wheelchair position
purposes, and even if the vehicle had           were equipped with fewer bench seats          with too many seating positions, which
been originally ‘‘designed’’ as a bus and       so that it could transport students in        would not be space efficient. ‘‘That [4 to
outwardly resembled a conventional              wheelchairs. ‘‘By requiring [seating          1] ratio is translated into fifty inches
bus. Thus, as a result of the seat              restricted] vehicles to comply with all       (50′′) per wheelchair space. Several
removal, the vehicle would be subject to        school bus standards, NHTSA believes          manufacturers allow that forty-four
the standards for MPVs, and not the             that all student users of wheelchairs         inches (44′′) is adequate.’’ DDPI said it
standards for school buses.                     transported in those vehicles would be        did not want to lose more space than is
   In the rulemaking that set                   provided the same level of occupant           necessary. ‘‘Anytime more space per
performance requirements for                    protection as students transported in         pupil is required, more school buses are
wheelchair restraints, both the NPRM            other school buses.’’ Id.                     needed.’’ DDPI suggested that a per-inch
and final rule for that rulemaking raised          NHTSA selected the 4-to-1 ratio of         spacing formula would be more space-
the issue of whether it would be                designated seating positions to               efficient than the 4-to-1 or even 3-to-1
desirable for a vehicle that was                wheelchair positions based on the             ratios.
originally manufactured as a school bus         comment that the WSPI submitted to the           NHTSA does not agree that this rule
remain a school bus, even if its seating        rulemaking on wheelchair restraints.          unnecessarily restricts the seating
capacity were reduced to that of an             The WSPI submitted information on the         capacity of school buses. The 4-to-1
MPV. In that NPRM, NHTSA discussed              number of wheelchair locations that can       ratio of designated seating positions to
the decision of the Eleventh National           be installed on a bus when a specified        wheelchair positions was based on a
Conference on School Transportation             number of bench seats have been               finding that, on average, four is the
(NCST) to answer that issue in the              removed to accommodate those                  number of seating positions typically
affirmative. The NCST requires any              locations. WSPI defined ‘‘bench seats’’       removed when a single securement
vehicle that changes classification from        as those with two designated seating          location is installed. However, this rule
a school bus to an MPV due to the               positions, and stated that the average        does not require four conventional
installation of wheelchair restraints to        ratio of seating positions on bench seats     designating seating positions to be
comply with the school bus standards.           to wheelchairs is 4-to-1 if the               removed and used for each wheelchair
The NPRM requested comments on the              wheelchair is forward-facing or 3-to-1 if     position. Instead, the rule simply
issue.                                          the wheelchair is side-facing. In the         requires four positions to be counted for
15506        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

each wheelchair position. Since the rule     commenters suggested that a wheelchair           While NHTSA does not have the
does not require any specific amount of      lift should be counted as four DSP’s          authority to regulate the use of school
space to be devoted to a wheelchair          since a lift typically uses the space of      buses, the agency recognizes that safe
position, the substitution of a per-inch     four DSP’s. NHTSA is studying this            driving practices by motorists around an
approach for this rule’s approach would      matter to decide whether an NPRM              operating school bus are crucial to
have no effect on the amount of space        should be issued to amend the DSP             school bus safety. Accordingly, the
used for a wheelchair position.              definition to incorporate this idea. If the   agency has issued Highway Safety
   The California Highway Patrol (CHP)       agency issued the NPRM, the agency            Program Guideline No. 17, ‘‘Pupil
asserted that allowing only 4 designated     might decide, after notice and comment        Transportation Safety’’ (23 CFR Part
seating positions for each wheelchair        on the issue, that a lift ought to be         1204), which recommends that states
location did not go far enough. CHP          equated with four DSP’s. If that were to      develop plans for minimizing highway
stated that the California definition of a   occur, a vehicle designed to carry two        use hazards to students, including
school bus is similar to the Federal         wheelchair positions and a wheelchair         providing loading and unloading zones
definition, but it also includes a vehicle   lift as four, for a total of 12 DSP’s for     off the main traveled part of highways,
transporting 2 or more pupils confined       passengers.                                   whenever it is practicable to do so. In
to wheelchair location as 4 seating             The D.B. Fisher Charter Bus                addition, Guideline No. 17 recommends
positions would require California to        Company, Inc. (Fisher) opposed the 4          that states require motorists meeting or
change its law in that a vehicle with 2      designated seating positions per              overtaking a school bus that is loading
wheelchair positions and a bench seat        wheelchair location proposal, since it        or unloading passengers and which is
with 2 designated seating positions          would result in more vehicles being           operating red warning lights, to stop
would, under the Federal criteria, be        designated school buses than is               their vehicles before reaching the school
classified as an MPV, while, under the       presently the case. Fisher asserted that      bus and not proceed until the warning
California definition, it would be           this would convert a ‘‘non-commercial’’       signals are deactivated. Guideline No.
classified as a school bus. CHP              vehicle into a ‘‘commercial’’ vehicle         17 is not binding on the states.
suggested, therefore, that NHTSA             (Fisher’s terms) required to have             Individual states have decided to adopt
amend its definition of a school bus to      lighting systems to control traffic. Fisher   some or all of the guideline, as best
include a vehicle designed to carry 2 or     argued that the extra time it takes to        serves the needs of their pupil
more wheelchair positions or one that        stop a school bus in the roadway, which       transportation program. Since Fisher’s
would carry 6 seated passengers and 1        also stops traffic, in order to load and      safety concerns relate to the use of the
wheelchair passenger.                                                                      vehicles, the commenter should address
                                             unload wheelchair passengers would
   CHP is mistaken in suggesting that a                                                    those concerns to state authorities, who
                                             cause serious traffic delays, especially
school vehicle designed to carry six                                                       can best decide which transportation
seated passengers and one wheelchair         in cities. The commenter believed that
                                             that would inconvenience the public           practices would achieve the highest
passenger would be classified as an                                                        level of safety possible for its pupils.
MPV under today’s rule. Such a vehicle       and make them unwilling to stop and
                                                                                              Nevertheless, NHTSA considered
would be a school bus under today’s          wait for these vehicles. As a result,
                                                                                           Fisher’s comment to assess perceived
amendment, since its number of               Fisher argued, children would be
                                                                                           safety effects of the rule. NHTSA
designated seating positions would be        exposed to increased risk from general
                                                                                           concludes that Fisher’s predictions are
10, plus the driver (a school bus has a      traffic.                                      unsupported at this time. Further, the
carrying capacity of more than 10               NHTSA does not believe that the            agency does not anticipate that those
persons).                                    amendment adopted in this final rule          predictions will be borne out. This rule
   In any event, CHP’s suggestion that       would be detrimental to motor vehicle         will only slightly increase the number of
NHTSA amend the agency’s school bus          safety, as Fisher believes. It is true that   vehicles classified as school buses, and
definition is outside of the scope of this   crediting each wheelchair location as         is thus unlikely to have a significant
rulemaking. NHTSA proposed to amend          being equal to four designated seating        effect on the public’s willingness to stop
the ‘‘designated seating position’’          positions could result in a vehicle’s         their vehicles for loading and unloading
definition, not the school bus definition.   being classified as a school bus instead      students. NHTSA believes the matter
NHTSA believes there is insufficient         of an MPV as under the current                will be ultimately resolved through on-
notice for it to adopt the suggestion to     regulations. It is also true, that since      road experience. It will bear out
amend the school bus definition at this      more vehicles would be school buses,          whether school vehicles accommodating
time, even if the agency wished to do so.    more vehicles would be required to            wheelchairs cause the inordinate traffic
   NHTSA offers the following                have school bus lamps under NHTSA’s           delays and associated problems that
observations about CHP’s suggestion. To      safety standard for vehicle lighting          Fisher fears, and whether some action
the extent that CHP is impliedly             systems (Standard No. 108, 49 CFR             on NHTSA’s part to address the alleged
suggesting that each location intended       § 571.108). However, the requirements         problems would be appropriate.
to secure a wheelchair should be             mandating the use of school bus lamps,
counted as five designated seating           and how and where a school bus                Costs
positions (DSP’s), the commenter did         operator must maneuver a vehicle in             The October 1993 NPRM included a
not provide and NHTSA does not know          traffic to load or unload students, are       comprehensive discussion of estimated
of any reason for equating a wheelchair      state law requirements, not those of          costs associated with this rulemaking
position with five DSP’s. Accordingly,       NHTSA. There is no Federal                    action. The agency estimated that
NHTSA declines to pursue making the          requirement regarding school buses            approximately 520 vehicles per year
suggested change.                            stopping on public roadways for the           would be affected by this rulemaking.
   The agency further notes that NHTSA       pickup and discharge of children, nor is      This estimate was based on sales data
is considering an issue related to CHP’s     there a Federal requirement that traffic      indicating that 15.2 percent of the
comment about vehicles designed to           in both directions stop for the loading       38,000 school buses sold annually are
carry only two students in wheelchairs.      and unloading of school buses. Such           small buses, and that about 9 percent of
As discussed below in the ‘‘Other            requirements are matters of state rather      these are lift equipped. The agency
issues’’ section of this preamble, some      than Federal authority.                       believes that each of those lift-equipped
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                            15507

buses has one or more wheelchair             Standard No. 222, School bus passenger        of wheelchairs, and is concerned that
positions. The NPRM stated that while        seating and crash protection, will not be     ‘‘many of the wheelchairs in the
not all these vehicles might have their      affected by this rulemaking.                  California (and nationwide) marketplace
seating capacity reduced to that of an          Wheelchair lifts. As noted above,          may not be capable of withstanding the
MPV, there will probably be other            some commenters suggested that, on a          forces associated with anchoring an
vehicles outside this class that will be     school vehicle, the DSP’s removed for         occupant restraint system to them.’’
affected, such as MPV’s that are not lift-   installation of a wheelchair lift be          NHTSA believes that CHP is referring to
equipped. The agency does not know           counted toward a determination of a           the crashworthiness of wheelchairs.
how many of these vehicles are               vehicle’s passenger capacity. Mid Bus         CHP suggested, therefore, that NHTSA
currently sold as MPVs, but believes         and NSTA suggested that if wheelchair         develop minimum standards for
that the number is probably very small.      securement positions are installed in a       wheelchairs.
   DDPI believed NHTSA                       vehicle, a lift mechanism of some type           NHTSA addressed this issue in the
underestimated the number of buses           must also be present. Therefore, both         final rule of January 15, 1993 (58 FR
that would be affected by the proposed       suggested that the wheelchair lift also be    4591), in discussing comments
change. NHTSA believes that 520 is           credited with 4 designated seating            submitted in response to the NPRM of
valid estimate of the approximate            positions.                                    September 24, 1991. The agency
number of new school buses affected             The agency neither proposed nor            recognizes now, as then, that some
annually by this amendment. That value       discussed this issue in the NPRM.             wheelchairs may not perform as well as
is based on annual sales of small school     However, NHTSA is studying the                others in a crash situation. However, the
buses and the proportion of such buses       matter. If, after due consideration,          agency still considers it inappropriate to
that are currently equipped with             NHTSA decides to propose such an              specify requirements for wheelchairs
wheelchair lifts. Not all these vehicles     amendment, it will do so in a separate        and other mobile seating devices that
would have their seating capacities          rulemaking.                                   could be utilized on school buses.
reduced to the point of becoming MPVs.          Other methods of transport. CHP            NHTSA’s authority extends only to
NHTSA believes that DDPI may be              suggested that NHTSA study other              issuing performance requirements for
erroneously including existing school        methods of transporting disabled              motor vehicles and items of motor
buses in their calculations. This final      students, such as gurneys that could be       vehicle equipment as defined in 49
rule, as with all NHTSA’s rules, affects     used to transport prone or supine             U.S.C. 30102 (6) and (7). The agency has
only new vehicles and is effective only      passengers. CHP stated that schools are       authority to specify performance
prospectively. There is no requirement       receiving demands for transportation of       requirements for seating devices that are
to retrofit existing vehicles.               disabled students in other than standard      designed for use in vehicles, such as
   The NPRM also contained a detailed        wheelchairs. Such devices pose                child safety seats. Wheelchairs in
analysis of the cost impacts for the         hardships for bus operators, take up          general are not designed specifically for
affected vehicles. None of the               more space than wheelchairs, and              use in motor vehicles. Their use in
commenters discussed those impacts.          securement/tiedown is difficult. Federal      motor vehicles is only incidental to
The agency is not aware of information       standards in this area would assist the       their primary function of providing
indicating the assumptions underlying        school bus industry, increase safety, and     mobility. Accordingly, NHTSA may not
the cost estimates are incorrect.            establish uniformity.                         regulate in this area.
However, the estimated total cost               The agency is aware that students are
savings was inaccurate. Instead of the       transported in mobility devices other         Agency Decision
$390 to $580 range in the NPRM, the          than wheelchairs. The requirements of            After carefully considering the
total cost savings should have been          Standard No. 222 mandate forward-             comments submitted in response to the
estimated to be approximately $90 per        facing wheelchair restraints, but do not      NPRM, NHTSA has decided to amend
vehicle. The cost impacts of this rule are   specify how the wheelchair securement         the definition of ‘‘designated seating
discussed in detail in the ‘‘Rulemaking      devices should be used. This is an            position’’ found in 49 CFR 571.3, as
Analyses and Notices’’ section of this       operational issue that is the                 proposed in the NPRM. NHTSA believes
preamble.                                    responsibility of the state or local school   this rule is needed to ensure that the
                                             district. However, NHTSA has a                vehicles which are used to transport
Other Issues                                 Disabilities Working Group that serves        students in wheelchairs afford the same
  Compatibility with compartmental-          as a clearinghouse for information on         protection as identical vehicles which
ization. As noted above, DDPI believed       the safe transportation of disabled           are equipped with conventional bench
that one wheelchair position should be       persons. The diversity of the mobility        seats and are classified as school buses.
equated with fewer than four seating         devices available makes it impossible         Some commenters expressed concerns
positions. DDPI was primarily                for a standard tiedown system to              about the impacts of the rule on school
concerned about unnecessarily                provide adequate securement of all the        bus usage by increasing transportation
restricting the seating capacity of school   different types of mobility aids. There       time, causing traffic problems, and
buses. However, DDPI also believed that      are many mobility devices that are made       requiring more buses to transport the
excessive space allowed for wheelchair       specifically for the individual’s             same number of children. However,
locations would conflict with the            disability. Parties that are responsible      these comments did not controvert the
principles of compartmentalization.          for the safe transportation of occupants      safety need for this action nor establish
  NHTSA emphasizes that this rule            in mobility devices that are unique           that the results would not be cost
does not require any specific amount of      should consult with the restraint             effective.
space to be set aside for each wheelchair    manufacturer, the physician, and a
position. This rule only requires that 4     qualified expert in the field of              Effective Date
designated seating positions be counted      transportation for the disabled prior to         49 U.S.C. 30111(d) provides that each
for each wheelchair position in              transporting such individuals.                order prescribing a Federal motor
determining vehicle classification.             Wheelchair safety. CHP stated that it      vehicle safety standard may not become
Accordingly, NHTSA believes that the         is encountering a wide variety in the         effective before the 180th day or later
compartmentalization requirements of         construction, configurations, and sizes       than one year after the standard is
15508        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

prescribed unless, for good cause           passenger seats required by Standard         signal lamps, rearview mirrors and stop
shown, a different effective date is in     No. 222, School bus passenger seating        signal arms would compensate for any
the public interest. NHTSA has              and crash protection ($35 per seat, or       potential loss of safety benefits from the
concluded that one year after the date of   $280 for a vehicle with eight rear seating   difference in safety belt requirements
publication of this final rule in the       positions). NHTSA’s data suggests,           between MPVs and school buses. Since
Federal Register is an appropriate          however, that many, if not most,             it takes slightly longer to mount and
effective date for this amendment in        vehicles used as school buses that have      dismount wheelchair occupants, the red
order to provide manufacturers              fewer than 11 designated seating             and amber stop signal lamps and stop
adequate time to plan and implement         positions, counting a wheelchair             signal arms are of even greater
any necessary design changes to their       position as one designated seating           importance for school buses. The agency
vehicles. Manufacturers may, however,       position, already voluntarily comply         recognizes that while outboard seating
at their opinion, comply with this          with Federal school bus safety               positions on MPVs are required to have
amendment at any time after 30 days         standards. Thus, the average additional      lap/shoulder belts, those positions on
following publication of this final rule    costs for the affected vehicles would be     small buses (under 10,000 pounds
in the Federal Register.                    significantly less than the theoretical      GVWR) are only required to have lap
                                            maximum.                                     belts. NHTSA estimates the fatality
Rulemaking Analyses and Notices                Cost savings. The potential cost          effectiveness of rear seat lap belts to be
Executive Order 12866 and DOT               savings realized from changing the           32 percent, while the effectiveness of
Regulatory Policies and Procedures          classification result from differences       rear seat lap/shoulder belts is estimated
                                            between the occupant restraint               to be 41 percent. However, because
   This rulemaking document was not         requirements of Standard No. 208,            school buses are involved in so few
reviewed under E.O. 12866, ‘‘Regulatory     Occupant crash protection, for MPV’s         potentially fatal crashes due to their
Planning and Review.’’ The agency has       and school buses. An MPV with a              mostly daytime operation and
considered the impact of this               GVWR of 10,000 pounds or less is             scheduled routes, the potential loss of
rulemaking action under the DOT’s           required to have lap/shoulder belts at all   safety benefits is minimal.
regulatory policies and procedures and      outboard seating positions and a lap/           For vehicles with a GVWR over
has determined that it is not               shoulder belt for the driver. In contrast,   10,000 pounds, school buses are
‘‘significant’’ under those policies and    a school bus with a GVWR of 10,000           required to meet the seat
procedures.                                 pounds or less is required to have a lap/    compartmentalization of Standard No.
   The additional costs from having to      shoulder belt at the driver’s position       222, while MPVs must provide lap belts
comply with school bus safety standards     and a lap belt at all other positions.       for the rear seat occupants. The agency
and the cost savings from not having to        NHTSA believes that the maximum           believes that those two restraint
comply with the MPV safety standards        number of affected rear outboard seating     concepts provide equivalent safety for
are estimated to result in net additional   positions is six, assuming that a vehicle    the heavier vehicles.
costs of a maximum of $2,198 per            with 10 seating positions has two 3-
vehicle ($2,288 maximum additional          person bench seats, two single seats, a      Regulatory Flexibility Act
costs, less $90 per vehicle in cost         wheelchair position, and a driver’s seat.       NHTSA has considered the effects of
savings, as discussed below), for a total   These six outboard seating positions         this regulatory action under the
maximum of $1,142,960 ($2,198×520).         would require a lap/shoulder belt for        Regulatory Flexibility Act. I hereby
The agency believes, however, that only     MPV’s and a lap belt for buses. The          certify that the amendment promulgated
a very small number of vehicles per year    difference in cost between a lap/            by this final rule will not have a
would incur the full additional cost.       shoulder belt and a lap belt is about $15,   significant impact on a substantial
Accordingly, the economic effects of        or $90 per vehicle.                          number of small entities. As explained
this rulemaking action are so minimal          For vehicles with a GVWR of more          above, NHTSA expects only a very
that a full regulatory evaluation is not    than 10,000 pounds, cost savings will        modest economic impact as a result of
required.                                   also result from changing a vehicle from     this rulemaking action because of the
   Costs. The primary additional costs of   an MPV to a school bus. If an MPV, the       small number of affected vehicles
the rule are estimated to be a maximum      vehicle is required to have lap belts at     (maximum of 520), and since many such
of $2,288 per vehicle, for a total          all seating positions, including the         vehicles already voluntarily meet the
maximum of $1,189,760 ($2,288 × 520).       driver’s position. The seats on a school     school bus standards. Accordingly, the
Those costs result from equipping each      bus, except for the driver’s position, are   agency has not prepared a regulatory
vehicle with the following school bus       not required to have lap belts. Thus, the    flexibility analysis.
features: red and amber school bus          cost savings for a vehicle with eight rear
signal lamps required by Standard No.       seating positions will be between $69.00     Executive Order 12612 (Federalism)
108, Lamps, reflective devices, and         and $90.00 per vehicle.                        This rulemaking action has been
associated equipment ($140); school bus        The agency does not know the GVWR         analyzed in accordance with the
mirrors required by Standard No. 111,       distribution of the affected lift-equipped   principles and criteria of Executive
Rearview mirrors (between $22 and           school buses. In any event, the              Order 12612, and the agency has
$52); stop signal arms required by          maximum cost savings would not               determined that this rule does not have
Standard No. 131, School bus                exceed $90 per vehicle for a total           sufficient federalism implications to
pedestrian safety devices ($205); for       possible maximum of $46,800 (520             warrant the preparation of a Federalism
vehicles over 6,000 pounds GVWR, a          buses × $90 each).                           assessment.
reinforced roof and roof pillar structure      Safety Impact. The agency believes
required by Standard No. 220, School        that there will be no significant loss of    National Environmental Policy Act
bus rollover protection (from $22 to        safety benefits from requiring vehicles        NHTSA has analyzed this rulemaking
$1,549); additional rivets and glue for     accommodating wheelchairs to be              action for the purposes of the National
body panel strength in accordance with      classified as school buses. The agency       Environmental Policy Act, and has
Standard No. 221, School bus body joint     believes that the school bus accident        determined that implementation of this
strength ($365); and compartmentalized      avoidance equipment of red and amber         action will not have any significant
                Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                              15509

impact on the quality of the human             bench seat in a passenger car, truck or       SUPPLEMENTARY INFORMATION:
environment.                                   multipurpose passenger vehicle with a         Background
                                               GVWR less than 4,536 kilograms (10,000
Paperwork Reduction Act                                                                      Insurance Cost Information Regulation
                                               pounds), having greater than 127
  In accordance with the Paperwork             centimeters (50 inches) of hip room              49 U.S.C. 32302(c) states that the
Reduction Act of 1980, P.L. 96–511, the        (measured in accordance with SAE              Secretary of Transportation (the
agency notes that there are no                 Standard J1100(a)) shall have not less        Secretary) shall prescribe regulations
information collection requirements            than three designated seating positions,      that require passenger motor vehicle
associated with this rulemaking action.        unless the seat design or vehicle design      dealers to distribute to prospective
Civil Justice Reform                           is such that the center position cannot       purchasers, information developed by
                                               be used for seating. For the sole purpose     the Secretary and provided to the
   This rule does not have any                 of determining the classification of any
retroactive effect. Under 49 U.S.C.                                                          dealer, which compares differences in
                                               vehicle sold or introduced into               insurance costs for different makes and
30103(b), whenever a Federal motor
                                               interstate commerce for purposes that         models of passenger motor vehicles
vehicle safety standard is in effect, a
                                               include carrying students to and from         based upon differences in damage
state or political subdivision of a state
                                               school or related events, any location in     susceptibility and crashworthiness. By
may prescribe or continue in effect a
                                               such vehicle intended for securement of       delegation from the Secretary, NHTSA
standard applicable to the same aspect
                                               an occupied wheelchair during vehicle         has been authorized to carry out the
of performance of a motor vehicle only
                                               operation shall be regarded as four           statute.
if the standard is identical to the Federal
                                               designated seating positions.                    On January 31, 1975, NHTSA
standard. However, a state may
prescribe a standard for a motor vehicle       *     *     *     *    *                      published 49 CFR part 582, Insurance
                                                 Issued on March 20, 1995.                   Cost Information Regulation (40 FR
or equipment obtained for its own use
that imposes a higher performance              Ricardo Martinez,                             4918). Part 582, as then promulgated,
requirement than the Federal standard.         Administrator.                                required that automobile dealers ‘‘make
49 U.S.C. 30161 sets forth a procedure         [FR Doc. 95–7350 Filed 3–23–95; 8:45 am]      available to prospective purchasers
for judicial review of final rules             BILLING CODE 4910–59–M                        information reflecting differences in
establishing, amending or revoking                                                           insurance costs for different makes and
Federal motor vehicle safety standards.                                                      models of passenger motor vehicles
A petition for reconsideration or other        49 CFR Part 582                               based upon differences in damage
administrative proceedings is not                                                            susceptibility and crashworthiness.’’
required before parties may file suit in       [Docket No. 94–73; Notice 2]                  Part 582, however, did not specify
court.                                                                                       information that dealers must provide.
                                               RIN 2127–AF44                                    On March 5, 1993 (58 FR 12545),
List of Subjects                                                                             NHTSA published a final rule amending
49 CFR Part 571                                Insurance Cost Information Regulation         part 582. The rule complemented the
                                                                                             1975 rulemaking, and completed
  Imports, Motor vehicle safety, Motor         AGENCY:  National Highway Traffic             implementation of section 32302(c). The
vehicles, Rubber and rubber products,          Safety Administration (NHTSA), DOT.           March 1993 final rule, which became
Tires.                                         ACTION: Final rule.                           effective April 5, 1993, requires dealers
  In consideration of the foregoing, 49                                                      of new automobiles to make collision
CFR Part 571 is amended as follows:            SUMMARY:   In this document, NHTSA            loss experience data available in
                                               adopts technical amendments to the            booklets to prospective purchasers. The
PART 571—FEDERAL MOTOR                         insurance cost information regulations.       information to be provided in the
VEHICLE SAFETY STANDARDS                       Among the changes adopted are                 booklet is specified in section 582.5,
  1. The authority citation for Part 571       postponing, from January until March,         which requires inclusion of a complete
continues to read as follows:                  the availability date of the insurance        explanatory text and updated data on
                                               cost information booklet, and revising        auto insurance costs published annually
  Authority: 49 U.S.C. 322, 30111, 30115,      the term ‘‘passenger motor vehicles’’ to
30117, and 30166; delegation of authority at                                                 by NHTSA.
                                               read ‘‘passenger cars, utility vehicles,         The mandatory text specified by part
49 CFR 1.50.
                                               light duty trucks, and vans.’’ NHTSA          582 relates to, among other topics, the
  2. Section 571.3 is amended by               also adds language making more explicit
revising the definition of ‘‘designated                                                      limitations of the auto insurance cost
                                               the limitations of the collision loss data,   data as a predictor of differences in
seating position’’ in Section 571.3(b) to      and language recommending that
read as follows:                                                                             insurance premiums. Essentially, those
                                               prospective purchasers contact                limitations result from the fact that most
§ 571.3   Definitions.                         insurance agents or insurance                 of the factors that insurance companies
                                               companies for more information. The           use to establish premiums relate to
*     *     *     *     *                      amendments are adopted to make the
  (b) * * *                                                                                  driver characteristics and, except for the
  Designated seating position means            insurance cost information more               vehicle’s value, are not directly related
any plan view location capable of              accurate.                                     to the vehicle itself. Thus, as the text
accommodating a person at least as large       DATES: These amendments are effective         explains, the fact that a vehicle’s
as a 5th percentile adult female, if the       April 24, 1995, and will apply to the         historical claims experience is
overall seat configuration and design          insurance cost information to be made         somewhat better or worse than that of
and vehicle design is such that the            available in March 1996.                      other vehicles in its class may not be
position is likely to be used as a seating     FOR FURTHER INFORMATION CONTACT: Mr.          reflected in the premium that an
position while the vehicle is in motion,       Orron Kee, Office of Market Incentives,       insurance company establishes for that
except for auxiliary seating                   NHTSA, 400 Seventh Street, SW.,               vehicle. If the claims experience is
accommodations such as temporary or            Washington, DC 20590. Mr. Kee’s               reflected, it is likely to have only a small
folding jump seats. Any bench or split-        telephone number is (202) 366–0846.           impact on the premium.
15510        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

  The mandatory text also urges              December Insurance Collision Report           to contact insurance company agents
consumers to contact insurance               data to NHTSA until mid-January.              directly in order to obtain premium
companies if they wish to obtain precise     NHTSA then formats the data for               information. This proposal was
information about actual premiums for        printing, and arranges for the printing       intended to reflect the fact that the
particular makes and models of               and distribution by mail of a single copy     consumer’s first point of contact with
vehicles. Previous studies by NHTSA          of the booklet to each of the nation’s        many insurance companies is the
have revealed that the difference            approximately 27,000 automobile               insurance company agent.
between the premiums charged by              dealers. NHTSA can thus reasonably
different insurance companies for the                                                      Summary of Comments and Agency
                                             expect that the booklet will be
same car and driver is greater than the                                                    Responses
                                             published by March of each year.
difference between the premiums                 Part 582 originally specified a               NHTSA received comments from
charged by a given company for               comparison of insurance costs for             three entities on the issues raised in the
comparably-valued cars that have             ‘‘passenger motor vehicles.’’ In the          NPRM. These included Advocates for
different claims experience. NHTSA           NPRM, NHTSA proposed to revise the            Highway and Auto Safety (Advocates),
believed the mandatory text would help       term ‘‘passenger motor vehicles,’’ at         the National Automobile Dealers
to minimize consumer confusion by            appropriate places in § 582.5, to read        Associations (NADA), and Volkswagen
providing customers with an                  ‘‘passenger cars, utility vehicles, light     of America (VW). Each commenter
understanding of the uses and                duty trucks and vans.’’ The revisions         generally supported the proposed
limitations of the auto insurance cost       were intended to make clear that the          amendment, but raised individual
data.                                        term ‘‘passenger motor vehicles’’             suggestions concerning specific portions
  In specifying the yearly insurance cost    includes many vehicle types besides           of the proposed text.
data that accompanied the required text,     ‘‘passenger car.’’                               a. Publication date: No commenter
NHTSA decided to rely on collision loss         NHTSA also proposed to make certain        objected to the change of the publication
experience data collected and reported       changes to the required text that would       date from January to March, and NADA
by the Highway Loss Data Institute           make more explicit the limitations of         affirmatively supported this change.
(HLDI), as the best available indicator of   the collision loss data. In the final rule,   NADA also suggested that NHTSA
the effect of damage susceptibility on       the text in § 582.5 that explains the         should ‘‘reconsider working towards
insurance costs. In the March 1993 final     data’s limitations stated that the            publishing’’ the insurance cost data in
rule, NHTSA specified HLDI’s                 collision loss data table does not            the same booklet as DOE/EPA’s
December Insurance Collision Report as       include information about new models,         comparative fuel economy data. In the
the data source for part 582. NHTSA          models that have been substantially           March 1993 final rule, NHTSA rejected
decided to specify HLDI’s December           redesigned, and models without enough         earlier proposals (by NADA and others)
Report because it contains more current      claim experience. In order to make clear      to publish all of the data in a single
data and covers more vehicle models          that certain data should not be relied        document. NHTSA continues to believe
than other HLDI publications. The HLDI       upon, NHTSA proposed to revise the            that this proposal is unworkable. The
data is presented in a format that ranks     third paragraph in § 582.5 to state:          HLDI insurance cost information does
the vehicles in each class from best to
                                               The table is not relevant for new models    not become available until late January.
worst (with numerical values given for
                                             or models that have been substantially        This time frame is too late to permit
each vehicle). NHTSA specified this
format because it determined that the
                                             redesigned for [ YEAR TO BE INSERTED ],       publication of the data simultaneously
                                             and it does not include information about     with DOE/EPA’s ‘‘Gas Mileage Guide,’’
use of this ranking system should assist     models without enough claim experience.
customers in evaluating the comparative                                                    which is made available at the
performance of comparable vehicles.             Also, in the final rule, the fourth        beginning of the model year (ordinarily
  In the March 1993 final rule, NHTSA        paragraph in § 582.5 stated that it is        in the preceding October), when new
stated its belief that the HLDI              unlikely that a consumer’s total              models arrive at dealers’ show rooms.
information should be made available as      premium will vary more than five              Furthermore, the data in the Gas
soon as possible after its publication       percent depending upon the collision          Mileage Guide, which are arranged
date. Therefore, NHTSA stated its intent     loss experience of a particular vehicle.      according to criteria such as interior
to publish the annual Federal Register       Subsequently, a representative of the         roominess, engine, and transmission,
document updating HLDI’s December            Insurance Services Organization (ISO),        are presented differently from the HLDI
Insurance Collision Report data no later     which recommends insurance premium            data, which is arranged according to
than January of the calendar year that       rates to its members, indicated to            wheelbase and vehicle type.
follows HLDI’s publication of the data.      NHTSA that the collision cost data               b. Covered Vehicles: Both NADA and
                                             could result in an insurance premium          Advocates supported the agency’s
The NPRM                                     reduction of ten percent rather than the      proposal to change the description of
   In a notice of proposed rulemaking        five percent mentioned in the booklet.        the vehicles covered by making it more
(NPRM) issued on September 13, 1994          Accordingly, NHTSA tentatively                specific. NADA suggested that the
(59 FR 46952), NHTSA proposed to             concluded that it would be more               agency use the terms ‘‘station wagon/
amend part 582 by making certain             accurate to state that it is unlikely that    passenger van, pickup, and utility
changes in § 582.5, in which the text of     a consumer’s total premium will vary          vehicle,’’ throughout the text, to reflect
the insurance cost information booklet       more than ten percent.                        the groupings into which the HLDI data
is specified. Originally, the text              Finally, § 582.5 originally stated that    is already broken out. NHTSA agrees
specified the date ‘‘January [Year to be     consumers should contact insurance            that this suggestion has merit, and has
Inserted].’’ NHTSA proposed to               companies directly to determine the           decided to adopt it by revising the end
substitute ‘‘March’’ for ‘‘January,’’ in     actual premium that a consumer will be        of the first paragraph of § 582.5 to state:
order to allow itself adequate time to       charged for insuring a particular vehicle     ‘‘COMPARISON OF DIFFERENCES IN
publish and distribute the comparative       or for complete information about             INSURANCE COSTS FOR PASSENGER
insurance cost information booklet. In       insurance premiums. NHTSA proposed            CARS, STATION WAGONS/
practice, HLDI does not send the             to revise § 582.5 to advise the consumer      PASSENGER VANS, PICKUPS, AND
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                            15511

UTILITY VEHICLES ON THE BASIS OF             suggested that the regulatory text should     agency has determined that the
DAMAGE SUSCEPTIBILITY.’’                     provide consumers with the option of          economic effects of the proposed
   c. Discussion of the limitations of the   contacting either their insurance agent       amendments are minimal, so that a full
data: Two commenters addressed the           or their insurance company. NHTSA has         regulatory evaluation is not required.
agency’s proposal to modify the textual      concluded that this suggestion                This notice adopts minor amendments
discussion of the limitations of the data.   appropriately recognizes the fact that        to the insurance cost information
NADA requested that the agency further       while in many instances, consumers            regulation, to increase the accuracy of
emphasize and explain those                  contact individual agents with respect        the information provided to potential
limitations. On the other hand,              to their existing or prospective policies,    motor vehicle purchasers. The amount
Advocates expressed its concern that         there are other instances in which            of extra text that must be included in
consumers may infer from the proposed        insurance companies do not work               the information booklet as a result of
language that the insurance cost data is     through individual agents and                 this amendment is minuscule.
of little value, and suggested that the      consumers instead must contact the
agency emphasize the usefulness of the                                                     2. Regulatory Flexibility Act
                                             company directly. Therefore, the agency
data. Accordingly, it proposed that, in      has decided to adopt Advocates’                  In accordance with the Regulatory
addition to the textual changes              suggestion to clarify the advice by           Flexibility Act, NHTSA has evaluated
proposed in the NPRM, the final rule         referring both to insurance agents and        the effects of this amendment on small
adopt language that affirmatively states     insurance companies.                          entities. NHTSA estimates there are
that the table ‘‘can be used to compare         e. Description of NCAP test results:       about 27,000 dealers of new passenger
insurance premiums of most vehicle           VW recommended changing the                   motor vehicles. Many of the dealers that
makes and models * * *.’’ In addition,       description of the New Car Assessment         may be affected by this amendment are
it proposed dropping the reference to        Program (NCAP) test results to                considered to be small business entities.
‘‘new models’’ in the description of         emphasize that they are based on a            However, NHTSA believes that this
vehicles to which the tables do not          single, 35 mph, barrier crash test of a       amendment will not have a significant
apply.                                       new vehicle. NHTSA does not agree             economic impact on any of these small
   NHTSA has concluded that the              with VW that a change in wording is           dealers. This rulemaking adopts minor
presentation of the insurance cost           necessary. The present text is consistent     editorial changes, that result in the
information is clear and adequate. The       with the description of the NCAP              addition of a small amount of extra text
agency disagrees with Advocates’             program that appears in other NHTSA           to the insurance cost information
conclusion that the fact that the            publications. VW’s recommended                booklet. The minimal cost increments to
proposed revision points out the             change would cause the description of         the dealers that may be associated with
limitations of the data will lead            the NCAP program in the insurance cost        this amendment should have negligible
consumers to conclude that the               information booklet to differ from the        effects on the purchase price of new
insurance cost information is of little      text that already appears elsewhere.          passenger motor vehicles. For these
value. Since the issuance of the final       Moreover, while cost considerations           reasons, I certify that this amendment
rule in March 1993, the text of the          limit the NCAP testing to one test per        will not have a significant economic
insurance cost booklet has always            new vehicle model, the agency has             impact on a substantial number of small
contained a description of the               access to other crash test data, both from    entities.
limitations of the data; the revision        manufacturers and from its own
merely clarifies those limitations.                                                        3. National Environmental Policy Act
                                             compliance test programs. The agency
Therefore, NHTSA has decided against                                                          In accordance with the National
                                             has concluded from its review of all
adopting Advocates’ suggested                                                              Environmental Policy Act of 1969, the
                                             available data that the statement that
affirmative statement concerning the                                                       agency has considered the
                                             ‘‘NCAP test results demonstrate relative
appropriate uses of the data.                                                              environmental impacts of this
   Advocates’ suggestion that the            frontal crash protection in new
                                             vehicles’’ is accurate, and has decided       amendment and determined that it will
reference to ‘‘new models’’ in the                                                         not have a significant impact on the
proposed revision to the third paragraph     to retain it.
                                                f. Variation in premiums: No               quality of the human environment.
of the text should be deleted was based
                                             commenter addressed the agency’s              4. Federalism
on its assertion that previous cost
information is applicable to new models      proposal to amend the statement as to
                                                                                              This action has been analyzed in
of the same vehicle make if the vehicle      the amount by which collision cost data
                                                                                           accordance with the principles and
line has not been substantially              could result in an insurance premium
                                                                                           criteria contained in Executive Order
redesigned. Although NHTSA believes          reduction. Accordingly, in order to
                                                                                           12623, and it has been determined that
that the term ‘‘new models’’ is              increase the accuracy of the booklet, the
                                                                                           the rule does not have sufficient
ordinarily understood to mean an             agency is adopting its proposal to state
                                                                                           federalism implications to warrant the
entirely new or substantially redesigned     that it is unlikely that a consumer’s total
                                                                                           preparation of a Federalism Assessment.
model, the agency has concluded that         premium will vary more than 10
the term ‘‘new models’’ is superfluous       percent.                                      5. Civil Justice Reform
in this context. Accordingly, the agency     Regulatory Impacts                               This amendment would not have any
is accepting Advocates’ proposal to                                                        retroactive effect, and it does not
delete the reference.                        1. Executive Order 12866 and DOT              preempt any State law. Chapter 323—
   d. Advice about contacting insurance      Regulatory Policies and Procedures            Consumer Information of 49 U.S.C. does
agents: Advocates suggested a change to         This notice has not been reviewed          not provide for judicial review of rules
the agency’s proposed language advising      under Executive Order 12866. NHTSA            issued pursuant to 49 U.S.C. 32302. The
consumers to contact insurance agents        has considered the impact of this             Administrative Procedure Act, 5 U.S.C.
in order to obtain relevant insurance        rulemaking action and has determined          701 et seq., provides generally for
cost information. Advocates agreed that      the action not to be ‘‘significant’’ under    judicial review of final agency action,
it was appropriate to advise consumers       the Department of Transportation’s            which in certain circumstances may
to contact insurance agents, but             regulatory policies and procedures. The       include this proposed rule. The
15512          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

Administrative Procedure Act does not              been substantially redesigned for [YEAR TO        DEPARTMENT OF COMMERCE
require submission of a petition for               BE INSERTED], and it does not include
reconsideration or other administrative            information about models without enough           National Oceanic and Atmospheric
proceedings before parties may file suit           claim experience.                                 Administration
in court.                                             Although many insurance companies use
                                                   the HLDI information to adjust the ‘‘base         50 CFR Part 227
List of Subjects in 49 CFR Part 582                rate’’ for the collision portion of their         [Docket No. 950309069–5069–01; I.D.
  Administrative practice and                      insurance premiums, the amount of any such        060694A]
procedure, Insurance, Motor vehicles.              adjustment is usually small. It is unlikely
                                                   that your total premium will vary more than       RIN 0648–AG71
  In consideration of the foregoing,
NHTSA amends 49 CFR part 582 as                    ten percent depending upon the collision
                                                                                                     Sea Turtle Conservation; Restrictions
follows:                                           loss experience of a particular vehicle.
                                                                                                     Applicable to Shrimp Trawling
                                                      If you do not purchase collision coverage
                                                                                                     Activities; Flotation Device
PART 582—[AMENDED]                                 or your insurance company does not use the
                                                   HLDI information, your premium will not
   1. The authority citation for part 582          vary at all in relation to these rankings.        AGENCY:  National Marine Fisheries
is revised to read as follows:                        In addition, different insurance companies     Service (NMFS), National Oceanic and
  Authority: 49 U.S.C. 32303; delegation of        often charge different premiums for the same      Atmospheric Administration (NOAA),
authority at 49 CFR 1.50(f).                       driver and vehicle. Therefore, you should         Commerce.
  2. Section 582.5 is revised to read as           contact insurance companies or their agents       ACTION: Final rule; technical
follows:                                           directly to determine the actual premium that     amendments.
                                                   you will be charged for insuring a particular
§ 582.5   Information form.                        vehicle.                                          SUMMARY:    NMFS issues this final rule to
  The information made available                      Please Note: In setting insurance              require shrimp trawlers using Turtle
pursuant to § 582.4 shall be presented in          premiums, insurance companies mainly rely         Excluder Devices (TEDs) in the Gulf and
writing in the English language and in             on factors that are not directly related to the   Atlantic Areas to attach specified
not less than 10-point type. It shall be           vehicle itself (except for its value). Rather,    flotation devices to hard TEDs or special
presented in the format set forth below,           they mainly consider driver characteristics       hard TEDs with bottom escape
and shall include the complete                     (such as age, gender, marital status, and         openings. This action is necessary to
explanatory text and the updated data              driving record), the geographic area in which     improve the ability of bottom-opening,
published annually by NHTSA.                       the vehicle is driven, how many miles are         hard TEDs, and special hard TEDs to
MARCH [YEAR TO BE INSERTED]                        traveled, and how the vehicle is used.            safely exclude sea turtles. In addition,
                                                   Therefore, to obtain complete information         NMFS is making technical amendments
                                                   about insurance premiums, you should              to the sea turtle conservation regulations
                                                   contact insurance companies or their agents       to expand TED configuration options or
VANS, PICKUPS AND UTILITY VEHICLES                 directly.                                         to clarify gear descriptions, thereby
ON THE BASIS OF DAMAGE                                Insurance companies do not generally           reducing the chances of incidental
SUSCEPTIBILITY                                     adjust their premiums on the basis of data        capture and mortality of endangered
   The National Highway Traffic Safety             reflecting the crashworthiness of different       and threatened sea turtles.
Administration (NHTSA) has provided the            vehicles. However, some companies adjust          EFFECTIVE DATE: This rule is effective
information in this booklet in compliance          their premiums for personal injury protection     March 31, 1995, except for
with Federal law as an aid to consumers            and medical payments coverage if the              § 227.72(e)(4)(i)(I)(2)(ii), which contains
considering the purchase of a new vehicle.         insured vehicle has features that are likely to   information collection requirements that
The booklet compares differences in                improve its crashworthiness, such as air bags     have not yet been approved by the
insurance costs for different makes and            and automatic seat belts.
models of passenger cars, station wagons/                                                            Office of Management and Budget
                                                      Test data relating to vehicle                  (OMB). Once OMB approves these
passenger vans, pickups, and utility vehicles
on the basis of damage susceptibility.             crashworthiness are available from NHTSA’s        requirements, a document will be
However, it does not indicate a vehicle’s          New Car Assessment Program (NCAP). NCAP           published in the Federal Register
relative safety.                                   test results demonstrate relative frontal crash   announcing the effective date.
   The following table contains the best           protection in new vehicles. Information on        ADDRESSES: Requests for a copy of the
available information regarding the effect of      vehicles that NHTSA has tested in the NCAP        environmental assessment (EA)
damage susceptibility on insurance                 program can be obtained by calling the
premiums. It was taken from data compiled                                                            prepared for this action, and comments
                                                   agency’s toll-free Auto Safety Hotline at (800)
by the Highway Loss Data Institute (HLDI) in                                                         on this action, should be addressed to
its December [YEAR TO BE INSERTED]                                                                   the Office of Protected Resources,
Insurance Collision Report, and reflects the       [Insert Table To Be Published Each March by       NMFS, 1315 East-West Highway, Silver
collision loss experience of passenger cars,       the National Highway Traffic Safety               Spring, MD 20910.
utility vehicles, light trucks, and vans sold in   Administration]
                                                                                                     FOR FURTHER INFORMATION CONTACT:
the United States in terms of the average loss        If you would like more details about the       Charles A. Oravetz, Chief, Protected
payment per insured vehicle year for [THREE        information in this table, or wish to obtain
APPROPRIATE YEARS TO BE INSERTED].                                                                   Species Management Branch, NMFS,
                                                   the complete Insurance Collision Report,          Southeast Region (813/570–5312), or
NHTSA has not verified the data in this table.     please contact HLDI directly, at: Highway
   The table represents vehicles’ collision loss                                                     Barbara Schroeder, Acting National Sea
                                                   Loss Data Institute, 1005 North Glebe Road,       Turtle Coordinator, NMFS Office of
experience in relative terms, with 100
representing the average for all passenger         Arlington, VA 22201, Tel: (703) 247–1600.         Protected Resources (301/713–1401).
vehicles. Thus, a rating of 122 reflects a            Issued on: March 20, 1995.
collision loss experience that is 22 percent       Ricardo Martinez,                                 SUPPLEMENTARY INFORMATION:
higher (worse) than average, while a rating of                                                       Background
96 reflects a collision loss experience that is
4 percent lower (better) than average. The         [FR Doc. 95–7266 Filed 3–23–95; 8:45 am]            All sea turtles that occur in U.S.
table is not relevant for models that have         BILLING CODE 4910–59–P                            waters are listed as either endangered or
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                             15513

threatened under the Endangered               Comments and Responses on the                   Response: NMFS gear experts met and
Species Act of 1973 (ESA). The Kemp’s         Interim Final Rule                           traveled with members of the shrimp
ridley (Lepidochelys kempii),                    NMFS received numerous comments           fishery who reported twisted nets
leatherback (Dermochelys coriacea), and       on the interim final rule, both from         resulting from floats on the TEDs. NMFS
hawksbill (Eretmochelys imbricata) are        participants in meetings with NMFS           gear experts have noted that a net that
listed as endangered. Loggerhead              personnel and by letter. NMFS reviewed       is set with a twist in it is unlikely to
(Caretta caretta) and green (Chelonia         all the comments and combined them           untwist itself during the course of
mydas) turtles are listed as threatened,      under general categories provided            fishing, if floats are attached.
except for breeding populations of green      below.                                       Conversely, a properly set net with
turtles in Florida and on the Pacific            Comment: Although the                     floats on the TED will not become
coast of Mexico, which are listed as          implementation of the flotation              twisted. In thousands of hours of TED
endangered.                                   requirement alone did not appear to          testing, NMFS has never experienced a
   The incidental take and mortality of       substantially reduce turtle mortalities in   problem with twisting TEDs. NMFS
these species, as a result of shrimp                                                       believes that if proper care is taken
                                              the Gulf of Mexico during the summer
trawling activities, have been                                                             when setting nets with TEDs with floats,
                                              of 1994, the use of floats should still be
documented in the Gulf of Mexico and                                                       net twisting can be prevented.
                                              required because less experienced               Comment: The requirement to use two
along the Atlantic seaboard. Under the        shrimp vessel operators may drag their
ESA and its implementing regulations,                                                      polyvinyl chloride (PVC) floats on larger
                                              nets on the bottom, resulting in sea         TEDs should not be applied to trawlers
taking sea turtles is prohibited, with        turtle capture as well as unnecessary
exceptions identified in 50 CFR 227.72.                                                    in shallow waters, as too much flotation
                                              damage to trawl nets.                        will cause the net to fish too far off the
Existing sea turtle conservation                 Response: NMFS agrees. The
regulations (50 CFR part 227, subpart D)                                                   bottom, resulting in lost catch.
                                              combination of the flotation                    Response: The interim final rule
require most shrimp trawlers operating        requirement with heightened                  specified required flotation for a single-
in the Gulf and Atlantic areas to have a      enforcement efforts during the periods       grid TED with a circumference of 120
NMFS-approved TED installed in each           of high sea turtle strandings in the Gulf    inches (304.8 cm) or more to consist of
net rigged for fishing, year round. The       of Mexico resulted in significant            a minimum of either one 9.8 inch (25.0
required use of TEDs has significantly        reductions in sea turtle mortalities         cm) diameter hard plastic or aluminum
reduced shrimp trawler related                during the summer of 1994. Thus, with        float or two 6.75 inches (17.2 cm) by
mortalities of sea turtles.                   some alterations to the flotation            8.75 inches (22.2 cm) expanded PVC
   NMFS regulations also set forth            specifications, NMFS is making the           floats. Two PVC floats were required
criteria for allowable modifications to       flotation requirement a permanent            because PVC becomes compressed in
NMFS-approved TEDs including the use          addition to the TED regulations.             deep water and loses buoyancy. While
of flotation devices. Under 50 CFR               Comment: The delayed                      two PVC floats may provide excess
227.72(e)(4)(iv)(A), floats may be            implementation of the interim final rule     flotation in shallow water, the same
attached to TEDs only if they are             was shortened from the normal 30-day         floats will provide adequate buoyancy
attached to the outside of the net or         period to 14 days. This short period did     in deeper water to ensure the TED does
inside the net behind the rear surface,       not provide shrimpers with sufficient        not drag on the bottom.
at the top of the TED. They may not be        time to comply with flotation                   NMFS does not believe that this rule
attached to a flap. In previous TED           requirement.                                 should be revised to create different
certification tests, bottom-opening,             Response: The Administrative              requirements in different water depths
single-grid TEDs were tested with             Procedure Act (APA) provides that the        because water depth requirements
flotation. However, because it was not        publication of a rule shall be made not      would be largely unenforceable. NMFS
previously evident to NMFS gear               less than 30 days before its effective       recommends that trawlers working in
specialists that the lack of flotation on     date, except as otherwise provided by        shallow waters switch to aluminum or
bottom-opening TEDs may prevent               the agency for good cause found and          hard plastic floats. In addition, the final
turtle release if used in certain ways,       published with the rule (see 5 U.S.C.        rule provides options for shrimpers to
flotation was not required.                   553(d)). In this case, NMFS determined       use marked floats that would match the
                                              that good cause existed to reduce the        buoyancy of the TED, so that the
Interim Final Rule
                                              delayed effective date from 30 days to       problem of excessive flotation could be
   NMFS issued an interim final rule,         14 days because delayed                      avoided. 50 CFR 227.72(e)(4)(i)(I)(2)
with a request for comments, requiring        implementation of the flotation              allows shrimp fishermen to use floats of
the use of floats on bottom-opening           requirement would have likely resulted       size and in any combination so that the
single-grid TEDs (59 FR 33447,                in lethal takings of endangered and          combined buoyancy of the floats equals
June 29, 1994). NMFS issued an                threatened sea turtles. In addition,         or exceeds that of the TED, as long as
interim final rule because delaying           NMFS gear experts noted that most            both the floats and TEDs have proper
issuance of a flotation requirement to        shrimpers already possessed the              markings indicating their weight or
provide prior notice and an opportunity       inexpensive floats required. Finally,        buoyancy.
for public comment would likely result        notice of the flotation requirement was         Comment: Tongue trawls (bib-type
in lethal takings of endangered and           informally given weeks before the            trawls) with hard TEDs should be
threatened sea turtles. As discussed in       effective date of the rule when NMFS         exempt from the flotation requirement
the interim rule, there is information        staff met with members of the shrimping      because the bib line on these nets
that the lack of flotation on bottom-         industry and media to request voluntary      normally would keep the TED from
opening hard TEDs is likely preventing        compliance with the flotation                dragging on the bottom. The use of
sea turtles from safely exiting the trawls.   requirement.                                 floats with this type of net would cause
For the same reasons, the interim rule           Comment: Required use of floats will      the net to fish off the bottom, reducing
was made effective with only a 14-day         cause nets to twist. Twisted nets could      the catch.
delay in effective date rather than the       result in lost catch and possible               Response: NMFS agrees that extra
normal 30-day delay.                          entanglement of sea turtles.                 flotation might cause a tongue trawl to
15514         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

fish too high when the center bridle line    complying with the intent of the             buoyancy required by the TED. They do
is tight. However, there is no way to        regulation, but were not complying with      not, however, provide a means for
determine how the line is being handled      the letter of the regulation.                exactly matching the weight of the TED
in the water: A slack center bridle line        Response: NMFS agrees that there are      to the buoyancy, nor do they provide for
would allow the TED to drag on the           many possible combinations of floats         the use of equivalent amounts of
bottom. Enforcement officers would be        that would produce sufficient buoyancy       flotation by floats that do not meet the
unable to effectively enforce any such       to prevent TEDs from dragging on the         size specifications. The final rule
exemption and ensure protection for sea      bottom, and trapping sea turtles. When       provides three alternatives by which
turtles. Consequently, NMFS does not         the buoyancy of each float can be easily     shrimpers can comply with the
believe that tongue trawls should be         determined, allowing the use of              requirement to use floats. These
exempt for the requirement to use floats.    different numbers and sizes of floats        alternatives address many of the
   Comment: Aluminum TEDs should be          would provide much greater flexibility       comments expressed above and provide
exempt from the flotation requirement.       to shrimpers in configuring their gear,      for maximum flexibility for shrimp
TEDs made from hollow, welded                based on their personal experience and       fishermen. The first alternative, 50 CFR
aluminum tubing can be positively            preference. Therefore, provisions for the    227.72(e)(4)(i)(I)(1), provides the same
buoyant, and light-weight aluminum           use of various combinations of floats of     requirement as that of the interim rule
rod constructions would not need             marked buoyancy have been                    with respect to amount of flotation for
additional flotation.                        incorporated in this final rule at 50 CFR    TEDs with a circumference of 120
   Response: In a June 14, 1994 news         227.72(e)(4)(i)(I)(3).                       inches or greater and for TEDs with a
release, NMFS requested that shrimpers          Comment: Expanded ethylene vinyl          smaller circumference.
voluntarily attach flotation to bottom-      acetate (EVA) should be considered as           The second alternative, 50 CFR
opening hard TEDs, except those              an alternative float material. Expanded      227.72(e)(4)(i)(I)(2), provides that floats
constructed of aluminum tubing. NMFS         EVA has the same characteristics as          of any size and in any combination may
made this request prior to publication of    expanded PVC.                                be attached so that the combined
the interim final rule, and at that time        Response: NMFS agrees that floats         buoyancy of the floats equals or exceeds
believed that floats may not be              constructed of expanded EVA could be         the weight of the TED provided that the
necessary on aluminum TEDs. Further          used in place of expanded PVC.               floats and TEDs are marked by the
investigation by NMFS gear experts,          Provisions for the use of expanded EVA       manufacturers with their buoyancy and
however, revealed that aluminum              floats have been incorporated in this        weight as specified in the regulation.
single-grid TEDs also require                final rule.                                  NMFS has held informal discussions
supplemental flotation for proper                                                         with some TED and float manufacturers
buoyancy.                                    Final Rule and Changes From the
                                                                                          who indicated that, while marked floats
   While hollow tube TEDs can retain         Interim Final Rule
                                                                                          and TEDs are currently not generally
air, all welds must be watertight. In the       As a result of comments and               available, they could be produced
course of normal wear-and-tear, it is        recommendations received, the final          without great difficulty. NMFS believes
impossible to ensure that the welds will     rule differs from the interim rule in        that marked floats and TEDs will
be able to exclude water under high          several areas.                               become more widely available, as
hydrostatic pressure at fishing depths.         1. The interim final rule required        manufacturers respond to demand from
The experience of NMFS enforcement           flotation on only bottom-opening single-     fishermen for labeled gear that will
personnel is that hollow TEDs can and        grid hard TEDs because these TEDs are        enable them to comply with this
do flood under actual use.                   the ones most frequently used and an         provision. Furthermore, previously
   NMFS’ experience with solid rod           need to rapidly address the emergency        manufactured TEDs may be weight
aluminum TEDs is that they, too, need        situation presented by the strandings        marked by returning them to a
flotation to achieve neutral buoyancy.       last spring. Bottom-opening hooped           registered manufacturer. By simply
NMFS divers have filmed solid                hard TEDs and bottom-opening Jones           adding up the flotation values of the
aluminum single-grid TEDs dragging           TEDs which make up only a small              floats used and comparing that value to
hard on the bottom when insufficient         portion of TEDs in use, also have the        the imprinted weight of the TED, both
flotation is used. Therefore, NMFS           same dragging problem. Therefore, the        fishermen and enforcement officials can
included aluminum TEDs in the                final rule extends the flotation             quickly and easily determine whether
flotation requirement in both the            requirement to all bottom-opening hard       sufficient flotation is being used to
interim final rule and this final rule.      and special hard TEDs, including             prevent bottom-opening TEDs from
   NMFS does recognize that the interim      hooped hard TEDs and a single special        entrapping turtles. At the same time,
rule may have required too much              hard TED, the Jones TED.                     shrimpers can be assured that they are
flotation on TEDs that are constructed of       2. The final rule allows for the use of   not using excess flotation, which could
very light materials. Likewise, too little   floats constructed from expanded EVA         result in handling difficulties or
flotation may have been required on          as an alternative to floats constructed      decreased catches.
TEDs that are constructed of very heavy      from expanded PVC. NMFS gear experts            The third alternative, at 50 CFR
materials. To address that problem, this     determined that the characteristics of       227.72(e)(4)(i)(I)(3), provides for the use
final rule includes a provision for          expanded EVA are substantially similar       of floats of any size and in any
matching the buoyancy of the floats to       to expanded PVC. Allowance of this           combination, provided that the floats
the weight of each TED.                      material expands the options available       are marked as required, to achieve a
   Comment: The specifications in the        to fishermen to comply with this rule.       certain buoyancy based on the
interim rule, based on the physical             3. The interim final rule specified       circumference of the TED. This
dimensions of the floats, do not allow       required flotation solely on the basis of    provision is established in order to
for the use of floats of different shapes    the size of the floats and the               increase the flotation options available
and sizes or multiple, smaller floats        circumference of the TED. These              before weight-marked TEDs become
whose buoyancy may be equivalent.            measurements provide useful and              widely available in the industry. By
Fishermen who attempted to use other         enforceable approximations of the            allowing shrimpers to select different
types and combinations of floats were        buoyancy provided by the floats and the      sizes and combinations of floats based
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                          15515

on their buoyancy, the final rule               4. The use of door frames on the         funnel. Andrews TEDs constructed in
provides more flexibility in customizing     exiting openings of hooped hard TEDs        this way should not have any
gear for optimum handling. As an             is no longer allowed. Continuing            deleterious effect on turtles compared to
example, shrimpers may elect to use          evaluation of TED technology by NMFS        full-funnel Andrews TEDs, as the
two smaller floats offset to the sides to    revealed that the use of a metal frame      bottom panel of the trawl is a much
stabilize the TED rather than one large      door frame on hooped hard TEDs may          smaller mesh size than the TED itself,
float.                                       interfere with the release of small         and would not likely entangle turtles.
                                             turtles. This change is believed to be         In addition, the requirement is
Technical Amendments to TED Gear                                                         deleted that the rear edge of the
                                             beneficial to sea turtles and to have a
Descriptions                                                                             Andrews TED funnel extend to within
                                             negligible impact on fishermen. Doors
   A number of technical amendments          on existing hooped hard TEDs can be         20 inches (50.8 cm) of the net extension.
are made to the sea turtle regulations to    easily removed at the hinges or sawed       This requirement did not reflect the
expand the options of shrimpers in           off, and a webbing flap may be used to      originally certified TED and made
configuring TEDs or to clarify previous      cover the escape opening.                   Andrews TEDs difficult to construct.
gear descriptions.                              5. The method of attachment of the          9. The use of roller gear with hard
   1. The maximum allowable grid angle       escape opening webbing flap is clarified    TEDs and special hard TEDs is allowed.
for hard TEDs is increased from 50° to       to state that the sides of the webbing      Rollers, constructed of hard plastic,
55°. A TED’s optimum grid angle, both        flap may be attached to the trawl           attached beneath the TED in a way that
for turtle exclusion and shrimp              webbing no farther back than the row of     does not interfere with the TED escape
retention, is 45°. Following proper          meshes which lies 6 inches (15.2 cm)        opening, may reduce the TED’s dragging
installation of a single-grid hard TED or    behind the posterior edge of the grid.      on the bottom and can reduce chafing
special hard TED in a new net, regular       This description is much clearer than       and damage to the TED and trawls.
break-in and stretching of the net will      the previous description, and is            While roller gear may reduce chafing,
cause the grid to sag, decreasing the grid   therefore easier to comply with and         attachment of proper flotation to a TED
angle by up to 10°. Therefore, increasing    enforce.                                    is the most effective means to control
the maximum grid angle to 55° allows            6. The requirements for the escape       chafing on the TED and to ensure sea
TEDs to be installed in new nets so that     opening of the Taylor soft TED are          turtle escape from bottom-opening
the optimum grid angle of 45° will be        changed. The minimum width of the           TEDs.
achieved after the net is broken in.         forward edge of the escape opening is          10. The description of construction
   2. The requirements for escape            reduced from 96 inches (244 cm) to 72       materials approved for use in hard TEDs
openings on hard TEDs are clarified to       inches (183.6 cm). The initial              is clarified. If steel or aluminum tubing
prevent the possibility of turtle            certification testing of the Taylor TED     is used, the tubing must have a
entrapment. The original requirements        was conducted on a TED with the 72–         minimum outside diameter of 1/2 inch
only specified an overall size for the       inch (183.6–cm) forward edge, and that      (1.27 cm) and a minimum wall
escape opening. With certain TEDs,           TED met NMFS certification                  thickness of 1/8 inch (0.32 cm). The
however, an escape opening could be          requirements. Therefore, the description    previous description specified a
cut that matched the regulatory              of the Taylor TED is changed to reflect     minimum inside diameter of 1/4 inch
specifications but that still left pockets   the originally certified gear. Provisions   (0.64 cm) which would result in
of net webbing at the bottom edge of the     remain in the Taylor TED description,       excessively heavy TEDs if a larger
TED that could entangle and trap a           however, for increasing the forward         outside diameter pipe was used, which
turtle. The technical amendment              edge of the escape opening of the Taylor    was not the intention of the original
specifies the minimum amount of trawl        TED to 96 inches (244 cm) in order to       rule.
net webbing material that must be cut        permit the exclusion of leatherback
along the face of the TED grid, though       turtles.                                    Classification
the existing requirements for minimum           7. The method of attachment of an           This action has been determined to be
escape openings remain unchanged.            accelerator funnel forward of a hard        not significant for purposes of E.O.
This will ensure that the escape opening     TED is clarified. A funnel may be           12866.
is not restricted at the face of the TED.    inserted immediately forward of the            The Assistant Administrator for
The cut in the trawl webbing for the         TED if its rear edge does not extend past   Fisheries, NOAA (AA), finds that good
escape opening cannot be narrower than       the bars of the TED. The leading edge       cause exists, under authority at 5 U.S.C.
the outside width of the grid minus 8        of the funnel may be sewn to the trawl      553(b)(B), to waive the requirement for
inches (20.4 cm). In other words, the        around its entire circumference; the        prior notice and an opportunity for
width of the cut in the trawl webbing        trailing edge of the funnel may be          public comment on those provisions of
along the face of the grid must extend       attached to the TED along 1/3 of the        this rule described above as technical
on either side to within 4 inches (12.2      circumference of the funnel, on the side    amendments to TED gear descriptions.
cm) of the maximum outside width of          opposite the escape opening.                Such procedures are unnecessary
the grid. Figure 13 illustrates the             8. The description of the Andrews soft   because these changes are minor,
dimensions for the cut.                      TED is changed to allow more flexibility    technical amendments to existing
   3. The use of chafing webbing gear        in the construction of the TED. The         regulations.
with bottom-opening TEDs, previously         Andrews TED is described as a webbing          With respect to the provisions of this
an allowable modification for hard TEDs      funnel within the trawl, and for the        final rule which implement provisions
used only in the summer flounder trawl       purposes of the regulation, the bottom      of the interim final rule without change,
fishery, is made an allowable                panel of the trawl net may be               no delay in effective date is required.
modification for hard TEDS used in all       incorporated as the bottom panel of the     Regarding those provisions of the
trawl fisheries in which TEDs are            funnel. This change requires the bottom     interim final rule that have been
required. Additionally, the materials        edge of the side panels of the funnel to    changed by this final rule and those new
which may be used and the method of          be sewn to the bottom panel of the          provisions of this final rule, described
attachment of the webbing chafing gear       trawl, if the bottom panel of the trawl     above as technical amendments to TED
are specified.                               is being used as the bottom panel of the    gear descriptions, which have the effect
15516         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

of relieving restrictions on shrimpers,       List of Subjects in 50 CFR Part 227              vertical taut height in the Gulf Area; or
no delay in effective date is required          Endangered and threatened species,             35 inches (88.9 cm) in horizontal taut
under 5 U.S.C. 553(d)(1). Concerning          Exports, Imports, Incorporation by               length and, simultaneously, 12 inches
those provisions added by this final rule     reference, Marine mammals,                       (30.5 cm) in vertical taut height in the
requiring the use of flotation on hooped      Transportation.                                  Atlantic Area. The vertical measurement
hard TEDs and on the Jones TED, the                                                            must be taken at the midpoint of the
                                                Dated: March 17, 1995.                         horizontal measurement.
AA finds for good cause, pursuant to 5
U.S.C. 553(d)(3), that it is unnecessary      Gary Matlock,
                                                                                               *       *     *     *     *
and contrary to the public interest to        Program Management Officer, National                (I) Flotation. Floats must be attached
                                              Marine Fisheries Service.
delay for 30 days the effective date of                                                        to the top one-half of all hard TEDs with
these provisions because 30-day delayed         For the reasons set out in the                 bottom escape openings. The floats may
implementation of this requirement            preamble, 50 CFR part 227 is amended             be attached either outside or inside the
could result in unnecessary lethal            as follows:                                      net, but not to a flap. Floats attached
takings of endangered and threatened                                                           inside the net must be behind the rear
sea turtles and most shrimpers already        PART 227—THREATENED FISH AND                     surface. Floats must be attached with
possess the necessary and inexpensive         WILDLIFE                                         heavy twine or rope. Floats must be
flotation devices required and can              1. The authority citation for part 227         constructed of aluminum, hard plastic,
install them quickly. The AA has              continues to read as follows:                    expanded polyvinyl chloride, or
determined that 7-days delay in                                                                expanded ethylene vinyl acetate unless
                                                  Authority: 16 U.S.C. 1531 et seq.            otherwise specified. The requirements
effective date will provide more than
sufficient time to come into compliance.         2. In § 227.72, paragraph                     of this paragraph may be satisfied by
Further, with respect to those provisions     (e)(4)(iii)(A)(2) is removed and reserved;       compliance with either the dimension
of this rule described above as technical     paragraph (e)(4)(iii)(E) is added; and           requirements of paragraph (e)(4)(i)(I)(1)
amendments to TED gear descriptions           paragraphs (e)(4)(i)(A)(3), (e)(4)(i)(C),        of this section, or the buoyancy
which impose new requirements on              (e)(4)(i)(G)(1), (e)(4)(i)(G)(2)(i),             requirements of paragraph (e)(4)(i)(I)(2)
shrimpers, such as no longer allowing         (e)(4)(i)(I), (e)(4)(ii)(A), (e)(4)(ii)(B),      of this section, or the buoyancy-
the use of door frames on hooped hard         (e)(4)(iii)(C), (e)(4)(iii)(D), and (e)(4)(iv)   dimension requirements of paragraph
TEDs, the AA finds good cause to waive        are revised to read as follows:                  (e)(4)(i)(I)(3) of this section. If roller gear
the 30-day delay in effective date under                                                       is used pursuant to paragraph
                                              § 227.72    Exceptions to prohibitions.
5 U.S.C. 553(d)(3) because the                                                                 (e)(4)(iv)(E), the roller gear must be
                                              *      *     *     *     *                       included in the circumference
restrictions are very minor and can be           (e) * * *
accomplished quickly and at little or no                                                       measurement of the TED or the total
                                                 (4) * * *                                     weight of the TED.
cost and that to delay their                     (i) * * *                                        (1) Float dimension requirements. (i)
implementation could cause                       (A) * * *                                     For hard TEDs with a circumference of
unnecessary lethal takings of                    (3) Steel or aluminum tubing with a           120 inches (304.8 cm) or more, a
endangered or threatened sea turtles.         minimum outside diameter of 1/2 inch             minimum of either one round,
The AA has determined that a 7-day            (1.27 cm) and a minimum wall                     aluminum or hard plastic float, no
delay in effective date will provide more     thickness of 1/8 inch (0.32 cm) (also            smaller than 9.8 inches (25.0 cm) in
than sufficient time to come into             known as schedule 40 tubing).                    diameter, or two expanded polyvinyl
compliance.                                   *      *     *     *     *                       chloride or expanded ethylene vinyl
   In the interest of uniformity with            (C) Angle of deflector bars. The angle        acetate floats, each no smaller than 6.75
respect to implementation of the              of the deflector bars must be between            inches (17.2 cm) in diameter by 8.75
provisions of this rule, NMFS has             30° and 55° from the normal, horizontal          inches (22.2 cm) in length, must be
determined to make the entire rule            flow through the interior of the trawl.          attached.
effective March 30, 1995, except for          *      *     *     *     *                          (ii) For hard TEDs with a
§ 227.72(e)(4)(i)(I)(2)(ii), which contains      (G) * * *                                     circumference of less than 120 inches
information collection requirements that         (1) On a hooped hard TED, the escape          (304.8 cm), a minimum of either one
have not yet been approved by OMB.            opening must not be smaller than 25              round, aluminum or hard plastic float,
   This rule contains a collection of         inches by 25 inches (63.5 cm by 63.5             no smaller than 9.8 inches (25.0 cm) in
information subject to the Paperwork          cm) in the Gulf Area, or 30 inches by 30         diameter, or one expanded polyvinyl
Reduction Act (PRA). This collection          inches (76.2 cm by 76.2 cm) in the               chloride or expanded ethylene vinyl
has been submitted to OMB for                 Atlantic Area. A door frame may not be           acetate float, no smaller than 6.75
approval. Upon approval, a notice of          used over the escape opening; however,           inches (17.2 cm) in diameter by 8.75
                                              a webbing flap may be used as provided           inches (22.2 cm) in length, must be
effectiveness will be published in the
                                              in paragraph (e)(4)(iv)(C) of this section.      attached.
Federal Register.
                                                 (2)(i) On a single-grid hard TED, the            (2) Float buoyancy requirements.
   The AA prepared an EA for the final        cut in the trawl webbing for the escape          Floats of any size and in any
rule (57 FR 57348, December 4, 1992)          opening cannot be narrower than the              combination must be attached such that
requiring TED-use in shrimp trawls. A         outside width of the grid minus 4 inches         the combined buoyancy of the floats, as
supplemental EA was prepared for the          (10.2 cm) on both sides of the grid,             marked on the floats, equals or exceeds
interim final rule and another was            when measured as a straight line width.          the weight of the hard TED, as marked
prepared specifically for this final rule,    (Figure 13 of this part illustrates the          on the TED. The buoyancy of the floats
which concludes that this action will         dimensions of this cut.) The resulting           and the weight of the TED must be
have no significant impact on the             escape opening in the net webbing must           clearly marked on the floats and the
human environment. A copy of the EA           measure at least 32 inches (81.3 cm) in          TED as follows:
is available (see ADDRESSES) and              horizontal taut length and,                         (i) Float buoyancy markings. Marking
comments on it are requested.                 simultaneously, 10 inches (25.4 cm) in           must be made in clearly legible raised
              Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                                 15517

or recessed lettering by the original         the circumference of the TED is less              more than 3 inches (7.6 cm). The
manufacturer. The marking must                than 120 inches (304.8 cm), the                   spacing between the bottom three
identify the buoyancy of the float in         combined buoyancy must equal or                   deflector bars on each side must be no
water, expressed in grams or kilograms,       exceed 10 lb (4.5 kg).                            greater than 2 1/2 inches (6.4 cm). The
and must include the metric unit of              (ii) * * *                                     spacing between all other deflector bars
measure. The marking may additionally            (A) Flounder TED (Figure 10 of this            must not exceed 3 1/2 inches (8.9 cm)
include the buoyancy in English units.        part). The Flounder TED must be                   and spacing between ends of opposing
The marking must identify the nominal         constructed of at least 1 1/4 inch (3.2           deflector bars also must not exceed 3 1/
buoyancy for the manufactured float.          cm) outside diameter aluminum or steel            2 inches (8.9 cm). This TED must
   (ii) TED weight markings. The              pipe with a wall thickness of at least 1/         comply with paragraphs (e)(4)(i)(B),
marking must be made by a registered          8 inch (0.3 cm). It must have a                   (e)(4)(i)(C), (e)(4)(i)(F), (e)(4)(i)(G),
TED manufacturer and must be                  rectangular frame with outside                    (e)(4)(i)(H)(2), and (e)(4)(i)(I) of this
permanent and clearly legible and must        dimensions which can be no less than              section with respect to the method of
be accompanied by the identifying             51 inches (129.5 cm) in length and 32             attachment, the angle of the deflector
symbol of the registered manufacturer.        inches (81.3 cm) in width. It must have           bars, the position of the escape opening,
The marking must identify the in-air,         at least five vertical deflector bars, with       the size of the escape opening, the size
dry weight of the TED, expressed in           bar spacings of no more than 4 inches             of the grid, and flotation.
grams or kilograms, and must include          (10.2 cm). The vertical bars must be                 (iii) * * *
the metric unit of measure. The marking       connected to the top of the frame and to             (C) Andrews TED (Figures 8a and 8b
may additionally include the weight in        a single horizontal bar near the bottom.          of this part). The Andrews TED is a
English units. The marked weight must         The horizontal bar must be connected at           funnel constructed of 5-inch (12.7-cm)
represent the actual weight of the            both ends to the sides of the frame and           stretched mesh polyethylene or
individual TED as manufactured.               parallel to the bottom bar of the frame.          polypropylene webbing that is sewn
Previously manufactured TEDs may be           There must be a space no larger than 10           inside a shrimp trawl. The bottom panel
marked upon return to a registered TED        inches (25.4 cm) between the horizontal           of the trawl may be used as the bottom
manufacturer. Where a TED is                  bar and the bottom bar of the frame. An           panel of the funnel, so long as the
comprised of multiple detachable              additional vertical bar runs from the             bottom edges of the sides of the funnel
components, the weight of each                middle of the bottom bar to the middle            are sewn at every mesh to the bottom
component must be separately marked.          of the horizontal bar dividing the                panel of the trawl. The leading edge of
A TED manufacturer may become                 opening at the bottom into two                    the funnel must be sewn with heavy
registered to mark TEDs by requesting         rectangles with an opening height of no           twine at all points to the outer trawl
registration in writing from the NMFS         more than 10 inches (25.4 cm) and an              beginning on the row of meshes located
Southeast Regional Director. To request       opening width of no more than 14 1/2              20 meshes behind the center of the
registration, the manufacturer should         inches (36.8 cm). If, because of the              footrope and continuing around the
write to the Director, Southeast Region,      width of the TED, the opening width of            circumference of the trawl, following
NMFS, 9721 Executive Center Dr. North,        the bottom rectangles exceeds the                 the same row of meshes. The webbing
St. Petersburg, FL 33702, and include         maximum allowed, additional vertical              may not be laced with rope. The funnel
the manufacturer’s name, address, and         bars must be added. This TED must                 must taper to an escape opening in the
telephone number; the sizes, styles, and      comply with paragraphs (e)(4)(i)(B),              bottom of the trawl. The trailing edge on
anticipated number of TEDs to be              (e)(4)(i)(C), (e)(4)(i)(F), and (e)(4)(i)(G) of   the funnel must be sewn at all points
produced annually; the method of              this section with respect to the method           around the circumference of the escape
marking; and a description of the             of attachment, the angle of the deflector         opening. The escape opening must be at
manufacturer’s distinctive, identifying       bars, the position of the escape opening,         least 96 inches (243.8 cm) in
symbol. Upon receipt of a complete            and the size of the escape opening,               circumference. A webbing flap may be
request, the Director, Southeast Region,      except that the deflector bars must be            used to cover the escape opening if no
NMFS, will notify the manufacturer in         positioned in the net to deflect turtles to       device holds the webbing flap closed or
writing of their registration.                the escape opening in the top of the              otherwise restricts the opening, and if
   (3) Buoyancy-dimension                     trawl. This TED may not be configured             such flap is constructed of webbing that
requirements. Floats of any size and in       with a bottom escape opening.                     has a stretched mesh size no larger than
any combination, provided that they are       Installation of an accelerator funnel is          2 inches (5.1 cm), lies on the outside of
marked pursuant to paragraph                  not permitted with this TED. Use of this          the trawl, is attached along its entire
(e)(4)(i)(I)(2)(i) of this section, must be   TED is restricted to the Atlantic summer          forward edge forward of the escape
attached such that the combined               flounder bottom trawl fishery.                    opening, is 50 meshes wide and 15
buoyancy of the floats equals or exceeds         (B) Jones TED (Figure 11 of this part).        meshes deep, does not overlap the exit
the following values:                         The Jones TED must be constructed of              opening more than 5 meshes on each
   (i) For floats constructed of aluminum     at least 1 1/4 inch (3.2 cm) outside              side (it may be attached along the 15-
or hard plastic, regardless of the size of    diameter aluminum or steel pipe, and              mesh edge), and maintains an opening
the TED grid, the combined buoyancy           the pipe must have a wall thickness of            of at least 48 inches (121.9 cm) in a taut
must equal or exceed 14 lb (6.4 kg);          at least 1/8 inch (0.3 cm). It must be            position.
   (ii) For floats constructed of expanded    generally oval in shape with a flattened             (D) Taylor TED (Figures 9a and 9b of
polyvinyl chloride or expanded                bottom. The deflector bars must be                this part). The Taylor TED is
ethylene vinyl acetate, where the             attached to the frame at a 45° angle from         constructed of 6-inch (15.2–cm)
circumference of the TED is 120 inches        the horizontal positioning downward               polyethylene or polypropylene webbing
(304.8 cm) or more, the combined              and each bar must be attached at only             that is heat-set knotted or braided. The
buoyancy must equal or exceed 20 lb           one end to the frame. The deflector bars          Taylor TED deflector panel must be not
(9.1 kg); or                                  must be attached and lie in the same              less than 228 inches (580 cm) on the
   (iii) For floats constructed of            plane as the frame. The space between             leading edge and not less than 120
expanded polyvinyl chloride or                the ends of the bottom deflector bars             inches (305 cm) long. The leading edge,
expanded ethylene vinyl acetate, where        and the bottom frame bar must be no               sides, and apex of the deflector panel
15518        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

must be sewn to the trawl body so as to      deflector panel on the other side. All        at least 39 inches (99.1 cm) is
form a complete barrier to large objects     trawl webbing above the deflector panel       maintained. In a downward shooting
inside the trawl net forward of the          between the 96–inch (244–cm) cut and          TED, only the top 1/3 of the
codend or extension. The apex may be         the posterior edge of the deflector panel     circumference of the funnel may be
removed not more than 24 inches (61          must be removed. A rectangular flap of        attached to the TED. In an upward
cm) forward of the rear point. If the apex   nylon webbing not larger than 2–inch          shooting TED, only the bottom 1/3 of
is removed, a rectangular section 24         (5.1–cm) stretched mesh may be sewn to        the circumference of the funnel may be
inches (61 cm) long must be sewn             the forward edge of the escape opening.       attached to the TED.
evenly to the rear of the deflector panel    The width of the flap may not exceed             (C) Webbing flap. A webbing flap may
to maintain the 120-inch (305–cm)            the length of the forward edge of the         be used to cover the escape opening if
length. The leading edge of the Taylor       triangular opening. The flap may extend       no device holds it closed or otherwise
TED deflector panel must be sewn to the      not more than 12 inches (30.4 cm)             restricts the opening, and if it is
bottom body of the trawl net. The rear       beyond the rear point of the escape           constructed of webbing with a stretched
point of the deflector panel, or rear        opening. The sides of the flap may be         mesh size no larger than 1 5/8 inches
edge, if the apex is removed, must be        attached to the body, but may not be          (4.1 cm), lies on the outside of the trawl,
sewn evenly, centered across the top         attached farther aft than the rear point      is attached along its entire forward edge
body. An escape opening must be              of the escape opening. One row of chain       forward of the escape opening, is not
located on the top of the trawl body         not larger than 3/16 inch (4.76 mm) may       attached on the sides beyond the row of
centered over the deflector panel. The       be sewn evenly to the back edge of the        meshes that lies 6 inches (15.2 cm)
opening must measure not less than 72        flap. The stretched length of the chain       behind the posterior edge of the grid,
inches (183.6 cm), must be in a single       may not exceed 96 inches (244 cm). For        and does not extend more than 24
row of meshes, and must be located no        the Morrison TED, the apex of the             inches (61.0 cm) beyond the posterior
farther forward than the point where its     excluder panel may be removed no              edge of the grid.
entire length is above the deflector         more than 48 inches (122 cm) forward             (D) Chafing webbing. A single piece of
panel--the forward edge of the opening       of the rear edge. A rectangular section       nylon webbing, with a twine size no
must extend from the attachment of the       48 inches (122 cm) long must then be          smaller than size 36 (2.46 mm in
deflector panel on one side of the body,     sewn evenly to the rear of the excluder       diameter), may be attached outside of
across the top of the body, to the           panel to maintain the length prescribed       the escape opening webbing flap to
attachment of the deflector panel on the     in the description of the Morrison TED.       prevent chafing on bottom opening
other side. All trawl webbing above the      For the Morrison TED, the addition of         TEDs. This webbing may be attached
deflector panel between the 72-inch          a webbing flap and the modification of        along its leading edge only. This
                                             the excluder panel may only be done           webbing may not extend beyond the
(183.6–cm) cut and the posterior edge of
                                             conjointly with the enlargement of the        trailing edge or sides of the existing
the deflector panel must be removed. A
                                             escape opening as described in this           escape opening webbing flap, and it
rectangular flap of nylon webbing not
                                             paragraph (e)(4)(iii)(E).                     must not interfere or otherwise restrict
larger than 2-inch (5.1–cm) stretched
                                                (iv) Allowable modifications to TEDs.      the turtle escape opening.
mesh may be sewn to the forward edge                                                          (E) Roller gear. Roller gear may be
of the escape opening. The width of the      No modifications may be made to an
                                             approved soft TED, except for the             attached to the bottom of a TED to
flap may not exceed the length of the                                                      prevent chafing on the bottom of the
                                             modifications described in paragraph
forward edge of the triangular opening.                                                    TED and the trawl net. When a webbing
                                             (e)(4)(iii)(E). Unless otherwise
The flap may extend not more than 12                                                       flap is used in conjunction with roller
                                             prohibited in paragraph (e)(4)(ii) of this
inches (30.5 cm) beyond the rear point                                                     gear, the webbing flap must be of a
                                             section, only the following
of the escape opening. The sides of the                                                    length such that no part of the webbing
                                             modifications may be made to an
flap may be attached to the body, but                                                      flap can touch or come in contact with
                                             approved hard TED and an approved
may not be attached farther aft than the                                                   any part of the roller gear assembly or
                                             special hard TED:
rear point of the escape opening. One           (A) Floats. In addition to floats          the means of attachment of the roller
row of chain not larger than 3/16 inch       required pursuant to paragraph                gear assembly to the TED, when the
(4.76 mm) may be sewn evenly to the          (e)(4)(i)(I) of this section, floats may be   trawl net is in its normal, horizontal
back edge of the flap. The stretched         attached to the top one-half of the TED,      position. Roller gear must be
length of the chain may not exceed 84        either outside or inside the net, but not     constructed according to one of the
inches (214.2 cm).                           to a flap. Floats attached inside the net     following design criteria:
   (E) Allowable modifications to soft       must be behind the rear surface at the           (1) A single roller consisting of hard
TEDs. The following modifications may        top of the TED.                               plastic shall be mounted on an axle rod,
be made to the Morrison and Taylor              (B) Accelerator funnel. An accelerator     so that the roller can roll freely about
TEDs to increase the size of the escape      funnel may be installed in the trawl, if      the axle. The maximum diameter of the
opening to permit the exclusion of           it is made of net webbing material with       roller shall be 6 inches (15.24 cm), and
leatherback turtles. An enlarged escape      a stretched mesh size not greater than 1      the maximum width of the axle rod
opening must be created on the top of        5/8 inches (4.1 cm), if it has an inside      shall be 12 inches (30.4 cm). The axle
the trawl body centered over the             horizontal opening of at least 39 inches      rod must be attached to the TED by two
deflector panel. The opening must            (99.1 cm) when measured in a taut             support rods. The maximum clearance
measure not less than 96 inches (244         position, if it is inserted in the net        between the roller and the TED shall not
cm), must be in a single row of meshes,      immediately forward of the TED, and if        exceed 1 inch (2.5 cm) at the center of
and must be located no farther forward       its rear edge does not extend past the        the roller. The support rods and axle rod
than the point where its entire length is    bars of the TED. The trailing edge of the     must be made from solid steel or solid
above the deflector panel--the forward       accelerator funnel may be attached to         aluminum rod no larger than 1/2 inch
edge of the opening must extend from         the TED on the side opposite the escape       (1.28 cm) in diameter. The attachment
the attachment of the deflector panel on     opening if not more than 1/3 of the           of the support rods to the TED shall be
one side of the body, across the top of      circumference of the funnel is attached,      such that there are no protrusions (lips,
the body, to the attachment of the           and if the inside horizontal opening of       sharp edges, burrs, etc.) on the front face
               Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                           15519

of the grid. The axle rod and support         of the roller tubing. The roller shall lie   (30.4 cm). The roller must lie entirely
rods must lie entirely behind the plane       flush against the TED. The maximum           behind the plane of the face of the grid.
of the face of the TED grid.                  outside diameter of the roller shall be 3    *     *     *    *     *
  (2) A single roller consisting of hard      1/2 inches (8.0 cm), the minimum
plastic tubing shall be tightly tied to the   outside diameter of the roller shall be 2      3. Figure 1 to part 227 is revised to
back face of the TED grid with rope or        inches (5.1 cm), and the maximum             read as follows:
heavy twine passed through the center         length of the roller shall be 12 inches      BILLING CODE 3510–22–F


    4. Figure 13 to part 227 is revised to read as follows:

15520          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

[FR Doc. 95–7235 Filed 3–21–95; 11:30 am]
             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations                              15521

50 CFR Part 672                            Director established a directed fishing     apportioned to the trawl Pacific cod
                                           allowance of 38,085 mt, with                fishery category in Zone 1.
[Docket No. 950206041–5041–01; I.D.
                                           consideration that 3,000 mt will be         EFFECTIVE DATE:  12 noon, Alaska local
                                           taken as incidental catch in directed       time (A.l.t.), March 20, 1995, until 12
Groundfish of the Gulf of Alaska;          fishing for other species in the Central    midnight, A.l.t., December 31, 1995.
Pacific Cod for Processing by the          Regulatory Area. The Regional Director
                                           has determined that the directed fishing    FOR FURTHER INFORMATION CONTACT:
Inshore Component in the Central
Regulatory Area                            allowance has been reached.                 Andrew N. Smoker, 907–586-7228.
                                           Consequently, NMFS is prohibiting           SUPPLEMENTARY INFORMATION:       The
AGENCY:  National Marine Fisheries         directed fishing for Pacific cod by         groundfish fishery in the BSAI exclusive
Service (NMFS), National Oceanic and       operators of vessels catching Pacific cod   economic zone is managed by NMFS
Atmospheric Administration (NOAA),         for processing by the inshore               according to the Fishery Management
Commerce.                                  component in the Central Regulatory         Plan for the Groundfish Fishery of the
ACTION: Closure.                           Area.                                       Bering Sea and Aleutian Islands Area
                                              Directed fishing standards for           (FMP) prepared by the North Pacific
SUMMARY: NMFS is closing the directed
                                           applicable gear types may be found in       Fishery Management Council under
fishery for Pacific cod by vessels         the regulations at § 672.20(g).
catching Pacific cod for processing by                                                 authority of the Magnuson Fishery
the inshore component in the Central       Classification                              Conservation and Management Act.
Regulatory Area of the Gulf of Alaska                                                  Fishing by U.S. vessels is governed by
                                             This action is taken under 50 CFR
(GOA). This action is necessary to                                                     regulations implementing the FMP at 50
                                           672.20 and is exempt from review under
prevent exceeding the allocation of                                                    CFR parts 620 and 675.
                                           E.O. 12866.
Pacific cod for the inshore component                                                     The 1995 PSC allowance of C. bairdi
                                             Authority: 16 U.S.C. 1801 et seq.
in this area.                                                                          Tanner crab in Zone 1 for the trawl
EFFECTIVE DATE: 12 noon, Alaska local        Dated: March 20, 1995.                    Pacific cod fishery category, which is
time (A.l.t.), March 22, 1995, until 12    David S. Crestin,                           defined at § 675.21(b)(1)(iii)(E), was
midnight, A.l.t., December 31, 1995.       Acting Director, Office of Fisheries        established as 225,000 crabs by the 1995
                                           Conservation and Management, National       final initial specifications (60 FR 8479,
                                           Marine Fisheries Service.                   February 14, 1995).
Andrew N. Smoker, 907–586-7228.
                                           [FR Doc. 95–7232 Filed 3–20–95; 4:43 pm]       The Director, Alaska Region, NMFS,
groundfish fishery in the GOA exclusive    BILLING CODE 3510–22–F                      has determined, in accordance with
economic zone is managed by NMFS                                                       § 675.21(c)(1)(i), that the PSC allowance
according to the Fishery Management                                                    of C. bairdi Tanner crab for the trawl
                                           50 CFR Part 675                             Pacific cod fishery in Zone 1 has been
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North         [Docket No. 950206040–5040–01; I.D.         reached. Therefore, NMFS is prohibiting
Pacific Fishery Management Council         032095C]                                    directed fishing for Pacific cod by
under authority of the Magnuson                                                        vessels using trawl gear in Zone 1 of the
Fishery Conservation and Management        Groundfish of the Bering Sea and            BSAI.
Act. Fishing by U.S. vessels is governed   Aleutian Islands Area; Pacific Cod by          Directed fishing standards for
by regulations implementing the FMP at     Vessels Using Trawl Gear in Bycatch         applicable gear types may be found in
50 CFR parts 620 and 672.                  Limitation Zone 1                           the regulations at § 675.20(h).
   In accordance with                      AGENCY:  National Marine Fisheries          Classification
§ 672.20(c)(1)(ii)(B), the allocation of   Service (NMFS), National Oceanic and
Pacific cod for the inshore component      Atmospheric Administration (NOAA),            This action is taken under § 675.21
in the Central Regulatory Area was         Commerce.                                   and is exempt from review under E.O.
established by the final 1995 groundfish   ACTION: Closure.                            12866.
specifications (60 FR 8470, February 14,                                                 Authority: 16 U.S.C. 1801, et seq.
1995) as 41,085 metric tons (mt).          SUMMARY:   NMFS is closing the directed
   The Director, Alaska Region, NMFS       fishery for Pacific cod by vessels using      Dated: March 20, 1995.
(Regional Director), has determined, in    trawl gear in Bycatch Limitation Zone 1     David S. Crestin,
accordance with § 672.20(c)(2)(ii), that   (Zone 1) of the Bering Sea and Aleutian     Acting Director, Office of Fisheries
the allocation of Pacific cod total        Islands management area (BSAI). This        Conservation and Management, National
allowable catch for the inshore            action is necessary to prevent exceeding    Marine Fisheries Service.
component in the Central Regulatory        the prohibited species catch (PSC)          [FR Doc. 95–7233 Filed 3–20–95; 4:43 pm]
Area soon will be reached. The Regional    allowance of C. bairdi Tanner crab          BILLING CODE 3510–22–F

Proposed Rules                                                                                 Federal Register
                                                                                               Vol. 60, No. 57

                                                                                               Friday, March 24, 1995

This section of the FEDERAL REGISTER             Street, Suite 102B, Fresno, California           The purpose of the RFA is to fit
contains notices to the public of the proposed   93721, telephone 209–487–5901, or             regulatory actions to the scale of
issuance of rules and regulations. The           FAX (209) 487–5906.                           business subject to such actions in order
purpose of these notices is to give interested                                                 that small businesses will not be unduly
persons an opportunity to participate in the     SUPPLEMENTARY INFORMATION:      This
                                                 proposed rule is issued under Marketing       or disproportionately burdened.
rule making prior to the adoption of the final
rules.                                           Agreement and Order No. 981, both as          Marketing orders issued pursuant to the
                                                 amended [7 CFR part 981], regulating          Act, and the rules issued thereunder, are
                                                 the handling of almonds grown in              unique in that they are brought about
DEPARTMENT OF AGRICULTURE                        California. The marketing agreement           through group action of essentially
                                                 and order are effective under the             small entities acting on their own
Agricultural Marketing Service                   Agricultural Marketing Agreement Act          behalf. Thus, both statutes have small
                                                 of 1937, as amended [7 U.S.C. 601–674],       entity orientation and compatibility.
7 CFR Part 981
                                                 hereinafter referred to as the Act.              There are approximately 7,000
[Docket No. FV94–981–4 PR]                          The Department of Agriculture              producers of California almonds under
                                                 (Department) is issuing this proposed         this marketing order, and approximately
Almonds Grown in California;                                                                   115 handlers. Small agricultural
                                                 rule in conformance with Executive
Reduction of Expenses and                                                                      producers have been defined by the
                                                 Order 12866.
Assessment Rate                                                                                Small Business Administration [13 CFR
                                                    This proposed rule has been reviewed
AGENCY:  Agricultural Marketing Service,         under Executive Order 12778, Civil            121.601] as those having annual receipts
USDA.                                            Justice Reform. Under the provisions of       of less than $500,000, and small
ACTION: Proposed rule with request for           the marketing order now in effect,            agricultural service firms are defined as
comments.                                        California almonds are subject to             those whose annual receipts are less
                                                 assessments. It is intended that the          than $5,000,000. The majority of
SUMMARY: This proposed rule invites              assessment rate as proposed herein will       California almond producers and
comments on revising the expenses and            be applicable to all assessable almonds       handlers may be classified as small
assessment rate previously established           handled during the 1994–95 crop year,         entities.
under Marketing Order No. 981 for the            which began July 1, 1994, and ends June          A budget of expenses and rate of
1994–95 crop year. This proposal would           30, 1995. This proposed rule would not        assessment for the 1994–95 crop year
reduce the budget of expenses and rate           preempt any State or local laws,              was recommended on May 18, 1994, by
which almond handlers may be assessed            regulations, or policies, unless they         the Board, the agency responsible for
for funding expenses by the Almond               present an irreconcilable conflict with       local administration of the program. An
Board of California (Board) that are             this rule.                                    interim final rule was issued in the
reasonable and necessary to administer              The Act provides that administrative       Federal Register on July 14, 1994, [59
the program.                                     proceedings must be exhausted before          FR 35847] and a final rule was issued
DATES: Comments received by April 24,            parties may file suit in court. Under         in the September 8, 1994 Federal
1995, will be considered prior to                section 608c(15)(A), any handler subject      Register [59 FR 46321]. Approved
issuance of a final rule.                        to an order may file with the Secretary       expenditures total $9,435,262 with an
ADDRESSES: Interested persons are                a petition stating that the order, any        approved assessment rate of 2.25 cents
invited to submit written comments               provision of the order, or any obligation     per pound. Of the 2.25 cents per pound,
concerning this action. Comments must            imposed in connection with the order is       handlers could receive credit-back
be sent in triplicate to the Docket Clerk,       not in accordance with law and                against their assessment obligation up to
Fruit and Vegetable Division, AMS,               requesting a modification of the order or     one cent per pound for their own
USDA, P.O. Box 96456, Room 2523–S,               to be exempted therefrom. Such handler        promotional expenditures. Specific
Washington, DC 20090–6456, FAX 202–              is afforded the opportunity for a hearing     explanations of various expenditure
720–5698. Comments should reference              on the petition. After the hearing the        categories and comparisons with a prior
the docket number and the date and               Secretary would rule on the petition.         period are contained in the
page number of this issue of the Federal         The Act provides that the district court      aforementioned final rule.
Register and will be available for public        of the United States in any district in          The Board met on September 14,
inspection in the Office of the Docket           which the handler is an inhabitant, or        1994, and recommended, by a seven to
Clerk during regular business hours.             has his or her principal place of             two vote, postponing its paid
FOR FURTHER INFORMATION CONTACT:                 business, has jurisdiction in equity to       advertising campaign and directly
Kathleen M. Finn, Marketing Specialist,          review the Secretary’s ruling on the          related activities until further notice. It
Marketing Order Administration                   petition, provided a bill in equity is        also voted to postpone assessment
Branch, Fruit and Vegetable Division,            filed not later than 20 days after the date   billings pending evaluation of legal
AMS, USDA, P.O. Box 96456, room                  of the entry of the ruling.                   issues and future program activities.
2536–S, Washington, DC 20090–6456,                  Pursuant to the requirements set forth     Generic public relations activities and
telephone 202–720–1509, or FAX (202)             in the Regulatory Flexibility Act (RFA),      other promotion-related activities to
720–5698; or Martin Engeler, Assistant           the Administrator of the Agricultural         which the Board was contractually
Officer-In-Charge, California Marketing          Marketing Service (AMS) has                   committed at that time are to be
Field Office, Fruit and Vegetable                considered the economic impact of this        continued. This action was taken as a
Division, AMS, USDA, 2202 Monterey               rule on small entities.                       result of uncertainty created by legal
                  Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules                                 15523

decisions regarding the Board’s former       contractually obligated for the              List of Subjects in 7 CFR Part 981
advertising and promotion program.           remainder of the current fiscal year.          Almonds, Marketing agreements,
   Specifically, the Ninth Circuit Court        To reduce the budget of expenses          Nuts, Reporting and recordkeeping
of Appeals ruled in December 1993, that      previously approved ($9,435,262), the        requirements.
aspects of the Board’s former advertising    Board deleted the funds budgeted for           For the reasons set forth in the
and promotion program in the 1980’s          reserve replenishment ($300,000) and at      preamble, 7 CFR part 981 is proposed to
were unconstitutional. On remand, the        its November 30, 1994, meeting,              be amended as follows:
district court subsequently awarded          postponed a major portion ($3.9
plaintiff handlers refunds of                                                             PART 981—ALMONDS GROWN IN
                                             million) of the $4.7 million funds
assessments and other money spent                                                         CALIFORNIA
                                             budgeted for promotional activities.
under the program. This decision was
                                             These revisions would reduce the               1. The authority citation for 7 CFR
issued on September 6, 1994, which led
to the Board’s actions to postpone           budget to $5,235,262. The reduced            part 981 continues to read as follows:
advertising activities at its September      budget would provide the Board with            Authority: 7 U.S.C. 601–674.
14, 1994, meeting. The district court’s      sufficient capital to carry into the next
                                             fiscal year to finance operations prior to     2. Section 981.341 is revised to read
remand decision is currently being                                                        as follows:
appealed. In addition, several handlers      collection of future assessments.
filed legal challenges to the Board’s           Concerns were raised that the             § 981.341   Expenses and assessment rate.
current credit-back advertising and          reduction of the assessment rate mid-          Expenses of $5,235,262 by the
promotion program, pursuant to Section       way through the crop year may generate       Almond Board of California are
608(c)(15)(A) of the Act.                    complaints from those handlers who           authorized for the crop year ending June
   The Board again met on November 30,       relied on the final rule of September 8,     30, 1995. An assessment rate for the
1994, and recommended, by a seven to         1994, which established an assessment        crop year payable by each handler in
three vote, reducing the assessment rate     rate of 2.25 cents per pound, of which       accordance with § 981.81 is fixed at .25
by eliminating the portion applicable to     handlers could receive credit-back up to     cents per kernel pound of almonds. Of
credit-back to handlers for their own        one cent per pound for their own             the .25 cents assessment rate, none is
promotional activities (one cent), and by    promotional expenditures. Some               available for handler credit-back
eliminating the portion of the remaining     handlers have incurred expenses that         pursuant to § 981.441.
assessment applicable to generic             would be eligible for credit-back under        Dated: March 21, 1995.
promotion activities. The resulting          the provisions of that rule.                 Sharon Bomer Lauritsen,
assessment rate the Board recommended                                                     Deputy Director, Fruit and Vegetable Division.
handlers pay was .47 cents per pound.           If the assessment rate is reduced with
                                             no portion being creditable, there will      [FR Doc. 95–7336 Filed 3–23–95; 8:45 am]
Concurrently, the Board again
postponed assessment billings pending        be no assessment for these handlers to       BILLING CODE 3410–02–W

further evaluation of the Board’s            claim credit-back against. However, an
financial status. These actions were         assessment rate of .25 cents per pound
                                             is significantly lower than the current      7 CFR Part 1036
taken because of the apparent lack of
support by some handlers at the present      rate of 2.25 cents. Under the current        [Docket No. DA–95–13]
time for generic promotion and credit-       established assessment of 2.25 cents, if
back programs, demonstrated by legal         handlers claimed credit-back for the         Milk in the Eastern Ohio-Western
challenges filed by such handlers            entire one cent, they would still be         Pennsylvania Marketing Area;
representing a significant portion of the    required to pay 1.25 cents per pound to      Proposed Termination of Certain
industry volume. One Board member            the Board. Handlers would pay                Provisions of the Order
commented that since the handlers who        significantly less even if they conducted    AGENCY:  Agricultural Marketing Service,
have filed legal challenges are not likely   advertising for which they believed          USDA.
to pay the advertising assessment, it is     credit-back would be obtained. In            ACTION: Proposed termination of rule.
not equitable for the remainder of the       addition, benefits are derived from
industry to shoulder the expense of an       advertising undertaken by these              SUMMARY:   This document invites written
advertising program.                         handlers.                                    comments on a proposal to terminate
   The Board met again on February 1,                                                     the advertising and promotion
                                                This action would reduce the              provisions of the Eastern Ohio-Western
1995, and recommended, by a six to           assessment obligation imposed on
four vote, to further reduce the                                                          Pennsylvania order. Termination of the
                                             handlers. The assessments would be           provisions was requested by several
assessment rate. The Board
                                             uniform for all handlers. The                associations of dairy farmers whose
recommended an assessment rate of .25
                                             assessment cost would be offset by the       milk is pooled under the order.
cents per pound. This action was taken
                                             benefits derived by the operation of the     Termination would eliminate redundant
after the Board further evaluated its
                                             marketing order. Therefore, the              expenses in administering regional
financial position and current and
                                             Administrator of the AMS has                 advertising and promotion programs
future program activities.
                                             determined that this action would not        without affecting producers’
   If implemented and collected, an
                                             have a significant economic impact on        participation.
assessment rate of .25 cents per pound
will generate income of $1,675,000           a substantial number of small entities.      DATES: Comments are due on or before
based on an estimated assessable crop of        Interested persons are invited to         April 7, 1995.
670 million pounds. When combined            submit their views and comments on           ADDRESSES: Comments (two copies)
with cash and cash equivalents held by       this proposal. Comments received             should be filed with the USDA/AMS/
the Board, this would provide the Board      within 30 days of publication of this        Dairy Division, Order Formulation
with sufficient income to meet its           proposed rule in the Federal Register        Branch, Room 2971, South Building,
administrative expenses and those            will be considered prior to any final        P.O. Box 96456, Washington, DC 20090–
promotional expenses to which it is          action being taken.                          6456.
15524             Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules

FOR FURTHER INFORMATION CONTACT:             preceding them, and the reference to           Therefore, comments are sought to
Constance M. Brenner, Marketing              these provisions in § 1036.73.               determine whether the aforementioned
Specialist, USDA/AMS/Dairy Division,           All persons who want to send written       provisions should be terminated.
Order Formulation Branch, Room 2971,         data, views, or arguments about the          List of Subjects in 7 CFR Part 1036
South Building, P.O. Box 96456,              proposed termination should send two
Washington, DC 20090–6456 (202) 720–         copies of them to the USDA/AMS/Dairy           Milk marketing orders.
2357.                                        Division, Order Formulation Branch,            The authority citation for 7 CFR part
SUPPLEMENTARY INFORMATION: The               Room 2971, South Building, P.O. Box          1036 continues to read as follows:
Regulatory Flexibility Act (5 U.S.C.         96456, Washington, DC 20090–6456, by           Authority: Secs. 1–19, 48 Stat. 31, as
601–612) requires the Agency to              the 14th day after the publication of this   amended; 7 U.S.C. 601–674.
examine the impact of a proposed rule        notice in the Federal Register. The            Dated: March 21, 1995.
on small entities. Pursuant to 5 U.S.C.      period for filing comments is limited to     Lon Hatamiya,
605(b), the Administrator of the             14 days because a longer period would
Agricultural Marketing Service has           not provide the time needed to complete
                                                                                          [FR Doc. 95–7335 Filed 3–23–95; 8:45 am]
certified that this proposed rule would      the required procedures before the
                                                                                          BILLING CODE 3410–02–P
not have a significant economic impact       process to appoint a new Board is
on a substantial number of small             initiated in April.
entities. This rule would lessen the           The comments that are received will
                                                                                          Animal and Plant Health Inspection
regulatory impact of the order on dairy      be made available for public inspection
farmers and would not affect milk            in the Dairy Division during normal
handlers.                                    business hours (7 CFR 1.27(b)).              9 CFR Parts 1 and 3
   The Department is issuing this            Statement of Consideration
proposed rule in conformance with                                                         [Docket No. 93–076–6]
Executive Order 12866.                          The proposed termination, requested       RIN 0579–AA59
   This proposed rule has been reviewed      by Milk Marketing Inc. (MMI), Dairylea
under Executive Order 12778, Civil           Cooperative Inc., and Tri-County             Animal Welfare; Marine Mammals
Justice Reform. This rule is not intended    Producers Cooperative, all associations
                                                                                          AGENCY:  Animal and Plant Health
to have a retroactive effect. If adopted,    of dairy farmers whose milk is pooled
                                                                                          Inspection Service, USDA.
this proposed rule will not preempt any      on the Eastern Ohio-Western
                                             Pennsylvania Federal milk order, would       ACTION: Notice of reopening and
state or local laws, regulations, or
policies, unless they present an             eliminate the advertising and promotion      extension of comment period.
irreconcilable conflict with the rule.       provisions of that order.                    SUMMARY:   We are reopening and
   The Agricultural Marketing                   The cooperatives stated that the          extending the comment period for our
Agreement Act of 1937, as amended (7         primary purpose of these provisions, at      proposed rule regarding the
U.S.C. 601–674), provides that               the time of their implementation, was to     establishment of standards for ‘‘swim-
administrative proceedings must be           increase producer participation in the       with-the-dolphin’’ interactive programs.
exhausted before parties may file suit in    advertising and promotion of milk and        This extension will provide interested
court. Under section 608c(15)(A) of the      dairy products. However, the Dairy and       persons with additional time to prepare
Act, any handler subject to an order may     Tobacco Adjustment Act of 1985               comments on the proposed rule.
file with the Secretary a petition stating   mandated that all dairy farmers
                                                                                          DATES: Consideration will be given only
that the order, any provisions of the        contribute to such activities through a
                                                                                          to written comments on Docket No. 93–
order, or any obligation imposed in          national program spanning all Federal
                                                                                          076–2 that are received on or before
connection with the order is not in          order marketing areas (7 CFR part 1150).
                                                                                          March 24, 1995.
accordance with law and request a            The cooperatives asserted that the
modification of an order or to be            advertising and promotion provisions of      ADDRESSES: Please send an original and
exempted from the order. A handler is        the order are redundant and create           three copies of your comments to
afforded the opportunity for a hearing       unnecessary expenses in view of the          Docket No. 93–076–2, Regulatory
on the petition. After a hearing, the        existence of qualified regional programs     Analysis and Development, PPD,
Secretary would rule on the petition.        that are funded under the national           APHIS, Suite 3C03, 4700 River Road
The Act provides that the district court     advertising and promotion program. The       Unit 118, Riverdale, MD 20737–1238.
of the United States in any district in      efficiency and effectiveness of producer     Comments received may be inspected at
which the handler is an inhabitant, or       funds would be enhanced with                 USDA, room 1141, South Building, 14th
has its principal place of business, has     termination of the Federal order             Street and Independence Ave. SW.,
jurisdiction in equity to review the         advertising and promotion provisions.        Washington, DC, between 8 a.m. and
Secretary’s ruling on the petition,          Thus, the cooperatives requested             4:30 p.m., Monday through Friday,
provided a bill in equity is filed not       removal of the advertising and               except holidays. Persons wishing to
later than 20 days after the date of the     promotion provisions to eliminate            inspect comments are requested to call
entry of the ruling.                         administrative costs without affecting       ahead on (202) 690–2817 to facilitate
   Notice is hereby given that, pursuant     the integrity of the Federal order           entry into the comment reading room.
to the provisions of the Agricultural        program.                                     FOR FURTHER INFORMATION CONTACT: Dr.
Marketing Agreement Act, the                    Section 608c(16)(A) of the Act            Barbara Kohn, Senior Staff Veterinarian,
termination of the following provisions      authorizing Federal milk orders              Animal Care Staff, REAC, APHIS, 4700
of the order regulating the handling of      provides that any order provisions may       River Road Unit 84, Riverdale, MD
milk in the Eastern Ohio-Western             be terminated separately whenever the        20737–1228, (301) 734–8699.
Pennsylvania marketing area is being         Secretary makes a determination that         SUPPLEMENTARY INFORMATION: On
considered:                                  such provisions obstruct or do not tend      January 23, 1995, we published in the
   Sections 1036.105 through 1036.122,       to effectuate the declared policy of the     Federal Register (60 FR 4383–4389,
the undesignated center heading              Act.                                         Docket No. 93–076–2) a proposal to
                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules                                 15525

amend the Animal Welfare regulations           LeAnn Oliver, (202) 205–6485.                  For the reasons set forth above, SBA
to establish standards for ‘‘swim-with-        SUPPLEMENTARY INFORMATION:      For many     proposes to amend part 108 of title 13
the-dolphin’’ interactive programs.            years, SBA has required Certified            of the Code of Federal Regulations as
   Comments regarding the proposed             Development Companies to use forms           follows:
rule were required to be received on or        provided by SBA in the development
before February 22, 1995. On February          company loan program. With advances          PART 108—[AMENDED]
28, 1995, we published a notice in the         in technology, forms may be reproduced         1. The authority citation for Part 108
Federal Register (60 FR 10810, Docket          as mirror image facsimiles by                continues to read as follows:
No. 93–076–4), reopening and extending         computers. Such reproductions may be           Authority: 15 U.S.C. 687(c), 695, 696, 697a,
the comment period for Docket No. 93–          in the best interests of the development     697b, 697c.
076–2 through March 9, 1995. On March          company loan program.                          2. Section 108.504–1 would be added
9, 1995, we published a notice in the            Under this proposed rule, Certified        to read as follows:
Federal Register (60 FR 12908, Docket          Development Companies would be
93–076–5) further extending the                authorized to use SBA application and        § 108.504–1 Computer Generated
comment period through March 13,               closing forms which have been                Facsimile Copies of SBA Forms
1995. However, several Federal agencies        computer generated by the certified             For 504 Program loans, a 503
have indicated the need for additional         development companies, attorneys             Company may use computer generated
time to develop and submit comments            retained by such companies, or by third      SBA application and closing forms
on the proposed rule.                          parties with whom they have                  which are exact facsimile reproductions
   So that we may consider comments            contracted. Because SBA in the past has      of SBA forms generated by the 503
received after March 13, we are                withheld permission to computerize           Company, attorneys retained by the 503
reopening and extending the comment            certain identified SBA forms, the            Company or by third parties with which
period for Docket No. 93–076–2 through         proposed new section 108.504–1 would         the 503 Company has contracted;
March 24, 1995. During this period,            specifically include the following forms     provided that a 503 Company which
other interested persons may also              in the general authority to utilize          utilizes such computer generated forms
submit their comments for our                  computer generated facsimile copies:         shall be responsible to SBA for a
consideration.                                 SBA Forms 1248 (Authorization and            substantial loss resulting from inexact
  Authority: 7 U.S.C. 2131–2159; 7 CFR 2.17,   Debenture Guaranty), 1505 (Note), 1504       reproduction of any such form and
2.51, and 371.2(g).                            (Debenture), 1506 (Servicing Agent           provided further that SBA reserves the
  Done in Washington, DC, this 21st day of     Agreement), 1429 (Use of Proceeds), 148      right not to guarantee a debenture
March 1995.                                    (Guaranty), 928 (Mortgage), 930 (Deed of     because an inexact computer form has
Terry L. Medley,                               Trust), 1059 (Security Agreement), 1243      been submitted to SBA in support of a
Acting Administrator, Animal and Plant         (CDC Certificate) and 1528 (CDC Board        request for such guarantee. All SBA loan
Health Inspection Service.                     Resolution).                                 forms, including, but not limited to the
[FR Doc. 95–7333 Filed 3–23–95; 8:45 am]                                                    following, may be computer generated:
                                               Compliance With Executive Orders             SBA Forms 1248 (Authorization and
                                               12612, 12778, and 12866, the                 Debenture Guaranty), 1505 (Note), 1504
                                               Regulatory Flexibility Act and the           (Debenture), 1506 (Servicing Agent
                                               Paperwork Reduction Act                      Agreement), 1429 (Use of Proceeds), 148
                                                 For purposes of the Regulatory             (Guaranty), 928 (Mortgage), 930 (Deed of
13 CFR Part 108                                Flexibility Act, 5 U.S.C. 601 et seq., SBA   Trust), 1059 (Security Agreement), 1243
                                               certifies that this rule will not have a     (CDC Certificate) and 1528 (CDC Board
Loans to State and Local Development           significant economic impact on a             Resolution).
Companies; Computer Generated                  substantial number of small entities.        *     *     *      *     *
Facsimiles of SBA Forms                          SBA certifies that this rule will not        Catalog of Federal Domestic Assistance
                                               constitute a significant regulatory action   59.036 Certified Development Company
AGENCY:   Small Business Administration                                                     Loans (503 Loans); 59.041 Certified
                                               for purposes of Executive Order 12866,
(SBA).                                                                                      Development Company Loans (504 Loans).
                                               since the change is not likely to result
ACTION:   Proposed rule.                       in an annual effect on the economy of          Dated: February 10, 1995.
                                               $100 million or more.                        Philip Lader,
SUMMARY: This proposed rule would
                                                 SBA certifies that this rule will not      Administrator.
authorize qualified development
                                               impose additional reporting or               [FR Doc. 95–6977 Filed 3–23–95; 8:45 am]
companies to use computer generated
facsimile exact copies of SBA                  recordkeeping requirements which             BILLING CODE 8025–01–M

application and closing forms in               would be subject to the Paperwork
submitting loan applications and               Reduction Act, 44 U.S.C. Ch. 35.
closing documents. This rule is being            SBA certifies that this rule will not      DEPARTMENT OF TRANSPORTATION
proposed in order to ease administration       have Federalism implications
                                               warranting the preparation of a              14 CFR Chapter I
of the development company program.
                                               Federalism Assessment in accordance
DATES: Comments must be submitted on                                                        Federal Aviation Administration;
                                               with Executive Order 12612.
or before April 24, 1995.                                                                   Harmonization Initiatives
                                                 SBA certifies that this rule is drafted,
ADDRESSES: Comments should be sent to          to the extent practicable, in accordance     AGENCY: Department of Transportation,
LeAnn Oliver, Acting Director, Office of       with the standards set forth in Section      Federal Aviation Administration (FAA).
Rural Affairs & Economic Development,          2 of Executive Order 12778.                  ACTION: Notice of public meeting.
Small Business Administration, 409 3rd
Street S.W., Suite 8300, Washington,           List of Subjects in 13 CFR Part 108          SUMMARY:  The Federal Aviation
D.C., 20416.                                     Loan programs/business, Small              Administration and the Joint Aviation
FOR FURTHER INFORMATION CONTACT:               businesses.                                  Authorities will convene a meeting to
15526            Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules

accept input from the public on the         time allocated to each speaker may be        panel is not intended to be, and should
Harmonization Work Program. The             less than the amount of time requested.      not be construed as, a position of the
Harmonization Work Program is the                                                        FAA or JAA.
                                            Meeting Procedures
means by which the Federal Aviation                                                        (11) The meeting is designed to solicit
Administration and the Joint Aviation          The following procedures are              public views and more complete
Authorities carry out a commitment to       established to facilitate the meeting:       information on proposed harmonization
harmonize, to the maximum extent               (1) There will be no admission fee or     initiatives. Therefore, the meeting will
possible, the rules regarding the           other charge to attend or to participate     be conducted in an informal and
operation and maintenance of civil          in the meeting. The meeting will be          nonadversarial manner. No individual
aircraft, and the standards, practices,     open to all persons who have requested       will be subject to cross-examination by
and procedures governing the design         in advance to present statements or who      any other participant; however, panel
materials, workmanship, and                 register on the day of the meeting           members may ask questions to clarify a
construction of civil aircraft, aircraft    subject to availability of space in the      statement and to ensure a complete and
engines, and other components. The          meeting room.                                accurate record.
purpose of this meeting is to provide an       (2) There will be a morning and
                                            afternoon break and a lunch break.             Issued in Washington, D.C., on March 10,
opportunity for the public to submit                                                     1995.
input to the Harmonization Work                (3) The meeting may adjourn early if
                                            scheduled speakers complete their            David S. Potter,
Program. This notice announces the
                                            statements in less time than currently is    Cochairman, Harmonization Management
date, time, location, and procedures for
                                            scheduled for the meeting.                   Team.
the public meeting.
                                               (4) An individual, whether speaking       [FR Doc. 95–6554 Filed 3–23–95; 8:45 am]
DATES: The public meeting will be held
on April 11, 1995, starting at 9 a.m.       in a personal or a representative            BILLING CODE 4910–13–M

Written comments are also invited and       capacity on behalf of an organization,
must be received on or before March 31,     may be limited to a 10-minute
1995.                                       statement. If possible, we will notify the   DEPARTMENT OF THE TREASURY
                                            speaker if additional time is available.
ADDRESSES: The public meeting will be
                                               (5) The FAA will try to accommodate       Internal Revenue Service
held at the Logan Airport Hilton,           all speakers. If the available time does
Boston, Massachusetts 02128. Persons        not permit this, speakers generally will     26 CFR Part 31
unable to attend the meeting may mail       be scheduled on a first-come-first-served
their comments in triplicate to: Ms.                                                     [EE–83–89]
                                            basis. However, the FAA reserves the
Nicole Romeo, Federal Aviation              right to exclude some speakers if            RIN 1545–AN57
Administration, Engine and Propeller        necessary to present a balance of
Directorate, ANE–110, 12 New England        viewpoints and issues.                       Time for Furnishing Wage Statements
Executive Park, Burlington,                    (6) Sign and oral interpretation can be   on Termination of Employer’s
Massachusetts 01803.                        made available at the meeting, as well       Operations; Hearing
FOR FURTHER INFORMATION CONTACT:            as an assistive listening device, if
Requests to present a statement at the                                                   AGENCY: Internal Revenue Service (IRS),
                                            requested at the above number 10             Treasury.
meeting or questions regarding the          calendar days before the meeting.
logistics of the meeting should be             (7) Representatives of the FAA and        ACTION: Notice of public hearing on
directed to Ms. Nicole Romeo, Engine        JAA will preside over the meeting.           proposed regulations.
and Propeller Directorate                      (8) The meeting will be recorded by
Harmonization Coordinator, 12 New                                                        SUMMARY:   This document contains
                                            a court reporter. A transcript of the
England Executive Park, Burlington,                                                      notice of public hearing on proposed
                                            meeting and any material accepted by
Massachusetts 01803; telephone (617)                                                     regulations under sections 6051 and
                                            the panel during the meeting will be
238–7111; telefax (617) 238–7199.                                                        6071 of the Internal Revenue Code of
                                            made a part of the official record. Any
                                                                                         1986 concerning the time for furnishing
SUPPLEMENTARY INFORMATION:                  person who is interested in purchasing
                                                                                         wage statements to both employees and
                                            a copy of the transcript should contact
Participation at the Meeting                                                             the Social Security Administration upon
                                            the court reporter directly. This
                                                                                         the termination of an employer’s
   Requests from persons who wish to        information will be available at the
present oral statements at the public       meeting.
meeting should be received by the FAA          (9) The FAA will review and consider      DATES: The public hearing will be held
no later than March 31, 1995. Such          all material presented by participants at    on Monday, May 8, 1995, beginning at
requests should be submitted to Ms.         the meeting. Position papers or material     1 p.m. Requests to speak and outlines of
Nicole Romeo as listed in the section       presenting views or information related      oral comments must be received by
titled FOR FURTHER INFORMATION CONTACT      to proposed harmonization initiatives        Monday, April 17, 1995.
and should include a written summary        may be accepted at the discretion of the     ADDRESSES: The public hearing will be
of oral remarks to be presented, and an     FAA and JAA presiding officers. The          held in the Internal Revenue Service
estimate of time needed for the             FAA requests that persons participating      Auditorium, Seventh Floor, 7400
presentation. Requests received after the   in the meeting provide five (5) copies of    Corridor, Internal Revenue Service
date specified above will be scheduled      all materials to be presented for            Building, 1111 Constitution Avenue,
if time is available during the meeting;    distribution to the panel members; other     N.W., Washington, D.C. Requests to
however, the name of those individuals      copies may be provided to the audience       speak and outlines of oral comments
may not appear on the written agenda.       at the discretion of the participant.        should be submitted to: Internal
   The FAA will prepare an agenda of           (10) Statements made by members of        Revenue Service, P.O. Box 7604, Ben
speakers who will be available at the       the meeting panel are intended to            Franklin Station, Attn:
meeting. Every effort will be made to       facilitate discussion of the issues or to    CC:DOM:CORP:T:R (EE–83–89), room
accommodate as many speakers as             clarify issues. Any statement made           5228, Washington, D.C. 20044 or hand-
possible. In addition, the amount of        during the meeting by a member of the        delivered between the hours of 8 a.m.
                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules                                   15527

and 5 p.m. to: CC:DOM:CORP:T:R (EE–         SUMMARY:    EPA proposes to disapprove a     relations, Nitrogen dioxide, Ozone,
83–89), Courier’s Desk, Internal            State Implementation Plan (SIP)              Particulate matter, Reporting and
Revenue Service, 1111 Constitution          revision submitted by the District of        recordkeeping requirements, Sulfur
Avenue, N.W., Washington, D.C.              Columbia pertaining to the regulation of     Oxides.
FOR FURTHER INFORMATION CONTACT:            major new and major modified sources           Authority: 42 U.S.C. 7401–7671q.
Christina Vasquez of the Regulations        locating in the District of Columbia. The      Dated: February 17, 1995.
Unit, Assistant Chief Counsel               intended effect of this action is to
                                                                                         Stanley Laskowski,
(Corporate), (202) 622–7190 (not a toll-    disapprove the District of Columbia
                                            regulations because they do not meet         Acting Regional Administrator, Region III.
free number).
                                            the requirements of the Clean Air Act.       [FR Doc. 95–7244 Filed 3–23–95; 8:45 am]
subject of the public hearing is proposed   This action is being taken under section     BILLING CODE 6560–50–P

regulations under sections 6051 and         110 of the Clean Air Act. In the Final
6071 of the Internal Revenue Code. The      Rules section of this Federal Register,
proposed regulations appeared in the        EPA is disapproving the State’s SIP          FEDERAL COMMUNICATIONS
Federal Register on Thursday,               revision as a direct final rule without      COMMISSION
December 22, 1994 (59 FR 65982).            prior proposal because the Agency has
   The rules of § 601.601(a)(3) of the      determined that the rationale to             47 CFR Chapter I
‘‘Statement of Procedural Rules’’ (26       disapprove this SIP revision strongly        [IC Docket No. 94–31; DA 95–421]
CFR part 601) shall apply with respect      supports that decision and anticipates
to the public hearing. Persons who have     no adverse comments. A detailed              Preparation for International ITU World
submitted written comments within the       rationale for the disapproval is set forth   Radiocommunication Conferences
time prescribed in the notice of            in the direct final rule and in the
proposed rulemaking and who also            accompanying technical support               AGENCY:  Federal Communications
desire to present oral comments at the      document. If no adverse comments are         Commission.
hearing on the proposed regulations         received in response to this proposed        ACTION: Proposed rule; extending
should submit not later than Monday,        rule, no further activity is contemplated    comment period.
April 17, 1995, an outline of the oral      in relation to this rule. If EPA receives
comments/testimony to be presented at       adverse comments, the direct final rule      SUMMARY:   This order grants a request by
the hearing and the time they wish to       will be withdrawn and all public             COMSAT Mobile Communications
devote to each subject.                     comments received will be addressed in       Division of COMSAT Corporation to
   Each speaker (or group of speakers       a subsequent final rule based on this        extend the time for filing reply
representing a single entity) will be       proposed rule. EPA will not institute a      comments in response to the Second
limited to 10 minutes for an oral           second comment period on this action.        Notice of Inquiry. The deadline for
presentation exclusive of the time          Any parties interested in commenting         filing reply comments is extended from
consumed by questions from the panel        on this action should do so at this time.    March 21, 1995, to April 14, 1995.
for the government and answers to these     DATES: Comments must be received in          DATES: Reply comments must be filed
questions.                                  writing by April 24, 1995.                   on or before April 14, 1995.
   Because of controlled access             ADDRESSES: Written comments on this          ADDRESSES: Federal Communications
restrictions, attendees cannot be           action should be addressed to Marcia L.      Commission, 1919 M St., N.W.,
permitted beyond the lobby of the           Spink, Associate Director, Air Programs      Washington, D.C. 20554.
Internal Revenue Service Building until     (3AT00), U.S. Environmental Protection       FOR FURTHER INFORMATION CONTACT:
12:45 p.m.                                  Agency, Region III, 841 Chestnut             Audrey L. Allison, International Bureau,
   An agenda showing the scheduling of      Building, Philadelphia, Pennsylvania         (202) 739–0557 or Damon C. Ladson,
the speakers will be made after outlines    19107. Copies of the documents relevant      International Bureau, (202) 739–0510.
are received from the persons testifying.   to this action are available for public
Copies of the agenda will be available                                                   SUPPLEMENTARY INFORMATION:
                                            inspection during normal business
free of charge at the hearing.              hours at the Air, Radiation, and Toxics      Order
Cynthia E. Grigsby,                         Division, U.S. Environmental Protection
Chief, Regulations Unit, Assistant Chief
                                                                                            1. COMSAT Corporation’s COMSAT
                                            Agency, Region III, 841 Chestnut             Mobile Communications Division
Counsel (Corporate).                        Building, Philadelphia, Pennsylvania
[FR Doc. 95–7338 Filed 3–23–95; 8:45 am]
                                                                                         (COMSAT) requests that the time for
                                            19107 and the District of Columbia           filing reply comments to the Second
BILLING CODE 4830–01–P                      Department of Consumer and                   Notice of Inquiry 1 in this proceeding be
                                            Regulatory Affairs, 2100 Martin Luther       extended from March 21, 1995, to April
                                            King Ave, SE., Washington, DC 20020.         14, 1995. COMSAT represents that its
ENVIRONMENTAL PROTECTION                    FOR FURTHER INFORMATION CONTACT:             request is supported by American
AGENCY                                      Cynthia H. Stahl, (215) 597–9337, at the     Mobile Satellite Corporation, Iridium,
                                            EPA Region III address above.                Inc., Loral/Qualcomm Partnership, L.P.,
40 CFR Part 52
                                            SUPPLEMENTARY INFORMATION: See the           and TRW, Inc.
[DC 13–1–6552b; FRL–5177–8]                 information provided in the Direct Final        2. This proceeding seeks comment on
                                            action for the District of Columbia new      a broad range of complex and technical
Approval and Promulgation of Air            source review regulations which is           issues to assist the Commission in
Quality Implementation Plans; District      located in the Rules and Regulations         preparing draft U.S. proposals for the
of Columbia; Disapproval of New             Section of this Federal Register.            World Radiocommunication Conference
Source Review Regulations                                                                (WRC–95) to be convened by the
                                            List of Subjects in 40 CFR Part 52
AGENCY:  Environmental Protection                                                        International Telecommunication Union
Agency (EPA).                                 Environmental protection, Air
                                            pollution control, Carbon monoxide,            1 Second Notice of Inquiry in IC Docket No. 94–
ACTION: Proposed rule.
                                            Hydrocarbons, Intergovernmental              31, 60 FR 8994 (Feb. 16, 1995).
15528               Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules

(ITU) in Geneva, Switzerland from                Bureau remains committed to complete         to make presentations on the topics
October 23 to November 17, 1995. The             this proceeding on a timely basis and        scheduled for discussion, should
FCC Draft U.S. proposals resulting from          that no further extensions are               contact Ms. Angelena Moy,
this proceeding will be considered by            contemplated.                                PDUSD(A&T)DP/MPI, 1211 S. Fern
the Departments of State and Commerce               5. Accordingly, pursuant to Section       Street, Room C–109, Arlington, VA
in forging final U.S. proposals for WRC–         0.261 of the Commission’s rules, 47 CFR      22202–2808.
95. Final U.S. proposals must be                 0.261, it is ordered That the deadline for   FOR FURTHER INFORMATION CONTACT:
transmitted to the ITU by June 23, 1995.         filing reply comments in response to the     Ms. Angelena Moy, telephone (703)
   3. In its request, COMSAT states that         Second Notice of Inquiry is extended to      604–5387. FAX (703) 604–6709.
it and many other interested parties are         April 14, 1995.
                                                                                              SUPPLEMENTARY INFORMATION:
now actively participating in
                                                 Federal Communications Commission.
preparations for two international                                                            Background
                                                 Scott Blake Harris,
meetings taking place later this month                                                          On September 16, 1994, (59 FR 47583)
relating to WRC preparations; in the             Chief, International Bureau.
                                                 [FR Doc. 95–7300 Filed 3–23–95; 8:45 am]
                                                                                              the Director of Defense Procurement,
Commission’s WRC–95 Industry                                                                  Department of Defense, announced an
Advisory Committee (IAC); and in                 BILLING CODE 6712–01–M
                                                                                              initiative to rewrite the Federal
preparing comments to the                                                                     Acquisition Regulation (FAR) Part 45,
Commission’s 2 GHz allocation                                                                 Government Property, to make it easier
proceeding.2 COMSAT asserts that in              DEPARTMENT OF DEFENSE                        to understand and to minimize the
view of these activities, and because of                                                      burdens imposed on contractors and
the complex nature and significance of           48 CFR Parts 45 and 52
                                                                                              contracting officers. The Director of
the issues posed in the Second Notice                                                         Defense Procurement is providing a
of Inquiry, the March 21st deadline does         Federal Acquisition Regulation;
                                                 Government Property                          forum for an exchange of ideas and
not allow sufficient time for full                                                            information with government and
development of reply comments. In                AGENCY:  Department of Defense.              industry personnel by holding public
particular, COMSAT notes that it and                                                          meetings, soliciting public comments,
                                                 ACTION:Revisions to notice of public
others are engaged in the U.S.                                                                and publishing notices of the public
preparations for the Conference                                                               meetings in the Federal Register.
Preparatory Meeting (CPM) for WRC–95             SUMMARY:    On March 7, 1995 a notice          Interested parties are invited to
that will occur in Geneva from March 22          was published in the Federal Register        present statements on the following
to April 5, 1995. The CPM will complete          (60 FR 12530) to reschedule the public       topics: (1) draft legislation permitting
a Report to WRC–95 containing                    meetings to discuss the continuing           negotiated sales of low value
technical, operational, and regulatory/          initiative to rewrite the Federal            Government property to holding
procedural information on the WRC–95             Acquisition Regulation (FAR) Part 45,        contractors, (2) revisions to FAR
agenda items. COMSAT contends that               Government Property, for April 6, 1995,      52.245–17, Special Tooling, (3)
postponing the reply comment deadline            and April 7, 1995. This revision notice      establishing the value of Government
until after the CPM’s conclusion would           is to change the meeting room number         property for the purpose of determining
enable the parties to incorporate the            and the topics scheduled for discussion      appropriate rental charges, and (4) the
results of that meeting into their reply         at those meetings.                           definition of sensitive property.
comments thereby making them more
                                                 DATES: Public Meetings: The public           Claudia L. Naugle,
informative and valuable to the
                                                 meetings will be conducted at the            Executive Editor, Defense Acquisition
Commission. Finally, COMSAT
                                                 address shown below from 12:30 p.m. to       Regulations Directorate.
recognizes that the Commission is under
                                                 5:00 p.m., local time, on April 6, 1995;     [FR Doc. 95–7260 Filed 3–23–95; 8:45 am]
extreme time constraints to draft U.S.
                                                 and from 9:30 a.m. to 5:00 p.m., local       BILLING CODE 5000–04–M
proposals in time for negotiation with
                                                 time, on April 7, 1995.
other government entities. It avers that
                                                    Statements: Statements from
the requested extension will not disrupt
                                                 interested parties for presentation at the   48 CFR Part 215
this process nor the IAC’s completion of
                                                 public meeting should be submitted to
its Final Report due to the Commission                                                        Defense Federal Acquisition
                                                 the address below on or before April 3,
on May 1, 1995.                                                                               Regulation Supplement; Contracting
   4. Although the Bureau does not               1995.
                                                 ADDRESSES: Draft Materials: Interested
                                                                                              by Negotiation
routinely grant extension requests, we
find that an extension of the reply              parties may obtain drafts of the             AGENCY:Department of Defense (DoD).
comment deadline to April 14, 1995               materials to be discussed at the April 6           Proposed rule with request for
would be beneficial in this proceeding           and 7 public meetings from Ms.               comments.
as it would enable the parties to include        Angelena Moy, PDUSD(A&T)DP/MPI,
valuable and potentially critical                1211 S. Fern Street, Room C–109,             SUMMARY:   The Department of Defense is
information learned at the CPM. We ask           Arlington, VA 22202–2808.                    proposing to amend the Defense Federal
the parties participating in the CPM to             Statements: Statements from               Acquisition Supplement (DFARS) to
incorporate the results of the meeting           interested parties for presentation at the   permit the head of the contracting
into their reply comments and to                 public meeting should be submitted to        activity to determine the appropriate
include, where possible, their views on          Ms. Angelena Moy, PDUSD(A&T)DP/              level to delegate authority for the
the likely success of potential U.S.             MPI, 1211 S. Fern Street, Room C–109,        approval of second and subsequent
proposals at WRC–95 and where known,             Arlington, VA 22202–2808.                    rounds of best and final offers for
the views of foreign delegations. The               Public Meeting: The location of the       competitive negotiated acquisitions
parties should note, however, that the           public meeting is 1211 S. Fern Street,       under other than formal source
                                                 Room A–100, Arlington, VA 22202–             selection.
 2 Notice of Proposed Rule Making in ET Docket   2808. Individuals wishing to attend the      DATES: Comments on the proposed rule
No. 95–18, 60 Fed Reg. 11,644 (Mar. 2, 1995).    meeting, including individuals wishing       should be submitted in writing to the
                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules                         15529

address shown below on or before May         (B) The head of the contracting             The uniform tire quality grading
23, 1995, to be considered in the          activity (HCA) or designee for all other   standards require treadwear
formulation of the final rule.             competitive negotiated acquisitions.       performance to be evaluated on a
ADDRESSES:  Interested parties should      *     *    *    *     *                    specific roadway course, approximately
submit written comments to: Defense        [FR Doc. 95–7261 Filed 3–23–95; 8:45 am]   400 miles in length, which was
Acquisition Regulations Council, Attn:     BILLING CODE 5000–04–M
                                                                                      established by NHTSA in the vicinity of
Mr. R.G. Layser, PDUSD(A&T)DP(DAR),                                                   Goodfellow Air Force Base in San
                                                                                      Angelo, Texas. The course is designed
IMD 3D139, 3062 Defense Pentagon,
                                                                                      to produce treadwear rates that are
Washington, DC 20301–3062. Telefax         DEPARTMENT OF TRANSPORTATION
                                                                                      generally representative of those
number (703) 602–0350. Please cite
                                           National Highway Traffic Safety            encountered by tires in public use. The
DFARS Case 95–D006 in all
                                           Administration                             standards require manufacturers to
correspondence related to this issue.
                                                                                      correct the projected mileage obtained
FOR FURTHER INFORMATION CONTACT:           49 CFR Part 575                            for tested tires to account for
Mr. R.G. Layser, (703) 602–0131.                                                      environmental and other variations that
                                           [Docket No. 95–19; Notice 1]
                                                                                      occur during testing on the course. This
                                           RIN 2127–AF–64                             is done by comparing the performance
A. Background                                                                         of the tested tires to that of course
                                           Consumer Information Regulations;          monitoring tires placed on a vehicle that
   This proposed rule was issued to        Fees for Course Monitoring Tires and       is part of the same convoy as the
allow the head of the contracting          for Use of Traction Skid Pads              vehicles on which the tires being tested
activity to determine the appropriate                                                 are placed. The course monitoring tires
level to delegate authority for the        AGENCY: National Highway Traffic
                                           Safety Administration (NHTSA),             are specially manufactured under
approval of second and subsequent                                                     controlled conditions for NHTSA so that
rounds of best and final offers for        Department of Transportation.
                                                                                      they can be used as a standard for
competitive negotiated acquisitions        ACTION: Notice of proposed rulemaking
                                                                                      grading the tires being tested. Section
under other than formal source             (NPRM).
                                                                                      575.104(e)(ii) of the standards states that
selection.                                 SUMMARY:    This notice proposes to        ‘‘the course monitoring tires are made
B. Regulatory Flexibility Act              amend NHTSA’s consumer information         available by the NHTSA at Goodfellow
                                           regulations on uniform tire quality        Air Force Base, San Angelo, Tex., for
  The rule does not constitute a           grading by establishing fees for the       purchase by any persons conducting
significant DFARS revision within the      purchase of treadwear course               tests at the test course.’’
meaning of FAR 1.501 and Public Law        monitoring tires and for the use of the       The uniform tire quality grading
98–577 because this rule only changes      traction skid pads at NHTSA’s Uniform      standards also require that tire traction
internal agency approval procedures.       Tire Quality Grading Test Facility in      be ‘‘evaluated on skid pads that are
C. Paperwork Reduction Act                 San Angelo, Texas.                         established, and whose severity is
                                           DATES: Comments. Comments must be          monitored, by the NHTSA * * *.’’ 49
  The Paperwork Reduction Act does         received on or before May 23, 1995.        CFR 575.104(f)(1). As further described
not apply because this proposed rule       ADDRESSES: Comments should refer to
                                                                                      in the standards, these test pads are
does not impose any new                    the docket and notice numbers above        paved with asphalt and concrete
recordkeeping, information collection      and be submitted to: Docket Section,       surfaces that have specified locked-
requirements, or collection of             National Highway Traffic Safety            wheel traction coefficients when
information from offerors, contractors,                                               evaluated in a manner prescribed in the
                                           Administration, 400 Seventh Street, SW,
or members of the public which require                                                standards. Two of these traction skid
                                           Washington, DC 20590. Docket hours
the approval of OMB under 44 U.S.C.                                                   pads have been constructed at NHTSA’s
                                           are 9:30 a.m. to 4 p.m., Monday through
3501, et seq.                                                                         Uniform Tire Quality Grading Test
                                                                                      Facility in San Angelo. This facility also
List of Subjects in 48 CFR Part 215        FOR FURTHER INFORMATION CONTACT: Mr.
                                                                                      includes an instrumented vehicle and
                                           Clive Van Orden, Office of Vehicle         test trailer, and maintenance support
  Government procurement.
                                           Safety Compliance, National Highway        equipment. In addition to this
Claudia L. Naugle,                         Traffic Safety Administration, 400
Deputy Director, Defense Acquisition                                                  government test facility, traction skid
                                           Seventh Street, S.W., Washington, D.C.     pads have been constructed at several
Regulations Council.                       20590. (202–366–2830).                     commercial facilities. These include the
  Therefore, 48 CFR Part 215 is            SUPPLEMENTARY INFORMATION: Section         Transportation Research Center’s
proposed to be amended as follows:         203 of the National Traffic and Motor      facility in East Liberty, Ohio, Juan Lopez
  1. The authority citation for Part 215   Vehicle Safety Act of 1966 directed the    in Laredo, Texas (formerly the Uniroyal
continues to read as follows:              Secretary of Transportation to prescribe   Proving Grounds), Firestone’s facility in
                                           standards establishing ‘‘a uniform         Fort Stockton, Texas, General Tire’s Test
  Authority: 41 U.S.C. 421 and 48 CFR
                                           quality grading system for motor vehicle   Track in Uvalde, Texas, and the
Chapter 1.
                                           tires.’’ Those standards are found at 49   Smithers Transportation Test Center in
PART 215—CONTRACTING BY                    CFR 575.104. For the purpose of aiding     Pecos, Texas. For the purpose of
NEGOTIATION                                consumers in making an informed            evaluating tire traction, manufacturers
                                           choice in the purchase of passenger car    are not restricted to the use of the
  2. Section 215.611 is amended by         tires, the standards require motor         traction skid pads at the government
revising paragraph (c)(i)(B) to read as    vehicle and tire manufacturers and tire    facility in San Angelo, and may use
follows:                                   brand owners to label such tires with      those at any commercial facility.
                                           information indicating their relative         The Department of Transportation’s
§ 215.611   Best and final offers.         performance in the areas of treadwear,     Office of Inspector General (OIG)
  (c)(i) * * *                             traction, and temperature resistance.      recently completed an audit of NHTSA’s
15530                        Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules

Uniform Tire Quality Grading Test                              Testing fees to establish base                             small businesses, small organizations,
Facility in San Angelo. As a result of                           course wear rate for tires .......              32,800   and small governmental units to the
this audit, the OIG concluded that                                 Total ....................................   265,025   extent that these entities purchase
NHTSA was not recovering the full cost                         Number of tires purchased=                                 vehicles and tires. However, because the
of the course monitoring tires that it                           700                                                      user fees proposed in this amendment
sells at San Angelo and was not                                $265,025/700 = $378.61 cost                                could be spread across a manufacturer’s
charging a user fee for the use of the                           per tire.                                                entire production, the amendment
traction skid pads at that facility,                             Because manufacturers are not                            would have a negligible cost impact on
contrary to the requirements of Office of                      required to use the traction skid pads at                  vehicles and tires. For these reasons,
Management and Budget (OMB)                                    NHTSA’s San Angelo facility for the                        vehicle manufacturers, small
Circular A–25.                                                 purpose of meeting the tire traction                       businesses, small organizations, and
   OMB Circular A–25 establishes                               grading requirements of 49 CFR                             small governmental units that purchase
Federal policy regarding fees assessed                         575.104(d), and may use any of the                         motor vehicles would not be
for Government services and for the sale                       several commercial facilities that are                     significantly affected by the proposed
or use of Government goods or                                  available for that purpose, the                            user fees. Accordingly, no regulatory
resources. The Circular expresses the                          government is not acting as sovereign in                   flexibility analysis has been prepared.
general policy that ‘‘[a] user charge                          making the San Angelo facility available
* * * will be assessed against each                                                                                       3. Executive Order 12612 (Federalism)
                                                               for traction tests. Accordingly, the
identifiable recipient for special benefits                                                                                  This action has been analyzed in
                                                               government may charge a market rate
derived from Federal activities beyond                                                                                    accordance with the principles and
                                                               for the use of the traction pads. Based
those received by the general public.’’                                                                                   criteria contained in Executive Order
                                                               on an agency review of the rates charged
For the purpose of determining the                                                                                        12612, and it has been determined that
                                                               by commercial facilities, NHTSA
amount of user charges to assess, the                                                                                     the proposed rule would not have
                                                               proposes to assess a user charge of $288
Circular states that ‘‘user charges will be                                                                               sufficient Federalism implications to
                                                               per day for the use of the traction skid
sufficient to recover the full cost to the                                                                                warrant preparation of a Federalism
                                                               pads at San Angelo. While not
Federal Government * * * of providing                                                                                     Assessment. No State laws would be
                                                               exceeding market rates, such a charge
the service, resource, or good when the                                                                                   affected.
                                                               would be sufficient for NHTSA to
Government is acting in its capacity as                        recover the costs that can be allocated                    4. National Environmental Policy Act
sovereign.’’ Full cost is defined in the                       to industry use of its traction skid pads.
Circular as ‘‘all direct and indirect costs                                                                                  The agency has considered the
                                                               Those costs are calculated as follows,                     environmental implications of this
to any part of the Federal Government                          based on an equivalent of 360 days of
of providing a good, resource, or                                                                                         proposed rule in accordance with the
                                                               industry use in 1993:                                      National Environmental Policy Act of
service * * *.’’ The Circular further
provides that when the Government is                                                                                      1969 and determined that the proposed
                                                               Skid pad calibration expenses ..                 $ 6,210   rule would not significantly affect the
not acting in its capacity as sovereign,                       General facility costs relating to
‘‘user charges will be based on market                           skid pads ................................       7,140
                                                                                                                          human environment.
prices * * *.’’                                                Depreciable items (skid system,                       5. Civil Justice Reform
   In selling course monitoring tires to                         water truck, air compressor,
manufacturers, the government is acting                          skid track, tractor sweeper,                           This proposed rule would not have
in its capacity as sovereign, because the                        equipment, buildings) ............           65,904 any retroactive effect. Under section
manufacturers have no practical                                Salaries relating to skid pads ....            24,375 103(d) of the National Traffic and Motor
alternative means of acquiring tires with                                                                            Vehicle Safety Act (49 U.S.C. 30111),
                                                                  Total .................................... 103,629 whenever a Federal motor vehicle safety
a specific base course wear rate that                        $103,629/360 days industry use
must be used in grading the treadwear                                                                                standard is in effect, a state may not
                                                                = $287.86 cost per day.
of the tires they are testing. Before it was                                                                         adopt or maintain a safety standard
audited by the OIG, NHTSA was                                Rulemaking Analyses and Notices                         applicable to the same aspect of
charging $304.50 for each course                                                                                     performance which is not identical to
                                                             1. Executive Order 12866 (Federal
monitoring tire that it sold. In its audit                                                                           the Federal standard. Section 105 of the
                                                             Regulatory Planning and Review) and
report, the OIG noted that this amount                                                                               Act (49 U.S.C. 30161) sets forth a
                                                             DOT Regulatory Policies and Procedures
was not sufficient to recover the full                                                                               procedure for judicial review of final
                                                                This proposal was not reviewed under rules establishing, amending or revoking
cost incurred by the government in
                                                             E.O. 12866. NHTSA has analyzed this                     Federal motor vehicle safety standards.
furnishing these tires. In order to
                                                             proposal and determined that it is not                  That section does not require
recover this full cost, NHTSA raised the
                                                             ‘‘significant’’ within the meaning of the               submission of a petition for
charge for each course monitoring tire to
                                                             Department of Transportation’s                          reconsideration or other administrative
$379.00 in January, 1995. Through this
                                                             regulatory policies and procedures.                     proceedings before parties may file suit
notice, NHTSA is proposing to formally
establish $379.00 as the fee for each                        2. Regulatory Flexibility Act                           in court.
course monitoring tire that it sells. This                      In accordance with the Regulatory                    Public Comments
amount was derived by performing the                         Flexibility Act, NHTSA has evaluated                       Interested persons are invited to
following calculation for the 700 course                     the effects of this action on small                     submit comments on the proposal. It is
monitoring tires that are purchased                          entities. Based upon this evaluation, I                 requested but not required that 10
annually by NHTSA:                                           certify that the proposed amendment                     copies be submitted.
                                                             would not have a significant economic                      All comments must not exceed 15
Purchase price of course mon-
                                                             impact on a substantial number of small pages in length. (49 CFR 553.21).
  itoring tires .............................       $175,000
General facility costs relating to                           entities. Motor vehicle and tire                        Necessary attachments may be
  tires .........................................      3,400 manufacturers and tire brand owners                     appended to these submissions without
Warehouse storage fees .............                  24,000 typically would not qualify as small                    regard to the 15-page limit. This
Salaries relating to tires ............               29,825 entities. This amendment would affect                   limitation is intended to encourage
                 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules                                       15531

commenters to detail their primary           Those persons desiring to be notified           based upon the direct and indirect costs
arguments in a concise fashion.            upon receipt of their comments in the             attributable to: (a) The purchase of course
                                           rules docket should enclose a self-               monitoring tires by NHTSA, (b) a pro rata
   If a commenter wishes to submit                                                           allocation of salaries and general facility
certain information under a claim of       addressed, stamped postcard in the
                                                                                             costs associated with maintenance of the
confidentiality, three copies of the       envelope with their comments. Upon                tires, (c) warehouse storage fees for the tires,
complete submission, including             receiving the comments, the docket                and (d) testing fees paid by NHTSA to
purportedly confidential business          supervisor will return the postcard by            establish the base course wear rate for the
information, should be submitted to the    mail.                                             tires.
                                                                                                2. Use of Government traction skid pads:
Chief Counsel, NHTSA, at the street        List of Subjects in 49 CFR Part 575               A fee of $288.00 will be assessed for each day
address given above, and seven copies                                                        that the traction skid pads at Goodfellow Air
                                             Consumer protection, Labeling, Motor
from which the purportedly confidential                                                      Force Base, San Angelo, Tex. are used. This
                                           vehicle safety, Motor vehicles, Rubber
information has been deleted should be                                                       fee is based upon the direct and indirect
                                           and rubber products, Tires.
submitted to the Docket Section. A                                                           costs attributable to: (a) Depreciation on
request for confidentiality should be        In consideration of the foregoing, the          facilities and equipment comprising or used
accompanied by a cover letter setting      agency proposes to amend § 575.104,               in conjunction with the traction skid pads
forth the information specified in the     Uniform tire quality grading standards,           (i.e., skid system, water truck, air
agency’s confidential business             in Title 49 of the Code of Federal                compressor, skid track, tractor sweeper,
                                           Regulations at part 575 as follows:               equipment, buildings), (b) the calibration of
information regulation. 49 CFR part 512.                                                     the traction skid pads, and (c) a pro rata
   All comments received before the        PART 575—[AMENDED]                                allocation of salaries and office operating
close of business on the comment                                                             expenses associated with maintenance of the
closing date indicated above for the        1. The authority citation for Part 575           traction skid pads.
proposal will be considered, and will be   would continue to read as follows:                   3. Fee payments shall be by check, draft,
                                                                                             money order, or Electronic Funds Transfer
available for examination in the docket      Authority: 49 U.S.C. 322, 30111, and
                                                                                             System made payable to the Treasurer of the
at the above address both before and       30123; delegation of authority at 49 CFR 1.50.
                                                                                             United States.
after that date. To the extent possible,     2. A new appendix D would be added                 4. The fees set forth in this appendix
comments filed after the closing date      to § 575.104, to read as follows:                 continue in effect until adjusted by the
will also be considered. Comments                                                            Administrator of NHTSA. The Administrator
received too late for consideration in     § 575.104 Uniform tire quality grading            reviews the fees set forth in this appendix
regard to the final rule will be           standards.                                        and, if appropriate, adjusts them by rule at
considered as suggestions for further      *     *     *      *     *                        least every 2 years.
rulemaking action. The NHTSA will                                                               Issued on: March 21, 1995.
continue to file relevant information as   Appendix D—User Fees                              Barry Felrice,
it becomes available in the docket after      1. Course monitoring tires: A fee of $379.00   Associate Administrator for Safety
the closing date, and it is recommended                                                      Performance Standards.
                                           will be assessed for each course monitoring
that interested persons continue to        tire purchased from NHTSA at Goodfellow           [FR Doc. 95–7351 Filed 3–23–95; 8:45 am]
examine the docket for new material.       Air Force Base, San Angelo, Tex. This fee is      BILLING CODE 4910–59–P

Notices                                                                                       Federal Register
                                                                                              Vol. 60, No. 57

                                                                                              Friday, March 24, 1995

This section of the FEDERAL REGISTER              Administrative Conference of the            FOR FURTHER INFORMATION CONTACT: Dr.
contains documents other than rules or            United States, 2120 L Street, NW, Suite     Harold S. Ricker, Staff Director, NOSB,
proposed rules that are applicable to the         500, Washington, DC 20037. Telephone:       Room 4006 South Building, U.S.
public. Notices of hearings and investigations,   (202) 254–7020.                             Department of Agriculture (USDA),
committee meetings, agency decisions and                                                      AMS, Transportation and Marketing
rulings, delegations of authority, filing of      SUPPLEMENTARY INFORMATION: The
petitions and applications and agency             Committee on Rulemaking will continue       Division, P. O. Box 96456, Washington,
statements of organization and functions are      its discussion, begun at a meeting on       DC 20090–6456. Phone (202) 720–2704.
examples of documents appearing in this           March 29, 1995, of projects on (a)          SUPPLEMENTARY INFORMATION: Section
section.                                          review of existing agency regulations,      2119 (7 U.S.C. 6518) of the Food,
                                                  (b) interim final rulemaking, and (c)       Agriculture, Conservation, and Trade
                                                  direct final rulemaking.                    Act of 1990 (FACT Act), as amended (7
ADMINISTRATIVE CONFERENCE OF                         Attendance at the meetings is open to    U.S.C. Section 6501 et seq.), requires
THE UNITED STATES                                 the interested public, but limited to the   establishment of a NOSB. The purpose
                                                  space available. Persons wishing to         of the NOSB is to assist in the
Committee on Adjudication; Meeting                attend should notify the Office of the      development of standards for substances
ACTION:Notice of cancellation of public           Chairman at least one day in advance.       to be used in organic production and to
meeting.                                          The chairman of the committee, if he        advise the Secretary on any other
                                                  deems it appropriate, may permit            aspects of the implementation of Title
SUMMARY: Pursuant to the Federal                  members of the public to present oral       XXI of the FACT Act. The NOSB met for
Advisory Committee Act (Pub. L. 92–               statements at the meeting. Any member       the first time in Washington, D.C., in
463), notice is hereby given of the               of the public may file a written            March 1992 and currently has five
cancellation of a meeting of the                  statement with the committee before,        committees to work on various aspects
Committee on Adjudication of the                  during, or after the meeting. Minutes of    of the program. The committees are:
Administrative Conference of the                  each meeting will be available on           Crops Standards; Processing, Labelling
United States.                                    request.                                    and Packaging; Livestock Standards;
DATES: April 3, 1995.                               Dated: March 22, 1995.                    Accreditation; and International Issues.
FOR FURTHER INFORMATION CONTACT:                  Jeffrey S. Lubbers,
                                                                                              At its last meeting, the NOSB began the
Nancy G. Miller, Office of the Chairman,                                                      review of the botanical substances
                                                  Research Director.
Administrative Conference of the                                                              currently used in organic production,
                                                  [FR Doc. 95–7507 Filed 3–23–95; 8:45 am]    and determined that five botanicals
United States, 2120 L Street, NW, Suite
                                                  BILLING CODE 6110–01–W                      (Neem, Pyrethrums, Rotenone, Ryania,
500, Washington, DC 20037. Telephone:
(202) 254–7020.                                                                               and Sabadilla) should not be placed on
                                                                                              the National List of prohibited natural
                                                  DEPARTMENT OF AGRICULTURE                   substances. A recommendation on
meeting of the Committee on
                                                                                              Nicotine and Strychnine was tabled for
Adjudication scheduled for April 3,               Agricultural Marketing Service              more information. The NOSB did not
1995, at 9:30 am, has been cancelled. It
                                                  [TM–95–00–1]                                develop recommendations for allowed
will be rescheduled at a later date.
                                                                                              synthetic substances to be considered
  Dated: March 20, 1995.                          Notice of Meeting of the National           for inclusion on the National List except
Jeffrey S. Lubbers,                               Organic Standards Board                     that a motion to add PBO’s was
Research Director.                                                                            defeated.
                                                  AGENCY: Agricultural Marketing Service,
[FR Doc. 95–7341 Filed 3–23–95; 8:45 am]
                                                  USDA.                                       Purpose and Agenda
                                                  ACTION: Notice.                                The main focus of this meeting is to
                                                                                              discuss certain substances that should
                                                  SUMMARY:   In accordance with the           be considered for recommendation for
Committee on Rulemaking                           Federal Advisory Committee Act, as          inclusion on the National List as
ACTION:   Notice of public meetings.              amended, the Agricultural Marketing         allowed synthetic substances and
                                                  Service (AMS) announces a forthcoming       continue discussion of certain
SUMMARY: Pursuant to the Federal                  meeting of the National Organic
Advisory Committee Act (Pub. L. No.                                                           substances that should be considered for
                                                  Standards Board (NOSB).                     recommendation on the National List as
92–463), notice is hereby given of                DATES: April 24, 1995 at 8 a.m. through
meetings of the Committee on                                                                  prohibited natural substances in regard
                                                  April 28, 1995 at 5 p.m. for the NOSB.      to the organic production and
Rulemaking of the Administrative                  An orientation session for new NOSB
Conference of the United States.                                                              processing of organic foods. It is
                                                  members will be held from 1 p.m. to 5       expected that at least 50 synthetic
DATES: April 5, 1995, at 9:30 am; April           p.m. on April 23, 1995.                     substances will be presented for
24, 1995, at 9:30 am.                             PLACE: Ramada Hotel Resort Florida          recommendations.
LOCATION: Administrative Conference               Center, 7400 International Drive,              Additional topics to be covered in the
Library, 2120 L Street, NW, Suite 500,            Orlando, Florida 32829. Phone (407)         full NOSB meeting include: labeling for
Washington DC 20037.                              351–4600 or (800) 327–1363. All             bulk agricultural products used as
FOR FURTHER INFORMATION: Nancy G.                 meetings of the NOSB for the week will      ingredients in organic foods, and bulk
Miller, Office of the Chairman,                   be held at that address.                    packs not intended for retail sale;
                         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                             15533

mushroom and greenhouse standards;             Send written comments to David Pratt      and numbers of pathogenic
and livestock living standards,             III, Saco Ranger District, White             microorganisms in meat and poultry
parasiticides, antibiotics, and a working   Mountain National Forest, 33                 products, thereby reducing the
draft on honey.                             Kancamagus Highway, Conway, NH               incidence of foodborne illness
  A final agenda will be available on       03818.                                       associated with the consumption of
April 5, 1995. Persons requesting copies    FOR FURTHER INFORMATION CONTACT:             these products.
should contact Faith Ashton at the          David Pratt III, Saco Ranger District,          In the proposed rule, FSIS stated that
above address or phone number.              (603) 447–5482.                              public meetings would be held with the
                                                                                         regulated industry and all interested
Type of Meeting                               Dated: March 16, 1995.
                                                                                         parties to foster the development of
   All meetings will be open to the         Charles J. Myers,                            beneficial new food safety technologies.
public. Individuals and organizations       Acting Forest Supervisor.                    FSIS is interested in improving food
wishing to provide written comments         [FR Doc. 95–7165 Filed 3–23–95; 8:45 am]     safety through the use of
on these issues or to comment orally on     BILLING CODE 3410–11–M                       microbiological testing.
any organic issues should send the                                                          FSIS is aware that any biological
request to Dr. Harold S. Ricker at the                                                   characteristic is subject to natural
above address or FAXED to (202) 690–        Food Safety and Inspection Service           variation. An understanding of the
0337 by April 14, 1995, in order to be                                                   factors influencing variability,
                                            [Docket No. 95–010N]
scheduled. The NOSB has scheduled                                                        particularly relating to collecting
time for public input on Monday, April      Pathogen Reduction; Hazard Analysis          samples, must be an integral part of
24, 1995, beginning at 1 p.m. and           and Critical Control Point (HACCP)           microbiological analyses. FSIS is
continuing until 5 p.m. While people        Systems; Notice of Scientific/Technical      seeking information on different
may sign up to speak at the door,           Conference and Request for Papers            microbiological testing verification
advance scheduling assures an                                                            protocols that may assure safer meat and
opportunity in the time allowed and         AGENCY:  Food Safety and Inspection          poultry products and, therefore, is
helps the NOSB plan its activities. Each    Service, USDA.                               hosting a scientific/technical
individual or organization will be          ACTION: Notice.                              conference.
allocated 10 minutes for presenting                                                         The conference, ‘‘Role of
orally the key issues of concern, and       SUMMARY:   The Food Safety and               Microbiological Testing in Verifying
should provide copies of written            Inspection Service (FSIS) will hold a        Food Safety’’ will be held on May 1–2,
material elaborating on those issues for    scientific/technical conference, ‘‘Role of   1995, at the Holiday Inn Independence
the NOSB and USDA.                          Microbiological Testing in Verifying         Mall, 4th and Arch Streets,
  Dated: March 21, 1995.                    Food Safety,’’ on May 1–2, 1995, at the      Philadelphia, PA 19106 (215) 923–8660.
Lon Hatamiya,
                                            Holiday Inn Independence Mall, 4th           The conference will begin each day at
                                            and Arch Streets, Philadelphia,              8:30 a.m. and end at 4:30 p.m. on May
                                            Pennsylvania. The purpose of the             1; at 2:00 p.m. on May 2.
[FR Doc. 95–7337 Filed 3–23–95; 8:45 am]
                                            conference is to explore scientific issues
                                            related to microbiological testing for       Conference Agenda
                                            verifying the safety of meat and poultry.       The conference will consist of three
Forest Service                              ADDRESSES: Papers should be to sent to:      sessions as follows:
                                            Dr. Robert L. Buchanan, Deputy                  Session I: Invited speakers from
Wildcat River Advisory Commission;          Administrator, Science and Technology,       government agencies, industry, and
Meeting                                     FSIS, USDA, Room 402 Cotton Annex,           academia will discuss the use and
                                            14th and Independence Avenue, SW.,           limitations of microbiological testing for
AGENCY:   Forest Service, USDA.             Washington, DC 20250.                        assuring food safety.
ACTION:   Notice of meeting.                                                                Session II: Presentation of papers on
                                            FOR FURTHER INFORMATION CONTACT: For
                                                                                         the role of microbiological testing in
SUMMARY: The Wildcat River Advisory         technical information, contact Dr.
                                                                                         assuring food safety (see Submission of
Commission will meet at the Jackson         Jennifer Johnson, Microbiologist,
Town Hall in Jackson, New Hampshire,        Microbiology Division, Science and
                                                                                            Session III: The general public
on May 3, 1995. The purpose of the          Technology, FSIS, USDA, Building 322,
                                                                                         attending the conference, on a first-
meeting is to continue with the             Barc-East, Beltsville, MD 20705. (301)
                                                                                         come basis, will have up to five minutes
development of a Draft River                504–8792. To register to attend the
                                                                                         per person to comment on the
Management Plan for administration of       conference, call Ms. Mary Gioglio (202)
                                                                                         conference proceedings.
the designated Wild and Scenic Wildcat      501–7244.                                       Dr. Robert L. Buchanan, Deputy
River. The Wild and Scenic Rivers Act         For hotel reservations, call the           Administrator, Science and Technology,
requires the establishment of an            Holiday Inn Independence Mall at (215)       FSIS will moderate and be joined by a
advisory commission to advise the           923–8660.                                    panel consisting of: Dr. Ann Marie
Secretary of Agriculture on                 SUPPLEMENTARY INFORMATION: On                McNamara, Director, Microbiology
administration of the river. The public     February 3, 1995, FSIS published a           Division, Science and Technology, FSIS;
is encouraged to attend the meeting and     proposed rule ‘‘Pathogen Reduction;          Dr. E. M. Foster, University of
may provide written comment on the          Hazard Analysis and Critical Control         Wisconsin; Dr. Bruce Tompkin, Armour
plan to the commissioners c/o the           Point (HACCP) Systems’’ (60 FR 6774).        Swift Echrich; Dr. Myron Solberg,
district office.                            In that document, the Agency proposed        Rutgers University; Dr. Katherine
DATES: The meeting will be held May 3,      a number of regulatory changes               Swanson, Pillsbury Company; and Dr.
1995, at 7:30 p.m.                          applicable to Federal- and State-            Margarite Neill, Brown University. The
ADDRESSES: The meeting will be held at      inspected meat and poultry                   panel will summarize the presentations
the Jackson Town Hall, Route 16B,           establishments. The proposed changes         and prepare a report of the proceedings.
Jackson, New Hampshire.                     were designed to reduce the occurrence       This report will include general
15534                           Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

conclusions on the development of                             the proceedings of the conference                   DEPARTMENT OF COMMERCE
microbiological testing for verifying the                     regardless of whether they were selected
safety of meat and poultry products. The                      for presentation.                                   Economic Development
panel’s report, transcripts of the                              The papers must be received by April              Administration
conference, and copies of all the papers                      14, 1995, to be considered for the
submitted to FSIS will be available in                        conference. Two copies of each paper                Notice of Petitions by Producing Firms
the FSIS Docket Clerk’s Office, Room                          should be submitted (See ADDRESSES),                for Determination of Eligibility To
3171, South Agriculture Building, Food                        with hard copies of any slides to be                Apply for Trade Adjustment
Safety and Inspection Service, U.S.                           used in the presentation.                           Assistance
Department of Agriculture, Washington,                        Attendance and Hotel Reservations
DC 20250.                                                                                                         AGENCY:Economic Development
                                                                 Please call Ms. Mary Gioglio by April            Administration (EDA).
Submission of Papers                                          5, 1995, (see FOR FURTHER INFORMATION
                                                              CONTACT) if you plan to attend the                        To give firms an opportunity to
   Interested persons may submit a                                                                                comment.
                                                              conference. FSIS has reserved a block of
paper to FSIS for Session II. Papers
                                                              rooms at the hotel for $85 per night.
should present information about
                                                              Reservations may be made by contacting              Petitions have been accepted for filing
microbiological testing for assuring food
                                                              the hotel (see FOR FURTHER INFORMATION              on the dates indicated from the firms
safety with emphasis on the concepts
                                                              CONTACT).                                           listed below.
and methods outlined in the proposed
rule ‘‘Pathogen Reduction; Hazard                               Done at Washington, DC, on: March 20,
Analysis and Critical Control Point                           1995.
(HACCP).’’ Up to 12 papers will be                            Michael R. Taylor
selected for presentation during Session                      Acting Under Secretary for Food Safety.
II. Presenters will be allotted 10 to 15                      [FR Doc. 95–7334 Filed 3–23–95; 8:45 am]
minutes. All papers will be included in                       BILLING CODE 3410–DM–P

                                                                                                           Date peti-
                    Firm name                                              Address                       tion accept-                      Product

Klein Bicycle Corporation ..........................      118 Klein Road, Chehalis, WA 98532 .....          02/17/95    Bicycle frames.
Raycom Electronics, Inc ...........................       1 Raycom Road, Dover, PA 17315 ..........         02/28/95    Magnetic Products—Transformers and
                                                                                                                          custom coils, electronic & cable as-
Oakloom Clothes, Inc ................................     1800 Johnson Street, Baltimore, MD                03/07/95    Men’s suits and sportcoats.
JPB Enterprises Inc., dba Courion Indus-                  3044 Lambdin Avenue, St. Louis, MO                03/13/95    Freight door systems, cart/tote and serv-
  tries.                                                    63115–2899.                                                   ice parts.
ITS Industrial Tooling Services, Inc ..........           1090 Second Street, Berthoud, CO                  03/13/95    Computer parts.
B&K Components, Ltd ..............................        2100 Old Union Road, Buffalo, NY 14227            03/07/95    Audio frequency electric amplifiers.
Pinquist Tool & Die Co., Inc .....................        63 Meserole Avenue, Brooklyn, NY                  03/15/95    Mounting and fittings of metal and over-
                                                            11222.                                                        head door hardware.
Vogel Tool & Die Corporation ...................          1825 North 32nd Avenue, Stone Park, IL            03/14/95    Custom metal tube fabricating machines,
                                                            60165.                                                        and arc-snug, arc-fit, arc-twin large
Chemart Company ....................................      11 New England Way, Lincoln, RI 02865-            03/15/95    Christmas photo-etched ornaments.
H.L. Miller & Son, Inc ................................   25 W. Miller Road, Iola, KS 66749 ..........      03/15/95    Ladies dresses.

   The petitions were submitted                               request for a hearing must be received                Dated: March 15, 1995.
pursuant to Section 251 of the Trade Act                      by the Trade Adjustment Assistance                  Lewis R. Podolske,
of 1974 (19 U.S.C. 2341). Consequently,                       Division, Room 7023, Economic                       Acting Director, Trade Adjustment Assistance
the United States Department of                               Development Administration, U.S.                    Division.
Commerce has initiated separate                               Department of Commerce, Washington,                 [FR Doc. 95–7361 Filed 3–23–95; 8:45 am]
investigations to determine whether                           D.C. 20230, no later than the close of              BILLING CODE 3510–24–M
increased imports into the United States                      business of the tenth calendar day
of articles like or directly competitive                      following the publication of this notice.
with those produced by each firm                                                                                  National Oceanic and Atmospheric
                                                                 The Catalog of Federal Domestic                  Administration
contributed importantly to total or                           Assistance official program number and
partial separation of the firm’s workers,                     title of the program under which these              [I.D. 031795A]
or threat thereof, and to a decrease in                       petitions are submitted is 11.313, Trade
sales or production of each petitioning                                                                           Marine Mammals
                                                              Adjustment Assistance.
firm.                                                                                                             AGENCY:  National Marine Fisheries
   Any party having a substantial                                                                                 Service (NMFS), National Oceanic and
interest in the proceedings may request                                                                           Atmospheric Administration (NOAA),
a public hearing on the matter. A                                                                                 Commerce.
                         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                               15535

ACTION: Amendment of scientific             COMMITTEE FOR PURCHASE FROM                   the objectives of the Javits-Wagner-
research permit no. 797 (P77#57).           PEOPLE WHO ARE BLIND OR                       O’Day Act (41 U.S.C. 46–48c) in
                                            SEVERELY DISABLED                             connection with the commodities and
SUMMARY: Notice is hereby given that                                                      service proposed for addition to the
pursuant to the provisions of the Marine    Procurement List; Proposed Additions          Procurement List.
Mammal Protection Act of 1972, as           and Deletions                                   Comments on this certification are
amended                                                                                   invited. Commenters should identify the
  (16 U.S.C. 1361 et seq.), the             AGENCY:  Committee for Purchase From
                                            People Who Are Blind or Severely              statement(s) underlying the certification
Regulations Governing the Taking and                                                      on which they are providing additional
Importing of Marine Mammals (50 CFR         Disabled.
part 216), the Endangered Species Act of    ACTION: Proposed additions to and
                                                                                            The following commodities and
1973, as amended (16 U.S.C. 1531 et         deletions from Procurement List.              service have been proposed for addition
seq.), the Regulations Governing the                                                      to Procurement List for production by
                                            SUMMARY:  The Committee has received
Taking, Importing, and Exporting of                                                       the nonprofit agencies listed:
                                            proposals to add to the Procurement List
Endangered Fish and Wildlife (50 CFR
                                            commodities and a service to be               Commodities
part 222), and the conditions hereinafter
                                            furnished by nonprofit agencies
set out, scientific research permit no.                                                   Wrench Set
                                            employing persons who are blind or
797, issued to the National Marine                                                        5120–01–176–1819
                                            have other severe disabilities, and to
Mammal Laboratory, Alaska Fisheries                                                       5120–01–119–0010
                                            delete commodities previously
Science Center, NMFS, NOAA, 7600                                                          NPA: Babcock Center, Inc., Columbia,
                                            furnished by such agencies.
Sand Point Way, NE., BIN C15700,                                                            South Carolina
Seattle, WA 98115, is amended to            COMMENTS MUST BE RECEIVED ON OR
authorize that specimen materials and       BEFORE: April 24, 1995.                       Service
other cetacean and pinniped species         ADDRESSES:   Committee for Purchase           Janitorial/Custodial
parts and products subject to NMFS          From People Who Are Blind or Severely         Veterans Administration Medical Center
jurisdiction and included in                Disabled, Crystal Square 3, Suite 403,        Outpatient Clinic
professionally curated NOAA-managed         1735 Jefferson Davis Highway,                 Orlando, Florida
collection(s), also may be exported for     Arlington, Virginia 22202–3461.               NPA: Goodwill Industries of Central
purposes of bona fide research,             FOR FURTHER INFORMATION CONTACT:                Florida, Orlando, Florida
including analysis by individuals or        Beverly Milkman (703) 603–7740.
laboratories, or their loan for use in      SUPPLEMENTARY INFORMATION: This
properly curated professionally             notice is published pursuant to 41               I certify that the following action will
accredited scientific collections,          U.S.C. 47(a) (2) and 41 CFR 51–2.3. Its       not have a significant impact on a
including incidental exhibit of such        purpose is to provide interested persons      substantial number of small entities.
collections to the public. These parts      an opportunity to submit comments on          The major factors considered for this
and products may be re-imported for         the possible impact of the proposed           certification were:
further analyses or archival by the         actions.                                         1. The action will not result in any
National Marine Mammal Laboratory.                                                        additional reporting, recordkeeping or
  Documents pertaining to this permit       Additions                                     other compliance requirements for small
and amendment are available for review         If the Committee approves the              entities.
by appointment in the following offices:    proposed additions, all entities of the          2. The action does not appear to have
  Permits Division, Office of Protected     Federal Government (except as                 a severe economic impact on future
Resources, NMFS, 1315 East-West             otherwise indicated) will be required to      contractors for the commodities.
Highway, Room 13130, Silver Spring,         procure the commodities and service              3. The action will result in
MD 20910 (301/713–2289);                    listed below from nonprofit agencies          authorizing small entities to furnish the
  Director, Alaska Region, NMFS, P.O.       employing persons who are blind or            commodities to the Government.
Box 21668, Juneau, AK 99802 (907/586–       have other severe disabilities.                  4. There are no known regulatory
7221);                                         I certify that the following action will   alternatives which would accomplish
  Director, Northwest Region, NMFS,         not have a significant impact on a            the objectives of the Javits-Wagner-
7600 Sand Point Way, NE., BIN C15700,       substantial number of small entities.         O’Day Act (41 U.S.C. 46–48c) in
Seattle, WA 98115 (206–526–6150);           The major factors considered for this         connection with the commodities
  Director, Southwest Region, NMFS,         certification were:                           proposed for deletion from the
501 West Ocean Boulevard, Suite 4200,          1. The action will not result in any       Procurement List.
Long Beach, CA 90802–4213 (310/980–         additional reporting, recordkeeping or           Items proposed to be deleted from the
4015);                                      other compliance requirements for small       Procurement List:
  Director, Southeast Region, NMFS,         entities other than the small                    The following commodities have been
9721 Executive Center Drive, N., St.        organizations that will furnish the           proposed for deletion from the
Petersburg, FL 33702–2432 (813/893–         commodities and service to the                Procurement List:
3141); and                                  Government.
  Director, Northeast Region, NMFS,            2. The action does not appear to have
One Blackburn Drive, Gloucester, MA         a severe economic impact on current           Handle, Step
01930 (508/281–9200).                       contractors for the commodities and           5340–01–114–7387
                                            service.                                      Chest, Tool
  Dated: March 17, 1995.                       3. The action will result in               7310–00–310–8544
Ann Terbush,                                authorizing small entities to furnish the     Container, Wood
Chief, Permits & Documentation Division,    commodities and service to the                8115–L1–599–7320
National Marine Fisheries Service.          Government.                                   8115–L1–599–7920
[FR Doc. 95–7234 Filed 3–23–95; 8:45 am]       4. There are no known regulatory           8115–L1–465–1020
BILLING CODE 3510–22–F                      alternatives which would accomplish           8115–L1–599–8020
15536                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

8115–L1–599–7220                              the objectives of the Javits-Wagner-        acting pursuant to the authority
Beverly L. Milkman,                           O’Day Act (41 U.S.C. 46–48c) in             delegated by Commission Regulation
Executive Director.                           connection with the commodity and           140.96, the Acting Director of the
[FR Doc. 95–7339 Filed 3–23–95; 8:45 am]      services proposed for addition to the       Division of Economic Analysis
                                              Procurement List.                           (‘‘Division’’) of the Commodity Futures
                                                Accordingly, the following                Trading Commission (‘‘Commission’’)
                                              commodity and services are hereby           has determined, on behalf of the
Procurement List Additions                    added to the Procurement List:              Commission, that publication of the
                                              Commodity                                   proposed amendments would be in the
AGENCY: Committee for Purchase From                                                       public interest and would assist the
People Who Are Blind or Severely              Pad, Scouring                               Commission in considering the views of
Disabled.                                     7920–00–045–2940                            interested persons. On behalf of the
ACTION: Additions to the procurement          Services                                    Commission, the Division is requesting
list.                                                                                     comment on this proposal.
                                              Grounds Maintenance
                                              Basewide (except Quarters and Common        DATES: Comments must be received on
SUMMARY: This action adds to the
                                                Areas)                                    or before April 24, 1995.
Procurement List a commodity and
services to be furnished by nonprofit         Fort Sam Houston, Texas                     ADDRESSES: Interested persons should
agencies employing persons who are            Janitorial/Custodial                        submit their views and comments to
                                              Denver Federal Center                       Jean A. Webb, Secretary, Commodity
blind or have other severe disabilities.      Buildings 76, 80, 93 and 94                 Futures Trading Commission, 2033 K
EFFECTIVE DATE: April 24, 1995.               Denver, Colorado                            Street NW, Washington, DC 20581.
ADDRESSES: Committee for Purchase             Mailroom Operation & Administrative         Reference should be made to the
From People Who Are Blind or Severely           Support                                   proposed amendments to the CANYCE’s
Disabled, Crystal Square 3, Suite 403,        Department of Veterans Affairs Medical
                                                                                          financial requirements for licensed
1735 Jefferson Davis Highway,                   Center
                                                                                          delivery facilities.
Arlington, Virginia 22202–3461.               718 Smyth Road
                                              Manchester, New Hampshire                   FOR FURTHER INFORMATION CONTACT:
FOR FURTHER INFORMATION CONTACT:                                                          Frederick V. Linse, Division of
                                                This action does not affect current
Beverly Milkman (703) 603–7740.                                                           Economic Analysis, Commodity Futures
                                              contracts awarded prior to the effective
SUPPLEMENTARY INFORMATION: On                 date of this addition or options            Trading Commission, 2033 K Street NW,
January 27 and February 3, 1995, the          exercised under those contracts.            Washington, DC 20581, telephone (202)
Committee for Purchase From People            Beverly L. Milkman,                         254–7303.
Who Are Blind or Severely Disabled                                                        SUPPLEMENTARY INFORMATION: The
                                              Executive Director.
published notices (60 FR 5373 and                                                         current provisions of the FCOJ futures
6702) of proposed additions to the            [FR Doc. 95–7340 Filed 3–23–95; 8:45 am]
                                              BILLING CODE 6820–33–P
                                                                                          contract provide that delivery may be
Procurement List.                                                                         effected by tendering to the CANYCE a
   After consideration of the material                                                    shipping certificate or warehouse
presented to it concerning capability of                                                  receipt issued by an Exchange-licensed
qualified nonprofit agencies to provide       COMMODITY FUTURES TRADING
                                                                                          delivery facility.1 The existing terms of
the commodity and services, fair market       COMMISSION
                                                                                          the futures contract provide that the
price, and impact of the additions on                                                     number of shipping certificates issued
the current or most recent contractors,       Citrus Associates of the New York
                                              Cotton Exchange: Proposed                   by a CANYCE-licensed tank facility
the Committee has determined that the                                                     operator may not exceed the sum of the
commodity and services listed below           Amendments Pertaining to Financial
                                              Requirements for Facilities Licensed        following two calculations: (1) The
are suitable for procurement by the                                                       number obtained by dividing the facility
Federal Government under 41 U.S.C.            for Delivery on the Frozen
                                              Concentrated Orange Juice Futures           operator’s net worth 2 by $40,000 and (2)
46–48c and 41 CFR 51–2.4.                                                                 the number obtained by dividing the
   I certify that the following action will   Contract
                                                                                          total principal amounts of all
not have a significant impact on a            AGENCY: Commodity Futures Trading           performance bonds and letters of credit 3
substantial number of small entities.         Commission.                                 issued to the facility operator by
The major factors considered for this         ACTION: Notice of proposed contract         $25,000. The futures contract also
certification were:                           market rule changes.                        currently provides that a facility
   1. The action will not result in any
additional reporting, recordkeeping or        SUMMARY:   The Citrus Associates of the        1 Under the contract’s current terms, a shipping
other compliance requirements for small       New York Cotton Exchange (‘‘CANYCE          certificate issuer is required to load out FCOJ from
entities other than the small                 or Exchange’’) has submitted proposed       the issuer’s CANYCE-licensed tank storage facility
organizations that will furnish the           amendments to its frozen concentrated       upon the request of the certificate holder.
                                                                                          Deliverable warehouse receipts represent FCOJ
commodity and services to the                 orange juice (‘‘FCOJ’’) futures contract.   packed in drums in store at the receipt issuers’
Government.                                   The primary proposed amendments will        Exchange-licensed warehouses.
   2. The action does not appear to have      revise the contract’s financial                2 The contract’s existing terms define ‘‘net worth’’

a severe economic impact on current           requirements concerning the dollar          as the excess of assets over liabilities.
                                                                                             3 The contract’s existing rules provide that
contractors for the commodity and             value of performance bonds or letters of
                                                                                          performance bonds must be in a form approved by,
services.                                     credit operators of CANYCE-licensed         and issued by sureties satisfactory to, the Exchange.
   3. The action will result in               delivery facilities must obtain in          Under the current rules, letters of credit must be in
authorizing small entities to furnish the     support of shipping certificates and        a form approved by the CANYCE, issued by a bank
commodity and services to the                 warehouse receipts issued for delivery      satisfactory to the Exchange and written in favor of
                                                                                          the CANYCE. In addition, such letters of credit
Government.                                   on the futures contract.                    must be unconditional, irrevocable, and available to
   4. There are no known regulatory             In accordance with section 5a(a)(12)      be drawn upon by the CANYCE on demand by
alternatives which would accomplish           of the Commodity Exchange Act, and          clean sight drafts.
                                  Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                                   15537

operator that desires to increase the                         of shipping certificate and warehouse      Year, 10-Year/5-Year, and 5-Year/2-
number of shipping certificates it may                        receipt holders in the FCOJ futures        Year. The Director of the Division of
issue for futures delivery may provide                        market. The Exchange also indicates        Economic Analysis (Division) of the
additional performance bonds or letters                       that the proposed amendments will          Commission, acting pursuant to the
of credit to the Exchange equal to $1                         simplify the contract’s financial          authority delegated by Commission
million.                                                      requirements for CANYCE-licensed           Regulation 140.96, has determined that
   The primary proposed amendments                            delivery facility operators.               publication of the proposals for
would specify that the maximum                                  Copies of the proposed amendments        comment is in the public interest, will
number of shipping certificates that                          will be available for inspection at the
                                                                                                         assist the Commission in considering
could be issued by a CANYCE-licensed                          Office of the Secretariat, Commodity
                                                                                                         the views of interested persons, and is
delivery facility will be determined in                       Futures Trading Commission, 2033 K
                                                              Street NW., Washington, DC 20581.          consistent with the purposes of the
accordance with a CANYCE specified
                                                              Copies of the amended terms and            Commodity Exchange Act.
schedule based on the amount of
performance bonds or letters of credit                        conditions can be obtained through the     DATES: Comments must be received on
posted with the Exchange. The                                 Office of the Secretariat by mail at the   or before April 24, 1995.
minimum performance bond would be                             above address or by telephone at (202)
$1,000,000, which would permit the                            254–6314.                                  ADDRESSES:  Interested persons should
facility posting such a bond to issue and                       The materials submitted by the           submit their views and comments to
have outstanding up to 44 shipping                            CANYCE in support of the proposed          Jean A. Webb, Secretary, Commodity
certificates. The schedule specifying the                     amendments may be available upon           Futures Trading Commission, 2033 K
maximum number of shipping                                    request pursuant to the Freedom of         Street NW, Washington, DC 20581.
certificates that may be issued for given                     Information Act (5 U.S.C. 552) and the     Reference should be made to the CBT
dollar amounts of performance bonds or                        Commission’s regulations thereunder        Treasury yield curve spread contracts.
letters of credit is set forth below:                         (17 CFR part 145 (1987)). Requests for
                                                                                                         FOR FURTHER INFORMATION CONTACT:
                                                              copies of such materials should be made
                                                              to the FOI, Privacy and Sunshine Act       Please contact Stephen Sherrod of the
                                               No. of cer-    Compliance Staff of the Office of the      Division of Economic Analysis,
 Amount of performamce bond                                                                              Commodity Futures Trading
                                               tificates or   Secretariat at the Commission’s
  or letter of credit in dollars               receipts is-                                              Commission, 2033 K Street NW,
                                                  suable      headquarters in accordance with 17 CFR
                                                              145.7 and 145.8.                           Washington, DC 20581, telephone 202-
1,000,000 ..................................            44      Any person interested in submitting      254-7303.
2,260,000 ..................................           100    written data, views or arguments on the    SUPPLEMENTARY INFORMATION:     Copies of
3,760,000 ..................................           200    proposed amendments should send
5,260,000 ..................................           300                                               the terms and conditions will be
                                                              such comments to Jean A. Webb,
6,760,000 ..................................           400                                               available for inspection at the Office of
                                                              Secretary, Commodity Futures Trading
8,260,000 ..................................           500                                               the Secretariat, Commodity Futures
                                                              Commission, 2033 K Street NW.,
9,760,000 ..................................           600
                                                              Washington, DC 20581 by the specified      Trading Commission, 2033 K street,
11,260,000 ................................            700                                               N.W., Washington, D.C. 20581. Copies
                                                                                                         of the terms and conditions can be
  The proposed amendments would                                 Issued in Washington, DC on March 17,
                                                                                                         obtained through the Office of the
require that a licensed delivery facility                     1995.
                                                                                                         Secretariat by mail at the above address
operator or owner must submit to the                          Blake Imel,
Exchange a letter of credit or                                                                           or by phone at (202) 254-6314.
                                                              Acting Director.
performance bond issued by a bank,                            [FR Doc. 95–7262 Filed 3–23–95; 8:45 am]     Other materials submitted by the CBT
insurance company or other financial                          BILLING CODE 6351–01–P
                                                                                                         in support of the applications for
institution that is acceptable to the                                                                    contract market designation may be
CANYCE. The proposed amendments                                                                          available upon request pursuant to the
specify that such bonds or letters of                         Applications of the Chicago Board of       Freedom of Information Act (5 U.S.C.
credit must be approved by a special                          Trade as a Contract Market in Futures      552) and the Commission’s regulations
Exchange committee.4 The CANYCE                               and Options on 30-Year/2-Year, 30-         thereunder (17 C.F.R. part 145 (1987)),
also is proposing amendments to certain                       Year/5-Year, 30-Year/10-Year, 10-Year/     except to the extent they are entitled to
other Exchange rules to facilitate                            2-Year, 10-Year/5-Year, and 5-Year/2-      confidential treatment as set forth in 17
implementation of the above-noted                             Year U.S. Treasury Yield Curve             C.F.R. 145.5 and 145.9. Requests for
proposed financial requirements.                              Spreads                                    copies of such materials should be made
  The CANYCE indicates that the                                                                          to the FOI, Privacy and Sunshine Act
purpose of the proposed amendments is                         AGENCY:  Commodity Futures Trading
                                                              Commission.                                Compliance Staff of the Office of the
to better protect the holders of shipping                                                                Secretariat at the Commission’s
certificates and warehouse receipts                           ACTION: Notice of availability of the
                                                              terms and conditions of proposed           headquarters in accordance with 17
against performance failure on the part
                                                              commodity futures and option               C.F.R. 145.7 and 145.8.
of a CANYCE-licensed delivery facility
and, therefore, increase the confidence                       contracts.                                   Any person interested in submitting
                                                                                                         written data, views, or arguments on the
                                                              SUMMARY:   The Chicago Board of Trade
   4 The proposed amendments also would specify                                                          proposed terms and conditions, or with
that the above-noted special committee shall consist
                                                              (CBT or Exchange) has applied for
                                                              designation as a contract market in six    respect to other materials submitted by
of a minimum of seven and a maximum of ten
members, with each member and the committee’s                 Treasury yield curve spread futures and    the CBT, should send such comments to
chairman being appointed by the CANYCE’s                      futures option contracts. The contracts    Jean A. Webb, Secretary, Commodity
President. Under the proposed amendments, the
                                                              will be based on the following yield       Futures Trading Commission, 2033 K
special committee would have authority to decide                                                         Street, NW, Washington, DC 20581 by
all matters pertaining to the financial requirements          curve spreads: 30-Year/2-Year, 30-Year/
of CANYCE-licensed delivery facilities.                       5-Year, 30-Year/10-Year, 10-Year/2-        the specified date.
15538                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

  Issued in Washington, DC, on March 17,    ADDRESSES:  1300 N. 17th Street, Suite          Dated: March 17, 1995.
1995.                                       1450, Arlington, VA 22209.
Blake Imel,
                                            FOR FURTHER INFORMATION CONTACT:
Acting Director.                                                                        Patricia L. Toppings,
                                            Dr. Lance Glassner, Director, ARPA/         Alternate OSD Federal Register Liaison
[FR Doc. 95–7263 Filed 3–23–95; 8:45 am]
                                            ESTO, 3701 N. Fairfax Drive, Arlington,     Officer, Department of Defense.
                                            VA 22203–1714; telephone: 703/696–
                                            2213.                                       DGC 04
DEPARTMENT OF DEFENSE                         Dated: March 21, 1995.
                                                                                        SYSTEM NAME:
                                            Patricia L. Toppings,
Office of the Secretary                     Alternate OSD Federal Register Liaison        Industrial Personnel Security
                                            Officer, Department of Defense.             Clearance Case Files (March 24, 1994,
Defense Science Board 1995 Summer           [FR Doc. 95–7332 Filed 3–23–95; 8:45 am]    59 FR 13941).
Study Task Force on Technology              BILLING CODE 5000–04–M
Investments for 21st Century Military
Superiority, Hostile Capabilities Team                                                  *      *     *     *     *
                                            Office of the Secretary of Defense          SYSTEM NAME:
ACTION:Notice of advisory committee
meetings.                                   Privacy Act of 1974; Addition and             Delete entry and replace with
                                            Alteration of Systems of Records            ‘Personnel Security Clearance
SUMMARY: The Defense Science Board                                                      Adjudication Files.’
1995 Summer Study Task Force on             AGENCY:   Department of Defense.
Technology Investments for 21st                                                         SYSTEM LOCATION:
Century Military Superiority, Hostile       ACTION:  Notice of an addition and             Delete entry and replace with
Capabilities Team will meet in closed       alteration of systems of records.           ‘Defense Office of Hearings and
session on April 4–5, 1995 at the                                                       Appeals, Defense Legal Services
Pentagon, Arlington, Virginia.              SUMMARY:   The Department of Defense is     Agency, Department of Defense, 4015
  The mission of the Defense Science        adding one system of records notice and     Wilson Boulevard, Suite 300, Arlington,
Board is to advise the Secretary of         altering another in its inventory of        VA 22203–1995;
Defense through the Under Secretary of      Privacy Act systems of records notices         Defense Office of Hearings and
Defense for Acquisition and Technology      subject to the Privacy Act of 1974 (5       Appeals, Defense Legal Services
on scientific and technical matters as      U.S.C. 552a), as amended.                   Agency, 6946 Van Nuys Boulevard,
they affect the perceived needs of the      DATES: These actions will be effective      Suite 124, Van Nuys, CA 91405–3935;
Department of Defense. At this meeting      April 24, 1995, unless comments are         and
the Task Force will focus on those R&D      received that would result in a contrary       Defense Office of Hearings and
investments that must be made now so        determination.                              Appeals, Defense Legal Services
as to assure a technology base in the                                                   Agency, 3990 East Broad Street,
year 2000 capable of providing U.S.         ADDRESSES:  Send comments to the OSD
                                            Privacy Act Officer, Washington             Building 306, Columbus, OH 43216–
military superiority in the 21st century.                                               5007.
  In accordance with Section 10(d) of       Headquarters Services, Correspondence
                                            and Directives Division, Records               Decentralized inactive segments are
the Federal Advisory Committee Act,                                                     held at the Washington National
P.L. No. 92–463, as amended (5 U.S.C.       Management Division, 1155 Defense
                                            Pentagon, Room 5C315, Washington, DC        Records Center, and at the U.S. Army
App. II, (1988)), it has been determined                                                Investigative Records Depository, Fort
that this DSB Task Force meeting,           20301–1155.
                                                                                        Meade, MD 20755. Automated Joint
concerns matters listed in 5 U.S.C.         FOR FURTHER INFORMATION CONTACT:      Mr.   Adjudicative Clearance System records
552b(c)(1) (1988), and that accordingly     Dan Cragg at (703) 695–0970.                are maintained on a system V5–02,
this meeting will be closed to the          SUPPLEMENTARY INFORMATION:     The Office   Defense Central Index of Investigations,
public.                                     of the Secretary of Defense systems of      at Defense Investigative Service,
  Dated: March 20, 1995.                    records notices subject to the Privacy      Personnel Investigations Center,
Patricia L. Toppings,                       Act of 1974 (5 U.S.C. 552a), as amended,    Baltimore, MD, with access by computer
Alternate OSD Federal Register Liaison      have been published in the Federal          terminals at Defense Office of Hearings
Officer, Department of Defense.             Register and are available from the         and Appeals (DOHA) locations.’
[FR Doc. 95–7222 Filed 3–23–95; 8:45 am]    address above.
                                                                                        CATEGORIES OF INDIVIDUALS COVERED BY THE
                                              The proposed new and alteration           SYSTEM:
                                            system reports, as required by 5 U.S.C.       Delete and replace entry with ‘Current
                                            552a(r) of the Privacy Act of 1974, as      and former Federal Government,
Second Meeting of the Semiconductor
                                            amended, were submitted on March 13,        contractor, state and local government
Technology Council
                                            1995, to the Committee on Government        employees and other persons whose
ACTION: Notice: Change of meeting           Operations of the House of                  security clearance or trustworthiness
location.                                   Representatives, the Committee on           cases are referred to the Defense Office
                                            Governmental Affairs of the Senate, and     of Hearings and Appeals.’
SUMMARY: ARPA published a notice on         the Office of Management and Budget         *     *     *     *     *
March 16, 1995 (60 FR 24271). There is      (OMB) pursuant to paragraph 4c of
a change of location and time of the        Appendix I to OMB Circular No. A–130,       AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
open session. In all other respects the     ‘Federal Agency Responsibilities for          Delete entry and replace with ‘10
notice is unchanged. The open session       Maintaining Records About                   U.S.C. 140; 31 U.S.C. 1535; Executive
will be held from 3:30 to 4:00 p.m.         Individuals,’ dated July 25, 1994 (59 FR    Orders 10865, as amended, 10450, as
DATES: March 28, 1995.                      37906, July 25, 1994).                      amended, 12829, and 9397.’
                          Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                           15539

PURPOSE(S):                                 Washington National Records Center          relating to cases; personnel security
   Delete entry and replace with ‘These     and then destroyed.                         questionnaires; investigative reports
records are collected and maintained to        Inactive Department of Defense case      prepared by various investigative
determine whether the granting or           files prior to 1982 are maintained at the   agencies, which may include
retention of a security clearance to or     U.S. Army Investigative Records             information obtained from interviews,
affirmative trustworthiness decision for    Repository, Ft. Meade, MD 20755.            court documents, law enforcement
an individual is clearly consistent with    Automated case tracking records and         records, business records, and other
the national interest; to record            alphabetical card index files are           sources; medical and psychiatric
adjudicative actions and                    retained as locator for active and          records and evaluations; adjudicator’s
determinations; to record processing        inactive cases and for statistical          case summaries; Defense Industrial
steps taken and processing time; to         purposes.’                                  Security Clearance Office (DISCO)
prepare statistical listings and            *      *     *    *     *                   referral recommendations;
summaries; to document due process                                                      correspondence between or concerning
                                            DGC 04                                      applicants for clearance and DOHA
actions taken; to assist authorized DoD
Consulting Psychiatrists to compile         SYSTEM NAME:                                elements, DISCO, medical facilities,
evaluations and reports; to respond to       Personnel Security Clearance               DoD Psychiatric Consultants,
inquiries from within the executive and     Adjudication Files.                         investigative agencies, Military
legislative branches when the inquiry is                                                Departments, other DoD Components
made at the request of the individual or    SYSTEM LOCATION:                            and Federal agencies, Personnel
for official purposes; to monitor and          Defense Office of Hearings and           Security Specialists, Department
control adjudicative actions and            Appeals, Defense Legal Services             Counsel, Administrative Judges, Appeal
processes.                                  Agency, Department of Defense, 4015         Board, and elements of the Office of the
   Automated case status system and         Wilson Boulevard, Suite 300, Arlington,     Secretary of Defense and Defense
card files are used to record statistics,   VA 22203–1995;                              Investigative Service; written
provide location and status and internal       Defense Office of Hearings and           interrogatories and Statements of
identification of cases, to prepare         Appeals, Defense Legal Services             Reasons (SIR) to applicants, with
listings and statistical reports and        Agency, 6946 Van Nuys Boulevard,            replies, pleadings or correspondence
summaries, and to monitor work flow         Suite 124, Van Nuys, CA 91405–3935;         filed and served on all parties,
and actions.’                               and                                         recommendations, summaries, and
                                               Defense Office of Hearings and           records of adjudicative actions;
ROUTINE USES OF RECORDS MAINTAINED IN THE   Appeals, Defense Legal Services             transcripts of hearings; exhibits
SYSTEM, INCLUDING CATEGORIES OF USERS AND   Agency, 3990 East Broad Street,             admitted into evidence; decisions of
THE PURPOSES OF SUCH USES:                  Building 306, Columbus, OH 43216–           Administrative Judges and Appeal
  Delete entry and replace with ‘In         5007.                                       Boards; and such other matter as may be
addition to those disclosures generally        Decentralized inactive segments are      included in the record.
permitted under 5 U.S.C. 552a(b) of the     held at the Washington National
                                                                                        AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
Privacy Act, these records or               Records Center, and at the U.S. Army
information contained therein may           Investigative Records Depository, Fort        10 U.S.C. 140; 31 U.S.C. 1535;
specifically be disclosed outside the       Meade, MD 20755. Automated Joint            Executive Orders 10865, as amended,
DoD as a routine use pursuant to 5          Adjudicative Clearance System records       10450, as amended, 12829, and 9397.
U.S.C. 552a(b)(3) as follows:               are maintained on a system V5–02,           PURPOSE(S):
  Case files referred by Federal            Defense Central Index of Investigations,       These records are collected and
Emergency Management Agency                 at Defense Investigative Service,           maintained to determine whether the
(FEMA) for adjudication by DOHA are         Personnel Investigations Center,            granting or retention of a security
provided to FEMA when action is             Baltimore, MD, with access by computer      clearance to or affirmative
completed, along with recommended           terminals at Defense Office of Hearings     trustworthiness decision for an
clearance decisions.                        and Appeals (DOHA) locations.               individual is clearly consistent with the
  The ‘Blanket Routine Uses’ set forth at   CATEGORIES OF INDIVIDUALS COVERED BY THE    national interest; to record adjudicative
the beginning of OSD’s compilation of       SYSTEM:                                     actions and determinations; to record
systems of records notices apply to this                                                processing steps taken and processing
                                              Current and former Federal
system.’                                                                                time; to prepare statistical listings and
                                            Government, contractor, state and local
*     *     *     *    *                    government employees and other              summaries; to document due process
                                            persons whose security clearance or         actions taken; to assist authorized DoD
                                            trustworthiness cases are referred to the   Consulting Psychiatrists to compile
   Delete entry and replace with            Defense Office of Hearings and Appeals.     evaluations and reports; to respond to
‘Completed case files are returned to                                                   inquiries from within the executive and
non-DoD agencies and are subject to         CATEGORIES OF RECORDS IN THE SYSTEM:        legislative branches when the inquiry is
records retention schedules of the            System includes automated case            made at the request of the individual or
owning agency after completion of           status records for current cases and        for official purposes; to monitor and
DOHA action. Copies of case summaries       inactive cases, an alphabetical card        control adjudicative actions and
and recommended adjudication                index file for records of cases prior to    processes.
decisions and ancillary documents for       1984 used for recording actions taken          Automated case status system and
all cases are retained for internal         and for identification and location of      card files are used to record statistics,
reference purposes by DOHA personnel.       case files within the system, and           provide location and status and internal
Industrial security and trustworthiness     individual case files.                      identification of cases, to prepare
cases are retained at DOHA for two            Case files include requests for           listings and statistical reports and
years after annual cut-offs, then are       investigation, clearance, and               summaries, and to monitor work flow
retired for twenty years at the             adjudication; general correspondence        and actions.
15540                   Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

ROUTINE USES OF RECORDS MAINTAINED IN THE   DOHA personnel are given the security         me is true, complete, and accurate to the
SYSTEM, INCLUDING CATEGORIES OF USERS AND   level on the computer system needed to        best of my knowledge and belief and
THE PURPOSES OF SUCH USES:                  amend, add, alter, change or delete           this request is made in good faith. I
  In addition to those disclosures          DOHA records. Other authorized                understand that a knowing and willful
generally permitted under 5 U.S.C.          contributors and users of the Defense         false, fictitious or fraudulent statement
552a(b) of the Privacy Act, these records   Central Index of Investigations have          or representation can be punished by
or information contained therein may        read-only access to DOHA case status          fine or imprisonment or both.’
specifically be disclosed outside the       records in the system.                        (Signature).
DoD as a routine use pursuant to 5                                                           Some records may be made available
U.S.C. 552a(b)(3) as follows:               RETENTION AND DISPOSAL:
                                                                                          for review at DOHA Headquarters, upon
  Case files referred by Federal               Completed case files are returned to       appointment made with Director.
Emergency Management Agency                 non-DoD agencies and are subject to           Individual must present picture
(FEMA) for adjudication by DOHA are         records retention schedules of the            identification, such as a valid driver’s
provided to FEMA when action is             owning agency after completion of             license.
completed, along with recommended           DOHA action. Copies of case summaries
                                            and recommended adjudication                  CONTESTING RECORD PROCEDURES:
clearance decisions.
  The ‘Blanket Routine Uses’ set forth at   decisions and ancillary documents for           The OSD’s rules for accessing records,
the beginning of OSD’s compilation of       all cases are retained for internal           for contesting contents and appealing
systems of records notices apply to this    reference purposes by DOHA personnel.         initial agency determinations are
system.                                     Industrial security and trustworthiness       published in OSD Administrative
                                            cases are retained at DOHA for two            Instruction No. 81; 32 CFR part 311; or
POLICIES AND PRACTICES FOR STORING,                                                       may be obtained from the system
                                            years after annual cut-offs, then are
                                            retired for twenty years at the               manager.
                                            Washington National Records Center            RECORD SOURCE CATEGORIES:
STORAGE:                                    and then destroyed.
  Paper records are maintained in file                                                      Information is received from
                                               Inactive Department of Defense case
folders, and on file cards; electronic                                                    investigative reports from Federal
                                            files prior to 1982 are maintained at the
records are stored on magnetic or                                                         investigative agencies; personnel
                                            U.S. Army Investigative Records
optical media; certain automated                                                          security records and correspondence;
                                            Repository, Ft. Meade, MD 20755.
records are maintained on magnetic                                                        medical and personnel records, reports
                                            Automated case tracking records and
tapes and disks at Defense Investigative                                                  and evaluations; correspondence from
                                            alphabetical card index files are
Service, Personnel Investigations                                                         contractors, employers, organizations of
                                            retained as locator for active and
Center, Baltimore, MD.                                                                    assignment and Federal agencies, DoD
                                            inactive cases and for statistical
                                                                                          organizations, agencies and offices; from
RETRIEVABILITY:                                                                           individuals, their attorneys or
  Filed alphabetically by name, or by       SYSTEM MANAGER(S) AND ADDRESS:                authorized representatives; from
case number. Access to computer data          Director, Defense Office of Hearings        witnesses at hearings or documentary
may be made by name and Social              and Appeals, PO Box 3656, Arlington,          evidence made part of the hearing
Security Number and a combination of        VA 22203–1995.                                record.
name and other personal identifying                                                       EXEMPTIONS CLAIMED FOR THE SYSTEM:
data.                                       NOTIFICATION PROCEDURE:
                                               Individuals seeking to determine             Parts of this record system may be
                                            whether information about themselves          exempt under 5 U.S.C. 552a(k)(5), as
   Records are stored in a secure area      is contained in this system should            applicable.
accessible only to DOHA authorized                                                          An exemption rule for this record
                                            address written inquiries to the Director,
personnel. Except for a small number of                                                   system has been promulgated according
                                            Defense Office of Hearings and Appeals,
records that are classified and need to                                                   to the requirements of 5 U.S.C.
                                            PO Box 3656, Arlington, VA 22203–
be safeguarded as classified materials,                                                   553(b)(1), (2), and (3), (c) and (e) and
all other records are stored, processed,                                                  published in 32 CFR part 311. For
                                               Individual should provide their full
transmitted and protected as the                                                          additional information contact the
                                            name and Social Security Number.
equivalent of For Official Use Only                                                       system manager.
information. Records are accessed by        RECORD ACCESS PROCEDURES:
the custodian of the record system and        Individuals seeking access to               DGC 17
by persons responsible for servicing the    information about themselves contained        SYSTEM NAME:
system, who are properly screened and       in this system of records should address        Hearings and Appeals Case Files.
have a need-to-know. Computer               written requests to the Director, Defense
hardware is located in controlled areas     Office of Hearings and Appeals, PO Box        SYSTEM LOCATION:
with access limited to authorized           3656, Arlington, VA 22203–1995.                 Defense Office of Hearings and
personnel. Computer access is via             Individuals should provide their full       Appeals, Defense Legal Services
dedicated data circuits with password       name, and any former names used, date         Agency, Department of Defense, 4015
control. Individual passwords are           and place of birth, Social Security           Wilson Boulevard, Suite 300, Arlington,
changed periodically and upon               Number.                                       VA 22203–1995;
departure of personnel. The dedicated         Requests must be signed and                   Defense Office of Hearings and
data feature prevents access from           notarized or, if the individual does not      Appeals, Defense Legal Services
standard dial-up telephones. Automated      have access to notary services, preceded      Agency, 6946 Van Nuys Boulevard,
systems are operated by DOHA and by         by a signed and dated declaration             Suite 124, Van Nuys, CA 91405–3935;
the Defense Investigative Service,          verifying the identity of the requester, in   and
Personnel Investigations Center,            substantially the following form: ‘I            Defense Office of Hearings and
Information Systems Division. Only          certify that the information provided by      Appeals, Defense Legal Services
                       Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                                   15541

Agency, 3990 East Broad Street,               officer’s written decision; including the    RETRIEVABILITY:
Building 306, Columbus, OH 43216–             administrative record on appeal,               Filed alphabetically by beneficiary,
5007.                                         pleadings, written submissions or            provider, child’s or sponsor’s name,
                                              correspondence properly filed and            Social Security Number, or by case
                                              served on all parties, rulings or orders     number. Access to computer data may
                                              issued by the appeal board, and the          be made by name, Social Security
  (1) Beneficiaries and providers under       appeal board’s written decision.             Number, or a combination of other
the Civilian Health and Medical                                                            personal identifying data.
Program of the Uniformed Services                Common to both categories,
(CHAMPUS) that have unresolved                automated case status records for            SAFEGUARDS:
disputes with the Office of CHAMPUS           current cases and inactive cases are
                                                                                              Records are stored in a secure area
(OCHAMPUS);                                   used to provide location and status and
                                                                                           accessible only to DOHA authorized
  (2) Students in the Department of           internal identification of cases, to
                                                                                           personnel. All records are stored,
Defense Dependent Schools (DoDDS)             prepare listings and internal statistical
                                                                                           processed, transmitted and protected as
overseas and Section 6 schools and their      reports, and to monitor workflow and
                                                                                           the equivalent of For Official Use Only
sponsors.                                     case handling actions.
                                                                                           information. Records are accessed by
CATEGORIES OF RECORDS IN THE SYSTEM:          AUTHORITY FOR MAINTENANCE OF THE SYSTEM:     the custodian of the record system and
                                                                                           by persons responsible for using or
   CHAMPUS-related categories include:          10 U.S.C. 140 and E.O. 9397.               servicing the system, who are properly
Appointment memoranda and                                                                  screened and have a need-to-know.
transmittal correspondence; case files;       PURPOSE(S):
                                                                                           Computer hardware is located in
petitions and answers to petitions;              Records are collected and maintained      controlled areas with access limited to
exhibits admitted into evidence; written      to support claims resolution and             authorized personnel. Computer access
transcripts or electronic records of          impartial due process hearings/and or        is via dedicated data circuits with
hearings; pleadings or correspondence         ancillary proceedings to parties             password control. Individual passwords
properly filed and served on all parties;     requesting them and to provide               are changed periodically and upon
claims and all other pertinent materials      decisions to those parties involved in       departure of personnel. The dedicated
relating to a claim; billings, applications   the hearings; to record processing steps     data feature prevents access from
or approval forms; medical records,           taken and processing time; to prepare        standard dial-up telephones.
family history files; such other matter as    statistical listings and summaries; to
the hearing officer may include in the        document due process actions taken; to       RETENTION AND DISPOSAL:
record, rulings or orders issued by the       respond to inquiries from offices within        Along with decisions and other
hearing office, and the hearing officer’s     the executive and legislative branches       materials developed during DOHA
written decision.                             when the inquiry is made at the request      processing of cases, the original case
   Education-related categories include:      of the individual, or for official           files, tapes, exhibit files, and associated
Records pertaining to students attending      purposes; to monitor and control             documentation are returned to
DoD-operated dependent schools in case        adjudicative actions and processes.          OCHAMPUS and the DoD Education
files pertaining to hearings and appeals         The automated case tracking system is     Activity and are subject to records
conducted pursuant to appendix C to 32        used to record statistics, provide           retention schedules of the owning
CFR part 80, Special Education Children       location and status and internal             agency after completion of DOHA
with Disabilities Within the Section 6        identification of cases, to prepare          action. Copies of decisions and audio
School Arrangements; 32 CFR part 57,          listings and internal statistical reports,   tapes are destroyed when no longer
Education of Handicapped Children in          and to monitor work flow and case            needed for reference purposes but not
DoD Dependent Schools; or 32 CFR part         handling actions.                            later than 6 years after rendering a
56, Nondiscrimination on the basis of                                                      decision.
Handicap in Programs and Activities           ROUTINE USES OF RECORDS MAINTAINED IN THE
                                                                                           SYSTEM MANAGER(S) AND ADDRESS:
Assisted or conducted by the                  SYSTEM, INCLUDING CATEGORIES OF USERS AND
Department of Defense, to afford              THE PURPOSES OF SUCH USES:                     Director, Defense Office of Hearings
impartial due process hearings and                                                         and Appeals, PO Box 3656, Arlington,
                                                In addition to those disclosures           VA 22203–1995.
administrative appeals on the early           generally permitted under 5 U.S.C.
intervention services or identification,      552a(b) of the Privacy Act, these records    NOTIFICATION PROCEDURE:
evaluation, and educational placement         or information contained therein may            Individuals seeking to determine
of, and free appropriate public               specifically be disclosed outside the        whether information about themselves
education provided to a disabled child;       DoD as a routine use pursuant to 5           is contained in this system should
documents associated with such                U.S.C. 552a(b)(3) as follows:                address written inquiries to the Director,
hearing, including: Appointment                                                            Defense Office of Hearings and Appeals,
                                                The ‘Blanket Routine Uses’ set forth at
memoranda and transmittal                                                                  PO Box 3656, Arlington, VA 22203–
                                              the beginning of OSD’s compilation of
correspondence; petitions and answers                                                      1995.
                                              systems of records notices apply to this
to petitions, the written transcript or the
electronic record of the hearing, exhibits                                                 RECORD ACCESS PROCEDURES:
admitted into evidence; pleadings,            POLICIES AND PRACTICES FOR STORING,            Individuals seeking access to
written submissions or correspondence         RETRIEVING, ACCESSING, RETAINING, AND        information about themselves contained
properly filed and served on all parties,     DISPOSING OF RECORDS IN THE SYSTEM:          in this system of records should address
such other matter as the hearing officer                                                   written inquiries to the Director,
may include in the record, rulings or                                                      Defense Office of Hearings and Appeals,
orders issued by the hearing office, the        Paper records are maintained in file       PO Box 3656, Arlington, VA 22203–
hearing officer’s written decision;           folders, and on file cards; electronic       1995.
documents associated with                     records are stored on magnetic or              Individual should provide full name
administrative appeals from the hearing       optical media.                               and any former names used, date and
15542                    Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

place of birth, and Social Security           Department of the Army                     ACTION:   Notice of availability.
   Some records may be made available         Office of the Secretary; Draft             SUMMARY:    In accordance with Public
for review at DOHA Headquarters upon          Environmental Impact Statement for         Law 100–526, the Defense Base Closure
appointment made with the Director.           Disposal and Reuse of Army Materials       and Realignment Act of 1988, the
Individual must be able to provide            Technology Laboratory, Watertown,          Defense Base Closure and Realignment
picture identification or a valid driver’s    MA                                         Commission recommended the closure
license.                                                                                 of Jefferson Proving Ground and transfer
                                              AGENCY:  Department of Defense, United
   Requests must be signed and                                                           of missions to Yuma Proving Ground,
                                              States Army.
notarized or, if the individual does not                                                 Arizona. This recommendation became
                                              ACTION: Notice of availability.
have access to notary services, preceded                                                 law on January 5, 1989. Subject
by a signed and dated declaration             SUMMARY:   In accordance with Public       document focuses on the environmental
verifying the identity of the requester, in   Law 100–526, the Defense Base Closure      impacts associated with the disposal
substantially the following form: ‘I          and Realignment Act of 1988, the           and reuse of Jefferson Proving Ground.
certify that the information provided by      Defense Base Closure and Realignment          There would be no significant impacts
me is true, complete, and accurate to the     Commission recommended the closure         in connection with any of the three
best of my knowledge and belief and           of Army Materials Technology               disposal alternatives. High intensity
this request is made in good faith. I         Laboratory and transfer of laboratory      reuse of Study Areas 2 through 6, 8, and
understand that a knowing and willful         missions to Aberdeen, Maryland, and        10 would result in long term significant
false, fictitious or fraudulent statement     Hampton, Virginia. This                    direct adverse impacts on land use.
or representation can be punished by          recommendation became law January 5,       High intensity reuse of Study Areas 2
fine or imprisonment or both.                 1989. Subject document focuses on the      through 8, 10, and 12 would result in
(Signature).’                                 environmental impacts and mitigations      long term significant direct adverse
                                              associated with the disposal and reuse     impacts on utilities and solid waste and
                                              of Army Materials Technology               biological resources.
  The OSD’s rules for accessing records,      Laboratory.                                   Medium intensity reuse of Study
for contesting contents and appealing            There would be no significant impacts   Areas 3 through 6, 8, and 10 would
initial agency determinations are             in connection with any of the disposal     result in long term significant direct
published in OSD Administrative               alternatives or reuse scenarios. The       adverse impacts on utilities and solid
Instruction No. 81; 32 CFR part 311; or       proposed action of disposal would not      waste. Medium intensity reuse of Study
may be obtained from the system               contribute to significant cumulative       Area 7 would result in long term
manager.                                      impacts.                                   significant direct adverse impacts on
                                                 A scoping meeting was held in           pubic health and safety. High intensity
                                              Watertown, on February 4, 1993. Public     reuse of Study Areas 3 through 6, 8, and
  For OCHAMPUS Cases: Case files              notices requesting input and comments      10 would result in long term significant
referred by OCHAMPUS to DOHA                  from the public were issued in the         indirect adverse impacts on land use.
Administrative Judges; correspondence         regional area surrounding the              The proposed action of disposal would
and supplementary material from               laboratory.                                not contribute to significant cumulative
DOHA to the parties in connection with        DATES: Written public comments and         impacts.
the handling of the case;                     suggestions received within 45 days of
correspondence, pleadings, written                                                          A scoping meeting was held in
                                              this Notice of Availability will be        Madison, Indiana on February 11, 1993.
submissions and evidence associated           addressed in the Final Environmental
with hearings from parties to such                                                       Public notices requesting input and
                                              Impact Statement.                          comments from the public were issued
proceedings; DoD correspondence
                                              ADDRESSES: Copies of the Draft             in the regional area surrounding
associated with receipt and transmittal
                                              Environmental Impact Statement can be      Jefferson Proving Ground.
of case files.
                                              obtained by writing to the United States
  For DoD Education Activity Cases:                                                      DATES: Written public comments and
                                              Army Materiel Command, Attn: Mr.
Case files assigned to DOHA                                                              suggestions received within 45 days of
                                              James Davidson, 5001 Eisenhower
Administrative Judges for hearing and/                                                   this Notice of Availability will be
                                              Avenue, Alexandria, Virginia 22333–
or administrative appeals;                                                               addressed in the Final Environmental
correspondence and supplementary                                                         Impact Statement.
                                              FOR FURTHER INFORMATION CONTACT: Mr.
material from DOHA to the parties in                                                     ADDRESSES:  Copies of the Draft
connection with the handling of the           Paul Wilbur, (703) 847–4000.
                                                                                         Environmental Impact Statement can be
case; correspondence, pleadings, written        Dated: March 20, 1995.
                                                                                         obtained by writing to the United States
submissions and evidence associated           Lewis D. Walker,
                                                                                         Army Materiel Command, Attn: Mr.
with hearings or appeals from parties to      Deputy Assistant Secretary of the Army     James Davidson, 5001 Eisenhower
such proceedings; rulings, orders, and        (Environment, Safety and Occupational
                                                                                         Avenue, Alexandria, Virginia 22333–
written decisions from hearing officers       Health) OASA (IL&E).
or appeal board; correspondence from          [FR Doc. 95–7330 Filed 3–23–95; 8:45 am]
individuals, their attorneys, or              BILLING CODE 3710–08–M
                                                                                         FOR FURTHER INFORMATION CONTACT:
authorized representatives; and DoD                                                      Mr. Paul Wilbur, (703) 847–4000.
correspondence associated with receipt                                                     Dated: March 20, 1995.
and transmittal of case files.                Office of the Secretary; Draft             Lewis D. Walker,
                                              Environmental Impact Statement for
EXEMPTIONS CLAIMED FOR THE SYSTEM:                                                       Deputy Assistant Secretary of the Army
                                              Disposal and Reuse of Jefferson            (Environment, Safety and Occupational
  None.                                       Proving Ground, IN                         Health), OASA (IL&E).
[FR Doc. 95–7224 Filed 3–23–95; 8:45 am]      AGENCY:  Department of Defense, United     [FR Doc. 95–7329 Filed 3–23–95; 8:45 am]
BILLING CODE 5000–04–F                        States Army.                               BILLING CODE 3710–08–M
                       Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                                  15543

Defense Logistics Agency                      SUPPLEMENTARY INFORMATION:     Pursuant       Dated: March 17, 1995.
                                              to subsection (o) of the Privacy Act of
Privacy Act of 1974; Computer                 1974, as amended, (5 U.S.C. 552a), the      Patricia L. Toppings,
Matching Program Between the Armed            DMDC and AFRH have concluded an             Alternate OSD Federal Register Liaison
Forces Retirement Home and the                agreement to conduct a computer             Officer, Department of Defense.
Defense Manpower Data Center of the           matching program between the agencies.
Department of Defense                         The purpose of the match is to exchange     Notice of a Computer Matching
                                              personal data between the agencies for      Program Between the Armed Forces
AGENCY:  Defense Manpower Data                                                            Retirement Home and the Department
Center, Defense Logistics Agency,             verification of Federal payments to
                                                                                          of Defense for Verification of Federal
Department of Defense.                        residents. The match will yield the
                                                                                          Payments to Residents
ACTION: Notice of a computer matching         benefit information on the residents so
program between the Armed Forces              that AFRH can accurately and fairly           A. Participating agencies:
Retirement Home (AFRH) and the                determine and fix the individual fees       Participants in this computer matching
Department of Defense (DoD) for public        from time to time as required by law.       program are the Armed Forces
comment.                                      Computer matching appeared to be the        Retirement Home (AFRH) and the
                                              most efficient and effective manner to      Defense Manpower Data Center (DMDC)
SUMMARY: Subsection (e)(12) of the            accomplish this task with the least         of the Department of Defense (DoD). The
Privacy Act of 1974, as amended, (5           amount of intrusion of personal privacy     AFRH is the source agency, i.e., the
U.S.C. 552a) requires agencies to             of the individuals concerned. It was        activity disclosing the records for the
publish advance notice of any proposed        therefore concluded and agreed upon         purpose of the match. The DMDC is the
or revised computer matching program          that computer matching would be the         specific recipient activity or matching
by the matching agency for public             best and least obtrusive manner and         agency, i.e., the agency that actually
comment. The DoD, as the matching
                                              choice for accomplishing this               performs the computer matching.
agency under the Privacy Act is hereby
                                              requirement.                                  B. Purpose of the match: Upon the
giving public notice of a computer
matching program between AFRH and                                                         execution of this agreement, the
DoD that certain records are being                                                        conditions will be established under
                                                A copy of the computer matching
matched by computer. The record                                                           which the DoD, VA and OPM agree to
                                              agreement between AFRH and DMDC is
subjects are AFRH resident whose                                                          a computer matching program for the
                                              available upon request to the public.       disclosure of military retired or retainer
average age is 70 years, and many have        Requests should be submitted to the
physical or mental impairments; thus, it                                                  pay, civil service annuity, and
                                              address caption above or to the Budget      compensation or pension from the VA
has been found that requested income
                                              Officer, Management Information             for the residents of the AFRH, which
information submitted by residents are
not reliable, or is difficult or impossible   Systems, Armed Forces Retirement            includes the United States Soldiers’ and
to acquire. A computer match will             Home, 3700 North Capitol Street, NW,        Airmen’s Home (USSAH) and the
provide accurate benefit information on       Washington, DC 20317–0002.                  United States Naval Home (USNH). This
the residents. This is a pilot project and    Telephone (202) 722–3216.                   disclosure will provide the AFRH with
no figures are available at this time. No                                                 information necessary to verify the
cost-benefit analysis has been                                                            payment information currently provided
                                                Set forth below is the notice of the      by residents for the computation of their
accomplished for this match and a
                                              establishment of a computer matching        monthly fee, and identify any
waiver of the analysis was granted by
the respective agency Data Integrity          program required by paragraph 6.c. of       unreported benefit payments received
Boards. By actually conducting a              the Office of Management and Budget         by residents.
verification of Federal payments to           Guidelines on computer matching
                                                                                            C. Authority for conducting the
residents, the AFRH can accurately and        published in the Federal Register at 54
                                                                                          match: The legal authority for
fairly determine and fix the individual       FR 25818 on June 19, 1989.
                                                                                          conducting the matching program is
fees from time to time as required by                                                     contained in the Armed Forces
law.                                                                                      Retirement Home Act of 1991, Pub. L.
                                                The matching agreement, as required
DATES: This proposed action will              by 5 U.S.C. 552a(r) of the Privacy Act,     101–510, 24 U.S.C. 401–441. The law
become effective April 24, 1995, and the      and an advance copy of this notice was      also incorporated the U.S. Naval Home
computer matching will proceed                                                            and the U.S. Soldiers’ and Airmen’s
                                              submitted on March 10, 1995, to the
accordingly without further notice,                                                       Home into a single independent
                                              Committee on Government Operations
unless comments are received which                                                        establishment in the Executive branch
                                              of the House of Representatives, the
would result in a contrary                                                                of the Federal government as the Armed
                                              Committee on Governmental Affairs of        Forces Retirement Home.
determination or if the Office of
Management and Budget or Congress             the Senate, and the Administrator of the
                                              Office of Information and Regulatory           D. Records to be matched: The
objects thereto. Any public comment                                                       systems of records maintained by the
must be received before the effective         Affairs, Office of Management and
                                              Budget pursuant to paragraph 4d of          respective agencies under the Privacy
date.                                                                                     Act of 1974, as amended, 5 U.S.C. 552a,
                                              Appendix I to OMB Circular No. A–130,
ADDRESSES: Any interested party may                                                       from which records will be disclosed for
                                              ‘Federal Agency Responsibilities for
submit written comments to the                                                            the purpose of this computer match are
Director, Defense Privacy Office, Crystal     Maintaining Records about Individuals,’
                                                                                          as follows:
Mall 4, Room 920, 1941 Jefferson Davis        dated July 15, 1994 (59 FR 37906, July
                                              25, 1994). The matching program is             The AFRH will use personal data
Highway, Arlington, VA 22202–4502.                                                        from the Privacy Act record system
                                              subject to review by OMB and Congress
FOR FURTHER INFORMATION CONTACT: Mr.                                                      identified as AFRH–1, entitled ‘Armed
                                              and shall not become effective until that
Aurelio Nepa, Jr. at telephone (703)                                                      Forces Retirement Home Resident Fee
                                              review period has elapsed.
607–2943.                                                                                 Maintenance System’ last published in
15544                 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

the Federal Register at 58 FR 68629 on      program is subject to review by the        Office Building 3, Washington, DC
December 28, 1993.                          Office of Management and Budget and        20202–4651.
   DMDC will use personal data from the     Congress. If no objections are raised by   FOR FURTHER INFORMATION CONTACT:
record system identified as S322.10         either, and the mandatory 30 day public    Patrick J. Sherrill (202) 708–9915.
DMDC, entitled ‘Defense Manpower            notice period for comment has expired      Individuals who use a
Data Center Data Base,’ last published in   for this Federal Register notice with no   telecommunications device for the deaf
the Federal Register at 59 FR 55462 on      significant adverse public comments in     (TDD) may call the Federal Information
November 7, 1994.                           receipt resulting in a contrary            Relay Service (FIRS) at 1–800–877–8339
   Agencies must publish routine uses       determination, then this computer          between 8 a.m. and 8 p.m., Eastern time,
pursuant to subsection (b)(3) of the        matching program becomes effective         Monday through Friday.
Privacy Act for those systems of records    and the respective agencies may begin      SUPPLEMENTARY INFORMATION: Section
from which they intend to disclose this     the exchange of data 30 days after the     3517 of the Paperwork Reduction Act of
information. Otherwise they must            date of this published notice at a         1980 (44 U.S.C. Chapter 35) requires
obtain the written consent of the record    mutually agreeable time and will be        that the Office of Management and
subjects to disclose outside the agency.    repeated annually. Under no                Budget (OMB) provide interested
Moreover, the routine use, with respect     circumstances shall the matching           Federal agencies and the public an early
to the disclosure of a record, must be      program be implemented before the 30       opportunity to comment on information
compatible with the purpose for which       day public notice period for comment       collection requests. OMB may amend or
it was collected.                           has elapsed as this time period cannot     waive the requirement for public
   E. Description of computer matching      be waived. By agreement between AFRH       consultation to the extent that public
program: The AFRH, as the source            and DMDC, the matching program will        participation in the approval process
agency, will provide DMDC with a            be in effect and continue for 18 months    would defeat the purpose of the
magnetic computer tape which contains       with an option to renew for 12             information collection, violate State or
the name, SSN and date of birth of each     additional months unless one of the        Federal law, or substantially interfere
resident. Upon receipt of the computer      parties to the agreement advises the       with any agency’s ability to perform its
tape file of residents, DMDC will           other by written request to terminate or   statutory obligations. The Director of the
perform a computer match using all          modify the agreement.                      Information Resources Group, publishes
nine digits of the SSN of the AFRH file        G. Address for receipt of public        this notice containing proposed
against a DMDC computer database of         comments or inquiries: Director,           information collection requests prior to
personnel/employment/pay records of         Defense Privacy Office, Crystal Mall 4,    submission of these requests to OMB.
all uniformed services officers and         Room 920, 1941 Jefferson Davis             Each proposed information collection,
enlisted personnel who served on active     Highway, Arlington, VA 22202–4502.         grouped by office, contains the
duty or retired, including individuals      Telephone (703) 607–2943.                  following: (1) Type of review requested,
receiving any Federal compensation,         [FR Doc. 95–7223 Filed 3–23–95; 8:45 am]   e.g., new, revision, extension, existing
pension or annuity from the VA or                                                      or reinstatement; (2) Title; (3) Frequency
                                            BILLING CODE 5000–04–F
OPM. Matching records (hits) based on                                                  of collection; (4) The affected public; (5)
the SSN, will produce the member’s                                                     Reporting burden; and/or (6)
military retired or retainer pay, civil                                                Recordkeeping burden; and (7) Abstract.
service annuity and VA compensation         DEPARTMENT OF EDUCATION                    OMB invites public comment at the
and pension. The match results will be                                                 address specified above. Copies of the
furnished to AFRH. AFRH is                  Notice of Proposed Information             requests are available from Patrick J.
responsible for verifying and               Collection Requests                        Sherrill at the address specified above.
determining that the data on the DMDC                                                    Dated: March 20, 1995.
reply tape file are consistent with         AGENCY:  Department of Education.
                                                                                       Gloria Parker,
AFRH’s source file and for resolving any    ACTION: Notice of proposed information
discrepancies or inconsistencies on an      collection requests.                       Director, Information Resources Group.
individual basis. AFRH will also be                                                    Office of Postsecondary Education
responsible for making final                SUMMARY:  The Director, Information
determinations as to positive               Resources Group, invites comments on       Type of Review: Extension.
identification and the amount of Federal    the proposed information collection        Title: Lender’s Interest and Special
payment received by the resident as a       requests as required by the Paperwork        Allowance Request.
result of the match.                        Reduction Act of 1980.                     Frequency: Quarterly.
   The AFRH will provide a magnetic         DATES: Interested persons are invited to
                                                                                       Affected Public: Business or other for-
computer tape in a format defined by        submit comments on or before April 24,       profit; State, Local or Tribal
DMDC on a semiannual basis. This file       1995.                                        Government.
                                                                                       Reporting Burden:
will contain the name and SSN of            ADDRESSES: Written comments should           Responses: 10,544.
approximately 2,700 residents whose         be addressed to the Office of                Burden Hours: 102,804.
records DMDC will verify.                   Information and Regulatory Affairs,        Recordkeeping Burden:
   The DMDC computer database file          Attention: Dan Chenok: Desk Officer,         Recordkeepers: 0.
contains approximately 10 million           Department of Education, Office of           Burden Hours: 0.
records of active duty and retired          Management and Budget, 725 17th            Abstract: The Lender’s Interest and
military members, including the Reserve     Street, NW., Room 3208, New Executive        Special Allowance Request and
and Guard; the VA compensation and          Office Building, Washington, DC 20503.       Report (ED Form 799) is used by
pension records on military retirees; and   Requests for copies of the proposed          approximately 9,000 lenders
the OPM compensation and annuity            information collection requests should       participating in the Title IV, Part B
records on military retirees.               be addressed to Patrick J. Sherrill,         loan programs. The ED Form 799 is
   F. Inclusive dates of the matching       Department of Education, 400 Maryland        used to pay interest and special
program: This computer matching             Avenue, SW., Room 5624, Regional             allowance to holders of the Part B
                         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                                15545

  loans; and to capture quarterly data       this request to OMB. This notice                Deadline for Intergovernmental
  from a lender’s loan portfolio for         contains the following information: (1)       Review: July 24, 1995.
  financial and budgetary projections.       Type of review requested, e.g.,                 Applications Available: March 24,
                                             expedited; (2) Title; (3) Abstract; (4)       1995.
[FR Doc. 95–7280 Filed 3–23–95; 8:45 am]
                                             Additional Information; (5) Frequency           Available Funds: $1,000,000.
BILLING CODE 4000–01–M                                                                       Estimated Range of Wards: $60,000–
                                             of collection; (6) Affected public; and (7)
                                             Reporting and/or Recordkeeping                $90,000 for two years.
                                             burden. Because an expedited review is          Estimated Average size of Awards:
Notice of Proposed Information                                                             $85,000 for two years.
Collection Requests                          requested, a description of the
                                             information to be collected is also             Estimated Number of Awards: 12.
AGENCY:  Department of Education.            included as an attachment to this notice.       Note: The Department is not bound by any
ACTION:  Notice of proposed information                                                    estimates in this notice.
                                               Dated: March 20, 1995.
collection requests.                         Gloria Parker,                                  Project Period: Up to 24 months.
                                                                                             Applicable Regulations: (a) The
SUMMARY: The Director, Information           Director, Information Resources Group.
                                                                                           Education Department General
Resources Group, invites comments on                                                       Administrative Regulations (EDGAR) in
proposed information collection              Office of Elementary and Secondary
                                             Education                                     34 CFR Parts 74, 75, 77, 79, 80, 82, 85,
requests as required by the Paperwork                                                      and 86; and (b) The regulations for this
Reduction Act of 1980.                       Type of Review: Expedited.                    program in 34 CFR Part 630, with the
DATES: An expedited review has been          Title: Urban/Rural Local Reform               exception noted in 34 CFR 630.4a(2).
requested in accordance with the Act,          Initiative.
since allowing for the normal review         Frequency: Annually.                          Priorities
period would adversely affect the public     Affected Public: State, Local or Tribal       Absolute Priority
interest. Approval by the Office of            Governments.
                                                                                             Under 34 CFR 75.105(c)(3), 34 CFR
Management and Budget (OMB) has              Reporting Burden:
                                                                                           630.12 and 34 CFR 630.11(a), the
been requested by March 24, 1995.              Responses: 100.
                                                                                           Secretary gives an absolute preference to
ADDRESSES: Written comments should             Burden Hours: 5,000.                        applications that meet the following
be addressed to the Office of                Recordkeeping Burden:                         priority. The Secretary funds under this
Information and Regulatory Affairs,            Recordkeepers: 0.                           competition only applications that meet
Attention: Dan Chenok, Desk Officer,           Burden Hours: 0.                            this absolute priority:
Department of Education, Office of           Abstract: The Secretary requests                Projects that respond to immediate
Management and Budget, 725 17th                applications for local reform grants to     problems or issues and that seek to
Street NW., Room 3208, New Executive           be awarded under the National               improve postsecondary education
Office Building, Washington, DC 20503.         Leadership provisions of the Goals          opportunities.
Requests for copies of the proposed            2000: Education America Act. The
information collection request should be       Department will use the information         Invitational Priorities
addressed to Patrick J. Sherrill,              to determine which applicants are              Under 34 CFR 75.105(c)(1) and 34
Department of Education, 400 Maryland          best qualified to receive Federal funds     CFR 630.11(b)(1), the Secretary is
Avenue, SW., Room 5624, Regional               under the law.                              particularly interested in applications
Office Building 3, Washington, DC            Additional Information: Clearance for         that meet the following invitational
20202–4651.                                    this information collection is              priority. However, an application that
FOR FURTHER INFORMATION CONTACT:               requested for March 24, 1995. An            meets this invitational priority does not
Patrick J. Sherrill, (202) 708–9915.           expedited review is requested in order      receive competitive or absolute
Individuals who use a                          to quickly distribute the application       preference over other applications.
telecommunications device for the deaf         notice to potential applicants.                Institutions with innovative
(TDD) may call the Federal Information                                                     postsecondary projects that became
                                             [FR Doc. 95–7281 Filed 3–23–95; 8:45 am]
Relay Service (FIRS) at 1–800–877–8339                                                     integrated into the administrative
                                             BILLING CODE 4000–01–M
between 8 a.m. and 8 p.m. Eastern time,                                                    structure of the institution between
Monday through Friday.                                                                     1988 and 1994 and that are expected to
                                             [CFDA No. 84.116P]                            continue into the foreseeable future, are
                                                                                           invited to apply for funds to
3517 of the Paperwork Reduction Act of
                                             Fund for Improvement of                       disseminate their practices to other
1980 (44 U.S.C. Chapter 3517) requires
                                             Postsecondary Education Special               campuses.
that the Director of OMB provide
                                             Focus Competition: Disseminating
interested Federal agencies and persons                                                    Selection Criteria
                                             Proven Reforms; Notice Inviting
an early opportunity to comment on                                                           In evaluating applications for grants
                                             Applications for New Awards for Fiscal
information collection requests. OMB                                                       under this program competition, the
                                             Year (FY) 1995
may amend or waive the requirement                                                         Secretary uses the following selection
for public consultation to the extent that     Purpose of Program: To provide              criteria chosen from those listed in 34
public participation in the approval         grants or enter into cooperative              CFR 630.32:
process would defeat the purpose of the      agreements to improve postsecondary             (a) Significance for Postsecondary
information collection, violate State or     education opportunities.                      Education. The Secretary reviews each
Federal law, or substantially interfere        Eligible Applicants: Institutions of        proposed project for its significance in
with any agency’s ability to perform its     higher education or combinations of           improving postsecondary education by
statutory obligations.                       such institutions and other public and        determining the extent to which it
   The Director, Information Resources       private nonprofit educational                 would—
Group, publishes this notice with the        institutions and agencies.                      (1) Achieve the purposes of the
attached proposed information                  Deadline for Transmittal of                 particular program competition as
collection request prior to submission of    Applications: May 25, 1995.                   referenced in 34 CFR 630.11;
15546                 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

  (2) Address the program priorities for    each of these criteria, the Secretary gives a pre-proposal conference to discuss a
the particular program competition;         equal weight to each of the subcriteria     draft of the proposed statement of work
  (3) Address an important problem or       listed above. In applying the criteria, the to guide the activities of the regional
need;                                       Secretary first analyzes a preapplication   educational laboratories during the
  (4) Represent an improvement upon,        or application in terms of each             1995–2000 contract period. At this time
or important departure from, existing       individual criterion and subscription.      the Office of Educational Research and
practice;                                   The Secretary then bases the final          Improvement wishes to offer both
  (5) Involve learner-centered              judgment of an application on an overall    potential sources and parties interested
improvements;                               assessment of the degree to which the       in the work of the regional educational
  (6) Achieve far-reaching impact           applicant addresses all selection           laboratories an opportunity to review a
through improvements that will be           criteria.                                   draft of the proposed statement of work
useful in a variety of ways and in a                                                    and to attend a meeting to discuss the
variety of settings; and                    For Applications or Information
                                                                                        content of that statement of work prior
  (7) Increase the cost-effectiveness of    Contact
                                                                                        to issuance of a Request for Proposal.
services.                                      Fund for the Improvement of              MEETING INFORMATION: The conference
  (b) Feasibility. The Secretary reviews    Postsecondary Education (FIPSE), U.S.       will be held on April 12, 1995, from 9
each proposed project for its feasibility   Department of Education, 600                a.m. to 12 noon in the auditorium of the
by determining the extent to which—         Independence Avenue, SW., Room              General Services Administration
  (1) The proposed project represents an    3100, ROB–3, Washington, DC 20202–          Regional Office Building, Seventh and D
appropriate response to the problem or      5175. Telephone: (202) 708–5750             Streets SW., Washington DC (entrance
need addressed;                             between the hours of 8 a.m. and 5 p.m.,     on the D Street side). Persons unable to
  (2) The applicant is capable of           Eastern time, Monday through Friday, to attend the conference who wish to
carrying out the proposed project, as       order applications or for information.      provide comments on the draft
evidenced by, for example—                  Individuals may request applications by statement of work may submit those
  (i) The applicant’s understanding of      submitting their name and postal            comments by telefax or mail no later
the problem or need;                        mailing address to the e-mail address       than April 26 to the contact listed
  (ii) The quality of the project design,   #FIPSE@ED GOV. Individuals who use a below.
including objectives, approaches, and       telecommunications device for the deaf      SUPPLEMENTARY INFORMATION: On March
evaluation plan;                            (TDD) may call the Federal Information
  (iii) The adequacy of resources,                                                      31, 1994 President Clinton signed Pub.
                                            Relay Service (FIRS) at 1–800–877–8339 L. 103–227, Goals 2000: Educate
including money, personnel, facilities,     between 8 a.m. and 8 p.m., Eastern time, America Act. Title IX of that legislation,
equipment, and supplies;                    Monday through Friday.
  (iv) The qualifications of key                                                        known as the Educational Research,
                                               Information about the Department’s
personnel who would conduct the                                                         Development, Dissemination, and
                                            funding opportunities, including copies
project; and                                                                            Improvement Act of 1994, includes new
                                            of application notices for discretionary
  (v) The applicant’s relevant prior                                                    authorizing legislation for the Regional
                                            grant competitions, can be viewed on
experience;                                                                             Educational Laboratory program which
                                            the Department’s electronic bulletin
  (3) The applicant and any other                                                       will be implemented through the
                                            board (ED Board), telephone (202) 260–
participating organizations are                                                         recompetition of the regional
                                            9950; or on the Internet Gopher Server
committed to the success of the                                                         educational laboratories. The laboratory
                                            at GOPHER.ED.GOV (under
proposed project, as evidence by, for                                                   competition will be announced later
                                            Announcements, Bulletins, and Press
example—                                                                                this fiscal year, with awards to be made
                                            Releases). However, the official
  (i) Contribution of resources by the                                                  in fiscal year 1996.
                                            application notice for a discretionary
applicant and by participating              grant competition is the notice             FOR FURTHER INFORMATION CONTACT:
organizations;                              published in the Federal Register.          Laverne Reddick, U.S. Department of
  (ii) Their prior work in the area; and                                                Education, Grants and Contracts
                                               Program Authority: 20 U.S.C. 1135–1135a– Service, 7th and D Streets SW., GSA
  (iii) The potential for continuation of
the proposed project beyond the period                                                  Building, ROB–3, Room 3660,
                                               Dated: March 20, 1995.                   Washington, DC 20202–4724.
of funding (unless the project would be
self-terminating); and                      David A. Longanecker,                       Telephone: (202) 708–8222. Individuals
  (4) The proposed project demonstrates     Assistant Secretary for Postsecondary       who use a telecommunications device
potential for dissemination to or           Education.                                  for the deaf (TDD) may call the Federal
adaptation by other organizations, and      [FR Doc. 95–7415 Filed 3–23–95; 8:45 am]    Information Relay Service (FIRS) at 1–
shows evidence of interest by potential     BILLING CODE 4000–01–M                      800–877–8339 between 8 a.m. and 8
users.                                                                                  p.m., Eastern time, Monday through
  (c) Appropriateness of funding                                                        Friday.
projects. The Secretary reviews each        Office of Educational Research and             The draft document is available on
application to determine whether            Improvement (OERI); Presolicitation         bulletin board at (202) 260–9950 which
support of the proposed project by the      Conference on Draft Statement of            is an 8 data, 1 stop, no parity bulletin
Secretary is appropriate in terms of        Work for the Regional Educational           board. The document will be listed
availability of other funding sources for   Laboratories Program                        under the ‘‘OERI Regional Educational
the proposed activities.                    AGENCY: Department of Education.            Laboratories’’ menu. Questions
  In accordance with 630.32, the            ACTION: Notice of presolicitation
                                                                                        regarding only the electronic bulletin
Secretary announces the methods that        conference on draft statement of work       board should be telephoned to George
will be used in applying the selection      for the Regional Educational                Wagner at (202) 708–7811. Those who
criteria.                                   Laboratories Program.                       cannot interact electronically or telefax
  The Secretary gives equal weight to                                                   (202) 260–0525 for a copy of this
the selection criteria on significance,     SUMMARY: The Office of Educational          document should write to the U.S.
feasibility, and appropriateness. Within    Research and Improvement will conduct Department of Education, Grants and
                         Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices                                   15547

Contracts Service, 7th and D Streets,          applicants request one. Preproposal           objectives, it is anticipated that jobs will
SW., GSA Building, ROB–3, Room 3660,           conference requests should be made no         be created and that the nation’s
ROB–3, Washington, DC 20202–4724,              later than April 10, 1995.                    geothermal industry will be better
Attention: Laverne Reddick, Contract              DOE anticipates that this solicitation     positioned to compete and win in the
Specialist.                                    will result in the award of one or more       global marketplace. The sale of the new
  Dated: March 20, 1995.                       cooperative agreements. Substantial           power generated by the cost-shared
                                               involvement by DOE is anticipated.            project(s) and further growth of the
Sharon P. Robinson,
                                               Selections for negotiations are expected      geothermal industry will off-set the use
Assistant Secretary for Educational Research
                                               to be made on or about June 28, 1995.         of fossil fuels to generate electrical
and Improvement.
                                               All awards are expected to be made            power, thereby reducing the nation’s
[FR Doc. 95–7282 Filed 3–23–95; 8:45 am]
                                               prior to September 30, 1995.                  emissions of greenhouse gases.
                                               ADDRESSES: Applications shall be              Priorities
                                               submitted to: Procurement Services
                                               Division; Attention: SOL DE–PS07–               To promote the commercialization of
DEPARTMENT OF ENERGY                                                                         geothermal energy, DOE’s geothermal
                                               95ID13349 (Hallum/Bauer); U.S. DOE,
                                               Idaho Operations Office; 850 Energy           power initiative identified the
Energy Partnerships for a Strong                                                             utilization of previously undeveloped
Economy/Renewable Energy                       Drive, MS 1221; Idaho Falls, Idaho
                                               83401–1563.                                   geothermal resources and the use of
Commercialization—Geothermal                                                                 innovative technologies in power plants
Power                                             CFDA Number: The Catalog of Federal
                                               Domestic Assistance Number for this           to convert the geothermal energy to
AGENCY:  Department of Energy, Idaho           program is 81.087.                            electrical power as specific areas for
Operations Office.                                                                           emphasis in the solicitation of
                                               SUPPLEMENTARY INFORMATION: Energy
                                                                                             applications for new geothermal power
ACTION: Solicitation for Financial             efficiency and renewable energy               capacity.
Assistance: Energy Partnerships for a          projects entered into by both the public
Strong Economy/Renewable Energy                and private sectors are the cornerstone       Scope
Commercialization—Geothermal Power.            of the U.S. Department of Energy’s               All applications that can demonstrate
                                               (DOE) Energy Partnerships for a Strong        an existing or pending sales agreement
SUMMARY: Notice is hereby given that
                                               Economy. The purpose of various               for the power generated, and result in a
pursuant to Public Law 93–577, Federal         Energy Partnerships programs is to
Non-nuclear Energy Research and                                                              net increase in geothermal power
                                               strengthen the economy and reduce             generation, will be accepted and
Development Act of 1974; Public Law            greenhouse gas emissions. In support of
93–410, Geothermal Energy Research,                                                          considered. Applications that address
                                               this objective, DOE, in collaboration         either of the following two areas will
Development and Demonstration; and             with the geothermal industry and the
Section 2306 of the Energy Policy Act of                                                     receive a higher technical ranking than
                                               electric utilities, has developed an          applications that utilize currently
1992 (EPACT); the U.S. Department of           initiative for furthering the
Energy (DOE) Idaho Operations Office                                                         developed geothermal resources and/or
                                               commercialization of geothermal power.        conventional power plant energy
(ID) is seeking applications for cost-         A primary strategy of the initiative is the
shared research, development and                                                             conversion system technologies.
                                               acceleration of geothermal development           1. Installation of a plant that initiates
demonstration of geothermal power. A           through cost-shared projects.                 the commercial power production from
minimum 50% non-federal cost share                This solicitation requests applications    a new geothermal resource, accelerating
for the project is required. This notice       from industry for one or more                 the development of this new resource.
is solicitation document DE–PS07–              collaborative efforts to support the             2. Retrofitting existing plants and/or
95ID13349.                                     development of new geothermal power           constructing new plants to incorporate
FOR FURTHER INFORMATION CONTACT:               generation. These efforts are to promote      innovative improvements in power
Linda Hallum, Contract Specialist,             the commercialization of this energy          plant technology that will increase
telephone (208) 526–5545, facsimile            source, and result in a near-term             power generation from geothermal
(208) 526–5548. The Contracting Officer        increase in the amount of electrical          resources.
is Brad Bauer, (208) 526–0090.                 power generated from geothermal                  In order to differentiate from the
DATES: The effective date of this              energy for sale to an end user in the         expansion of an existing resource, for
solicitation is March 24, 1995. The            United States. The U.S. Department of         the purpose of this solicitation, a new
deadline for receipt of applications is 3      Energy, Office of Utility Technologies        geothermal resource is the first
p.m. MDT, May 16, 1995. Late                   will provide $800,000 in funding for          utilization of a geothermal reservoir for
applications will be handled in                one or more projects. The DOE funds           the production of electrical power.
accordance with 10 CFR 600.13.                 may be utilized only for activities              The application(s) selected for award
   Prospective applicants should request       directly related to the applicant’s power     will be subject to the quarterly reporting
the application package by March 30,           plant. Applications are solicited which       requirements normally associated with
1995 (which includes necessary forms,          will result in the sale in the United         DOE financial assistance awards. If the
assurances and certifications), by             States of new electrical power generated      selected application uses an innovative
writing to the DOE Contract Specialist.        from geothermal energy by the end of          power plant technology, the quarterly
Facsimile requests are authorized.             1997.                                         Technical Progress Report shall contain
Questions regarding this solicitation                                                        data and calculations which detail the
should be submitted in writing to the          Objectives                                    performance of this technology during
DOE Contract Specialist no later than            The objectives of this solicitation are     the progress reporting period. Any other
April 10, 1995. Questions and answers          to promote the commercialization of           use of the technology by the geothermal
will be issued in writing as an                geothermal energy for the production of       industry is also to be reported. If the
amendment to this solicitation.                electrical power, and to reduce the           selected application is the first
Preproposal conferences may be                 emission of greenhouse gases in the           production of power from a new
available if a sufficient number of            United States. By accomplishing these         geothermal resource, the quarterly
15548                   Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Notices

Technical Progress Report should               by the proposed project must be                If this is the first application of the
indicate whether there is any further use      demonstrated to exist, or to be pending.     geothermal reservoir for power
of this resource for the generation of                                                      production, the application is to provide
                                               Preparation of Applications
electrical power. The selected                                                              supporting documentation that clearly
application(s) will also be required to           Each application shall be submitted in    demonstrates this reservoir has not been
report on greenhouse gas reductions in         one volume. One original and nine            utilized previously to produce electrical
accordance with the reporting system           copies of each application are to be         power for commercial sale.
developed by the DOE Energy                    submitted. The applications should             If the application is for the expanded
Information Administration (EIA)               observe the following format, presenting     use of an existing reservoir, the
pursuant to EPACT 1605.b. The                  information as completely and concisely      projected impact on the reservoir’s
reporting guidelines for this program          as possible.                                 present production and/or injection
will be provided with the application             Applications submitted in response to     capacities is to be addressed.
package.                                       this solicitation must provide detailed        If electrical power and/or other
                                               program, management, personnel,              ancillary utilities are required for the
DOE Funding and Cost Sharing                                                                development of the resource for this
                                               power plant energy conversion process,
   The project(s) will be cost-shared,         site, environmental and budget               application, their availability is to be
with participant(s) providing a                information as further specified in this     discussed.
minimum of 50% of the costs. Total             solicitation.                                  If the applicant does not own, or
DOE funding is $800,000, regardless of            1. Cover Page: The cover page is to       otherwise control the availability and
the number of applications selected. (If       include the signature, title, address,       use of the resource, documentation is
a single application is selected it may                                                     required demonstrating that the
                                               telephone number, and fax number of
receive up to $800,000; if multiple                                                         resource provider will furnish the fluids
                                               the applicant’s authorized
applications are selected, the DOE share                                                    required for the new capacity during the
                                               representative. The cover page also is to
may total $800,000.) The DOE cost-                                                          stated project life.
                                               contain the copy number of the volume,         b. Power Plant Energy Conversion
sharing portion of this effort is limited      with the original volume identified as       System. The application is to provide a
to the following:                              ‘‘Original: Copy No. 1’’, and subsequent     description of the geothermal power
   1. Purchase of power plant                  copies identified as ‘‘Copy No. 2’’,         plant’s energy conversion system that
equipment,                                     ‘‘Copy No. 3’’, etc.                         will be used to produce the new power
   2. Power plant construction costs, and         2. Table of Contents: The application     for sale. This description is to detail the
   3. Tie-in to the existing electrical        is to include a table of contents and        power cycle and component operating
power grid system.                             page numbers corresponding to the            parameters to allow evaluation of the
   Although the DOE funding is                 elements outlined in these preparation       adequacy of the proposed system to
available in FY–1995, these funds do           guidelines.                                  provide the stated power production.
not necessarily need to be used during            3. Technical Summary: The                 The assumptions used relative to the
this fiscal year. The DOE funds are            application is to provide a one page         performance of the heat rejection system
intended to be used for the purchase           summary that furnishes a concise and         when determining the new generating
and/or installation of the power plant         informative description of the proposed      capacity of the proposed project are to
components. It is not intended that the        project. This summary should contain         be included in the power plant
DOE contribution be used for other             information which is releasable to the       description.
related activities, including ‘‘paper’’        public.                                        The description of the power plant
feasibility, environmental, or                    In order to expedite the evaluation       energy conversion system is to clearly
compliance studies and/or assessments;         process, the applications are to adhere      indicate whether it employs an
nor is it intended that the funds for this     to the following format, including use of    innovative technology that improves
solicitation be used for activities related    the indicated element titles. The            plant efficiency and is no